Below are cases that you may be interested in. They may or may not apply to the situation you are in. The below are actual California cases that went to the court of appeal. Some are old and some new. Please review them and try to decide how you would rule. What do you think is fair? The official citation of the case is at the end. You should review the case itself if you think it applies to you. 
          The numbers are identification control numbers for our office. If you think the case applies to you remember the number. We can research the case and issues based on the control number. 


            The law can be involved. The below simplified fact situation is based on California family law and family law related issues. The appellate court rulings are at the bottom. There are many misunderstandings and this helps for a better understanding. Think about what your ruling would be then read what the courts did. Always read the actual case and consult an attorney if you think this case applies to you. If you know of neighbors, co-workers, friends or anyone that may have family law interests please fax, e-mail or pass this on to them. They will be interested. Thank you!

            You should read the instructions on legal research in section 1 of QDRO orders.

Some of the below are done in groups of two. The case is on top and the court decision below for both. Please refer to the numbers. There are so many here we suggest you use Control + F to use a key word search. If you think the case applies to you then read the case. Don’t rely just on the below. 

Husband wrote two trivia books. As per their divorce settlement agreement wife was entitled to one half of  the royalties from the books. After the divorce ex-husband sued the producers of “Trivial Pursuit” for copyright infringement based on his book. Should ex-wife be entitled to part of the proceeds from the copyright infringement action? He says “no” because all this happened after the divorce was final and copyright belongs only to the author. You be the judge. What would you do?

Two minor teens (Rodney and Cynthia) had voluntary sexual relations and Cynthia became pregnant and had a baby. There were various medical bills for the birth not covered by insurance. Cynthia’s parents got stuck for the bill. They sue the parents of Rodney for reimbursement of the bills. They claim that under Civil Code section 1714.1 that parents are liable for the willful misconduct of their minor child. Cynthia’s parents argue that Rodney’s parents should have to pay for at least half the bills. It was their minor son Rodney who committed willful misconduct in getting the teen mom Cynthia pregnant. What would you do. You be the judge!


            1. The court of appeal held that the royalties from the books were community property. If he wrote the books during the marriage they are community property. If he had a cause of action arising from the community property copyright interest she should share in it one half. Bottom line is she received a one half interest in the copyright infringement action. Marriage of Worth (1987) 195 Cal.App.3d 768.

            2. Parents of teen mom Cynthia lose. Consensual intercourse with a minor is not “willful misconduct” within the meaning of Civil Code section 1714.1. There could be criminal and child support obligations against teen dad Rodney but not his parents. Cynthia M v. Rodney E. (1991) 228 Cal.App.3d 1040. Keep in mind that these were just medical bills for Cynthia and not the minor baby. Under Family Code 3930 the grandparents would not be liable for child support for the grandchild when the mother is a minor.

            3. THE CASE OF THE GAY DAD.  
Divorce case and dad is gay. Mom wants order that he cannot have his son stay overnight with him when there is another homosexual in the house besides dad. Mom argues: “Homosexuality is prohibited in our religion and our son is receiving religious instruction. Staying overnight with his dad is a bad influence.” Dad argues: “I am not raising my son to be homosexual. I should be able to have my son overnight even when there is another homosexual in the house. It does not do damage to our son.” How would you rule. You be the judge! 

            4. THE CASE OF THE BROKE MOM.  
Dad gets mom pregnant and she has the baby named Savannah . She sues dad in a paternity action. Dad offers and mom accepts offer from dad of $15,000 in exchange for her to dismiss her case and make an agreement never to sue him for child support. Dismissal is filed in court and mom gets the money. She spends it and ends up on welfare. She now wants to open the case and get money for child support. Dad argues: “We were both represented by attorneys. She knew what she was doing. As per our agreement I should not have to pay.” Mom says: “Sure I made the agreement and spent the money. However our daughter, Savannah , needs money to live on.” How would you rule? You be the judge!


            3. Ruling for dad.
Visitation with the other parent is encouraged in our law. An affirmative showing of harm or likely harm to the child is necessary in order to restrict parents visitation. The court could find no evidence of detriment to the child to support restricted visitation with dad. Marriage of Birdsall (1988) 197  Cal.App.3d 1024. What if Dad had AIDS? Would that change things? The court is silent on this matter.

            4. Ruling for mom.
The agreement is not enforceable. The money was originally for the minor Savannah . Savannah was not represented by a guardian at time of the $15,000 settlement. The mother cannot bargain away the support that is for the minor child. Dad must pay child support. Shasta v. Caruthers (1995) 31 Cal.App.4th 1838.

Before marriage husband and wife made a written pre-nuptial agreement that the children would be raised in a certain religious faith. Both signed the agreement. Divorce takes place. Parties have joint legal and joint physical custody. Mom says: “I want to raise our son in a different religious faith. It will do no harm to our son to learn two religions.” Dad says: “We made a solemn written agreement before we ever married to raise our son in a certain religious belief. This written agreement should be enforced.” How would you rule? You be the judge!

            6. THE CASE OF THE LAZY TEACHER.   
Mom had custody and was a license public school teacher. She could have gotten a job teaching full time in a public school like her ex-husband. She did not and got a part time job paying much less. Dad argues: “The court should impute a higher income to her (so he is able to pay less child support) because she could easily get a job paying much more than the present job. Mom argues: “I should not be forced to take a certain job. My part time job enables me to be with our child more, be a more loving parent and I am able to pursue an advanced degree.” How would you rule? You be the judge!


            5. Mom wins.
A parent will not be prevented from involving the child in the parents religious activities absent a clear affirmative showing of harm. The pre-nuptial written agreement is not enforceable. It violates the United State Constitution’s first amendment in that a person is free to change their religion. Keep in mind this was both joint legal and joint physical custody. If child was with one parent most of the time the ruling might be that the party with physical custody could establish religious upbringing. Marriage of Weiss (1996) 42 Cal.App.4th 106

            6. Mom loses.
If a parent is unwilling to work despite the ability and the opportunity, earning capacity may be imputed. California law is that each parent should pay for the support of the children according to his or her ability. Keep in mind the court is not ordering her to take a certain job. Only that the amount of support she will receive will be less. Marriage of LaBass and Munsee (1997) 56  Cal.App.4th 1331.

            7. THE CASE OF WHO IS THE DAD?  
Mom had sexual relations with several different men in the same time period. Years later, she identified “dad” as the father of the child. The blood test indicates that there is a 99.69 percent chance that he is the father of the child. Dad argues: “Yes we did have sex and the tests indicate that I am probably the father. However this is of such importance and the financial obligation for support are so great that the other men should be tested also.”  Mom argues: “The evidence is so strong that we should not have to test the other men and disrupt their lives.” How would you rule? You be the judge!

Husband and wife were divorced. They divided the interest in husbands retirement plan one half each. Later the plan is amended so that it is worth much more than expected. There were additional pension benefits later that neither, apparently, knew of. Ex-wife argues: “We did not know of these additional benefits that later came to light after the plan was amended. I should have one half.” Ex-husband argues: “We made the division in the judgment in the past. The plan was amended after the judgment and so I should be the only one to benefit from the additional benefits after the judgment.” How would you rule? You be the judge!


            7. Dad lost.
The likelihood is so great that it triggers the statutory presumption of paternity. It is established that the mother had sex with the dad here. The fact that there are other men is a factor but with the likelihood of fatherhood in the man here so great it is not necessary to test the other men. This case has an excellent discussion of blood, DNA and HLA tests.  El Dorado v. Misura (1995) 33  Cal.App.4th 73

            8. Ex-wife wins.
The order was that she receive one half the plan. The fact that other interests came out later is just as if they had been omitted in the judgment. Neither party could see that the plan would be amended to benefit the ex-husband. She should be able to claim her one half just as if the parties accidentally omitted this interest in the first place. Marriage of Melton (1994) 28 Cal.App.4th 931.

Dad is well paid in a salaried job. He quits to start his own business. He believes that at first he won’t make that much but soon he will make more than before and increase child support. This doesn’t happen. He seeks to lower child support. Mom wants the court to “impute” the higher income he was making before for support. He says: “I am not trying to ignore my children. I really believed I could make more money and pay more support. I should not be penalized for this temporary downturn in business. I wanted the freedom of self employment and the chance to make more money” She says: “Child support comes first. Your freedom is restricted by your need to pay child support. Therefore the court should impute your previous high income for child support purposes.” How would you rule? You be the judge!

 A 34 year old woman seduced a 15 year old boy and became pregnant. She gave birth to a daughter and later applied for welfare. Should the father be obligated to pay child support even though he is a victim of “statutory rape” when she had sex with a minor? Father argues: “To force me to pay child support when I am a victim of statutory rape violates public policy. I should not have to pay for being sexually exploited by this adult woman. To make me pay violates the California Constitution that provides that ‘all person who suffer losses (here having to pay child support) as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for the losses they suffer.’ It is not fair that I be a victim and pay child support also. Let welfare pay for the child” Mom argues: “He consented to sex. The child needs to be supported regardless.” How would you rule? You be the judge!


            9. Court rules for mom.
Child support will be figured on the previous high paying job. His child is not a voluntary participant in his risk taking. His actions may be sincere but the bottom line is the children need the support. He should have put extra child support money away in the bank before he started his business. The children’s interests are top priority. Marriage of Padilla (1995) 38 Cal.App.4th 1212.

            10. Court rules for mom.
He has to pay child support (welfare reimbursement). California law provides that every child has a right to support from both parents. The age of the father in a paternity proceeding does not excuse support obligations.  San Luis Obispo v. Nathaniel J. 50  Cal.App.4th 842.

During marriage wife works for Palm Springs Aerial Tramway and embezzles large amounts of money. She uses the money for expenses of maintaining her family. Husband does not know she is embezzling the money. Wife is caught and a settlement is entered into that she repays the Tramway $150,000. Parties get divorced. Should the entire $150,000 repayment to the  Tramway be allocated to wife? Husband argues: “I had no idea she was doing this. She is a thief and should pay the entire amount.” Wife argues: “I used all the money I embezzled for both of us. We both benefited from my dishonesty. Because we both shared in the benefit we should share some of the debt and not have it entirely dumped on me!” How would you rule? You be the judge!

Dad is a TV personality. At the time of the order on child and spousal support he was making good money. He goes back to court and requests that it be lowered because his income is about half of what it was. Dad argues: “I am looking for jobs and trying to make more money. I am not deliberately shirking in getting a better paying job. The TV personality market is not that good now. Child and spousal support should be reduced.”  Mom argues: “This is for support of his child and me. It is special and he should be ordered to pay. I suspect he is not making more just to hurt me and our child.” How would you rule? You be the judge!


            11. Wife wins.
Although the wife was the thief, the fact is that the community (both parties) shared in the benefit of her dishonesty. Therefore the community should have to share part of the cost of the repayment. Marriage of  Bell (1996) 49 Cal.App.4th 300.

            12. Dad wins.
The court lowered both child and spousal support. There was no evidence of dad deliberately shirking his support obligations. There was no evidence that he had failed to make reasonable efforts to obtain employment that would pay more. Bottom line is that his income is lower so support should be lowered. Marriage of Philbin (1971) 19 Cal.App.3d 115.

Husband developed TV series called Star Trek. The series is a commercial failure. In divorce husband gets copyright and other rights. Wife gets one half interest in all future profit participation income from Star Trek to which they are entitled. Later Star Trek makes huge profits from two later ventures called The Next Generation and Deep Space Nine and various movies. Wife argues: “I should receive half the profits from the later ventures and the movies. They are a continuation of the original future profit participation income.” Husband’s estate argues: “She should only receive profit participation income from the original Star Trek and not the later movies and TV programs. The court agreement was too vague for her to get an interest in all the later developed programs.” How would you rule? You be the judge!

Husband is ordered to pay spousal support. He later quits his high paying job (too much stress and depression) to become a priest. His income is zero. He does have about $70k in assets. Ex-husband goes to court and requests that Spousal Support be reduced to zero. He argues: “This is Spousal Support and not child support. Her income has gone up. I am acting in good faith and not just to avoid paying Spousal Support.”  She argues: “He just doesn’t want to pay Spousal Support. It is no different than if he wanted to stop all work and spend the rest of his life surfing. The court should impute the income he could be making. Also a lien should be set up from those $70k in assets to pay me Spousal Support.” How would you rule? You be the judge!


13. For husband’s estate on the issue above.
She only gets an interest in the original Star Trek and not later developed programs. The agreement was vague. Wife has failed to show that the later developed Star Trek profits were included in the original divorce agreement. Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634

14. Ex-wife lost.
Spousal Support lowered to zero and no lien on his $70k. The evidence was that he did not quit his job to avoid Spousal Support and he was acting in good faith. Marriage of Meegan (1992) 11 Cal.App.4th 156. The court might have decided differently if the money was for child support rather than spousal support.

Dad is paying both child and spousal support. Dad quits his job to go to medical school and has no income. He brings a motion to lower child and spousal support. Dad argues: “My lifelong dream has been to go to medical school and be a doctor. I am improving myself. This is not deliberate conduct just to void my responsibilities. The court should use my actual earnings and not my earning capacity. She can get money out of the home we are selling.” Mom argues: “I am unemployed. His good faith is beside the point. We have two children to support. The court should consider his earnings capacity.” What would you rule? You be the judge!          


            15. Dad lost.
Good faith has nothing to do with it. He has kids to support. We look to his ability to work, his willingness to work and an opportunity to work. All three are present. The court will apply the earning capacity standard to derive the amount of support for the children (and the ex-wife here). Marriage of Ilas (1993) 12 Cal.App.4th 1630.

            18. THE CASE OF THE SEALED FILE. 
Journalist wants to see the divorce file of the respondent elected judge. The court has sealed the file. Journalist argues: “It should be unsealed because of freedom of the press and the public’s right to know the facts of these public proceedings concerning an elected public official.” Respondent argues: “There is no compelling right for the public to know of the ‘dirty linen’ in the divorce file. Both my wife and I wanted it sealed and the judge ordered it. The journalist just has it out for me. By their private nature divorce files should be sealed against the public.” How would you rule? You be the judge!


            18. Journalist wins.
The law favors maximum access to judicial proceedings and court records. Marriage of Lechowick (1998) 65 Cal.App.4th 1406. Parties could ask for restricted viewing of the file so prying high school students could not see the file. The court clerk would stand there and check their ID cards. Be careful about what goes in the court file. A presentation of evidence could be made and the documents returned at the end of the proceeding upon request usually. If they won’t seal the file for a judge then they probably won’t seal the file for you. 

            19. “I WANT TO VISIT WITH MY CHILD AS A DAD”  
Dawn and Frank are married and then separate. Dawn moves in with Jerry and gets pregnant by him. Dawn returns to her husband and resumes her marriage. Jerry’s baby is born to Dawn and Jerry wants visitation. There is no conclusive presumption of paternity in Frank since the parties were not cohabiting at time of conception. Jerry argues: “I should have visitation with my son. A biological father has a liberty interest, protected as a matter of substantive due process, in being permitted to develop a parental relationship with his son. I have even taken a parenting class.” Dawn and Frank argue: “Jerry does not meet any of the statutory criteria for presumed fatherhood. Even if he is the biological father the law gives him no relief. The sanctity of the family must be preserved.” What would you do? You be the judge!

Dad is not working. The court orders him to pay child support based on his ability to earn money. He fails to pay. A contempt action is brought. Issue is: can he be put in jail for failure to pay child support. Dad argues: “Going to jail for failure to pay support is involuntary servitude prohibited in the constitution’s thirteenth amendment as slavery. I am being imprisoned for failure to pay a debt which is prohibited in the California Constitution. Lastly, mom has the burden of proof that I have sufficient income to pay. This is a quasi criminal proceeding and I am presumed innocent until all the elements, including ability to pay, are proven beyond a reasonable doubt.” Mom argues: “Hogwash! It is no more slavery than the military draft or compulsory jury service. Child support is not an ordinary debt covered by the California constitution. He should have the burden of proving he is not able to earn money.” What would you do? You be the judge!


            19. Jerry loses.
All the statutory provisions of California law (here Family Code 7611) favor the legal father. Jerry has no standing or a constitutionally protected liberty interest in defeating the statutory presumptions favoring the husband. He is totally cut off and gets no visitation. Dawn D., et al (1998) 17 Cal.4th 932

            20. Mom wins for the reasons she stated.
The importance of this case is that the California Supreme Court reversed the burden of proof on ability to pay the support. The new rule is that the alleged contemner (Dad here) must prove inability to pay the money by a preponderance of the evidence. Moss, et al (1998) 17 Cal.4th 396.

            21. “CHILD SUPPORT OF OVER $11,000 IS SIMPLY NOT ENOUGH!” 
Dad is a professional basketball player who had sexual relations with Mom that resulted in a baby. They are not married. Mom sues for paternity and child support. Dad admits he is the father and agrees to pay any amount of child support the court determines is reasonable. He admits he makes $1,000,000 per year. The court orders child support of $8,850 per month with an additional $2,500 monthly for a nanny. Mom argues: “Our child deserves more. Dad really makes about $12,000,000 per year. I want full information as to his lifestyle and other sources of income.” Dad argues: “Hold on, Mom is getting way over what it costs to raise a single child. She is benefiting from this. She should not be able to pry into my personal finances.” What would you do? You be the judge!

Very complex case on burdens of proof and what real physical custody is. Current California law is that the party with genuine physical custody (rather than just the label of “joint or primary physical custody”) has the presumed right to move out of state unless the non-custodial parent can show that, due to a change in circumstances, it would be in the best interest of the child to change the custody order. In other words the non-custodial parent has the burden of proof to change the custody order or proving that the parent with physical custody should not move. However if there is a genuine joint physical custody situation and one parent wants to move a long distance away then the court must have a totally new hearing to determine custody of the child as if the previous order did not exist. Neither party has the burden of proof since it is an entirely new hearing for a new determination of custody in light of the planned move. Dad argues: “I have genuine joint physical custody. I have our child every Thursday p.m. until Friday a.m. and on alternate weekends from Friday p.m. until Monday a.m. This is true joint legal custody and we should have a “de novo” hearing to determine custody all over again before her move.” Mom argues: “The amount of visitation Dad has is not true joint physical custody. Consequently I have true physical custody and presumptively should be able to move out of state. Dad has the burden of proof that there is a change of circumstances that he should receive custody. He has not done so.” Is Dad’s visitation true joint physical custody? You be the judge!


            21. For Dad.
When the non-custodial parent has ability to pay any reasonable child support the evidence of detailed lifestyle is irrelevant to the issue of the amount of support. Mother is also greatly benefiting from this. Johnson, et al (1998) 66 Cal.App.4th 68. As an aside this attorney ran an income of $12,000,000 per year on the Dissomaster computer. Child support would be $61,029 per month.

            22. For Mom for the reasons stated.
Court does not look at labels of custody but rather to the de facto situation of where the child is at most of the time. Dad does not have true joint physical custody. Appellate court remands the case to the trial court for a proper hearing. This is an important case for Riverside County since it was decided by the Fourth District, Division Two which is the court of appeals for Riverside County . Marriage of Biallas (1998) 65 Cal.App.4th 755. 

            24. “I’M AGE 65 AND WANT TO RETIRE.” 
Ex-husband medical doctor is paying spousal support to ex-wife after a 37 year marriage. He is over age 65 now and wants to retire. He has retirement assets of over $450,000. He wants to pay less spousal support. Ex-wife argues: “It is common for medical doctors to worked past retirement age. The trial court made a finding that he has the ability to work. He has all that retirement IRA money also. He just wants to dump me!” Ex-husband argues: “I don’t care if I could work and make as much money. The point is that I want to retire. I do have a lot of money in my retirement plans but that is for my retirement and I want to use it. I should not have to pay as much spousal support” What would you do? You be the judge!


            24. Ex-husband wins for reasons he stated.
Court specifically held that no one may be compelled to work after the usual retirement age of 65 in order to pay the same level of support as when he was employed. He should not be required to exhaust his retirement assets in order to pay wife. Only investment income and not investment principal should be available to pay spousal support.  Bottom line is that he can still be ordered to pay spousal support but it is based on the retirement income and not the principal. Possible issue is that this might not apply if the obligation was for child support. Marriage of Reynolds (1998) 63 Cal.App.4th 1373.

