Summarized below are some of the more important developments included in this update since the publication of the 2021 edition.
Appeals, Writs, and Attaches on Judgment in Trial Court
Mandatory relief under CCP §473 is not available as matter of law when attorney error could not have caused a default that occurred before attorney was retained to act on the case. Bailey v Citibank, N.A. (2021) 66 CA5th 335. See §18.27.
One spouse’s failure to disclose material information regarding community assets impairs the other spouse’s community interest, even if the investment at issue earned a profit for the community. Marriage of De Souza (2020) 54 CA5th 25. See §18.57.
California Rules of Court 8.108(e) extends the time to appeal only for valid reconsideration motions under CCP §1008(a). The rule makes no mention of renewed motions under CCP §1008(b). Even assuming the rule may apply to renewed motions, however, a renewed motion is not valid if it is not supported by an affidavit setting forth new or different facts, circumstances, or law. Rowan v Kirkpatrick (2020) 54 CA5th 289. See §19.51.
Attorney Fees, Sanctions, and Professional Responsibility
Sanctions are limited to attorney fees; Fam C §271 does not permit an award of fees to a self-represented party, even one who is an attorney. Marriage of Erndt & Terhorst (2021) 59 CA5th 898. See §9.4.
The court has the discretion to order fees payable by a trust, stemming from the successful motion to join the trustee as a third party to the dissolution action. Marriage of Wendt and Pullen (2021) 63 CA5th 647. See §9.8.
A lawyer may not use or reveal confidential information provided by a prospective client during a consultation, and must treat that person similarly to a former client, even if no representation results. This is true even if the information would be material to the representation of an existing client of the lawyer or the lawyer’s law firm—the duty of confidentiality to the prospective client outweighs the duty to inform the current client. California State Bar Formal Opinion No. 2021–205. See §23.7A.
A 2020 ethics opinion by the California State Bar addresses a lawyer’s ethical obligations with respect to unauthorized access by third persons to electronically stored confidential client information in the lawyer’s possession. See discussion of California State Bar Formal Opinion No. 2020–203 in §23.20.
In cases in which the nondebtor spouse caused an injury, the debtor spouse may try to file bankruptcy to protect the community assets from collection actions, on the theory that the debtor spouse did not have the requisite intent needed for a nondischargeability action under 11 USC §523(a)(6). A creditor can still file a nondischargeability action against the community, even when the nondebtor spouse does not file bankruptcy. See Willard v Lockhart-Johnson (In re Lockhart-Johnson), BAP No. CC-20-1161-GKT (BAP 9th Cir Jul 28, 2021) in §22.116A.
A trial court properly denied a Chilean father’s petition for return of his children under the Hague Convention because his excessive drinking and domestic violence posed grave risk of harm to children and he failed to establish existence of ameliorative measures to ensure their safety. Marriage of Emilie D.L.M & Carlos C. (2021) 64 CA5th 876 See §7.4B
A mother’s appeal of order returning her child to Denmark was moot because the child was nearly 18 years old and the Hague Convention return provisions do not apply after child turns 16. The court did, however, retain jurisdiction to hear a request for fees and costs. Noergaard v Noergaard (2020) 57 CA5th 841. See §7.4B.
In denying a father’s petition to return his child to France, the district court erred as a matter of law in determining that his failure to provide financial support was sufficient to establish that he abandoned the child, that he was not exercising his custody rights, and that mother’s removal of child therefore was not wrongful. The court erred further in declining to return child based on a “grave risk” defense without considering alternative remedies available to protect child and permit child’s return for a custody determination, and in relying in part on the COVID-19 pandemic with no evidence addressing specific pandemic-related risks associated with return to France. Jones v Fairfield (9th Cir 2021) 13 F4th 754. See §7.4B.
For a new section on the enforcement of foreign custody orders and discussion of Marriage of Wang & Zhou (2021) 62 CA5th 1098, in which the trial court properly denied registration of a Chinese order because a father established that the Chinese court, which had jurisdiction under the UCCJEA, had stayed its custody order pending an appeal, see §7.15A.
New legislation amends Fam C §3042 and changes the rules around a child addressing a court regarding custody or visitation. Stats 2021, ch 786. See §7.27.
A trial court did not err in declining to add the children of protected parties in a Domestic Violence Restraining Order (DVRO) and awarding supervised visitation, despite mother’s restraining order because (1) it did not believe father presently posed any threat or danger to the children; and (2) it wanted the children and father to begin working on repairing their relationship, which the court felt was in their long-term best interests. J.H. v G.H. (2021) 63 CA5th 633. See §7.58.
New legislation amends Fam C §6306 and requires that court must make a written record regarding whether an individual restrained under the Domestic Violence Protection Act (DVPA) has relinquished a known firearm or ammunition, and provided proof of the required storage, sale, or relinquishment of the firearm or ammunition. Absent this evidence, the clerk must notify law enforcement, who must take all actions necessary to obtain the firearm or ammunition of the restrained person as soon as practicable. Fam C §6306(f). See §11.6.
Depriving a parent of access to their child may, based on the totality of the circumstances, destroy the mental or emotional calm of the other parent and qualify as abuse under the DVPA. Marriage of F.M. & M.M. (2021) 65 CA5th 106. See §11.6.
One parent’s aggressive and controlling behavior related to a child’s two-hour urgent care visit, coupled with a violation of custody order, was considered conduct rising to the level of destroying the victim’s mental and emotional calm within the meaning of the DVPA. Marriage of L.R. and K.A. (2021) 66 CA5th 1130 See §11.6.
