Selected Developments
2020 Update
Summarized below are some of the more important developments included in this update since the publication of the 2019 edition.
Attack on Trial Court Judgment
When a default was not caused by the attorney’s mistake, inadvertence, surprise, or neglect, it may not be vacated under CCP §473(b). The court’s determination may turn on its assessment of the attorney’s credibility. Darab Cody N. v Olivera (2019) 31 CA5th 1134. See §18.27.
Substantial evidence supported a trial court finding that IRC §529 account contributions and life insurance were “gifts mutually given by both spouses” to their children in accordance with an agreed-upon estate plan, and there was no breach of fiduciary duty under Fam C §1100(b). Marriage of Ciprari (2019) 32 CA5th 83. See §18.57.
Attorney Fees and Sanctions
An attorney who failed to appear for trial after affirmatively misrepresenting to the court that she was prepared to proceed on the scheduled start date and made no attempt to advise the court of her calendar conflict before trial was properly sanctioned under CCP §128.5 for subjective bad faith conduct. Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 CA5th 124. See §9.5.
Bankruptcy
In a case of first impression, a court of appeal found that the Uniform Voidable Transactions Act (CC §§3439–3439.14) applies to a premarital agreement in which the prospective spouses agree that upon marriage each spouse’s earnings, income, and other property acquired during marriage will be that spouse’s separate property. Sturm v Moyer (2019) 32 CA5th 299. See §§18.61, 22.70.
Child Custody and Visitation
A California court erred in relying on a stipulation of parties to a custody proceeding that California had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to modify a North Carolina custody order because the Act contains no provision for jurisdiction by stipulation. Marriage of Kent (2019) 35 CA5th 487. See §§7.7, 7.11.
Although the trial court must consider the statutory factors in Fam C §3044(b)(2)(A–F) when determining whether the presumption under Fam C §3044(a) has been overcome, the court in S.Y. v Superior Court (2018) 29 CA5th 324 diverged with previous case law holding that each factor must be specifically stated in the statement of reasons. Rather, the trial court need only provide sufficient reasons to permit meaningful appellate review. See discussion at §7.23.
Legislation effective January 1, 2020 states that courts may not consider the sex, gender identity, or gender expression of a parent, legal guardian, or relative in determining the best interests of the child. Fam C §§3011(b), 3020(d), 3040(c) (Stats 2019, ch 115). See §7.26.
English fluency is an improper factor for a court to consider in assessing a child’s best interest when making a determination of custody, in the absence of facts showing actual harm due to language. S.Y. v Superior Court (2018) 29 CA5th 324. See §7.32A.
Child Custody Evaluations
A trial court properly sanctioned an attorney under Fam C §3025.5 for asking deposition questions that implicitly disclosed confidential information from child custody evaluation in the presence of a videographer and a court reporter. Marriage of Anka and Yeager (2019) 31 CA5th 1115. See §7.49.
Child Support
A third party who seeks reimbursement from a parent who has satisfied a court-ordered child support obligation is unlikely to prevail under Fam C §3950, which provides recovery of the reasonable value of necessaries provided to a child when the parent neglects to provide them. Look v Penovatz (2019) 34 CA5th 61. See §8.4.
After a grandmother was awarded custody of a minor child and support from the father, a local child support agency could seek a support order against the mother because the grandmother’s support was no longer voluntary, but was court-ordered, and there was no evidence of any agreement between the mother and grandmother. The grandmother’s assumption of sole custody did not eliminate the mother’s legal obligation to support the child because the mother’s parental rights had not been terminated. County of San Diego Dep’t of Child Support Services v C.A. (2019) 34 CA5th 614. See §8.4.
A trial court’s refusal to consider the request of a parent seeking costs for education under Fam C §4062(a)(2) that was not “elective,” in order to become self-supporting and not reliant on public assistance, was in error and remanded for further consideration. Greiner v Keller (2019) 36 CA5th 332. See §8.24.
Domestic Violence
A husband’s repeated attempts to communicate with his wife violated a temporary restraining order and breached her peace under the Domestic Violence Prevention Act (Fam C §§6200–6409). N.T. v H.T. (2019) 34 CA5th 595. See §11.6.
A restraining order prohibiting a party from posting “anything about the case on Facebook” was overbroad, constituting an invalid prior restraint on the restrained party’s constitutionally protected right to free speech. Molinaro v Molinaro (2019) 33 CA5th 824. See §11.6.
Discovery
Effective January 1, 2020, CCP §2023.050 requires a court to order a $250 sanction payable to the requesting party, upon a finding that a party failed to respond in good faith to a request for documents or for an inspection demand; produced the requested documents within 7 days of a motion to compel that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith; or failed to meet and confer in person, by telephone, or by letter to resolve any dispute regarding the request. A court may require an attorney sanctioned under this section to report the sanction to the state bar within 30 days of the imposition of the sanction. Stats 2019, ch 836. See §13.43A.
In order to facilitate the discovery process, a party requesting or propounding written interrogatories or requests for admission may request that the other party provide the documents in electronic format within 3 court days of the request, except as specified. If the responding party requests and receives requests for interrogatories in electronic format, it must include the text of the interrogatory immediately preceding any response. See §25.19.
In order to facilitate the discovery process, the legislature has enacted processes for the exchange of written interrogatories and requests for admission by electronic format effective January 1, 2020. CCP §§2030.210(e), 2033.210(e). Stats 2019, ch 190. See §§25.19, 25.21.