            25. “SHE’S CAMPING OUT IN OUR HOUSE” 
Parties own a home. Court orders the home to be sold at the “best price reasonably obtainable.” Ex-wife gets exclusive use of the house. She hems and haws and delays the sale. House does not sell for about 18 months. House finally sells at much less than what the price would have been at the start of the 18 month period based on testimony of Realtors. Ex-wife argues: “Even though I did delay the sale I should still receive the agreed amount from the sale of the house that is my share.” Ex-husband argues: “She delayed the sale, the market kept going down and the Realtors advised her of this. I should receive a credit against any monies owed her as an equalization payment in the divorce. The credit she should pay me is what my share would have been had the house sold before she started the delays.” What would you do? You be the judge!   


            25. Ex-husband wins for reasons he stated.
Case is remanded to trial court to determine the correct credit. Marriage of Hokanson (1998) 68 Cal.App.4th 987. An interesting side note is that Realtors were allowed to testify as to sales prices and an appraiser was not necessary.

Thomas and Joanne were divorced in 1985. Many years later Joanne discovers that Thomas hid certain assets and cheated her. She sues in civil court for fraud, and other claims. Issue is: can she sue in civil court. Does she have to return to family court to litigate these issues. Thomas argues: “This should be heard in family court. It arose out of the dissolution and the family courts have proper continuing jurisdiction.” Joanne argues: “Continuing jurisdiction is not exclusive jurisdiction. The dissolution  case is long over. There is no reason why I cannot make my claim in civil court.” What would you do? You be the judge!

Ex-husband owes $357k to ex-wife in dissolution. To secure her interest ex-husband moves a promissory note and second trust deeds covering the realty. He fails to make the payments. Ex-wife does nonjudical foreclosure and gets only $110k from the foreclosure. She now goes to court and wants an award for the balance of $247k. Ex-wife argues: “He still owes me the money. The foreclosure did not bring as much as expected.  If he owned a car and the car was repossessed then the lender could get a deficiency for the difference between the underlying debt and the value of the car. I should be entitled to the same.” Ex-husband argues: “That is not the law in California . She had the choice between a private or judicial foreclosure sale. She opted for a private sale. Because she took title to the realty in that manner she is precluded by C.C.P. 580d from also taking a deficiency judgment.” What would you do? You be the judge!


            27. Joanne wins.
When the dissolution is pending the family court has exclusive jurisdiction. One the dissolution is over then she can sue in civil court for tort damages. Dale v. Dale (1998) 66 1172. It is unclear why Thomas was not willing to have the civil court hear this. A possible reason is that in civil court Joanne could get punitive damages for fraud which could be far more than any sanctions the family law court might impose. A jury in civil court would hear the case. A jury might be more incensed at Thomas’ actions and award more damages than a family law judge would award sanctions in a non-jury family law case.

            28. Ex-husband wins. 
California has a unique law in C.C.P. 580d. She had the choice and took it. Once she wants a non-judicial foreclosure she is bared from suing for the rest of the money. She cannot “have her cake (non-judicial foreclosure) and eat it too (get deficiency judgment).” Marriage of Oropallo (1998) 68 Cal.App.4th 997. It is common for parties to do a note secured by a deed of trust to secure a debt in family law. This is a warning that it could backfire with the real estate market in a down situation.

            29. “MY LOAN IS NOT FOR SUPPORT” 
Dad is in school full time. He received student loans. The lower court held that the loan money, over and above the costs of books and tuition, is a form of income to be looked to in payment of child support. Dad argues: “These are loans. They must be repaid by me. Since they are subject to repayment they should not be considered as income in establishing child support.” Mom argues: “We’re just using the monies above the costs of books and tuition. Family Code section 4058 gives a very broad definition of income for figuring child support. While student loans are not specifically mentioned it does not mean that they cannot be considered as income. After all the section includes income from whatever source derived,…'”  What would you do? You be the judge!

 This involves paternity cases instituted by the District Attorney. Riverside County holds that child support can be ordered retroactively to the filing date of the original complaint. Dad argues: “No, the child support retroactivity should just be back to the filing date of the motion to request child support and not the filing of the original complaint. This is as per Family Code section 4009.” Riverside DA argues: “These DA paternity cases are governed by the Welfare and Institutions Code and not the Family Code. There is no such restriction in the W and I code and so we are not bound by the way things are done in Family Law.” What would you do? You be the judge!


            29. For Dad for the reasons stated.
Marriage of Rocha (1998) 68 Cal.App.4th 514. The court of appeals limited its decision in reference to student loans. They are difficult to be discharged in bankruptcy. It might be different if the money was a “family loan” from a family member gift with the label of “loan.”

            30. For Dad.
Family Code section 4009 applies to both. Section 4009 is broad enough to cover both types of actions. This is consistent to W and I section 11475.1 that references the Family Code. Riverside, et al (1998) 18 Cal.4th 435.


            There are three children. Dad at one time earned $28k per month. His employer went bankrupt and he had stress related emotional problems. How much income should the court impute, if any? Dad argues: “I want to work but there are not that many openings. Earning capacity is composed of the ability to work, the willingness to work shown by good faith attempts to get a job and opportunity to work. The court should not have imputed $40k earning capacity to me.” Mom argues: “This is for support of three children. The court should be able to pick a number out based on past earnings and set that as imputed income.” What would you do? You be the judge!

Mom and dad are both white. They divorce in Florida and mom has custody. Mom later married a black man. Dad moves for a change in custody. Dad argues: “I am not prejudice but the fact is that there are stresses and strains that come from interracial remarriage. Our child will suffer from the social discrimination that is sure to come.” Mom argues: “Consideration of my new husband’s race violates the constitution’s due-process and equal protection clauses. This should not effect who has custody of our daughter.” What would you do? You be the judge!

            31. For Dad.
There was not real evidence on how the trial court came to rely on the earning capacity in lien of actual income. The earning capacity should be imputed as the reasonable amount of money that Dad could make. Not a pie in the sky amount as to what he made in the past. Marriage of Cohn (1998) 65 Cal.App.4th 923. Good case for how the courts should impute income and what can be done to show imputed income or lack of income.


            32. Mom wins.
This case went to the United States Supreme Court and was a unanimous decision. The reality of private biases and the possible injury that they might inflict is not a permissible consideration for the removal of an infant child from the custody of the natural mother. The court felt that the constitution cannot control such racial prejudices, but neither can it tolerate them. Palmore v. Sidoti (1984) 466 U.S. 429.

            33. “I’M GETTING MARRIED AND WANT TO MOVE WITH OUR CHILD”             
Mom and Dad are divorced with one child (Natalie). Real primary physical custody is with mom (rather than just the label of physical custody). Divorce order says she can’t move out of three local counties. Mom is engaged to marry a man in Indiana . She wants an order that she can leave the state with Natalie for a new residence in Indiana . Mom argues: “I am engaged to be married. My fiance lives in Indiana . I am the primary parent of Natalie and I should be able to move with our daughter. I am not doing this just to frustrate Dad’s visitation. We can set up long distance visitation.” Dad argues: “No way! We agreed in the judgment that there would be frequent and continuing contact of Natalie with both her parents and to stay in these three counties. This will frustrate my visitation and bond with Natalie. If Mom moves then I want physical custody of Natalie.” What would you do? You be the judge!

California law provides that a spouse who contributes separate property to a community property asset is entitled to reimbursement upon dissolution of the marriage (Family Code 2640). Here the separate property was put into community property and then the community property was mortgaged to get money for other investments. Should the separate property contributor be entitled to reimbursement from these other community investments. Wife argues: “The separate property reimbursement is limited to the specific community property to which the separate property contribution was originally made. It should not be extended to other properties acquired from the specific community property.” Husband argues: “If we can trace the separate property contribution to other assets then we should do so. There is no reason not to.” What would you do? You be the judge!


            33. Mom wins.
Mom has shown that she has sound, good faith reasons for the move. Noncustodial parent Dad has not met his burden of showing that Natalie will suffer detriment rendering it essential or expedient for the welfare of Natalie that there be a change of custody. Marriage of Edlund and Hales (1998) 66 Cal.App.4th 1454. An important factor is that mom had real primary physical custody and not just the label of physical custody. Natalie was with the mother far more than with the father. Having a label of “physical custody” or “joint physical custody” does not mean that much in court. The courts look to where the child really is at most of the time.

            34. Husband wins.
The legislative intent of Family Code section 2640 indicates that reimbursement may be traced to later acquired property beyond the original community property that the separate property contribution was made. Marriage of Walrath (1998) 17 Cal.4th 907. One of the major factors here is tracing and keeping records of the separate and community property and where it went. 

            35. “I’VE MARRIED A FROG AND NOT A PRINCE!” 
Woman married a man. She thought he had lots of potential. After marriage he refuses to work, has a drinking problem, never treated her with respect and was unshaven. She seeks a judgment of nullity (annulment) based on fraud. Woman argues: “I never knew before marriage that he would be such a jerk. He concealed these facts from me and I want an annulment.” Man argues: “The fraud must go to the very essence of the marital relation before it is sufficient for an annulment. She has not stated grounds for an annulment.” What would you do? You be the judge!

Dad has had the children for years. Mom has not seen the children in the past five years. Dad is living with another woman he has a child by. Dad is injured in a accident and is a quadriplegic with no use of his legs and hardly any use of his hands. Mom now wants custody. Mom argues: “He is simply unable to care for himself. He can’t feed, dress or care for himself. How is he going to care for our sons?” Dad argues: “I am still able to be here for the children. My physical handicap will not handicap the children. My handicap should not be a basis for taking custody away.” What would you do? You be the judge!


            35. Man wins.
They get divorced and not an annulment. Just because people conceal their temper, idleness, coldness or riches before marriage is not grounds for an annulment. For fraud to be present it must go to the very essence of the marriage. Marriage of  Johnston (1993) 18 Cal.App.4th 499. An example is Marriage of Liu (1987) 197 Cal.App.3d 143, where the wife married the husband just to obtain a “green card” and she did not intend to engage in sexual relations or to perform her marital duties and they never cohabited as husband and wife. This was considered fraud. 

            36. Dad wins.
A physical handicap is only one of many factors that the court must look to. A physical handicap of a parent is not, in and of itself, controlling on the custody issue. This opinion has an excellent discussion of the handicapped and custody. The opinion was unanimous by the California Supreme Court. There were no dissents. Marriage of Carney (1979) 24 Cal.3rd 725.

The dissolution trial judge ordered Spousal Support for ex-wife at less than the guideline amount. Ex-wife argues: “This is wrong. The computer guideline specifies what Spousal Support should be. The court was in error in not ordering Spousal Support as per this guideline.” Ex-husband argues: “This is for permanent Spousal Support and not temporary. Temporary Spousal Support is used to maintain the living conditions and standards of the parties as close to the status quo position as possible pending trial. The same guideline should not be used at trial on a permanent award.” What would you do? You be the judge!

            38. THE RELIGIOUS BELIEFS 
Mom is a Jehovah’s Witness and dad feels this renders her unfit to have custody. Dad argues: “If our child was injured in an accident her religious beliefs would not permit her to consent to a blood transfusion to save our child’s life. Also she does not celebrate certain holidays and children are not allowed to participate in competitive sports.” Mom argues: “All the evidence is that I am a devoted mother. The court report recommended that I have custody. There is no compelling evidence that my religions beliefs and observances would be harmful to the children.” What would you do? You be the judge!


            37. For ex-husband.
Temporary and permanent Spousal Support are separate. Permanent Spousal Support is not to preserve the pre-separation status quo but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and division of the property. Marriage of Burlini (1983) 143 Cal.App.3d 65.  Family Code 3600 involves temporary support. The Spousal Support on the Dissomaster computer uses temporary guidelines.

            38. Mom keeps custody.
All the evidence was that she was a devoted mother. There is no compelling evidence that her beliefs will be harmful for the children. Marriage of Urband (1977) 68 Cal.App.3d 796. This was a very short opinion on only three paragraphs.


            Rodney had an affair with a married woman named Karen. DNA blood tests show that there is a 99.5% chance that Rodney is the father. He only wants visitation with the baby daughter. Rodney argues: “This violates due process and equal protection to biological fathers. The tests show that I am the father. I just want visitation with our daughter. This will not interfere with the family.” Karen (and her husband) argue: “There is a conclusive presumption in Evidence Code 7540 that says that the child of a wife who is cohabitating with her husband who is not impotent or sterile is conclusively presumed to be a child of the marriage. My husband was on a oil rig ocean platform for days at a time but we were technically still cohabiting even though he was gone. He is not impotent or sterile as the trial court found.”  What would you do? You be the judge!


            40. Rodney lost.
He doesn’t even get visitation. The legislature passed Evidence Code 7540 and, because of that, Rodney cannot be the father in the eyes of the law. Rodney F., et al (1998) 61 Cal.App.4th 23.

            41. “I SHOULD BE REIMBURSED!”   
Husband was injured in a workers compensation case. The couple has many medical expenses and have to mortgage their house to pay for expenses resulting from husbands injury. After two years they separate. Husband gets large workers compensation permanent disability award. He does not want to divide it. Wife argues: “We went into debt and mortgaged our house because of your disability. I should receive part of the award or, at the very least, should be reimbursed for the money that went out to pay for bills while you were getting better.” Dad argues: “No, this workers compensation permanent disability is my separate property and you have no interest. Even though we mortgaged our house and went into debt you should receive none of this money.” What would you do? You be the judge!

            42. THE JUDGE WHO GOT IT MIXED UP       
  Husband wants to testify as to what the value of his separate property house was 12 years ago. This was an important issue in reference to separate property reimbursement. Husband argues: “I should be able to testify in court about the value of my house as of 12 years ago. It is based on my opinion, what the Realtor suggested to sell the house at and what the value of other homes in the area were like, as I recall, 12 years ago.” Judge says: “That won’t do. You have not established any independent knowledge of your own. Because of that you can’t testify as to what the value was 12 years ago.” Is the judge right or wrong? What would you do? You be the judge!


            41. Husband wins.
A workers compensation permanent disability award received after separation compensates the injured husband for future loss of earning capacity and thus is husband’s separate property. He owes no reimbursement. Marriage of Fisk (1992) 2 Cal.App.4th 1698. If it were a personal injury award the court would have more discretion in dividing the judgment or settlement.

            42. The judge got it mixed up on tracing the asset and testifying as to the value.
Evidence code 813 is clear that value of property may be shown by the owner or spouse of the owner testifying as to the value of the property. Marriage of Stoll (1998) 63 Cal.App.4th 837.

Robert is age 65. Evelyn is age 36. They marry. He transfers stock he owned prior to the marriage (his separate property) to her name. They divorce later. Isssue is: was this transfer a transmutation of his separate property to her separate property. Evelyn argues: “He transfered this stock to me. This was a transmutation as per Family Code 852. After all Evidence Code section 862 basically says that he must rebut this evidence to legal title by clear and convincing evidence. He has not done this. The stock is my separate property.” Robert’s estate argues: “No, a transfer is not necessarily a transmutation. There was no evidence that he wanted this to go to her as her sole and separate property. Placing the stock in her name did not necessarily show a change in ownership. Because a husband and wife are in a fiduciary relationship the specific rules governing transmutations of property between spouse should control over the more general presumption of ownership in the Evidence code.” What would you do? You be the judge!


            48. Robert’s estate wins for the reasons stated by him.
A transmutation may be effected by means of a transfer, but a transfer is not necessarily a transmutation. Marriage of Barneson (1999) 69 Cal.App.4d 583  1-28-99. The basic message here is that if the transfer had spelled out that it was being transferred to her as her “sole and separate property” it probably would have been valid. Just putting property title in your spouse’s name alone may not be a transmutation. Best spell out as sole and separate property. Even then you may not be home free.  

            49. “I DON’T WANT TO PAY THE TAXES!” 
Marsha and Ken marry and purchase 4 parcels of realty valued at 160k. It goes up in value of over 4M. They divorce. Ken gets the 2 less expensive parcels and Marsha is ordered to pay him 404k to equalize the division. Marsha sells her parcels and pays Ken the 404k. IRS wants to charge her the entire capital gain tax. Marsha argues: “I should  not have pay any capital gain taxes because this was, in essence, a transfer between my spouse and me incident to a divorce. The divorce court realized that I would sell this land to pay off the equalization of $404k. Ken should pay the taxes since I sold it to get money for the equalization payment.” IRS argues: “Marsha should pay all the taxes on the sale. The land was awarded to her in the divorce. She sold the land to a third party. It was not a “constructive” sale for Ken. It was not Ken who owed her money but she who owed Ken money.”  What would you do? You be the judge!

Parents have joint legal and joint physical custody with the label and in fact. The case has been in court many times. Dad brings action to again modify visitation: Mom argues: “This just keeps going on and on. Even though we have joint legal and joint physical custody he must show some sort of change of circumstances for another change in visitation or custody. He has not done that.” Dad argues: “I don’t need to show a change of circumstances. The case of Marriage of Birnbaum holds that in joint physical custody cases there is no need for a change of circumstances. We have a ‘cooperating residential arrangement’ and to change it we do not need to show a change of circumstances.” What would you do? You be the judge!


            49. Marsha lost and must pay the entire capital gains tax.
This was not a transfer between spouses incident to a divorce. There is an IRS section that provides that transfers of property to third parties on behalf of a former spouse qualify as not being taxable but this was not such a situation. Ingram v. U.S. 9th circuit  Washington 2-11-99.

            50. Dad lost.
He relied on an existing case and this court of appeal disagrees. This court holds that by allowing a parent to get around the change of circumstances rule, the stability of custodial arrangements is lessened and the potential for abuse and never ending litigation over custody is increased. Marriage of Congdon, Filed 2-25-99. A conflict between appellate courts is not rare. This is what happened in this case and the Birnbaum case. This will probably be appealed to the state supreme court if the parties have the money. What does a trial judge do when there is a conflict in the courts of appeal? He is not bound if it is an appellate court in his district. The judge must use the rule that makes the most sense to the judge.

Dad was ordered to pay child support and did not do so. He feels that this violates the constitutional prohibition against slavery and its close cousin, the prohibition against imprisonment for debt. Dad argued: “I didn’t have the money at the time of the order. The court is now putting me in jail because I did not get a high paying job. If  I want to take a low paying job that is my option and I should not be put in jail for the type job I have.” Mom argues: “There are certain debts for which imprisonment can be imposed. Failure to pay child support is one of them. There is ample evidence that you could get a job paying much more but instead chose jobs that did not pay much.  You are the author of your own misfortune.” What would you do? You be the judge!

Dad has been put in jail for 4 years. There are no employment opportunities there. Judge orders him to pay child support because he will be able to get a job when he gets out. Dad argues: “I am in jail. How on earth can I pay child support. When I get out I can, but that is four years in the future. I do have job skills and the ability to work but there is no opportunity in prison.” Mom argues (through the welfare department since she is on welfare): “He has the ability to work, he admits that. The opportunity is not there now but it will be in the future when he gets out. Child support is a great responsibility. He had a job prior to going to jail and will have a job when he gets out. Just being in jail should not mean you don’t have to pay child support.” What would you do? You be the judge!


            51. Dad lost.
He can be sent to jail for failure to pay the child support. His conduct was “willful” in that he had the ability to work for more money but did not. USA v. Ballek. Filed 3-11-99. Note: This is important in that he is going to jail for not getting a higher paying job. Usually the courts will just impute income to him and order him to pay more support. Here the federal court is sending him to jail and not just imputing income. Although this is a federal case interpreting a federal law it may have impact in California . It is a ninth circuit case. California is in the ninth circuit. It is part of the growing trend of making it more difficult to avoid child support.

            52. Dad won and does not have to pay child support while in jail.
Courts look for the ability to work and the opportunity. However the opportunity to work must be with the current circumstances. Oregon v. Vargas (1999) 70 Cal.App.4d 1123  filed March 24, 1999. No cite yet. Keep in mind that this is not a contempt to make him serve more time. The request was that he would owe the money and pay it once he got out. That was the implied theory. Obviously the court denied the requested child support.