Effective January 1, 2022, all petitions seeking domestic violence restraining orders under Fam C §§6320–6361 and domestic violence temporary restraining orders under Fam C §§240–246 may be submitted electronically in every trial court. Courts must accept these filings consistent with the timeframe in Fam C §246. The notice of court date, copies of the request to mail on respondent, and the temporary restraining order, if granted, shall be remitted to the petitioner electronically, unless the petitioner elects to received documents by regular mail or to retrieve them from the court. Fam C §6306.5(a)(2)-(3) (Stats 2021, ch 681). See §11.6.
Effective January 1, 2022, a party or witness may appear remotely at the hearing on a petition for a domestic violence restraining order. The superior court of each county must develop local rules and instructions for remote appearances, which must be posted on its Internet website. Fam C §6308 (Stats 2021, ch 686). See §6.10.
Evidence of abuse after the filing of a DVPA petition is relevant, particularly when that abuse occurs after a temporary restraining order has been issued. Marriage of F.M. & M.M. (2021) 65 CA5th 106. See §11.6.
New legislation effective January 1, 2022, added CCP §367.75 (Stats 2021, ch 214) and allows, even after the expiration of the emergency rules, a litigant to request to appear remotely for a conference, hearing, or proceeding, subject to the court’s authority to require an attorney or party’s physical appearance under specified circumstances. See §7.53A.
Emergency Rules Related to COVID-19
The Judicial Council of California has enacted changes to the California Rules of Court due to the Covid-19 pandemic. The latest version of the emergency rules may be found at https://www.courts.ca.gov/documents/appendix-i.pdf. Practitioners should frequently consult local rules for any county-specific emergency rules, as these pandemic-related rules are temporary and subject to change over the course of the pandemic. Most California courts post current information regarding local rules on their websites. The rules are included in the text of this title as appropriate.
Effective January 1, 2022, new California Rules of Court Rule 2.901 governs the lodging of electronic exhibits. See §25.27A.
Evidence Code §801 does not limit an expert to the use of admissible evidence in forming an opinion if the information is of a type reasonably relied upon by professionals in the relevant field. Zuniga v Alexandria Care Center, LLC (2021) 67 CA5th 871. See §25.35.
Plaintiff met the burden of showing that a Canadian defendant was subject to specific jurisdiction in California, as defendant targeted online conduct at California, including communicating directly with plaintiff, posting on a website owned and operated by a California resident with a California audience, and threatening to harm plaintiff in California. Yue v Yang (2021) 62 CA5th 539. See §12.5.
Judicial Council Forms and Court Rules
Revised Judicial Council forms and California Rules of Court have been inserted throughout the text.
It was not appropriate for the court to recognize three parents when the mother’s husband was legally recognized as the child’s father and substantial evidence showed that the biological father’s lack of relationship with the child indicated that having two parents would not be detrimental to the child. M.M. v D.V. (2021) 66 CA5th 733. See §8A.25.
Parentage actions filed after January 1, 2023, are governed by Fam C §7643.5, which authorizes assisted reproduction and surrogacy hearings or trials (those held under Fam C §§7613(f), 7630, or 7960–7962) to be held in closed court. The Judicial Council must, on or before January 1, 2023, create a new form or modify an existing form to require a party initiating those specified hearings or trials to designate the action or proceeding filed under those provisions. Fam C §7643.5 (Stats 2021, ch 52). See §8A.46.
A community that has received a pro tanto interest in separate property under Moore/Marsden is not also entitled to reimbursement for payment of mortgage interest and property taxes. Marriage of Nevai & Klemunes (2020) 59 CA5th 108. See §5.25.
Failure to comply with the requirements of Fam C §1615 renders a premarital agreement void—not voidable—and subsequent ratification of the agreement is impossible as a matter of law. Knapp v Ginsberg (2021) 67 CA5th 504. See §5.27.
Acceptance of the deed is required to effectuate a valid transfer, and therefore is a valid transmutation of one spouse’s property interest to another under Fam C §850. Marriage of Wozniak (2020) 59 CA5th 120. See §5.28.
In Marriage of Kelpe (2021) 64 CA5th 103, the court of appeal upheld the trial court’s characterization of a lump-sum cash payment received from a retirement plan by husband upon leaving employment with an accounting firm after a marital dissolution as separate property. The court held that the payment was a stand-alone benefit that respondent acquired when they became a partner in the firm, which occurred after the parties’ date of separation, not an enhanced community benefit derived from the retirement benefits respondent accrued during the marriage. See §5.36A.
Individuals often rely on estimates from the Kelly Blue Book to determine the value of their automobiles, including in family law cases, and this method was recognized as a “widely accepted” source for this purpose. People v Zorich (2020) 55 CA5th 881. See §5.67.
When setting a temporary support amount, the court must be careful to use a representative sample period. In Marriage of Pletcher (2021) 68 CA5th 906, the trial court abused its discretion in calculating husband’s income on his single highest grossing year, when his income fluctuated significantly year to year. See §6.3.
A party’s contributions toward an adult child’s college education should be considered under Fam C §4320(e) in determining spousal support. Marriage of Maher & Strawn (2021) 63 CA5th 356. See §6.10.
A deduction for alimony under IRC §215 is permitted only to the obligor spouse. It may not be claimed by another who may pay the alimony on behalf of the obligor. 26 CFR 1.215-1(b); Berger v Comm’r, T.C. Memo 2021-89. See §6.29.