Enforcement
Effective September 1, 2020, CCP §703.520 is inoperative and repealed as of January 1, 2021. New CCP §703.520 is added and becomes operative September 1, 2020, stating that a claimant may file a claim of exemption with the levying officer either in person or by mail and would specify that the period for filing the claim is 15 days if the judgment debtor is personally served with a notice of levy on the property claimed to be exempt, and 20 days if the claimant is served with notice by mail. Stats 2019, ch 552. See §20.30.
In Forma Pauperis Litigants
In order to facilitate equal access to the courts embodied in the public policy of Govt C §68630(a), an official court reporter or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request. Jameson v Desta (2018) 5 C5th 594. Jameson applies retroactively to all cases not yet final on appeal. Dogan v Comanche Hills Apartments, Inc. (2019) 31 CA5th 566. See §10.69.
Judicial Council Forms and Court Rules
Revised Judicial Council forms and California Rules of Court have been inserted throughout the text.
Jurisdiction
California may not exercise specific personal jurisdiction over a nonresident in a paternity action when the mother and child live in California and conception occurred in another state based on the argument that the man knew that the woman resided in California and could foresee California effects (i.e., the conception of a child) from their relations. David L. v Superior Court (2018) 29 CA5th 359. See §4.4.
Marriage and Domestic Partnership
A spouse who discovered her husband’s infidelity and continued to cohabitate and maintain a sexual relationship with him for 8 months afterwards is not entitled to an annulment. Marriage of Goodwin-Mitchell & Mitchell (2019) 40 CA5th 232. See §3.13.
Effective January 1, 2020, registered domestic partnerships are available to all couples over the age of 18, regardless of age and sexual orientation. Fam C §297 (Stats 2019, ch 135). See §22.119.
Parentage
A trial court erred in failing to order genetic testing of alleged father because paternity was a relevant fact that had to be established for collection of child support by the county. County of Riverside v Estabrook (2019) 30 CA5th 1144. See §8A.13, 8A.16, 8A.19.
Effective January 1, 2020, the procedures and requirements under which a voluntary declaration of parentage may be established and challenged are modified. Fam C §§7570–7581 (Stats 2018, ch 876). See §8A.26.
The legislature has eliminated the use of gendered pronouns in the Family Code. See Stats 2019, ch 115.
A biological father who had a relationship with the child was found to be a third parent even though the child had two parents under Fam C §7540, after having developed a close and bonded relationship with the child over the course of 3 years with the consent of the child’s mother and her husband. C.A. v C.P. (2018) 29 CA5th 27. See §§8A.13, 8A.17, 8A.25.
Prenuptial Agreements
For premarital agreements executed after January 1, 2020, the legislature has clarified that the protections of Fam C §1615(c) apply even if a party is represented by an attorney. This revision supersedes, on a prospective basis, the holding in Marriage of Cadwell-Faso & Faso (2011) 191 CA4th 945, in which the court of appeal held that strict compliance with the 7-day waiting period didn’t apply to a party who was represented by counsel from the outset of a premarital agreement transaction. The 7-day waiting requirement does not apply to “nonsubstantive amendments that do not change the terms of the agreement. Fam C §1615(c) (Stats 2019, ch 193). See §5.27.
Procedure
A couple was deemed to have agreed in writing to waive the Fam C §4337 spousal support termination provision because they did not check a box on a local form that would have allowed the parties to “opt in” to the termination of support on remarriage; by leaving that box blank the court inferred the agreement of the parties for support to continue beyond remarriage. Marriage of Martin (2019) 32 CA5th 1195. See §6.27.
A request for Fam C §271 sanction-based attorney fees is not a request for “affirmative relief” within the meaning of Fam C §213. Marriage of Perow & Uzelac (2019) 31 CA5th 984. See §11.35.
The right to live testimony under Fam C §217 may be forfeited. Marriage of George and Deamon (2019) 35 CA5th 476. See §11.51.
Property
The trial court properly used the Van Camp tracing approach when substantial evidence supported a finding that the contributions of people other than the husband caused the increase in company’s stock value after the date of marriage. Marriage of Brooks (2019) 33 CA5th 576. See §5.16.
Trial courts may consider and evaluate tracing methods other than Pereira and Van Camp, and may credit reasonable, well-supported, and nonspeculative expert testimony to determine whether a tracing proponent has successfully traced commingled assets to a separate property source. Marriage of Ciprari (2019) 32 CA5th 83. See §5.23.
For purposes of evaluating unconscionability at the “time of enforcement” of a spousal support waiver in a premarital agreement, the relevant point in time was at the bifurcated trial, not 2 years later at the trial on reserved issues when circumstances had changed. Marriage of Miotke (2019) 35 CA5th 849. See §5.27.
A “Trust Transfer Deed” lacking an express statement specifying what interest in real property was to be granted from husband to wife was too ambiguous to effectuate a transmutation, despite the use of the words “grant” and “gift.” Marriage of Begian & Sarajian (2018) 31 CA5th 506. See §5.28.
Spousal Support
The trial court abused its discretion by relying on 2013 taxable income as sole measure of income when modifying temporary child and spousal support when 2014 tax returns were in evidence, requiring reversal of the support award. Marriage of Ciprari (2019) 32 CA5th 83. See §6.3.
When spousal support is governed by a marital settlement agreement or stipulated judgment that does not explicitly limit or waive the change of circumstances rule, the trial court’s changed-circumstances determination must give effect to the intent and reasonable expectations of the parties as expressed in the agreement. Marriage of T.C. & D.C. (2018) 30 CA5th 419. See §6.25.