Dad is paying child support for a child that is on welfare. Dad has a child from a new marriage living with him. Usually a hardship deduction is allowed to the paying parent when child support is figured when you have a child in your own home that the paying parent has to provide for. However Family Code section 4071.5 says that if the child being paid for is on welfare then there is no hardship deduction for children living with the paying parent, Dad here. Dad argues: “This discriminates against my son from my second marriage. Just because the other child I pay child support for is on welfare it is no reason that I should not get a hardship deduction for my newer child. This means that I have less money to provide for the new child living with me who is not on welfare.” Mom argues: “The law is the law. The purpose of the law is to provide the maximum recoupment to the state from parents of public funds spent on their children’s basic needs. This is a rational interest the state has.” What would you do? You be the judge!


            53. Dad lost.
The state government does have a rational interest in getting as much child support reimbursed to the state as it can for child support for children on welfare. This is a reasonable basis for the state to achieve this. San Francisco v. Garnett (1999) 70 Cal.App.4d 845  filed 3-12-99.

            57. “I HAVE TWO OTHER KIDS!” 
Case involves the constitutionality of Family Code section 4071.5. This section basically says that if Parent 1 is paying child support for his or her child who is on welfare and Parent 1 gets married again and has children by the second marriage then Parent 1 is not entitled to a hardship for the children of the second marriage. A hardship is an amount figured in by a computer to lower child support ordered because the paying party has children from a subsequent marriage that he or she has to support. Dad (parent 1) argues: “This is unfair because it discriminates against parents who are poor as opposed to those there the child is not on welfare. I should receive a hardship for my children of my new marriage.”  Mom (District Attorney) argues: “The law is the law. We should be able to get maximum recoupment for children who are on welfare. He should have realized this before he got married again and started making more children.” What would you do? You be the judge!

            58. WHAT COURT SHOULD BE USED? 
During the marriage Robert hit Naomi and did her damage. The divorce was granted and was over. Then Naomi sued Robert in civil court. Robert wants the civil suit consolidated in the family law case. Robert argues: “She was injured during the marriage. This should be consolidated by the family court because the injuries occurred during the marriage.” Naomi argues: “No, this is not for the family courts. There is nothing pending in the family court. A case can only be consolidated with another when the other is pending in another court. There was no reservation of jurisdiction in the family court.” Should the case be heard in family or the civil court? What would you do? You be the judge!


            57. Dad lost.
The state has a rational basis for getting as much money back from the other parent when the child is on welfare.  San Francisco v. Freeman (1999) 71 Cal.App.4th 869. Actually there is nothing new about this case. It is about the same as two others. However it is opposite of the Invansco case that held that Family Code 4071.5 unconstitutional on this issue. This will probably go to the California Supreme Court.

            58. Naomi wins.
The court would be outside its jurisdiction in ordering a consolidation since nothing was pending. Also the superior courts jurisdiction in domestic relations cases is limited. It has authority to inquire into and render any judgment and make orders that are appropriate concerning marital status, custody, child and  spousal support, settlement of property rights and attorney fees and costs. Not more. Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335. Actually the family court can do more.

            59. “I’M ONLY AGE 15” 
A 15 year old unwed boy fathers a child by a 17 year old unwed girl. The law is that an unwed biological father who promptly assumes parental responsibilities of his natural child will be declared the minor’s presumed father unless the court finds him unfit. A presumed father has the right to stop an adoption. Mom puts the child up for adoption. Dad argues: “I did not take an interest in the child until several months after the birth. This adoption is unconstitutional and my being a minor should excuse me from the requirement of taking an interest in the child and assuming parental responsibilities.” Mom argues: “He never once helped me with the baby. Even after the birth he spent all his time at the mall hanging out with his friends and buying CD records. He should not be able to fight my decision to put the baby up for adoption.” What would you do? You be the judge!


Divorce and Child Support and Spousal Support orders made. Five years later Child Support ends because the children are age 18. Spousal Support to end on a date certain. Before the date certain mom comes back to court and asks for an increase in Spousal Support. Court says that this end of Child Support is a change of circumstances and raises Spousal Support. Dad argues: “There should be no raise in Spousal Support. When the orders were made originally the termination of Child Support was within the expectations of the original order. If there was to be an increase in Spousal Support it should have been made part of the first original order. The termination date of Spousal Support was established in the original order.” Mom argues: “The end of Child Support is a change of circumstances. He is paying less Child Support so he should pay me for more Spousal Support.” What would you do? You be the judge!


            59. Dad lost.
(Natural and presumed father here have technical meanings) If he had demonstrated an interest in the child before and after the birth he would have been a “presumed” father and entitled to rights involved with the child. A “natural” father as he is does not have these rights. The fact that he is a minor is not a factor. He is still held to the same standards of caring and involving himself in the life of the child. In re Ariel H.  (1999) 73 Cal.App.4th 70  filed May 27, 1999. The justices of the court of appeal cite Dr. Seuss’s story “Horton Hatches the Egg” to illustrate their point. 

            60. Dad wins.
The end of Spousal Support was in the original contemplation of the original order on Spousal Support and Child Support. The termination of Child Support was expected in the original order. That this happened as expected cannot reasonably constitute a change of circumstances justifying and increase in Spousal Support. Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131   filed 6-10-99.

 Husband owns separate property business at time of marriage. After marriage the business is incorporated. Does this make it community property he can be reimbursed from as his separate property contribution or does it stay as his separate property? Husband argues: “I owned this before marriage. The mere incorporation of a separate property business does not change it to community property. No stock was ever issued. We should value this as my separate property with a reasonable rate of return as separate and any extra as community.” Wife argues: “Oh, no you don’t. The business was acquired as a corporation during the marriage. That makes it community property. He should be entitled to reimbursement for the value of the business at the time of the start of marriage but that is all. After that reimbursement all the growth should all be community property.” What would you do? You be the judge!


            61. Husband wins.
Mere incorporation of a business does not change its character as separate or community. It stays what it was. Also the reimbursement concept of Family Code 2640 was never designed to apply to a business. It usually just applies to a residence. Marriage of Koester (1999) 73 Cal.App.4th 1032  Filed 7-28-99. Comment: 2640 does not say “residence”. 2640 should be applicable to cars and other assets.

In family law case declarations are filed. Dad makes very negative statements about mom’s parents. By inference mom’s parents interacted with the child of the marriage. Mom’s parents are in the proceedings and demand the statements made by dad be stricken from the pleadings or that dad make a written retraction of them. Mom’s parents argue: “What he said was hurtful and untrue. These proceedings are all a matter of public record. They should be stricken.” Court argues: “They can file declarations to refute what dad said. The fact is that documents in court may not be pretty but that is just the way it is. Mom’s parents have had the opportunity to make rebuttal declarations. They should not be entitled to take the witness stand and say the same things again and get the declarations stricken”  What would you do? You be the judge!

            64. THE HOUSE INTEREST. 
Jean marries Bob. Bob has a separate property house he owned prior to marriage. Jean used her separate property owned prior to marriage to make improvements on his house. Parties make agreements orally on putting each other on each others house title but never put it in writing. They get divorced. Jean argues: “I don’t just want reimbursement for my separate property investments. I want an interest in the house. I want to present testimony and other evidence that we made an oral transmutation of the house from his separate property to community property.” Bob argues: “No way! You do get reimbursement on your contributions but not a one half community property interest in my house. We both have different stories on our oral agreements. The law requires a writing that you don’t have.” What would you do? You be the judge!


            63. Mom’s parents lost.
The judge made the correct ruling. Nasty and hateful things may be in the court file. If the party believes them true and they are relevant they can pretty well say what they want. Marriage of DeRoque (1999) 74 Cal.App.4th 1090. Comment: People should still be tactful about what they say in their declarations. If children are involved the parents will be in contact for life. The fact that court files are a matter of public record may hurt all parties as far as job opportunities and reduced support money if a job is lost.

            64. Bob wins.
Family Code section 852 requires a writing to transmute property between parties. No extrinsic evidence will be allowed. Jean should have gotten it in writing from Bob that the house is now community property. Marriage of  Campbell(1999) 74 Cal.App.4th 1058. Jean still gets reimbursement but that is all.

            69. “WHERE’S MY DRIVERS LICENSE?” 
Dad failed to pay child support. The DA has his drivers license suspended. Is this constitutional? “Dad argues: This infringes upon my constitutional right to travel. My driving record is fine. Not paying child support has nothing to do with how safely I drive a car. Also this violates equal protection in that I am in the class of people too poor to pay child support and it is making me poorer by not letting me drive to work” DA argues: “Your right to travel has not been hampered. It is just that now you cannot travel in a car driven by you. You can still use the bus or a taxi. You can use other means of transportation to get to work. Driving a car is a privilege and not a right.” What would you do? You be the judge!

            70. “BACK CHILD SUPPORT FOR OVER 30 YEARS?” 
Child support order from 1963. Dad is behind in payments. Previous attempts to get the support failed. New Family Code section 4502 says that a judgment on Child Support is valid till paid in full. Previous law was that mom had ten years to get the money after it was due. Mom argues: “The law is the law. The new Family Code section says that it is due till paid in full. It could be 50 years and still would be due. Time has nothing to do with it.” Dad argues: “You already tried to get the support and failed. The new section 4502 just starts from the date of 1992 when it was enacted. The children are aged 49, 47 and 46 now. I should not be obligated to pay this past support.” What would you do? You be the judge!


            69. DA wins for reasons stated.
Also the equal protection argument about being too poor to pay Child Support doesn’t hold, since the amount of Child Support ordered depends on a persons income. A low income person pays less Child Support. Tolces v. Trask (1999) 76 Cal.App.4th 285.

            70. Mom lost.
She previously tried to get a writ of execution in 1979 and failed. It is res judicata. Even if she had not gone to court in 1979 it would still fail. This is because section 4502 is prospective only. It starts from its enactment in 1992. Unless the statute expressly provides to the contrary, any enlargement of a limitation period applies only to matters pending, but not already barred. Marriage of Sweeney (1999) 76 Cal.App.4th 343.

73. “Figuring Child Support, Spousal Support and extra income”
Mom and dad divorce with two kids who are with mom. Dad gets stock options at his work. Everybody agrees that the stock options can be considered as income for Spousal Support and Child Support. Question is, how to figure it since it varies in amount which is usually very large. Court orders 40% of the options as support. Then when Spousal Support ends 25% of the options as Child Support. Dad argues: “This is an abuse of discretion. The court just chose these percentages at random. There has been no finding of what the marital standard of living is for Spousal Support or what the reasonable needs of the children would be.” Mom argues: “We don’t know for sure what the stock options will be valued at. It is reasonable for the judge to pick such a figure since the amount realized is also speculative.” What would you do? You be the judge!

74. “The pregnant lady moves”
Mom and dad are married and live in Michigan for six months. Marriage is rocky and mom moves to California when pregnant. Dad files in Michigan . Mom files in California . Which state has jurisdiction over the child custody issue? Dad argues: “We lived in Michigan before she ran off when pregnant with our baby. I filed first and we lived in Michigan for six months before she went to California . Michigan should have jurisdiction of the marriage. Besides, Michigan has already made the finding that it has jurisdiction.” Mom argues: “I live in California now. Brianna was born here and California should have jurisdiction on that basis.” Which state has jurisdiction? What would you do? You be the judge!


73. Dad wins.
For Spousal Support the court looks to the standard of living of the parties during the marriage. This is not true for Child Support which is strictly based on the income of the parties. The amount realized in the stock options is very large and this percentage may exceed the marital standard of living for Spousal Support and the needs of the children for Child Support. It is remanded to the court to again come up with a better formula for the support coming from the stock options. Marriage of Kerr, (1999) 77 Cal.App.4th 87. Very good discussion on differences between Child Support and Spousal Support in support orders.

74. Mom wins.
The baby was born in California . California has jurisdiction on that basis alone. Neither state had “home state” jurisdiction before the baby was born. However since it was born in California and never even visited Michigan , the California court has jurisdiction. Haywood v. Superior Court (2000) 77 Cal.App.4th 949. Keep in mind the court just made its order on Child Custody and nothing more.

75. Dad and the conclusive presumption. 
Wife is married and living with her husband but has an affair. She has a baby from the affair and lives with the father of the child for about a year after she became pregnant and then had the baby. The father is attentive to the baby and helps raise the baby. They break up and she goes back to husband. Now she and her husband want nothing to do with the father. They rely on Family Code section 7540 that there is a conclusive presumption the husband is the father and that the biological father has no rights. Dad argues: “I am the biological father and helped raise our child for about a year. I am close to our baby daughter. This is not disputed. I should have visitation rights.” Wife and her husband argue: “The law is the law. There is a conclusive presumption that my husband is the father and you have no rights. The conclusive presumption was to preserve marriage and the family. You are out of luck. Consider yourself lucky since you don’t have to pay Child Support.” What would you do? You be the judge!

76. The 17 years of child support 
Dad has not paid Child Support for 17 years. Mom relies on Family Code section 4502 which says Child Support is due till paid in full. Mom argues: “You owe the money. Just because I have let it sit for so long does not mean it is not owed. You did pay for some things like a tack cabin and camp for our daughter but that is all. You simply owe the money.” Dad argues: “Not so fast. It is not fair that you let this sit for 17 years. I should be able to make the defense of Laches which is an unreasonable delay coupled with prejudice to me which should prevent collection. Our daughter is age 32 now. She was raised a good deal of time by a relative and not you. You have delayed too long and I should not have to pay this money.” What would you do? You be the judge!


            75. Biological father wins.
The baby was not born into a traditional marriage union since she and husband were separated when the baby was born. Also the biological father developed a substantial parent child relationship with the baby immediately upon her birth and for over a year thereafter. He can bring an action for visitation with his child. Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198.

            76. Dad wins.
Mom simply waited too long. She knew she had enforcement methods through court or the DA’s office and did not use them. In spite of the wording of Family Code 4502 the defense of laches is still available to dad. Marriage of Fogarty (2000) 78 Cal.App.4th 1353. Lesson here is not to sit on an order for Spousal Support or Child Support. Must try to enforce it and make efforts to do so. “Use it or lose it”. A later case called Greene is somewhat contra.

77. “Does the DA have to prove income of the dad to get Child Support?” 
This is a welfare case. DA serves dad with complaint asking for Child Support and has a proposed order on Child Support attached. Dad does not answer the pleadings and default judgment is entered. Judge does not order Child Support. Judge argues: “Before the DA can get an order on Child Support the DA must show evidence as to what the earnings of the father are. The burden is upon the DA to show earnings of the father before they can get an order of Child Support. It is ridiculous that the DA can just go in there and say what they think dad makes and get an order based on that. There must be some evidence of dad’s earnings.” DA argues: “This is permitted under the law for welfare cases. The proposed judgment is served with the papers served on dad. It even says what we believe his earnings are. This is permitted under the law.” What would you do? You be the judge!

78. “The 33 year old child support order” 
Children born in 1963 and 1964. Child Support ordered but in over 30 years dad paid only $200. Arrearages with interest is over 54k. Family Code section 4502 says that Child Support is enforceable till paid in full. Dad argues: “Family Code 4502 went into effect in 1994 after the ten year limit on judgments was in effect. Family Code 291 says that lack of diligence in trying to collect support is a possible defense. Another doctrine called Laches applies. It is simply not fair that she sits on this and 30 years later comes at me for the money.” Mom argues: “Child support is special in our law. You owe the money and the law is the law. You better pay up!” What would you do? You be the judge!


77. DA wins.
This is on welfare cases only. This is permitted under the law for welfare cases and there is a specific statute permitting this. If the amount ordered is not fair the father can always go back to court and change it. Yuba v. Savedra, (2000) 78 Cal.App.4th 1311. As an aside dad may not want to answer because his true income is higher than the proposed judgment indicates. By not answering it goes into default and the amount may be lower than what he would otherwise be ordered to pay.

78. Mom wins.
Child Support is special in our society and she can often just sit on it if she wishes. The Laches defense is lost because dad had “unclean hands” in that he never visited the children and did not want to keep in contact. Greene v. Cutler (2000) 79 Cal.App.4th 460. The courts lean over backwards in looking for payment of Child Support. Not paying Child Support, for whatever reason, is frowned upon by the courts and our society.

Wife works for a doctor. Without asking husband the wife permits the doctor to aritifically inseminate her with doctor’s sperm. Wife has baby and husband thinks baby is his. He loves and forms a strong attachment to the baby. Divorce comes and dad learns the truth. He does not have to pay Child Support since baby is not his. Ex-husband sues the doctor for all the distress this has caused him. Ex-husband argues: “This is outrageous. Here I love this child and form a close attachment to a child I thought was mine. The doctor’s conduct was outrageous. I should receive money for all the mental anguish he has caused me.” Doctor argues: “OK, what I did was not ethical. However I owed no duty to the you the husband. My patient and employee was your wife and not you. You should consider yourself lucky that you don’t have to pay Child Support.” What would you do? You be the judge!


80. Doctor wins.
There is simply no legal theory that allows the ex-husband to recover. What the doctor did was wrong, deceptive and hurtful but California has no legal theory for the ex-husband to sue the doctor under these facts. Shin v. Kong (2000) 80 Cal.App.4th 498.

81. I want my day in court! 
Husband and wife make stipulation in court and a judgment is prepared. Wife refuses to sign. Husband takes it to court and the court signs the judgment. Wife then files a motion to set aside the judgment. The motion is not granted. She then filed an appeal on the judgment itself after seven months. Wife argues: “I want to appeal. I am not limited to the six months deadline of the court rules because Family Code 2122 provides an entire year to file to set aside the judgment. This means that the time is also extended one year for the court of appeal.” Husband argues: “Oh, no. It’s not like that at all. We still use the rules 2 and 3 of the court rules. An appeal from a judgment itself is separate from a motion to set aside a judgment or under Family Code 2122.” What would you do? You be the judge!

82. The failure to challenge! 
Mom lives in California with the children. Dad is in Georgia . Dad filed in Georgia for a dissolution. All he asked for was a dissolution of marriage. No mention of support or the property. Mom is served in California and does not contest the case or file and answer. After he filed in California and while the Georgia case is pending mom files for dissolution of marriage and asks for Spousal Support. Dad gets his dissolution in Georgia . He files action in California to halt mom’s request for Spousal Support. Dad argues: “I both filed first in Georgia and served you first. You should have come to Georgia to get your support order or filed a motion in Georgia protesting jurisdiction. You had your chance and didn’t take it. This is as per Family Code 4908”  Mom argues: “So what if I didn’t contest the Georgia case. All it did was end the marriage. The judgment there did not involve Spousal Support or the property division. I should be able to use California courts to adjudicate the things that were not in the Georgia case.” What would you do? You be the judge!


            81. Husband wins.
There are three different concepts here. An appeal from the judgment, an appeal from a motion to set aside the judgment and an appeal from a motion to set aside under Family Code 2122. Each has different time limits. Wife was using the other rules for the appeal on the underlying judgment. Marriage of King (2000) 80 Cal.App.4th 92. Good analysis by the court on set asides under CCP 473.

82. Mom wins.
Family Code 4908 does not mean that a California court can’t make a support order even thought the marriage dissolution has been granted in another state. She does not have to challenge the jurisdiction of the other state as long as the out of state proceeding did not raise other issues like support. Marriage of Newman (2000) 80 Cal.App.4th 846.

State of Washington permits anyone to petition the court for visitation rights at any time and the court may grant such visitation rights whenever visitation would be in the best interests of the child. Parents argue: “This is far to broad. This means that anyone in the state can file a motion for visitation rights. In theory, even people who hardly know our child could ask for visitation. This violates the due process rights of parents. Parents should have more say in who gets to visit their children and not just the court.” Grandparents argue: “We are part of a large, central and loving family that is all located in this area. We should be able to have quality time with our grandchildren.” What would you do? You be the judge!

