OTHER “YOU BE THE JUDGE” ARTICLES

OTHER "YOU BE THE JUDGE" ARTICLES

43 “I WANT TO STATE MY PREFERENCE”
The children are age 10 and 13. They talk to the judge in chambers and state their preference on where and who they want to live with. The court, in its order, relies on what the children say. Mom argues: “This is not proper. The children are too young to express their preferences.” Dad argues: “They are mature enough to do so. We are both excellent parents and the children should be able to express their preferences if they are mature enough. The judge felt they were mature enough.” What would you do? Should young children be able to express their preferences as to who they want to live with?
HOW THE COURT DECIDED:
            43. Dad wins. The mediator and judge both felt the young children were old enough to express their preferences and the court was willing to follow it. Marriage of Rosson (1986) 178 Cal.App.3d 1094.  Two factors here. The children expressed themselves to the judge in chambers. You should never ask the children to write declarations or letters as to where they want to live or who they want to live with. The courts look upon this as a form of coercion. Another factor is that this case was a modification of custody. The children have lived with the previous arrangement and can have a more informed basis for their preferences.

44 “I SHOULD BE REIMBURSED!” 
Parties separate and husband makes payments on various community property debts including the community home. Earnings after separation are considered separate property. At trial husband wants reimbursement for his separate property earnings used to make payments on the community debts. Wife argues: “No way, the law is that he would get reimbursement only if there was a specific agreement for reimbursement. Otherwise it is considered a gift.” Husband argues: “Her statement of the law is correct but this is different in that I made the payments after we separated. I should be entitled to reimbursement even if there is no specific agreement.” What would you do?
HOW THE COURT DECIDED: 
            44. Husband wins for the reasons he stated. General rule now is that the party who, after separation, uses their separate property income to pay community debts is entitled to reimbursement out of the community. Reimbursement is not automatic. It would not be ordered when the payments were made under circumstances in which it would have been unreasonable to expect reimbursement. Examples are when the payments really were a gift, where the paying party used the asset for their own use and the payments were equal to the rental value, where there was an agreement for no reimbursement or where the payment is really a form of Spousal Support. Marriage of Epstein (1979) 24 Cal.3d 76.

71. “HOW FAR BACK CAN CHILD SUPPORT GO?”   
Dad fathers a child when not married. Mom goes on AFDC welfare in 1993. Welfare comes after dad for reimbursement. Dad is not served till 1996. Should he have to pay reimbursement from 1993 or should it start three years later in 1996? Dad argues: “Previous case law holds that child support is only retroactive to the date the motion requesting it is filed. The motion was not filed till 1996 and so I should only be liable back to 1996.” Mom argues: “No, you should be liable back to when I went on welfare. The State of California should be reimbursed back to when they started paying me welfare payments for our child.” What would you do if you were the judge?  
 HOW THE COURT DECIDED:
            71. Dad lost. The non-custodial parent is liable for state furnished support commencing from the payment of AFDC benefits, subject only to the three year statute of limitations and his or her reasonable ability to pay. When the child is not receiving welfare benefits then the rule is that support is only retroactive to the filing date.  Riverside v. Burt (1999) 76  Cal.App.4th 355. 

       72. “MY WIFE DIED. WHERE IS MY PENSION PAYMENT?”
 
Retirement plan QDRO done where wife gets one half till she dies. She dies and retirement plan wants to cut his benefits in half and not give him the other half. Plan argues: “As per the retirement order she received half of the retirement plan. She has died and her interest died with her. You do not get the other half of the retirement that was going to her.” Ex husband argues: “This is not fair. The plan did not authorize a reduction in payments upon her death. She had no interest in my plan except by the QDRO and the QDRO did not specifically stipulate that her interest died with her and I would get only one half after her death. ” What would you do if you were the judge?!
HOW THE COURT DECIDED:
            72. Ex husband won. Upon wife’s death husband receives the full amount of the pension payment. If it was to be a reduction then the QDRO would have to specifically say so and it did not here. Marriage of Rich (1999) 73  Cal.App.4th 419.

67. “MY INHERITANCE SHOULDN’T COUNT FOR SUPPORT.”
 
Issue is if an inheritance received by dad of over $1 million should be considered in ordering Child Support. Dad argues: “It should not be considered. Family Code section 4058 does not include inheritances as a form of income for support.” Mom argues: “It is not fair. You inherited $240,000 in cash and spent in less than one year. Our daughter is not benefiting from this. You have two rental houses that are paid off and your current home is paid off. Our child should benefit from your wealth.” What would you do if you were the judge?  
HOW THE COURT DECIDED:
67. Dad lost. The inheritance in itself is not considered income. However the interest or money the inheritance produces is considered income. Also the fact that the house he was living in was paid off is a form of income, in that his cost of living has gone down. Kern v. Castle (1999) 75 Cal.App.4th 1442. 

  68. “MY RENTAL HOUSE SHOULD NOT COUNT FOR SUPPORT” 
Dad has rental property that he rents out for low rates. Mom wants the rents he could charge for the properties imputed for child support purposes. Dad argues: “Family Code section 4058(b) says that earning capacity may be considered by the court in ordering Child Support. It says nothing about rental property or income from assets. The court should only look to what I can earn from my job.” Mom argues: “This involves child support which is special in our laws. He should not be able to avoid the obligation to support his child by under utilizing income producing assets like the rentals.” What would you do if you were the judge?
HOW THE COURT DECIDED:
      68. Mom wins. Earning capacity is not limited to work. It can also include the parent’s ability to receive income from other assets they own. If he is renting the property for low rates the court should figure what he could rent it out for and impute that as income for child support. Marriage of Dacumos (1999) 76 Cal.App.4th 150. 
            In both the above cases the lesson is that the courts will strain to find ways to order child support. Child Support is special in our legal system.                        

47. “I’M STILL TRYING AFTER 15 YEARS” 
Marriage of 24 years. Ida wife wants to be a social worker. At first court hearing judge urges her not to go into this field. She does anyway. Original order was for Spousal Support for 2 years and then a “step down” order. Ida does not get a job. She is stressed. For the next 15 years she goes to court six times to always succeed in extending Spousal Support a few more years. Finally judge ends the spousal support money and just reserved jurisdiction over Spousal Support. Ida argues: “This is the field I want to go into. I do have psychological problems but this is the field I want. I have records of my search for employment. I should get another extension.” Court says: “Enough is enough. You have been going on and on for 15 years in a field you should not have been in the first place. I order that we will just reserve jurisdiction over Spousal Support and not order any amount.” What would you do if you were the court of appeals justice? 
HOW THE COURT DECIDED:
47. Court of appeal affirms the trial judge.

There was no evidence that she tried to deliberately wear out or oppress her ex-husband and she kept records and had evidence of her job search. However, the big picture of the case shows that Ida had no expectation of employment in spite of her job search. In spite of her evidence her long term conduct shows she isn’t really serious about getting a job.  Marriage of Schaffer (1999) 69 Cal.App.4th 801.