Judge and both attorneys go into chambers (the office of the judge) and come out with a Child Support order for the parties. Just the judge and attorneys were in the chambers discussion. It this right? Dad argues: “I had no understanding of what went on. My income includes bonus income. A certain percentage was ordered over my regular income and this is different from guideline. The court should have gone on the record and stated why it made the order it did.” Mom argues: “It was within the courts discretion to set Child Support. The court should not have to explain in court why it made its ruling when not following guideline Child Support.” What would you do? You be the judge!


81. Parents win.
This was a Supreme Court of the United States case. They rarely take family law cases. The relationship between parents and children is constitutionally protected. The Washington State law was overly broad for other parties to request visitation. The court holds the law itself as violating due process rights of parents. In California Family Code 3100(a) permits reasonable visitation to “any other person having an interest in the child”. However California puts greater restrictions on grandparent and stepparent visitation. Visitation by others would also, presumably, have these restrictions. Troxel v. Granville (2000) 530 U.S. _____.

82. Dad wins.
There is a mathematical formula that is incorporated in the Dissomaster guideline program for figuring Child Support. However when the court deviates from this guideline Child Support it must explain what the guideline amount was and why it deviated from the guideline. This must be done on the record in open court or in writing as required in Family Code 4056. Marriage of Hall (2000) 81  Cal.App.4th 313.

Parties get divorced and make agreement in handwriting on support for $2000. The agreement is then typed up and circulated around for signature. Before the formal typed order is signed by the judge, husband files a motion to lower support. The court lowers support to $1666. Later the court signs the formal judgment for support of $2000. Ex-husband pays support at $1666. Years later ex-wife wants the difference of $334 per month for the past months.  Ex-husband argues: “You never objected when I sent you the $1666 per month. It was an order made after our handwritten order, Your conduct and the law establish that the proper support should be $1666.” Ex-wife argues: “Just because I accepted less does not mean I consented. The order you got was before the formal judgment was signed by the court. The formal court judgment supersedes your temporary order on support.” What would you do? You be the judge!

86. “I SUSPECT” IS DIFFERENT FROM “I DISCOVERED”  At court husband testified he had no interest in the estate of Jimi Hendrix or his musical creations. Wife suspects he does but he denies it. Over a year later wife discovers that he does have an interest in the Jimi Hendrix estate and music. She files to get Community Property interest built up during marriage. Wife argues: “This was a hidden asset. You denied that you had any interest. I suspected you did but now I know and I want my interest since this was acquired during the marriage.” Husband argues: “No way! It is over a year later. You should have investigated more back then. It is too late to set aside this judgment and get any interest.” What would you do? You be the judge!


85. Wife wins. His was a temporary support order that the formal court judgment superseded. This is true even though this was after the handwritten order. Just because she accepted less does not mean she consented to the lesser amount. Marriage of Hamer (2000) 81 Cal.App.4th 712. Note: He should have spelled out that the order he obtained lowering support controlled over the written stipulation that was later made a judgment.

86. Wife wins. Court uses Family Code section 2122 to set aside the judgment. The fact that she was suspicious of his interest does not bar her reopening the case to get an interest when she discovers, or should have discovered she had an interest. Husband lied in court and in pleadings about the Jimi Hendrix estate interest. The one year limitation starts when she discovers or should have discovered the fraud. The parties are in a fiduciary relationship even when going through a divorce. Rubenstein case (2000) 81 Cal.App.4th 1131.

87. “IS IT REVERSIBLE ERROR?” California law is that the parties to a divorce must prepare a Preliminary Declaration of Disclosure. It lists the assets and debts the parties have. A Final Declaration of Disclosure may be waived. In this case the parties did not serve the Preliminary Declaration of Disclosure. The trial court knew this but entered judgment pursuant to the parties stipulation anyway. Wife argues: “You failed to serve the Preliminary Declaration of Disclosure. There may be hidden assets here. I don�t know of any right now but a disclosure statement may show some. The law is clear that a Preliminary Declaration of Disclosure must be served. You failed to do so and the judgment must be reversed. It was clear error by the court in signing the judgment.” Husband argues: “Yes, it was error. However there was no damage shown to you or me. You have to show some sort of prejudice or damage done to you because of the error. It is error, but not reversible error.” What would you do? You be the judge!

88. THE ATTEMPT TO AVOID GARNISHMENT This is not a divorce case. Husband has restaurant business and owes $37k in taxes. His wife has a very good income. The restaurant was a community property business and both would be liable for the tax debt. To prevent wife’s income from being garnished for the taxes they sign an agreement transmuting her future earnings to be her separate property. Wife argues: “There is nothing wrong with this. This is tax avoidance and not tax evasion. Besides, even if it is, my husband had no present interest in my future income. It can’t be a fraudulent transfer because he had nothing to transfer.” Tax people argue “This is a fraudulent transfer. Both are liable for the taxes. Transmutations in family law are subject to fraudulent transfer laws as per Family Code section 851. She should have her wages garnished to pay for the Community Property tax debt.” What would you do? You be the judge!


87. For husband. It is harmless error. When the trial court commits error in ruling on matters relating to pleadings or procedures the court looks for prejudice. If wife could show resulting prejudice and the probability of a more favorable outcome at trial the appellate court would reverse. Marriage of McLaughlin (2000) 82 Cal.App.4th 327.

88. Tax people win. It was a fraudulent transfer just to avoid the Community Property tax liability. Everyone agreed that it was a Community Property tax obligation. It was a fraudulent transfer because it was to prevent the tax debt from being paid. His argument that he had no interest to transfer was a technical “hair splitting” argument. He did have a present interest in his wife’s future earnings. State Board v. Woo (2000) 83 Cal.App.4th 967.

91. “I’VE RUN OUT OF MONEY” At divorce wife receives stock account worth about $2 million. Later it grows to $3.5 million. It grows because the stock account she has does not pay much in dividends, but does grow in value. It is growth stocks and not income stocks. Husband’s income has gone down. He wants to end Spousal Support. Issue is if he should have to pay when she has all those assets. Ex-husband argues: “I have lost my regular job and my assets have gone down. Her Separate Property income from the stocks could be much higher. She is just investing in growth stocks that pay few dividends. Her argument that she has little income is only because she wants it that way.” Ex-wife argues: “My income is low. I don’t even have a job. If I want to invest in low income stocks that is my right. He should still pay Spousal Support regardless of my investment strategy. The court should look to my income and not assets.” What would you do? You be the judge!

92. THE CHANGE OF CIRCUMSTANCES  In less than two years parties go to court and litigate child custody at least 8 times. Now the court must make a new order. Issue is, does the court use a standard of if there are changed circumstances to change custody or should the court have a new hearing on what is in the best interests of the child. The previous order was meant by the parties to be a final order and now dad wants to change it. Dad argues: “Basically all the previous orders were temporary because children change. We should look to what is in the best interests of the child and the court should make its ruling based on the minor child’s best interest.” Mom argues: “This must stop. It is disruptive to the child. We had a previous stipulated custody order. We should use that as the benchmark and see if circumstances have changed since then. Otherwise every time we go to court there will be an entirely new hearing on what is best for the child.” What would you do? You be the judge!


91. Wife lost. No Spousal Support is ordered. She is free to invest her money as she wishes. The court will ascertain if the estate could reasonably generate sufficient income for her. If it does then that amount shall be figured. She should be able to generate sufficient income from her stocks to provide for herself in an ample life style. If she chooses not to do so that is her decision. However she cannot receive Spousal Support at the same time under the circumstances. Marriage of Terry (2000) 80 Cal.App.4th 921.

92. Wife wins. A stipulated custody order that is basically final triggers the changed circumstances rule. The previous stipulated custody order was a final custody determination and so it should be used as the benchmark. Have circumstances changed since that last order is the question. Montenegro v. Diaz (2000) 82  Cal.App.4th 1. REVERSED BY SUPREME COURT

93. “WHEN IS A MINOR NOT A MINOR” Minor named Eymil is emancipated at age 17. One year after her eighteenth birthday she sues for personal injury damages done her when she was a minor. The statute of limitations is one year after turning age 18. The defendants feel the case should be dismissed since it was over one year after she was emancipated. Defendants argue: “Family Code 7050 says that an emancipated minor is entitled to bring and prosecute a cause of action as of the date of emancipation. Therefore the one year statute of limitations is applicable. It has expired and she is out of luck.” Eymil argues: “It should still be age 18 that the court should use. Besides that the trial court issued an order that the statute of limitations was tolled for me till I turned age 18.”    What would you do? You be the judge!

94. THIRTY YEARS IS A LONG TIME     Mom gets Child Support order in 1969. Dad does not pay but mom does not press the case. Thirty years later she wants Child Support and the interest also. It is over $33k. Dad argues: “She waited too long. There is a defense called ‘laches’. She had a right and just sat on it. The interest is over twice the principal. I should be able to argue that she has simply waited too long.” Mom argues: “There is different case law on this. You never really pleaded laches in your pleadings. For laches the delay must be unreasonable and prejudicial to the party making the laches defense.” What would you do? You be the judge!


93. Eymil lost. The statute of limitations has expired. The trial courts order had no effect. The bottom line is that once a minor is emancipated the Statute of limitations runs from the date of the emancipation order. West Shield v Superior Court (Eymil) (2000) 83 Cal.App.4th 238  made correction on original opinion at 82  Cal. App.4th 950.

94. Mom wins on a technicality. Laches is a valid defense to a claim for arrearages on Child Support. For the defense to be valid there must be unreasonable delay and prejudice to dad. The court holds that Dad would not even have to plead laches as an affirmative defense. Just as long as it was litigated. Mom wins because Dad did not request a statement of decision. Black v. Dancy (2000) 82   Cal. App.4th 1142. This is a Fourth District case. Riverside Courts are in this district. Interestingly it was a 2 to 1 decision. The presiding justice felt that he should have to plead laches. He also felt that Laches should not be a defense in all Child Support cases.

95. My child has almost been adopted. Why should I pay Child Support? In past dad has been ordered to pay Child Support. He does not pay it. Stepfather of minor wants to adopt the child. Dad does not cooperate and order is made to proceed with the adoption without dad. Issue is if he should still have to pay Child Support. Dad argues: “No, I would not have to pay Child Support. Even though the adoption is not yet final it almost is and I should not have to pay Child Support. I am not even a party since the proceeding is progressing without my presence.” Mom says: “He should have to pay Child Support and the back support. The adoption order is not final and until then he should have to pay Child Support.” What would you do? You be the judge!

96. “But the prenuptial said no Spousal Support”    Parties before marriage make prenuptial agreement waiving Spousal Support. Marriage ends and wife wants Spousal Support. California Uniform Premarital Agreement Act (Family Code 1600 and following) says that parties can’t waive Child Support but is not specific on Spousal Support. Wife argues: “I want Spousal Support. We did sign the agreement but it is not enforceable. It is against public policy. The Family Code specifically says we can’t waive Child Support. No mention is on Spousal Support so it means that Spousal Support can’t be waived.” Husband argues: “This does not violate public policy. Just because the Uniform Act is silent on Spousal Support does not mean that it can’t be waived.” What would you do? You be the judge!


95. Dad lost. Under Family Code 8604 he still has to pay Child Support until the adoption is final. 8604 permits the court to order the adoption to proceed without dad but he still must pay Child Support till the adoption is final. Marriage of Dunmore (2000) 83 Cal.App.4th 1.

96. Husband won. Both parties knew what they were doing. Just because the act does not specifically mention Spousal Support does not mean that it cannot be waived. Concepts of marriage are changing with the times. This does not violate public policy. Marriage of Pendleton (2000) 24  Cal.4th 39. This was a California Supreme Court case so it will not be appealed.

97. “SIGN THIS OR WE DON’T GET MARRIED!” On their way to get married the attorney for husband presents wife with a pre-nuptial agreement and tells her to sign or there will be no wedding. She signs away rights involving husband’s future property that would have been considered community property. She consented to this. The lower court made the finding that the parties entered into the agreement knowing their rights and there was no coercion. Mom argues: “I am new to this country, I had no attorney for advice and it was done in a hurried way. This should have no effect.” Husband argues: “She signed it. Who says she needs an attorney. If she signed and it was mutually agreed upon then it is the law and the courts should enforce it.” What would you do? You be the judge!

98. “WHY CAN’T I APPEAL?”     Mom has baby and no father listed on birth certificate. After birth mom wants to terminate parental rights and obligations by the alleged father named “Cyril”. Cyril is served with papers but does not respond or appear in court. His parental rights are terminated and he no longer has rights or responsibilities to the child. He appeals. The Court says he has no right to appeal since he is not a party to the action. Cyril argues: “Hey wait, I was served with papers and am the alleged father. I should have a right to appeal the termination of my parental rights. Just because I did not appear or file papers does not prevent me from being able to appeal.” Mom argues: “He had his chance to appear and be heard. Notice alone does not make him a party. To be a party for appealing he must have answered the pleadings and appeared. He did not do so and so has no standing to appeal.” What would you do? You be the judge!


97. Supreme Court of California holds it is a valid agreement. Strict judicial scrutiny should not be used. The parties were not married yet and not in a fiduciary relationship with each other. The party challenging the agreement bears the burden of proof that it was not voluntary. The trial court found that the agreement was voluntary and the Supreme Court agrees with the trial court. Marriage of Bond (2000) 24  Cal.4th 1 by the   California Supreme Court. This reversed the previous court of appeals decision at ybj55.

98. Cyril loses. He got his statutory notice and should have filed an appearance. The order expressly identified Cyril as the unknown father but does not make him a party of record in the dependency court. He can’t appeal because he never appeared. In re Joseph G. (2000) 83 Cal.App.4d 712  filed 9-7-00.

99. “HOW DO WE FIGURE PERMANENT SPOUSAL SUPPORT” Divorce judgment says the court reserves jurisdiction over Spousal Support. Six years later Susan goes to court and requests Spousal Support. Judge puts the income figures into the Dissomaster program and awards $500 permanent Spousal Support. The computer guideline for temporary Spousal Support would have been $755. Ex-husband Philip appeals: Susan argues: “The judge did not use the temporary guideline but gave me less. This is only fair. The judges in family law have a great deal of discretion and this was reasonable.” Philip argues: “Wait a minute. The court is supposed to use the factors in Family Code 4320 (This is a list of the factors the court is to look to in deciding to order Spousal Support). Just the disparity in our incomes should not be the controlling factor. The court should have done a ‘from the ground up’ examination on the issue of Spousal Support.” What would you do? You be the judge!

100. “HALF INTEREST IN THE DRUG MONEY” Husbands are drug dealers and make lots of money before being convicted. They have cash, cars and other assets purchased with this drug money. Wives do not know that husbands are doing illegal things. Federal law 29 USC 853 calls for forfeiture of assets purchased with the drug sales money. Should their wives still be entitled to a Community Property half interest in the assets? Wives argue: “We had no idea our husbands were dealing drugs. We are innocent spouses. Even though the cash and cars came from illegal drug money we still have a one half Community Property interest under California law. We should be entitled to one half and the other half can be forfeited to the government.” Feds argue: “That is not the law. Under federal law the wives would have an interest in the property only if the interest existed before the drug sale. For example, if one of the men used the family car to do a drug sale. Here the property was purchased with drug sale money. The interest in the property was after the illegal acts.” What would you do? You be the judge!


99. Philip wins and the award is reversed. The Dissomaster program on Spousal Support is just for temporary Spousal Support. For permanent Spousal Support the court must do an examination of all factors in Family Code 4320 on if any Spousal Support should be given and if so how much. Usually permanent Spousal Support is significantly lower than temporary Spousal Support on the Dissomaster. Marriage of Zywiciel (2000) 83 Cal.App.4th 1078.

100. Wives lose for reasons stated by the Feds. Federal law only protects bona fide purchasers without notice of the illegality or people who had an interest in the property before the crime. Congress just changed the law for the future that only bona fide purchasers without notice are protected. US v. Hooper, filed 10-12-00.

101. “I THOUGHT I WAS MARRIED” Mary has been living with Leonard since 1968. Filed joint tax returns and acted like they were married. Leonard is killed in an auto accident. Issue is if Mary can be treated as a surviving spouse for a wrongful death action against the State of California stemming from the auto accident. If she was a putative spouse she would qualify. A putative spouse is one who honestly believes they are married but are not. Mary argues: “Come on! We’ve lived together over 30 years and introduced each other as being married. We did exchange wedding vows but never in a real ceremony and we never got a marriage license. I thought that this was adequate to be married.” California argues: “She was married and divorced twice before living with Leonard. She should know what a marriage is or is not. Even if Mary subjectively believed she was married it would not be adequate. The belief that the marriage was valid must be objective such that a reasonable person would believe they were married. Mary knew very well she was not married. She just wants to get some money.” What would you do? You be the judge!

102. THE DRUG TEST Mom claims dad is growing marijuana. The minor child of the marriage has made statements that indicate that dad is using drugs. Dad used drugs six years ago when they were married. The court orders a drug test for dad under Family Code 3011(d). Dad argues: “There should be no drug test. Family Code 3011(d) has no substantive or procedural guidelines and in addition it does not specifically authorize drug tests. This violates my right of privacy and freedom from unreasonable searches.” Mom argues: “The welfare of our child is of far greater importance than your privacy. If you don’t want to take the test then just don’t see our son. Drug testing is routinely done in family law matters when the safety of the child is in question.” What would you do? You be the judge!


            101. Mary lost for the reasons stated. Welch v. California (2000) 83 Cal.App.4th 1374. This points out one of the problems of living together without marriage. All seems to be fine till something unexpected like this happens. If she were married she would have had standing to seek the money.

102. Dad wins. Family Code 3011(d) does not have sufficient substantive or procedural guidelines. The section does not mandate privacy nor are there any other procedures to achieve a proper balance between a parent’s privacy interests, the degree of intrusion and the state’s interest in protecting the minor child. Wainwright v. Sinkler (2000) 84 Cal.App.4th 262. This is a case from Northern California . A drug test can still be ordered based on discovery statutes. The court mentioned this in a footnote. 

103. “I’VE BEEN DISCRIMINATED AGAINST” Mom and dad have a one night stand where mom gets pregnant. Dad lives in Florida and mom in California . Judge makes both temporary and permanent orders. Dad appeals both. Dad claims the judge is biased against men. Dad argues: “The court appointed an expert to make a recommendation on custody. The recommendation was custody to me. The judge wants to award custody to her. I live in Florida and will have to travel all the way to California to have any visitation. We should have a “bird nest” visitation where we have a house for our daughter and we both occupy it half time each.” Mom argues: “There was no bias here. The custody report was only a recommendation. Another expert said the recommendation was not valid. The court does not have to follow it. The judge showed no gender bias.” What would you do? You be the judge!

104. THE LATE RESPONDING DAD Parties are not married. Mom has a baby and decides it best to put the child up for adoption. As per Family Code 7662(b) dad is given written notice that he may be the father and has 30 days to respond. He does not respond and the adoption proceeds. Over 30 days later dad files an action claiming he is the father. Scientific tests show he is the father. Dad wants to set aside the order that has been made because he did not respond in the 30 days. Dad argues: “OK, I was about ten days late in acknowledging I was the father. This should not bar me. I was not sure if the baby was mine. As the biological father I deserve my day in court.” Mom argues: “You had your 30 days. Your motion to set aside does not allege any mistake, inadvertence, surprise, neglect or excuse. The adoption should proceed.” What would you do? You be the judge!


103. Dad lost. There was no evidence in the record of gender bias against dad. In other cases where there is gender bias the judge makes sexist comments on the record. That did not happen here. The court was not obligated to follow the custody recommendation when other experts criticized it. The father should have filed a writ for the temporary order. There are no appeals on the temporary orders. Only the permanent order. The court still heard the issue anyway. Lester v. Lennane (2000) 84  Cal.App.4th 536. .

104. Dad lost. The case was decided more on his reasons to set aside the judgment. He knew of the 30 days requirement. He made no mistake, inadvertence, etc. Just not being sure the baby was his is not adequate to not answer the pleadings within 30 days. Adoption of Aaron H. (2000) 84 Cal.App.4th 786. This was not so much a family law case as a case involving civil procedure.

105. “I’M NOT THE DAD” Family Code section 7555 provides a Rebuttable presumption affecting the burden of proof that a man is the father when the genetic marker is at a certain number. This presumption may be rebutted by a preponderance of the evidence. One of the ways to rebut the presumption is that the dad did not have access to the mother. Mom argues (Through the DA’s office) “The chances that he is the father are 99.92%. This is very high. His denial of sexual relations does not rebut the presumption. Even though the lower court found clear and convincing evidence that he did not have sex with me during the time of possible conception the numbers are just too high.” Dad argues: “The lower court found that I did not have access to the mother. I testified to this and the trial court found it to be true. I met my burden of proof and the presumption should not apply.” What would you do? You be the judge!

106. THE GRANDPARENTS LOSS” Liz has a baby and father takes off. She lives with her parents and they care for the baby a good deal. Friction develop between Liz and her parents. Liz moves out and grandparents still visit the baby. Liz marries and new husband adopts the baby. Issue is if the grandparents still have standing to request visitation. Liz and husband argue: “We are an intact family. Family Code 3104(b) limits grandparent visitation order to certain situations. This is not the situation now. There has been a change of circumstances in that we are married and my husband is the legal father. The grandparents do not have a right to visitation unless we want them to.” Grandparents argue: “We raised the baby since he was very young. We have built up a bond with the baby. It is simply unfair. There may have been a change of circumstances in the legal issues but not our bond and love of our grandchild. We want continued visitation.” What would you do? You be the judge!


105. Dad won. The presumption is not evidence. If dad can show by a preponderance that he did not have access to the mother then the presumption is overcome. The “hard evidence” of the blood tests must be viewed through the lens of the “soft evidence” of testimony. San Francisco v. Givens (2000) 85 Cal.App.4th 51 filed 11-29-00. What saved dad is the courts finding that he did not have access to the mother. Without such a finding he would, almost certainly, be found to be the father.

106. Grandparents lose. This may not be in the best interests of the minor child but the statutory language of Family Code 3104 is clear and binding on the court. Upon the adoption the parents became a family unit. This entitles the parents to decide with whom the minor may or may not spend his time. Lopez v. Martinez (2000) 85  Cal.App.4d 279   filed 12-6-00.

107. “I  WANT MY DAY IN COURT Veronica changed attorneys a few days before a trial. The old attorney did not tell the new attorney and nobody mentioned the new trial date. Husband Stephan and his attorney do appear and get an uncontested trial judgment. Veronica wants to set aside the judgment and Stephan does not. Veronica argues: “It was all an error. My attorney has filed an affidavit of fault under CCP 473(b). Where there is an attorney affidavit of fault the set aside is mandatory within the six month period. The orders should be set aside.” Stephan argues: “Oh no, it is not like that at all. The statutory requirements of CCP 473(b) are only for a default judgment. That is not the situation here. This is an uncontested trial. The orders should not be set aside.”  What would you do? You be the judge!

108. WHAT IS A “DATING RELATIONSHIP”  Joy dates a man named Adam. Just a few times and only once alone. Adam is a jerk and harasses her. Joy seeks a restraining order under the Domestic Violence Prevention Act (DVPA) in Family Code 6200 and following. The DVPA provides for restraining order for people in a “dating relationship.” Issue is what is a dating relationship. Joy argues: “We only dated once alone but that should be sufficient. We went out another three times with others. I want to use the DVPA which provides for the lost wages, medical care and expenses suffered because of what Adam did.” Adam argues: “This was not a dating relationship. Joy should seek relief under CCP 527.6 for civil harassment. I mean really, four times we go out. Three of those times with others and only once alone. That is not a dating relationship under the DVPA.”  What would you do? You be the judge!


107. Veronica won. The circumstances are more like a default judgment. There was no litigation on the merits. She never had her day in court. Marriage of Hock (2000) 80 Cal.App.4th 1438.

108. Joy lost. It is not a daating relationship. Very good discussion on history of dating in the United States . Interesting from a sociology point of view. Dating relationship under the DVPA refers to “serious courtship” and not just a few dates. She should have gone the civil harassment route of CCP 527.6. Oriola v. Thaler (2000) 84 Cal.App.4th 397.

109. “I’VE BEEN CHEATED” Wife was divorced eight years ago. She claims husband did not reveal certain assets. She seeks to set aside the judgment on fraud. Ex-wife argues: “You misled me on several things. You said your attorney was representing me also which was not true. You failed to reveal certain Community Property assets build up during the marriage. I should be able to set aside the judgment on fraud.” Ex-husband argues: “The time has come and gone. You had a period of time to discover the alleged fraud and you did not find it in time. It is barred by the one year time limit in which you should have discovered the alleged fraud.” Can she set aside the judgment? What would you do? You be the judge!

110. “THE ADULT CHILD SUPPORT” Ex-wife is caring for two adult children of the marriage. Ex-husband wants to lower Spousal Support but court refuses, in part, because of the adult children living with her. Was this proper? Ex-wife argues: “These are adult children from our marriage. One is in college. I admit that I cannot get Child Support for these adult children but they should be considered as far as the amount of Spousal Support ordered.” Ex-husband argues: “She is just trying to get Child Support indirectly. The adult children living with her should not figure in for her expenses for getting more Spousal Support. If she wants to support them she can. However I should not have to pay in the form of increased Spousal Support.” What would you do? You be the judge!


109. Ex-wife wins but must pursue the set aside in the family law court. Good discussion on intrinsic and extrinsic fraud. Extrinsic fraud can be used for a set aside after the six months of CCP 473. Extrinsic fraud is when a party is deprived of his opportunity to present his claim or defense to the court. Where he was kept in ignorance or in some other manner fraudently prevented from fully participating in the proceeding. An example of extrinsic fraud is concealing Community Property assets that happened here. Fraud is intrinsic, and not a ground for setting aside a judgment, when the party has been given notice of the action and has failed to protect his rights. An example is if the party knew of a retirement plan but did not find out the value or relied on the representations of value of the other side. Extrinsic fraud would be if the other side did not reveal the retirement plan at all. Marriage of Kuehn (2000) 85 Cal.App.4d 824    filed 12-20-00.

110. Ex-husband wins for the reasons he states. A side issue is the fact that he is remarried should not be considered in Spousal Support. The law is that he does not have to support adult children unless the adult child is incapacitated from earning a living and is without sufficient means. Marriage of Serna (2000) 85 Cal.App.4d 482    filed 12-12-00.

111. “I SHOULD NOT HAVE TO PAY”   Husband gets default judgment ending marriage. Wife seeks to set it aside which is granted. He appeals. Pending the appeal she seeks an award of Spousal Support and attorney fees in the trial court. It is granted. Husband appeals this ruling. Husband argues: “She should not be able to get attorney fees or Spousal Support since the default set aside is being appealed”. Wife argues: “The order on Spousal Support and attorney fees was just a temporary order to preserve the status quo. Family Code 3600 provides from support during the ‘pendency of any proceeding’ in a family law case. The court was within its power in giving me temporary support and attorney fees.” What would you do? You be the judge!

112. THE PERSISTENT GRANDPARENTS Wife had cancer. Husband Kyle lets her parents (grandparents) care for their child much to the time. Wife dies and grandparents want spelled out visitation and as much visitation as possible. Kyle feels grandparents are turning child against him and he wants less visitation for grandparents. Kyle argues: “Nobody claims that I am an unfit parent. The grandparents are turning our daughter against me. They should have some visitation but they should not be able to specify extended amount of time and timing of the visitation.” Grandparents argue: “We took care of the minor daughter during our daughter’s cancer. We have had extensive visitation with the minor child. Kyle should not be able to limit our visitation rights.” What would you do? You be the judge!


111. Wife wins. Even though there was a default judgment the court can still give her temporary support. This is because there is still an action pending in the court of appeals since he had appealed the case. Marriage of Askmo (2000) 85 Cal.App.4d 1032  filed 1-28-00. The appellate court implies that, even if the default was not set aside and she had appealed, she could still get temporary Spousal Support and attorney fees while the case was pending.

112. Kyle wins. The evidence showed Kyle was a fit parent and did not want to cut off visitation completely. Kyle is entitled to a presumption that he will act in the child’s best interests. His decision regarding the amount of visitation and his preference for a less structured and more normal manner of visitation must be given priority. Kyle O. v. Donald R. (2000) 85 Cal.App.4d 848    filed 12-21-00.

113. “WE HAVE MOVED” This is a federal court case involving the Hague Convention in a custody dispute. Parents and children live in Israel . Dad lets mom take the kids to California for 15 months. At end of about a year mom files for dissolution in California . Dad files action in federal court claiming children should be taken back to Israel under the Hague Convention. Issue is what is the “habitual residence” for purposes of Hague Convention. Mom argues: “We have been here a year. This is the habitual residence of myself and the children. The children have not been wrongfully removed.” Dad argues: ” Israel is still our residence. There is no showing that they have given up Israel as their habitual residence.” What would you do? You be the judge!

114. THE LIFE INSURANCE PROCEEDS Parents are divorced and ex-husband pays child support. One adult son dies and $200k life insurance goes to ex-wife. Should this be considered as income for Child Support and reduce ex-husband’s obligation? Ex-husband argues: “The Family Code does not specifically say if life insurance proceeds are income or not. It can be analogized to gambling or lottery winnings which are also not mentioned. However they are considered as income and so should life insurance proceeds.” Ex-wife argues: “The court has already imputed a reasonable rate of return on the money being about $1,666 per month. This is adequate. Besides life insurance proceeds are not taxable. It can also be compared to a gift since I did not pay the premiums and our son did not have to name me as the beneficiary. Finally it would not be practical. My income for one year would be huge. The next year my income would go way down and I would be back in court to lower Child Support.” What would you do? You be the judge!


113. Federal Appellate Court remands the case to the lower court to determine if the United States has supplanted Israel as the locus of the children’s family and social development. The lower court must determine if the United States is the new habitual residence. Good discussion about what is the “habitual residence” for the Hague Convention. Mozes, filed 2-9-01.

114. Ex-wife wins for the reasons she stated. Keep in mind that the court did consider the reasonable return on the $200k as a form of income. He is probably better off this way. Otherwise Child Support would have been very low one year and just go up the next year. Marriage of Scheppers, (2001) 86 Cal.App.4th 646.

115. “I WANT MY ATTORNEY IN WITH THE MEDIATOR” Mom and dad are divorced. While serving an eviction notice the police find that the minor Turhan, age 4, is alone. They take the child and transfer temporary custody to the father. At court the mediator testifies as to the best interest of the minor. Mom argues: “I wanted to have my attorney in to hear what happened during mediation. Also the entire process of establishing where our child should live is being delegated to the mediator and not the court.” Dad argues: “The law states that the mediator can exclude the attorneys from the mediation session. The mediator just makes a recommendation and not the order. The order itself is made by the court.” What would you do? You be the judge!

116. THE BEARING OF A CHILD  This is not a marriage case. It is a “Marvin” living together case. Parties start living together. They make an oral agreement to share income and assets and that they would have children. They have one child. Later they marry and have two more children. Divorce comes and issues involve property accumulated while living together before marriage. Husband argues: “The so called ‘Marvin agreement’ is not valid because it involves ‘bearing a child.’ This would involve sexual intercourse and is therefore unenforceable because is it dependent upon sexual conduct. The Marvin case held that the agreement is invalid if sexual acts form an inseparable part of the agreement.” Wife argues: “This is ridiculous. What Marvin was talking about was more prostitution. For a Marvin agreement to fail it must be found to explicitly be on a sexual basis and will only fail on that part of the agreement. Husband is trying to make this look like a dirty meretricious relationship which it was not.” What would you do? You be the judge!


115. For Dad for the reasons stated. Mediation in custody cases is mandatory by law. The recommendation of the mediator is evidence to be weighed with all other evidence. The court does not have to follow the recommendation of the mediator. Marriage of Biggums-Slayton, (2001) 86 Cal.App.4th 653.

116. Wife wins for the reasons she stated. Dad actually won in the trial court for the reasons stated by him. However it was reversed by the court of appeal. Even though the agreement involved sex, the court can still use at the rest of the agreement. Marriage of Zoppa Marriage of Zoppa (2001) 86 Cal.App.4th 1144.

117. “MY INHERITANCE SHOULD NOT BE COUNTED”  Mom is on welfare and dad is paying Child Support based on the low income he has. The amount he pays is only $134 and is not sufficient for the needs of the child. Dad inherits $53k. Issue is whether the inherited $53k should be considered income. Dad argues: “It should not be considered income. There is previous case law on this. The Castle (YBJ 67) case said it should not be income. Just the interest the money could earn could be imputed income.” Mom (By Welfare office) argues: “It is income. The Castle case involved a situation where the minor was not on AFDC. This is different. If I, the mother had inherited the $53k, I would not be eligible for welfare.  The converse should be true. His inheritance should be considered as income.” What would you do? You be the judge!

118. THE CALCULATIONS AND TRUST FUND Mom turns daughter against dad. She tells 4 year old daughter that dad’s new wife is a witch. Mom moves to South Carolina . Court gives her guideline Child Support based on California income and not lower South Carolina income. Dad can also deduct $150 per month from this for travel fund for him to visit the child. Is this proper? Mom argues: “The new Child Support should have been computed since I am getting a lower paying job and dad will have a very small time share. Also he should not be able to deduct $150 for a travel fund that only he controls.” Dad argues: “What the court did was proper. I should have the travel fund to see our daughter to help get rid of the hateful feelings mom has made.” What would you do? You be the judge!


117. Mom wins and it is considered income. If the child was not on welfare and if the father’s income and Child Support was sufficient to meet the child’s needs then the court would probably not consider it income. It would just consider the interest earned as income. That is not the situation here. He would probably spend the $53k and not invest it. Riverside v. Nevitt (2001) 87 Cal. App. 4th 415.  FLASH. THIS WAS ORDERED DEPUBLISHED BY THE CALIFORNIA SUPREME COURT. HOWEVER THE SUPREMES DID NOT TAKE IT ON REVIEW. INDICATES THAT THIS CASE IS BAD LAW. IT IS NOT TO BE CITED.

118. Half and half. Court will have to use the guidelines for Child Support. If the court does not follow guideline Child Support it must state what it would be and why the court is not following it. Appeals court remands for the trial court to use guidelines. Possible issues will be imputed income to mother for taking a lower paying job and the fact that the cost of living is lower in South Carolina . The trust fund is OK under the circumstances. He is the more reliable one to use the money and to heal up the wounds of his relationship with his daughter. Wilson v. Shea (2001) 87 Cal.App.4th 887

117. “WE WANT TO VISIT OUR GRANDCHILDREN”           Mom and dad are married and have a baby. Dad dies. Dad’s parents (grandparents of child) want visitation. Since their son died they rely on Family Code 3102 which specifically covers situations like this. Mom wants grandparents to visit one weekend every three months. Court orders one weekend every other month and phone calls each Tuesday. Mom appeals and argues: “Nobody feels I am an unfit mother. I should be able to use my discretion to set what visitation should be. I am not cutting off visitation. I simply think it should be more limited. My decision should be presumed correct. The lower court seems to want to presume that the grandparents should have more visitation. My opinion should be given greater consideration.” Grandparents argue: “Yes, she is a good mother. However we should have more visitation than once every three months. The court can make orders in the best interests of the child even if against the wishes of the mother.” What would you do? You be the judge!

118. THE REIMBURSEMENT ISSUE: Husband and wife purchase a Community Property house. Husband uses his Separate Property money to pay the School Fees required to build the house of $9K. He also paid $22k for home construction. Family Code section 2640 allows reimbursement for these Separate Property expenditures on the Community Property house at time of dissolution. Issue is if the school fees were a tax and not reimbursable or improvements which are reimbursable. Other issue is the $22k was deposited in a Community Property bank account where there were Community Property assets also. Wife argues: “He should not be reimbursed. The 9k was a school tax. The 22k was commingled with Community Property and can’t be traced. He should not receive any reimbursement at all.” Husband argues: “The 9k fees can be considered as a fee to be able to build the house and hence, a construction expense. The 22k can be traced by ‘family expense’ tracing. I should be reimbursed.” What would you do? You be the judge!


117. Mom won. A great deal of discretion is given to a fit mother in this situation. She was not cutting off all visitation but just to limit it. The presumption is that a fit parent can make the best decisions for a child. The mother did here. The lower court should not have ordered the expanded visitation. Ho v. Punsly (2001) 87 Cal.App.4th 1099.

118. Husband wins. The trial court found the 9k school fee was not a tax but a fee for a building permit. It is reimbursed. The 22k is more involved. Basically there was 77k in the account. 43k was his Separate Property and 34k was Community Property. Under family expense tracing it is presumed the 34k was to purchase the house. The remainder was his Separate Property and if he can show it was reimbursable under Family Code 2640 he can be reimbursed. The evidence here was based on reasonable inferences that after the 34k Community Property was spent it was all his Separate Property expenditures beyond that from the account. Marriage of Cochran (2001) 87 Cal.App.4th 1050

121. “THE BABY”   Dad fathers baby out of wedlock. He does take active interest in the child both before and after birth. Mom wants to put the child up for adoption and child is placed with prospective adoptive parents for seven months. Father is found to be a “presumed” father who can prevent the adoption. Can he get custody also? Dad argues: “I am the father who has taken an active interest in our child. The child is now in a guardianship and the child should go to me since I am the father.” Guardians argue: “The child has been with us for seven months. The lower court found that to take the child now would be a detriment to the child. He may be the father but we should have custody.” What would you do? You be the judge!

122. THE SCRIVENER ATTORNEY       Attorney represents both husband and wife in a dissolution. He just draws up the agreement as they request. He acts as a scrivener only who takes down what they say and puts it into legal language. This was all done but now former husband fights it because he doesn�t want to pay the Spousal Support. Former husband argues: “This was a conflict of interest. We did sign a waiver of the conflict of interest but it was not adequate. The attorney was really giving legal advice in adding certain standard clauses to the settlement agreement.” Former wife argues: “You just don�t want to pay the Spousal Support as agreed upon. We both signed the waiver of the conflict. This is a valid settlement agreement.” What would you do? You be the judge!


121. For the guardians. This case is a family law mess where the mother wants the child adopted and the dad wants custody. The child is with guardians who don’t want the dad around. The child did attach to the guardians to a great extent. Consequently, even though he is the father, the guardians can have custody if it is in the best interests of the child. In Re Daniel G. (2001) 87 Cal.App.4th 1392.

122. For former wife. An attorney may act for both parties but only as a scrivener who just writes down their agreement for court. A single attorney so acting should not advise the parties of the pros and cons of their agreement. There was no evidence this attorney did advise the parties. Marriage of Egedi (2001) 88 Cal.App.4th 17.

123. THE RELIGIOUS PRE-NUPTIAL AGREEMENT Parties marry in Egypt and have a prenuptial agreement that cites that “Islamic law” should be used. There are no spelled out provisions of the agreement. Issue is should the court use experts to interpret the meaning of the prenuptial agreement or simply use California law. Wife argues: “The provisions are very general. Husband wants to use Islamic law because under it each parties earnings and accumulations are the Separate Property of the person earning them. That would mean his medical practice and all earnings would be his Separate Property. No parol evidence (testimony) as to its meaning should be allowed since the party testifying would be totally establishing the agreement.” Husband argues: “This was and is a valid agreement. We should both be made to abide by our written agreement.” What would you do? You be the judge!

124. THE SCHOOL TIME  Father has child at least 60% of the time. Father sends son off to private school on the east coast. He goes to court and Child Support is modified. The time share for son in school back east is given to father for Child Support purposes. Dad argues: “I have primary physical responsibility of our son. I am the one paying for the private school. Even thought he does not live with us during this time I should have the time imputed to me for Dissomaster time share for Child Support.” Mom argues: “This is time that our son is not with either of us. He should not be able to use the time our son is in school as his custodial time for Child Support.” What would you do? You be the judge!


123. Wife wins. Oral testimony can be used to interpret certain provisions of the agreement. However when oral testimony is going to establish the terms of the agreement itself then there, in effect, is no written agreement. Just oral testimony is being used. Prenuptial agreements must be written. Marriage of Ahmad (2001) 88 Cal.App.4th 398.

124. Father wins. The key phrase is “primary physical responsibility” in figuring time share for Child Support. As long as father is responsible for the time their son is in school the time should go to him for Child Support. Mother refused to sign the contract for enrollment, did not pay for the school and was not the one listed at school to respond to medical emergencies. Marriage of Katzberg (2001) 88 Cal.App.4th 974. Keep in mind this case was to establish Child Support and not true custody. Query: What if the child was in public school and both were about the same distance from the school.

125. “I WANT TO MOVE OUT OF STATE WITH HALF THE KIDS” Mom and dad divorce with four kids. They each share 50-50 custody. Mom moves to Utah and wants to take the kids. Trial court orders two of the children with her and two to stay with dad. Was it proper to split the family? Dad argues: “There was no evidence on the effect this would have on the children. They should stay here with me.” Mom argues: “I should be able to take the children. The two that are close to me are going with me and the two that are closer to dad are staying with dad. This is proper.” What would you do? You be the judge!

126. THE WELFARE REIMBURSEMENT County of Orange provides welfare benefits to minor child. Dad is the father. Dad owes the county money and wants to go bankrupt on the money owed as reimbursement to the county. Is this permissible? Dad argues: “There are two previous cases that say I can go bankrupt on welfare reimbursement to my child before a judgment is entered. I should still be able to do it. This is what the bankruptcy law is for.” County argues: “In this past this was permissible. However there have been changes to the bankruptcy code. These payments the county made for the child. He should have to pay reimbursement as a form of Child Support.” What would you do? You be the judge!


125. Neither party wins. It is remanded back to the trial court. It was error for the trial court to split the children without compelling reasons. There was no evidence on the effect that this would have on the children as a sibling family. The trial court will have to make new orders. The trial court should keep the children together unless there are compelling reasons for separating them. Marriage of Williams (2001) 88 Cal.App.4th 808.

126. Dad lost. The changes in the bankruptcy code under 11 USC 523(a)(18) and 42 USC 656(b) have changed. The federal court finds that the welfare reimbursement is in the nature of Child Support and he cannot go bankrupt on the obligation. In re Leibowitz, (2000) 217 F.3d 799 (9th circuit).       

127. “I WANT OUR CHILD BACK IN PANAMA ” This is a federal case which is rare in family law. It involves the Hague Convention on International Child Abduction. Dad is a US citizen. He fathers a child with mom who is a citizen of Panama . He moves back to US. He wants child to visit him. Mom consents and they together fill out the paperwork. Child goes with dad and mom wants child back. Mom argues: “I did consent to you taking our child. However I have changed my mind. You have abducted our child and I want our child back.” Dad argues: “I never abducted our child. You consented to my removing our child to the United States . This is not child abduction. What would you do? You be the judge!

128. THE PART TIME COHABITATION This involves Johnnie (John) Cochran who was the defense attorney in the OJ Simpson case. John spends two to four nights a week at Patty’s house. They had a child together. John divorced his first wife. John then later married another woman. He and Patty were never married. Patty brings a “Marvin Action” claiming that there was an agreement between them concerning earnings and property. The court dismissed the case.  John argues: “This was not a full time cohabitation situation. I was only three two to four days a week. Marvin requires a full time cohabitation. Using her theory if a man spent a weekend with a woman she could claim a Marvin cohabitation agreement. I mean, how can I be cohabitating part time with one woman and married to another?” Patty argues: “Even though we lived together part time this is still sufficient for a Marvin cohabitation agreement.” What would you do? You be the judge!


127. Dad won for reasons stated. The legal theory used was on International Child Abduction. This was clearly not the situation here since she consented to dad’s taking the child. She probably should have brought an action in Panama to give her custody or a state court action for the child to be returned to the custodial parent. Caballero v. Mena filed 5-30-01.

128. Patty wins in that a part time living arrangement is sufficient for a Marvin action. The parties had a long term, stable and significant relationship. This can happen where parties live a long ways apart. The facts here are sufficient to raise a triable issue of fact that they cohabitated under Marvin. Marriage of Cochran (2001) 89 Cal.App.4th 283.          

129. “WE MADE AN AGREEMENT”       Parties divorced and make a written agreement, signed by both, modifying Child Support. Dad backs out of it. Mom wants to enforce it in family law court. Dad says mom will have to file a separate action. Dad argues: “Under CCP 664.6 it does permit a judgment to be modified by the parties both signing an agreement during the litigation. However, no Child Support action was pending and this section is in the Code of Civil Procedure and not the family law code. She should have to file a separate civil action to enforce this.” Mom argues: “This will just slow things down. Child Support can always be modified at any stage. The fact that this section is in the CCP has nothing to do with it. A family law court can enforce this.” What would you do? You be the judge!

130. THE LOTTERY TICKET        Wife wins over 1 million in the lottery. She does not tell her husband. She divorces him and does not reveal the lottery winnings in the divorce. After the divorce husband finds out about this and seeks to get the entire winnings since she breached her fiduciary duty as a spouse. Wife argues: “OK, you caught me! I was a bad girl and did not reveal this information on the lottery winnings. He should be entitled to his Community Property one half.” Husband argues: “I should receive the entire amount under Family Code section 1101(h). Her hiding this money constitutes fraud. We are in a fiduciary relationship and she should have revealed this money. Under section 1101(h) her fraud means I should receive the entire amount. This is an appropriate punishment for her fraud.” What would you do? You be the judge!


129. Mom wins for reasons stated. Pending litigation in family law involving Child Support and Spousal Support is given broad meaning. Custody and Child Support involving minor children is never final. As to those matters the litigation must be regarded as still pending. Both parties must sign the agreement which was done here as per CCP 664.6. Marriage of Armato (2001) 88 Cal.App.4th 1030.

130. Husband wins for reasons stated. Even when going through a divorce the parties are in a fiduciary relationship. Lying and fraud about the assets can be punished by the injured party getting up to all the asset or the entire value of the asset. Marriage of Rossi (2001) 90 Cal.App.4th 34.

131. “CHILD SUPPORT IN JAIL” Mom and dad are divorced. Dad is paying Child Support. He molests one of the daughters and goes to jail. Should he have to pay Child Support while in jail? Mom argues: “Yes, he should have to pay. Obviously we can’t get the money now but we can get arrearages when he gets out. He does not have the ability or opportunity to work in jail. However, there should be a public policy exception here. There was a previous order for Child Support. His conduct in molesting our daughter could lead him to jail and he knew it. He should not benefit from his own wrong. He should not benefit from his criminal conduct in not having to pay Child Support.” Dad argues: “I did wrong. However there is no opportunity to work in jail for regular pay. California law is that income should only be imputed when a person has the ability and opportunity to work. I have no real opportunity to work when in jail. I should not have to pay Child Support when in jail.” What would you do? You be the judge!

132. THE LATE CHILD SUPPORT Parties divorced. In judgment dad was to pay increased Child Support over time. It was spelled out as to amount and times. He does not pay it. She files no objection. About ten years later mom goes to DA’s office for them to do collection. DA ‘s office wants the arrearages. Dad argues: “I should not have to pay all the arrearages. She simply waited too long before asking for the money owed. Granted that one of the children is still a minor, she waited too long. My defense is Laches which is unreasonable delay by her that prejudices my interests.” Mom argues: “He should have to pay. Family Code section 4502 is specific that there is no limitation period on support judgments. The law is the law.” What would you do? You be the judge!


131. Dad wins. Current law is that Child Support is not imputed when a person lacks either the ability or opportunity to work. The fact that he is in jail is not relevant to this determination. Marriage of Smith (2001) 90 Cal.App.4th 74.  – Although the guideline expanded the circumstances under which the court may consider a parent’s earning capacity, it did not change the accepted {Page 90 Cal.App.4th 82} meaning of the term. “Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. [Citations.] When the ability to work or the opportunity to work is lacking, earning capacity is absent and application of the standard is inappropriate. When the payor is unwilling to pay and the other two factors are present, the court may apply the earnings capacity standard to deter the shirking of one’s family obligations.” (In re Marriage of Regnery, supra, 214 Cal.App.3d at pp. 1372-1373.)

132. For dad. She waited too long. Laches is the defense here. Family Code 4502 has no statute of limitations but laches is still a defense. Her unreasonable delay resulted in prejudice to dad. She simply waited too long. Marriage of Copeman (2001) 90 Cal.App.4th 324. Our fourth district also follows this reasoning. Other districts do not. It would be nice if the supreme court would make a ruling.                              

133. “THE LATE CHILD SUPPORT”     Dad is ordered to pay Child Support with gradual automatic increases. He does not pay the increases. Ten years later mom goes to DA office for enforcement. One of the children is still a minor. Mom argues: “He should have to pay the Child Support arrearages. Family Code section 4502 says that Child Support is due till paid in full. The fact that I took 10 years to do this is besides the point.” Dad argues: “This is not fair. I should be able to plead laches which is unreasonable delay by her and prejudice to me. During these 10 years I spent extra money on our kids and could have gone to court on a modification if I thought she was serious about the automatic increases.” What would you do? You be the judge!

134. THE BUSINESS VALUE DATE      Husband manages investment business and party’s separate. Husband is the one who is the key factor in the success of the business. Trial is three years after Date of Separation. Wife wants to value the business at time of trial since it has gone up in value. Husband wants to value business at time of separation. Husband argues: “We should value this business at the date of separation. Usually the court uses the trial date however this is an unusual situation. It is my skills that are key in the business. My skills and knowledge after the Date of Separation are my Separate Property and she should not share. My earnings after Date of Separation are my Separate Property so the business should be valued at Date of Separation.” Wife argues: “No, the law is that we usually value assets at the time of trial unless there are unusual circumstances. There are no unusual circumstances here and we should use the Date of Separation.”   What would you do? You be the judge!


133. Dad can plead laches in court. Laches is an available defense to nonpayment of Child Support. Even though one of the children is still a minor the defense is still available. Marriage of Copeman (2001) 90 Cal.App.4th 324. Different court of appeals have gone different ways on this issue. Hopefully the California Supreme Court will make a ruling.

134. For husband. Family Code 2552 has two parts to it. Usually assets are valued at time of trial. However the business was a success because of the personal skills of husband and not because of capital assets of the business. Once the separation took place his skills and income are his Separate Property. The unique character of the business compels a value at Date of Separation. Marriage of Duncan (2001) 90 Cal.App.4th 617.

135. “I WANT THINGS RETROACTIVE” Husband is ordered to pay Spousal Support for 1996 through 1998. Later Family Code section 3653(c) changes the law twice. Last time is to allow reimbursement for over payments of support made in the past. Court lowers Spousal Support for husband retroactively. Wife argues: “This is not fair. The new law should not be applied retroactively. It should be a prospective law only. Any overage he paid it is just his tough luck.” Husband argues: “The specific reason for this change in the law was for it to be retroactive. It does not specifically say so but it can be implied from the circumstances. I should get a refund for the extra money I paid her in the past.” What would you do? You be the judge!

136. THE CHANGE OF CIRCUMSTANCES     Mom and dad have been to court 7 or 8 times involving custody and visitation. Some were just temporary orders and others, the parties thought, were more permanent orders. Should a change of circumstances be shown before changing the previous order. Mom argues: “We must look to the best interests of our children. They are growing up and the court can make further orders on what is best for them. There have been so many previous orders it is hard to tell which is the ‘permanent order’ for the court to use as a guideline.” Dad argues: “This constant going back to court is bad for the children. The previous order, which did not have a return date, was in my favor. It is the order we should use. She should show a change of circumstances before she comes back in again to try to change things.” What would you do? You be the judge!


135. Husband wins for reasons stated. Rarely are laws made retroactive. However it can be implied by the reasoning and legislative history that this is what the legislature intended. Marriage of Petropoulos (2001) 91 Cal.App.4th 161

136. Mom wins. The change of circumstances rule is still valid. However for it to take effect there must be a clear and affirmative showing that the parties intend that it be a final order and for a modification there must be a change of circumstances shown. This case involved a stipulated custody agreement. However, the court implies, that it would also apply to an order obtained via litigation. Marriage of  Montenegro and Diaz (2001) 26 Cal.4th 249. This is a California Supreme Court case.

137. “I WANT THE KIDS HERE” In dissolution primary physical custody goes to mom. Mom decides to move with the children from Santa Barbara to New Mexico . Her family is there and she needs the emotional support. It is not for financial reasons. It is not in bad faith to restrict Dad’s visitation. Therapist for one of the children testified that it would be best for both parents to stay in Santa Barbara . Second best is for kids to go with mom to New Mexico and least attractive choice is for kids to stay with dad in Santa Barbara . What to do? Mom argues: “I want to leave for a good faith reason. It is not to restrict visitation by dad. I am the one with primary physical custody and I should be able to leave with the boys.” Dad argues: “The best thing for the boys, all the psychologists agree, is for both of us to stay here in Santa Barbara . Mom should either have to stay here or go alone to New Mexico and leave the kids here with me.” What would you do? You be the judge!

138. THE TAX ASPECTS  Ex-wife and ex-husband are in court to modify Child Support. Dad has remarried and his new wife files taxes separately from him. She also purchased a house and she alone makes the payments and alone takes the tax deduction. At court, in figuring Child Support, the judge imputes to him married filing jointly and having the tax deduction for the house payments. Court argues: “You can file jointly with your new wife. The fact that you don’t do so is your loss. I am imputing married filing jointly on the Dissomaster for Child Support.” Dad argues: “The law is that my new wife can file jointly if she wishes. I cannot force her to do so. She makes the payment on the house which she purchased and is in her name alone and she alone takes the tax deduction. I should not be punished for my new wife’s acts.” What would you do? You be the judge!


137. Mom wins and takes kids to New Mexico . Family Code 7501 basically says that a custodial parent can move with the children. The exception is where the move is to frustrate the non-custodial parents relationship with the child. As long as the custodial parent is not acting in bad faith and it is in the best interest of the children for custody to that parent, then the custodial parent has a right to move away with the children. Marriage of Bryant 91 Cal.App.4th 789.

138. Dad wins. His new wife can file “married filing separately” if she wishes. The house is in her name alone and she alone takes the tax deduction. Therefore the court should not have imputed the beneficial tax status on the dad. Marriage of  Carlton 91 Cal.App.4th 1213. Query: Perhaps the court should have imputed the value of the free lodging that he was receiving in light of the fact that his new wife was making all the payments on the new house.

139. “I’VE GOT THE RING!” This case involved much talk of severance pay and stock options. However the diamond ring part is the most interesting. After marriage Jim purchases a diamond ring for his wife named Buff valued at about $13k. It was purchased with Community Property funds. Issue is if this ring is her separate property as a gift or still Community Property at time of dissolution. Family Code 852 says there can be a transmutation of gift jewelry that is not substantial in value taking into account the circumstances of the marriage. Otherwise it must be an express declaration in writing. Buff argues: “It was a fifth anniversary gift to me. He gave it to me with a card and everything. The gift ring should be my Separate Property.” Jim argues: “This was a substantial gift and there should have been an express writing to make it Separate Property. Consequently it is Community Property. The card alone was not an express declaration to transfer the nature of the property from Community Property to Separate Property.” What would you do? You be the judge!

140. THE SEPARATE PROPERTY REAL ESTATE    Dad has Separate Property assets of about $6 million. His income is only $65k per year because all those assets are not income producing. His personal living expenses are over $160k per year. He just dips into his Separate Property for the extra living expenses. Mom wants to impute a reasonable rate of return on those non-income producing assets to figure Child Support. Dad argues: “This is not fair. The law is that no income will be imputed from non income producing property. I am not trying to hide or suppress my income. It is just that it is not income producing.” Mom argues: “This is not right. Family Code 4058 expressly authorizes the court to impute income without regard to deliberate attempts to reduce income. The court should impute a reasonable rate of income from this Separate Property.” What would you do? You be the judge!


139. Jim wins. The ring is considered Community Property for his reasoning. The gift card was not an express declaration in writing transmuting the ring from Community Property to her Separate Property. Marriage of Jones and Steinberger (2001) 91 Cal.App.4th 1449. It would have been nice if the court would have stated what their incomes were at the time of the gift. A Bill Gates billionaire would consider $13k as pocket change. What was their income?

140. Mom wins. The court can impute income under Family Code 4058. A reasonable rate of return can be imputed from his Separate Property and this can be used in setting reasonable Child Support. Marriage of Destein (2001) at 91 Cal.App.4th 1385.

141. “IMPROVEMENTS TO SEPARATE PROPERTY   During marriage parties use Community Property to pay for improvements on the drip irrigation of husbands Separate Property real estate. At divorce time wife wants reimbursement to the community for the costs of the improvement to his Separate Property. Husband argues: “I should not have to reimburse anything. This is a presumed gift of the Community Property to my Separate Property. She did not object and it is an implied gift.” Wife argues: “No, that is not fair. Your Separate Property gained from this and our Community Property should get reimbursement. We do not get reimbursement on the taxes paid but we should on what improved the value of the property. Here the improvement was the irrigation system.” What would you do? You be the judge!

142. THE DIFFERENT NAME      Father named “James Michael Cloney” was divorced. He fell behind in Child Support payments. Wife records copy of judgment, with that name, as a judgment lien in recorders office. He then acquired title to realty in the name of “Mike Cloney”. He sells the property. Escrow agent learns of his correct legal name but does nothing. Lloyd purchases the land and then mom comes after him for the money owed in back support. Mom argues: “I should be able to collect the back support from the land even though dad no longer owns it. The new owner’s escrow officer knew of the different names and should have alerted the title company.” Lloyd argues: “I purchased the land and did not realize what was going on. There were two different names and I should not be responsible. She should not get the money from the realty I now own.” What would you do? You be the judge!


141. Wife wins for reasons stated. Apparently she could have asked for a percentage of the increase of the value of the Separate Property land, for reimbursement for the Community Property labor that was expended or just be reimbursed on the costs as she did here. They improved the value of his land just as surely as they helped to pay down the mortgage on the land. Marriage of Wolfe (2001) 91  Cal.App.4th 962    filed 8-23-01.

142. Mom wins. She can get a writ of execution on the land. The person at fault is the escrow officer. She should have notified the title company of the different names used. The buyer had constructive knowledge because the escrow officer knew and should have alerted buyer and the title company. Marriage of Cloney (2001) 91 Cal.App.4th 429.

143. “MY SEPARATE PROPERTY SHOULD NOT BE COUNTED”            David has about $45 million in Separate Property. Should this money be considered in ordering Child Support? Much of the money is stock options which do not produce income till exercised. David argues: “Child Support guidelines are based exclusively on income and not assets. I have no income from these till I cash them in. They should not be counted for Child Support till I start to cash them in.” Iris argues: “This is ridiculous. At the least reasonable income could be imputed on the value of the stocks. He can make himself look poor by not cashing in the options. He would do this so as not to pay a large amount of Child Support if this were the law.” What would you do? You be the judge!

144. THE RETROACTIVE LAW   Child and Spousal Support modification motion. Dad files and finally gets into court several months later. Support is lowered and made retroactive to the filing date of his motion. This is commonly done. Previous law of Family Code 3653 was that he would get no reimbursement of any overpayment he made. New change in Family Code 3653 says he may get reimbursement. He has made an overpayment and requests reimbursement of the overpayment amounts. Mom argues: “This is not right. The new change in the law to permit reimbursement should not be made retroactive. Most laws are prospective and do not go back in time. We should use the old law that was in effect when he made the overpayment.” Dad argues: “No, the law should be made retroactive. The wording of the law and its application were specifically designed to be made retroactive. The new change in the law was specifically done to correct a previous bad law that was not just.” What would you do? You be the judge!


            143. Iris wins for the reasons she stated. Marriage of Cheriton 92 Cal.App.4th 269. All this intellectualization about sources of income for Child Support fail when common sense is used. The interest on $45 million alone would be huge. David should have worked out a settlement here. 

144. Dad won for the reasons stated. He is not automatically entitled to reimbursement. The court has discretion to grant it or not. Usually the court would grant reimbursement. Marriage of Dandona and Araluce 91 Cal.App.4th 1120.

145. THE GIRLFRIEND AND WIFE Man’s first wife dies and he remarried several years later. He gives his former wife’s diamond ring to his new wife as well as deeding over the home. In addition the auto was also put in new wife’s name. He dies and son from first marriage feels that the home, auto and ring should be in the estate and not her Separate Property. Son argues: “It was my father’s Separate Property since my mother died. For him to transfer his Separate Property to new wife as her Separate Property or Community Property requires a writing and an express declaration of transfer as per Family Code 852. This was not done here. Therefore the property stays as dad’s Separate Property and I have an interest.” Second wife argues: “He gave the ring to me before we were married so a writing and express declaration were not required. The realty was transferred to me in a deed in joint tenancy so it became mine when he died. The deed itself is a writing and express declaration of change in title. DMV changed the title on the car so that becomes mine because it was my name OR my husband’s name.” What would you do if you were the judge?

146. THE INVESTMENTS Husband, during the marriage, does almost all the money matters and investments. He doesn’t really like to talk to wife about the investments. Some are speculative and gain money. Others lose money. Divorce time comes and wife wants to hold husband accountable for the investments that lost money. Wife argues: “He did not reveal the investment information to me. He would not like to talk about it that much. Also some of the investments were speculative and lost money. He violated his fiduciary duty under Family Code 1100 and 721.” Husband argues: “I did the money and investing because you admit you did a lousy job of it. Sure, some of the investments lost money but others gained money. You never demanded to have information on all the investments. Just because I didn’t want to talk about it that much does not mean that I would not reveal it upon your demand.” What would you do if you were the judge?


145. New wife wins on the ring and realty for reasons stated. She loses on the car. Just because DMV changed the title does not mean this court will recognize it for the type of property interest involved here. It still requires a writing and an express declaration that the ownership or characterization of the property is being changed. Estate of Bibb (2001) 87 Cal.App.4th 461. This was discussed at the State Bar Annual Meeting in 2001. The bottom line is that it means that it is easier to give something to your girlfriend (here the ring) than it is to give it to your wife.

146. Husband wins. There was no evidence she actively sought information on the investments and no evidence he never provided the information. There is no duty of due care to make only conservative investments. He lost money also. They were married and living together. Divorce was not yet part of the picture. There is no duty for him to make only conservative investments. Marriage of Duffy (2001) 91 Cal.App.4th 923, filed 5-31-0.

148. THE GRANDPARENTS BURDEN OF PROOF Grandparents son divorced mom. Grandparents have a close relationship with the minor daughter of the former marriage. They want to visit the daughter. The mother, who is a fit mother, does not want them to visit. Mom argues: “I am the mother and I should have some say so. Just because the judge feels it is a good thing for the grandparents to visit my daughter does not mean the grandparents have rights to do so.” Grandparents argue: “The trial judge made a finding that the visitation for us grandparents was in the best interest of the minor. He found this by a preponderance of the evidence. Therefore we should be able to visit.” What would you do? You be the judge!


148. Mom wins. There is a presumption that fit parents act in the best interests of the minor child in their custody. To overcome this presumption the grandparents (this is for grandparents only) must show by “clear and convincing evidence” that the parents decision for them not to visit would be detrimental to the child. Marriage of Harris (2001)  92 Cal.App.4th 499.

149. “I’M PAYING MORE THAN I HAVE TO” At court dad agrees to pay more than the guideline Child Support. He is not obligated to do so. He does this out of the goodness of his heart. Later he has a change of heart and wants to pay guideline only. He brings a motion to reduce Child Support. He argues: “If we agreed to pay less than guideline then it could be modified upward without any showing of a change of circumstances. It should be the same way when paying more than guideline and I want to pay guideline only.” Mom argues: “The increased amounts of Child Support were clearly in the best interests of the children. When the amounts are in excess of guideline and not lower, the party seeking to lower it will have to show a change of circumstances.” What would you do? You be the judge!


149. Mom wins for the reasons stated. This may hamper people from paying more than guideline support. They could just pay it on a voluntary basis alone. Marriage of Laudeman (2001)  92 Cal.App.4th 1009.

152. THE PHOTOS OF HIGH LIVING     Pam goes to court to get more Child Support. Victor produces no documents to show his income. Pam’s evidence is photos of Victor and all the fancy toys he has. The court feels his income is about $9k per month and bases Child Support on that income. Victor argues: “This is not fair. I did not bring the evidence of my income but that does not mean that my income should be figured based on photos of my lifestyle. The court should also not have considered the girlfriend I am living with and her income.” Pam argues: “You would not bring any documents and so you must suffer the consequences. I asked you to bring them and you did not. Consequently you must suffer the consequences.” What would you do? You be the judge!


152. Victor wins. He was wrong in failing to bring the documents but the court should have used better evidence than the photos for his income. Pam could have made discovery motions to find his income. Marriage of Loh (2001) 93 Cal.App.4th 325.

153. “I’VE CHANGED MY MIND” Dolores is age 31, unmarried, the mother of three other children by three different men and pregnant again. She wants to put the new child up for adoption and signs all the forms and all the paperwork. However she forgets to initial one box on a 20 box form. It was an accident and she wanted the adoption to go through. She has now changed her mind. Dolores argues: “It is true. I failed to initial the one box just as an oversight. I did want the child to be adopted. But now I have changed my mind. The fact that I failed to initial one of the boxes means the adoption should not go through.” Adoptive parents argue: “The box not initialed was not of great importance. Dolores admits she wanted the adoption to go through. It is only now that she changes her mind.” What would you do? You be the judge!


153. Adoptive parents win. Dolores intended to initial the box. It was merely an oversight. To hold the adoption does not succeed because she failed to initial one of twenty boxes is to let form control substance. Adoption of Baby Boy D. (2001) 92 Cal.App.4th 1.

155. THE ERROR ON THE PENSION PLAN  Husband and wife in dissolution. In the Declaration of Disclosure the wife lists two of her pension plans and puts the value as “unknown” on one of them. Husband thinks the two pension plans are one. The “unknown” value pension plan is over $200k. After the dissolution ex-husband wants to set aside the judgment based on mistake. Should he be able to do this? Ex-wife argues: “I really was not sure of the value so I did not lie. I did list it. He should have asked for more information about the plan. He could have easily done this but failed to do so.” Ex-husband argues: “I thought the two pension plans were really one. I made an error. However, beyond that, she had an obligation to get as much information on the plan as possible. She was in a better position to find the value and should have done so.” What would you do? You be the judge!

156. THE $19,000 PER MONTH CHILD SUPPORT  It is believed that dad makes $3.5 million per year income. He admits he can pay any reasonable Child Support. Two issues. 1. Does he still have to reveal his income? 2. Does he still have to pay when the minor is an AFS exchange high school student in Japan ? Dad argues: “I should not have to reveal my income since I stipulate to pay any reasonable amount of Child Support. I will leave it up to the court on what is reasonable. Also I should not have to pay Child Support during the time our son is in Japan . It will force him to spend an extra year in high school. Instead of graduation at age 18 he will graduate at age 19.” Mom argues: “The law requires that the court (Family Code 4056) figure the support on the mandated guideline that would have been ordered. To do this the court needs information on his true earnings. As to the year in Japan there is no requirement that a student graduate as soon as possible. The year in Japan will be culturally enriching even if he has to spend an extra year in high school.” What would you do? You be the judge!


155. For ex-husband. Even when going through a divorce the parties are in a fiduciary relationship with each other in the eyes of the law. She should have made greater efforts to find the value since it was her plan and she was better able to find the value. Just because she mentioned the plan in the pleadings does not mean she can just list “unknown” She should have found the value since it was a defined contribution plan that had a set cash value. Marriage of Brewer and Federici (2001) 93 Cal.App.4th 1334

156. For mom for her reasons. The son will still take classes in Japan and be a full time student. It will take him longer to graduate but father is still protected by the absolute cut off at age 19. In other cases where father has not had to reveal his income the parties agreed on Child Support. Here they have not agreed. Case is remanded. Marriage of Hubner (2001) 94 Cal.App.4th 175.

158. THE HIDDEN KIDS    Parents divorce and mom gets custody. Mom hides the minor children for four years and dad does not pay Child Support during this 4 year time that the children are still minors. Later, after the kids are adults, mom goes to court and wants back Child Support for the time she hid the kids. Mom argues: “The fact that I hid the kids should not stop me from getting support. Dad should have gone to court to lower Child Support or some other remedy and not just stopped paying. The money is for the kids. Even though they are adults now I was the one who had to care for them.” Dad argues: “There is case law that concealment of the children prevents her getting money for arrearages owed. I should not have to pay for the time she hid the children.” What would you do? You be the judge!


158. For mom. When the concealment is for up to when the children reach the age of majority then the arrearages can’t be collected. However when the concealment ends when the minors are still children then it is not a defense to back Child Support being owed. The message is that the dad’s recourse for concealment by mom lies with the remedies provided by the legal system in going back to court. Not the extra-legal self help of just not paying Child Support. Marriage of Vroenen (2001) 94 Cal.App.4th 1176.

159. “I HAVE A BETTER HOME Custody issue. Dad makes a high income and has new wife who does not work. Mom is working and does not make that much. She has the child in day care when she works. Who should have custody? Dad argues: “I should have custody. I am financially better off and have greater job stability. In addition I own my own home and my new wife does not work and can care for her stepchild.” Mom argues: “This is discrimination against working mothers. I work because I have to. He should pay me more Child Support to make up for my having to work. His argument is insensitive to working parents.” What would you do? You be the judge!

160. THE SUPPORT Mom and Dad divorce. Dad has the kids but is ordered to pay Spousal Support to mom. He does. Then the kids move in with her. He voluntarily agrees orally to pay Child Support since the kids are with her. He stops paying Spousal Support. Years later she asks for the back Spousal Support that she has not received. Mom argues: “The money was for the kids and not me. He still owes me the Spousal Support that he has refused to pay.” Dad argues: “I did pay the Child Support and that should make up for it. The Child Support was informal with no agreement. You should not have waited so long to demand the Spousal Support.” What would you do? You be the judge!


            159. Mom wins issue. Courts can’t rely on economic circumstances of the parties. Child support should be an equalizing factor. Many mothers are working parents. It is usually the mother who is criticized for not being in the home. The same holds true of the father. In determining custody courts are not to measure based on income or that one parent has to use day care for the child. Marriage of Burchard (1986) 42  Cal.3d 531.

160. Mom basically wins. Some of the arrearages of Spousal Support is taken off. Dad should have gone to court or gotten a written stipulation filed in court to change the payments. Marriage of Edmund and Cordero (2002) 95 Cal.App.4th 653.

161. “I WANT TO BE REIMBURSED” Husband uses about $40k of his Separate Property money after marriage to improve the Separate Property house that his wife owned prior to marriage. It was for capital improvements. The improvements became part and parcel of the residence. They became part of the realty itself and could not be removed. At divorce time should husband be reimbursed for the $40k contribution to his wife’s Separate Property home? Husband argues: “I should receive reimbursement. Family Code 2640 provides for reimbursement for Separate Property contributions to Community Property so I should receive reimbursement for my Separate Property contribution to her Separate Property. If not then this was a transmutation and I have an interest in her house.” Wife argues: “Oh no, it is not like that at all. There are no provisions in the law for Separate Property reimbursement to contributions to the other spouses Separate Property. There was no transmutation because there was no writing between both of us.” What would you do? You be the judge!

162. THE PASSPORT  Mom and dad are divorced. Mom is supposed to make Child Support payments but does not do so. She tries to get a passport to travel outside the United States . The Secretary of State (USA) refuses to issue the passport because she is behind in Child Support. Mom argues: “Perhaps I am in arrears by $20,000. The fact that I am behind in Child Support does not mean I am not entitled to a passport. I have a constitutional right to travel. I want to travel for business so I can earn more money to pay Child Support.” USA argues: “The law is if you are over $5k behind in Child Support and this has been reported to the federal government then you have no right to a passport. You do have a right to travel between the states but not out of the country.” What would you do? You be the judge!


161. Wife wins for the reasons stated. There is simply no place in California law for reimbursement for Separate Property contributions to the other parties Separate Property in this situation. Marriage of Cross (2001) 94 Cal.App.4th 1143. This would probably be true for debts. When parties marry and one has huge debts built up before the marriage, it is common for the other to pay off those debts with their Separate Property savings built up before marriage. If a divorce ever came there would probably not be reimbursement.

162. USA wins. Interstate travel is constitutionally protected but not travel outside of the USA . Congress has decreed that her duties to her children must take precedence over her international travel plans. Since she is behind in Child Support she has no right to travel outside of the USA . Eunique v. Powell, filed 2-22-02.

163. THE COURT SHOULD IMPUTE INCOME Divorce case. Mom has primary physical custody of the children. She does not work. Dad wants income imputed to her that she would be capable of earning from work. Dad argues: “The courts have imputed income in other cases. The court should determine what she could earn if she worked. That amount of money should be imputed to her earnings.” Mom argues: “No, the law is different. Family code section 4058(b) says the court may consider imputed income to me only if it is in the best interests of the children. The court will first have to make a finding that imputing income to me is in the best interests of our children.” What would you do? You be the judge!

164.THE INTERNATIONAL CHILD ABDUCTION Mom and dad divorce in Hawaii . Hawaii makes orders on custody and visitation. Mom moves to Canada . On visitation dad is afraid mom is not doing a good job and keeps child in Hawaii with him. Mom files in federal court under the International Child Abduction Remedies Act and the Hague Convention. Mom then moves herself to Hawaii again. Does federal court have jurisdiction? Mom argues: “Yes, the court has jurisdiction. I was in another country when our child was abducted. The fact that I have returned to Hawaii has nothing to do with this.” Dad argues: “The federal law in this case is only for when the child has been abducted to another jurisdiction. Since she moved back here to Hawaii the above federal laws cannot be used.” What would you do? You be the judge!


163. Mom wins for the reasons stated. Family Code 4058(b) does allow imputing income to the custodial parent but only if it is in the best interests of the children. Also Family Code 4058(c) excludes income from public assistance and Child Support for other children of another relationship. Marriage of Cheriton (2001) 92 Cal.App.4th 269. Here mom has four young children.

164. Dad wins for reasons stated. The Hague Convention cannot be invoked when the petitioner moves permanently to the same country in which the abductor and children are located. The case is remanded to the lower court to determine if she permanently moved back to Hawaii . Gaudin v. Remis, filed March 11, 2002. Federal case.

166. THE SPOUSAL SUPPORT In judgment it is stipulated that spousal support is for a certain amount of money, for a certain period of time and is non-modifiable. Ex-wife later marries again and wants to still receive Spousal Support since it is non-modifiable. Can she do this? Ex-wife argues: “The order was agreed to by us all. It is Non-Modifiable. Even if I get married again it continues. Keep in mind that by being non-modifiable I could not ask for an increase so this is not all one sided.” Ex-husband argues: “An agreement making support non-modifiable is not the same as making an agreement to have the support non-terminable. Spousal Support ending upon marriage is automatic. If we wanted it to be nonterminable we should have spelled it out.” What would you do? You be the judge!


            166. Husband wins for reasons stated. Statutory provisions terminating Spousal Support on remarriage are self executing and are automatically included in a spousal support judgment unless specifically waived by the parties. If they did want to waive this they should have specifically spelled out that Spousal Support continues even after her remarriage. Marriage of Thronton (2002) 95 Cal.App.4th 251.

167. “MY ROOMIE IS NOT A SHACK UP”  Ex-wife is receiving Spousal Support and living with a man. She claims he is a roommate only. She has checks going to him and claims she does it to save money. Later ex-husband finds that she shares a checking account with the man. Is this cohabitation that will reduce Spousal Support? Ex-wife argues: “It does not matter if he was a roommate or I was cohabitating with him. We litigated this a few years ago when the court found he was a roommate. It should not matter.” Ex-husband argues: “When you are cohabitating and not just roommates then Family Code 4323 takes effect. You are no longer just renting from him but a cohabitation situation with the reduced need for Spousal Support presumed under Family Code 4323.” What would you do? You be the judge!

168. THE REIMBURSEMENT ENTITLEMENT Husband owns a house before marriage. After marriage Community Property funds (his earnings) are used to make improvements on the Separate Property house he owned before marriage. At divorce time wife wants reimbursement to the community for the Community Property funds that went into to improve his Separate Property house. Ex-husband argues: “There should be no reimbursement. It is presumed to be a gift. There is other case law that Community Property payments on the house would be entitled to reimbursement. However this is different. These were for capital improvements and not payments to reduce the principal on the mortgage.” Ex-wife argues: “Even though there never was any formal agreement that the community would be reimbursed it still should be reimbursed. It is true for Separate Property reimbursement. It is true for Community Property reimbursement on principal payments. It should also be true for capital improvements.” What would you do? You be the judge!


            167. Ex-husband wins for reasons stated. If she were just a roommate renting from the man it would not be a cohabitation. However once they start having the other on their accounts it is more like a romantic style living together. Family Code 4323 takes effect then. The joint accounts alone show this. Room mates renting from each other do not have each other on their accounts. Marriage of Bower (2002) 96 Cal.App.4th 893.

168. Ex-wife wins for reasons stated. Moore-Marsden provides for Community Property reimbursement for principal payments and it should also be true of Community Property investment in capital improvements on Separate Property. This is in accord with the Wolfe case. The Community Property is entitled to Moore-Marsden pro tanto interest or reimbursement. This rationale applies both to a reduction in principal and capital improvements. Marriage of Allen (2002) 96 Cal.App.4th 497.

169. “I WANT THAT MONEY” Florida dissolution and order made on Spousal Support. Both parties move out of Florida . Ex-wife gets Wage Assignment in California for back Spousal Support owed by ex-husband. Ex-husband goes to court in California and modified Spousal Support downward. Can he do this? Ex-husband argues: “Yes, I can modify Spousal Support. Neither of us live in Florida anymore. No children or any parties are in Florida . We are both in California and California can modify Spousal Support. After all you got the Wage Assignment here.” Ex-wife argues: “No, California cannot modify the Spousal Support order from Florida . Under Family Code 4909(f) and UIFSA the state of Florida has exclusive jurisdiction even though we don’t live there anymore. It is different with Child Support but not Spousal Support. The fact that I got the Wage Assignment here in California has nothing to do with it.” What would you do? You be the judge!

170. THE PRIVILEGE AGAINST SELF INCRIMINATION Dad is behind in over $300k in child and spousal support. Mom brings him to a judgment debtor hearing where he is to tell of his assets and debts. He refuses to answer anything claiming the fifth amendment privilege against self incrimination. This is because non payments of support is subject to criminal contempt proceedings. Mom argues: “Your refusal to pay support should not be rewarded by a lifetime protection for your income information. You should have to answer the question and produce documents.” Dad argues: “The fifth amendment to the constitution protects everyone. It protected OJ Simpson from having to testify and it should protect me from having to answer questions and produce documents. It is a right that is guaranteed by our constitution.” What would you do? You be the judge!


169. Ex-wife wins for reasons stated. California may not modify a Florida court’s Spousal Support order although both parties no longer reside in Florida . It would be different with Child Support. Ex-husband will have to go back to Florida to modify the Spousal Support. Marriage of Rassier (2002) 96 Cal.App.4th 1431    filed 3-22-02

170. The court has to balance the rights here. The privilege against self incrimination and the need for support. The court determines that just the tax return is the only document that dad will have to produce. He will also have to answer questions about it. Family Code 3552 and Family Code 3665 both provide for tax return information. A final note is that any money earned, even through criminal acts, is to be reported on the tax return. Marriage of Sachs (2002) 95 Cal.App.4th 1144. 

171. THE  FRAUDULENT TRANSFER Issue is can a divorced party’s property division be considered a fraudulent transfer? Husband gets a lady pregnant (Lady). This leads to a divorce in his marriage because wife does not like that he got Lady pregnant. Husband and wife divide property where she gets almost all the property. Husband gets his medical practice and little else. Husband abandons his medical practice and lives with his mother in poverty. Lady sues both former husband and wife for a fraudulent transfer. Lady argues: “You got rid of all your assets like the house and other things. If you don’t pay Child Support I can’t get the Child Support money. You and former wife planned this so I have no security for Child Support. She has all the assets and you have gone into poverty. It was a fraudulent transfer between you and your wife.” Former husband and wife argue: “This was a property division between husband and wife. By law this is not a fraudulent transfer. To say that a marital property division can be a fraudulent transfer would just complicate things and make divorces even stickier than they are.” What would you do? You be the judge!


171. Lady wins for reasons stated. The UFTA (Uniform Fraudulent Transfers Act) of Civil Code section 3439 does apply to property divisions in a dissolution of marriage. While there is no code section that says that it does apply there is also none that say it does not apply. The UFTA is very broad and this court holds it does apply. Another court of appeals disagrees. Mejia v. Reed (2002) 97 Cal.App.4th 277. 

173. THE “KEEP WORKING” RETIREMENT  Vera and Earl are divorced. Earl keeps working even though eligible for retirement. Vera is upset because she can’t get the retirement benefits till he retires. She wants and order to get her share. Earl argues: “I can freely choose to continue to work if I so choose. You will get your benefits but not till I retire. It is only fair that I be able to continue to work” Vera argues: “It’s all control isn’t it?! I don’t want to force you to retire. I just want to get what my benefits would be if you retired. I want you to pay me my share as if you had retired on the retirement date.” What would you do? You be the judge!


173. Vera wins for reasons stated. Earl should not be able to limit Vera getting her share. The amount that he could have retired at can be computed. He can then pay her her share based on that computation. The other side of the coin is that she can’t have it both ways. If she starts receiving benefits she gives up increased payments in the future which might accrue due to increased age, longer service and a higher salary. Thus, if Vera chooses to receive her share of the retirement benefits immediately, she will forfeit her right to share in the increased value of those benefits In the future. Marriage of Gillmore (1981) 29 Cal.3d 418.

175. THE  DAMAGES FOR BEING UNFAITHFUL Husband had affair during marriage. This does not lead to dissolution. Instead they make a written agreement that if either is ever unfaithful again they will pay the other $50,000 as damages. (One wonders why the wife signed also since it was the husband who was unfaithful) Husband is unfaithful again. Does he have to pay? Wife argues: “Yes, he should pay. We made the agreement between ourselves and it is only reasonable. If parties make agreements in writing they should be enforced.” Husband argues: “Not so fast. I was unfaithful but this is against social policy. Family law courts may not look to who is at fault in divorces. This agreement is in direct contravention to California policy for no fault divorce.” What would you do? You be the judge!


175. Husband wins for reasons stated. The $50,000 penalty is directly contrary to the public policy underlying no fault divorce. The parties cannot impose a penalty for adultery when California forbids it. The agreement is not enforceable. Diosdado case (2002) 97 Cal.App.4th 470.

177. THE CHANGE IN TITLE  Shirley serves Robert with divorce papers. There are automatic orders on the back of the summons that neither party can transfer any of the property. The home is in joint tenancy which means that if one dies the other takes full ownership. Robert signs a deed to himself as a tenant in common. It is specifically to end the joint tenancy so if he dies she won’t get the entire house. He dies and Robert’s interest goes to Charles and not Shirley. Is this proper? Shirley argues: “This is not right. The orders on the back of the summons were clear. He was not to change title or in anyway transfer the title.” Charles argues: “This is not a true transfer of the property. It only changes who receives an interest upon death. It is only an expectancy. There is nothing wrong in making sure his soon to be ex wife will not receive his interest on death.” What would you do? You be the judge!

178. THE INCOME ISSUE  In figuring Spousal Support the court uses the Dissomaster guidelines for permanent Spousal Support. It also imputes the value of the company car and lodging as tax free income. Is this proper? Husband argues: “The computer program should not be used for figuring Spousal Support on a permanent basis. The temporary basis is usually higher. Also the rental subsidy of lodging and the use of the company car should be added into taxable income and not nontaxable income.” Wife argues: “Well the court kind of looked at other factors. Also you don’t pay taxes on the use of the lodging or the car so it should be figured at nontaxable.” What would you do? You be the judge!


177. Charles wins. When one spouse severs joint tenancy with the other spouse by executing and recording a declaration of severance or deed doing so, there is neither a transfer or disposition of any property. Such a severance does not violate the law prohibiting selling, etc. the property of the marriage. Estate of Mitchell (1999) 76 Cal.App.4th 1378

178. Husband wins. The purpose of temporary Spousal Support is to maintain the status quo as much as possible pending trial. Permanent Spousal Support is supposed to reflect a complex variety of factors established by statute. Included are factors that favor reduced support. Permanent Spousal Support is usually lower than temporary Spousal Support. In reference to the car and lodging. These are employee benefits even though he works for his parents. They benefits are figured as taxable income because they are job related. If they were straight gifts they would probably not be considered. Marriage of Schulze (1997) 60 Cal.App.4th 519.

179. THE  $30 MILLION DOLLAR HOUSE Dad is independently wealthy. He lives off his Separate Property inherited income. One of the last remaining assets he has is his house valued at about 25 to 30 million. It is apparently paid off. Child Support is the issue. Mom argues: “Sure your income may be less but you are living in a huge asset that does not produce income. The court should order more Child Support than the guideline on your income because you are sitting on this asset.” Dad argues: “We lived on my Separate Property during the entire marriage. I have a right to live in my own Separate Property house. No extra income should be imputed because of my Separate Property house.” What would you do? You be the judge!

180. THE ATTORNEY FEES AWARD Attorneys represent wife. They file motion for an order for attorney fees for husband to pay. Before the motion the wife substitutes her attorneys out and makes it clear that she does not want them to get an attorney fee award. They want to get the attorney fees ordered from husband. Wife argues: “I fired these attorneys. They did have a motion pending but once the substitution was filed with me acting as my own attorney I can request that the court not order attorney fees.” Former attorneys for wife argue: “But the agreement in the retainer was that we could get court ordered attorney fees from husband. We had a prior motion pending for attorney fees. We should be able to get attorney fees from the husband.” What would you do? You be the judge!


179. Mom wins for the reasons she stated. He is sitting on a $25M house and can sell it and still have a fine residence. The fact that they lived on his Separate Property income is not relevant to the children. He still has to support their children. Marriage of DeGuigne (2002) 97 Cal.App.4th 1353.      

180. Wife wins for reasons stated. Once the substitution of attorneys was filed and she instructed the court not to grant attorney fees then the attorneys have no power to get attorney fees from husband. Lesson here is once that substitution is filed with the court the attorneys had basically no power to get attorney fees from husband. Marriage of Read (2002) 97 Cal.App.4th 476.

181. THE FATHER WHO IS NOT THE BIOLOGICAL FATHER  Thomas was living with Kimberly when she got pregnant by another man. The child is Nicholas. Thomas raises Nicholas and treats him like a son. Thomas is the only father Nicholas has known. However Thomas is not the biological father. Issue is, can Thomas be considered a presumed father who has rights to visitation and in raising the child. Thomas argues: “Just because I am not the biological father should not mean that I cannot be considered the Presumed father (who has more rights). It is not fair to the child.” Social Services Agency argues: “The law is the law. Family Code section 7611 and 7612 mean that a man who is not the biological father cannot be a presumed father. I am sorry but the law is the law.” What would you do? You be the judge!

182. THE UNBALANCED DIVISION Stipulated judgment. After the judgment the value of certain stock awarded to husband goes up in value. Wife is not happy and wants it set aside because it is not fair. Wife argues: “It is not fair. The court is to divide the Community Property equally and did not do so here. The value of his stock makes the division unequal.” Husband argues: “We both knew what was going on. He stock went up in value after the stipulation. Neither of us could know at the time that the value of the stock would go up. I should be able to reap the rewards of the stock.” What would you do? You be the judge!


181. Thomas wins. It is all very technical on interpretation of Family Code 7611 and 7612. The bottom line is that the California Supreme Court holds that a man does not lose status as a presumed father by admitting he is not the biological father. The biological father was not interested in raising the child and mom was a street person. In Re Nicholas H.  (2002) 28 Cal.4th 56   

182.  Husband wins for reasons he stated. Even if it was known the stock was worth more the fact that it was not equal would not, by itself, mean it should be set aside. Family Code section 2123 states that a judgment may not be set aside simply because the court finds it was inequitable when made. Rarely is there a perfect division in family law judgments. If there was fraud of false representations made it would be different. Marriage of Stacy (2002)    filed 6-6-02.

185. THE  DECEASED LITIGANT Divorce trial takes place. Case submitted to the judge. Husband dies before judge makes ruling. Issue is can the court still make a ruling? Former wife argues: “The case is over. No dissolution judgment was granted. Death of a party automatically ends the marriage. Nothing more can happen.” Estate of former husband argues: “An order can be made nunc pro tunc for in the past. Any third party can use Family Code 2346 to have an order made retroactively. CCP 669 also permits this.” What would you do? You be the judge!

186. THE PARTIES NOT PRESENT Trial date is set. Notice is sent out. Neither the husband or his attorney is there. Parties are sanctioned. Issue is if the notice that was sent out has to be put into evidence for the sanctions to apply. Attorney argues: “The law is the law. CCP 594(a) requires that the notice be put into evidence. This was not done so the trial and sanctions were not valid.” Other side would have said: “Just because the notice of trial was not admitted into evidence does not invalidate the entire process. Not every violation of a statute is reversible error. This was not sufficiently in error. The result would have been the same since the husband and attorney never appeared.” What would you do? You be the judge!


185. For the estate of deceased husband. Yes, an order can be made retroactive by Family Code 2346 for a nunc pro tunc decree. CCP 669 also permits this. Just because the party has died there is no reason that a third party, here the estate, cannot bring the motion. Marriage of Mallory (1997) 55 Cal.App.4th 1165.                                                   

186. Other side wins. Although it was error to have the trial without notice, it would not have changed the result. The bottom line is that they were not there. The notice was in the file but not formally admitted into evidence. Even though CCP 594 on the notice of trial  requirements were not complied with it is not the type error that would have resulted in a different result in the trial. Marriage of Goddard (2002) 97 Cal.App.4th 1059.           

187. THE AFTER MARRIAGE AGREEMENT  Wife proposes marriage to husband.  This is, in large part, because husband has no medical insurance. He gets on her medical insurance. Husband is very sick and has lots of medical treatment. After marriage he wants to protect her from creditors and they do written agreement that her property and business is her Separate Property and his property and business is his Separate Property. Husband does very well and about ten years later they get divorced. Is the post marital agreement valid? Wife argues: “I should have half of his business. There were certain technical defects in the post marital agreement on property. Neither of us had any idea his business would do so well. I should have a one half interest in his business.” Husband argues: “No way. We made an agreement and you are an attorney (wife is an attorney). Neither of us knew my business would do so well but we still must honor agreement. The minor technical deficiencies don’t matter.” What would you do? You be the judge!

188. THE PAYOR’S NEW WIFE AND SPOUSAL SUPPORT  Former husband is paying Spousal Support to former wife. He remarries a woman who makes a high income. Former husband comes down with Parkinson’s Disease and goes on disability. His income goes down from 5k to 3k per month. He goes to court to reduce his Spousal Support payments even though his wife makes $6,500 per month. Former wife argues: “He should not be able to reduce Spousal Support. Look at his expenses. His new wife is paying most of them. He is living well and he should not be able to reduce my support.” Former husband argues: “Family code section 4323(b) is clear in that new mate income will not be considered when determining or modifying Spousal Support. My new wife’s income should not be figured in even indirectly.” What would you do? You be the judge!


187. Husband wins for reasons stated. The court looks at the agreement at the time it was made. This protects the reasonable expectations of the parties at the time. Later events, like his business making so much money, do not dictate how the property is divided. Marriage of Friedman (2002) 99 Cal.App.4th 1436. The irony is that wife proposed to him so he could get on her health plan and he did the agreement so she would not be liable for his debts. You can never tell what the future will bring.

188. Former husband wins. For good or bad Family Code 4323(b) states that a Spousal Support payor’s new mate’s income should not be considered. Keep in mind that this just involves Spousal Support. The rules for Child Support are not quite as stringent (almost, but not quite). The appeals court almost asks the legislature to step in and change things. Marriage of Romero (2002) 100 Cal.App.4th 65.

189. THE  TAX DEDUCTION  Mom has child a little over half the time. Judge orders mom and dad to split the dependency exemption on taxes. Dad has the exemption in odd numbered years and mom in even numbered years. Can the judge order this? Mom argues: “No, the court can’t order this. I have our child over half the time and the calculations on Child Support were figured with me having the dependency exemption for taxes. This is not lawful.” Dad argues: “Sure the court can do this. It is within the courts discretion. The court can order the parties to sign the dependency exemption forms. This does not violate federal law.” What would you do? You be the judge!

190. THE QUITCLAIM DEED AND REIMBURSEMENT  Before marriage husband and wife make prenuptial agreement that each parties Separate Property will remain Separate Property. The agreement includes that husbands house, which he will soon purchase, will be Community Property. Husband pays $415k for the house and signs a quitclaim deed transferring the house to both of them as Community Property. Divorce comes two years later and the house is sold for $615k. Should husband get the first $415k as his Separate Property and then they divide the balance as Community Property? Husband argues: “I still should get my Family Code 2640 reimbursement on my Separate Property contribution of $415k. Even though I didn’t even know of this law at the time. I never specifically waived my Family Code 2640 right of reimbursement.” Wife argues: “Our agreement was silent on any Family Code 2640 reimbursement waiver. However it is implied in the prenuptial agreement we made. Husband made an outright gift to me and he should not have reimbursement rights.” What would you do? You be the judge!


189. Dad wins for the reasons stated. Rios and Pulido, (2002) 100 Cal.App.4th 359. Keep in mind the court is ordering the parties to do something. It is not making orders on tax law per se. Actually courts have done this for many years. Usually the calculations for Child Support will take into account the dependency exemption. Apparently the court did not take this into account, but it is still valid.        

190. For husband. Even if it was a gift he is still entitled to his reimbursement rights. The quitclaim deed itself was not a waiver. The waiver must be made in a separate writing and cannot be made in the same deed that created a presumption of Community Property. Marriage of Carpenter (2002) 100 Cal.App.4d 424    filed 7-22-02 (2002) 100 Cal.App.4th 424, 427.

191. THE STOCK WENT UP IN VALUE   Stipulated judgment in dissolution. The wife was to receive $47k as a rollover from husband’s IRA plan. She received the money but later the IRA value went up about 250%. Ex-wife is upset about this. Ex-wife argues: “The stock went up in value. I had no idea that this would happen and ex-husband did not either. I should be able to collect my fair share of this increase in the money. I want the order set aside so I can get my fair share.” Ex-husband argues: “Oh, no. You just get the money we agreed upon. Neither of us knew that this would go up like this. This is a windfall for me. However just because my assets go up very fast does not mean you get to share in them.” What would you do? You be the judge!

192. THE TEXAS DAD   Mom and dad divorce in Texas . He stays there and has a residence in Texas and Missouri . Mom comes out to California and wants to modify Child Support. Can she do it here or does she have to go back to Texas ? The law is that if one party still lives in the issuing state (state that made the Child Support order in the first place) then modifications must be in the issuing state. Mom argues: “He has a residence in both Texas and Missouri . Since he no longer lives in Texas we should be able to modify the order in California where our child and I live.” Dad argues: “My actual domicile residence is in Texas . I have only part time residence in Missouri . I have far more connections to Texas than Missouri . She must come to Texas to modify the order. What would you do? You be the judge!


191. Ex-husband wins for reasons stated. Family Code section 2123 on set aside motion specifically says that a judgment will not be set side simply because later developments cause one party’s assets to be greater that the others. Marriage of Heggie (2002) 99 Cal.App.4th 28. She should have taken a percentage of the IRA and not a specific amount. If the stock had gone down and ex-husband wanted reimbursement the court would also not have allowed it.

192. Dad wins for reasons stated. Family Code 4960 and federal law both spell out that the issuing state is the state for all changes or modifications unless both parents have moved out of the state. He still lived in Texas . Marriage of Harding (2002) 99 Cal.App.4th 626. 

194. THE HEALTH INSURANCE SUBSIDY During marriage husband works and one of the rights is that he gets health insurance paid for when he reaches retirement age. Wife was married to him during this time and feels she should get an interest. The interest would probably that he pay her half the Community Property interest ratio of the free health insurance. Can this be divided? Wife argues: “This amount of the subsidy has value. It is easy to figure. How much would private insurance cost? My Community Property interest is the same ratio as the marriage. For example: If private insurance cost $400 per month and we were married for half that time he should reimburse me $200 for his benefit. The bottom line is that this is a benefit from his job during our marriage and I should share in it.” Husband argues: “The amount of the subsidy changes each year because of my age. Subsidized health care is not convertible to cash. This is not the type benefit that the court should divide.” What would you do? You be the judge!

HOW THE COURT DECIDED                 

194. Husband wins for reasons stated. This is a form of fringe benefit that the courts should not have to divide. A health insurance subsidy is not the type of asset to be divided in a dissolution. Marriage of Ellis (2002) 101 Cal.App.4th 400.

195. THE SPOUSAL SUPPORT GUIDELINES   Husband ordered to pay $25k to wife to equalize the division of the Community Property. Court reserves on Spousal Support. He goes bankrupt on the debt owed wife. Wife to court and asks for Spousal Support. Court orders Spousal Support of $1500 per month till the $25k paid off. Is this OK? Ex-husband argues: “She can’t do this. I validly went bankrupt. The court is obviously just punishing me for using my legal right to go bankrupt.  The court did not look at any of the other factors in ordering Spousal Support. This was error.” Ex-wife argues: “First of all Family Code 3592 provides that the court can make proper orders for Spousal Support when the other party goes bankrupt under an agreement between the parties. We had an agreement. The court can validly do this.” What would you do? You be the judge!

196.  THE HOUSE PROCEEDS Husband and wife are separated. Husband manages many of the assets. He gets loans from a girlfriend of over $200k. He does not repay the loans. The family home is sold and the proceeds are attached by girlfriend for the money he allegedly owes her. Wife feels she has been cheated out of the money. It will ultimately go to him and his girlfriend. Wife argues: “This is not fair. The proceeds were immediately attached by the girlfriend. He got many of these loans without me even knowing of them. He was in debt for a huge amount and a reasonable person would not have made loans to him. This is all a con game for them to get the house proceeds.” Husband argues: “These were valid debts. Just because my girlfriend attached the money does not mean the debts were not real.” What would you do? You be the judge!


195. For husband. Even though they did have an agreement for settlement of property which triggers Family Code 3592 that is only one factor. The court should still have gone through the factors in Family Code 4320 on why Spousal Support should or should not be ordered, before ordering Spousal Support. Yes, the court can consider the bankruptcy by husband but the court also has to go through the factors under Family Code 4320 and weigh the factors. The court did not do so and the order is reversed. Marriage of Lynn (2002) 101 Cal.App.4th 120 

196. Wife wins. There was clear and convincing evidence that husband and his girlfriend were using the law to defraud the wife. Girlfriend was paying some of husband’s debts even though she had no legal obligations to do so. As punishment for this fraud the court orders husband to pay wife the entire proceeds of the house. Marriage of  Murray (2002) 101 Cal.App.4th 581.

197. I FIXED YOUR HOUSE AND SHOULD BE REIMBURSED After marriage husband and wife spend Community Property money for improvements on husbands Separate Property house he owned before marriage. At divorce should the community be reimbursed? Husband argues: “No, there should be no reimbursement. This is a presumed gift. The expenditures were to improve my property and not reduce the loan amount. There should be no reimbursement.” Wife argues: “Oh yes there should! The community should not just be reimbursed but the community should have a proportionate interest in the growth in the value of the property because of the Community Property money we spent.” What would you do? You be the judge!

198. “RESIDE” ACTUALLY MEANS “DOMICILE”  Parties divorced in New Mexico . Mom moves to California with child. Dad is stationed in California but keeps domicile in New Mexico . He votes, has a drivers license, pays taxes, etc. all in New Mexico . Mom wants to modify the order. She files in California and serves him here. Is this proper? Mom argues: “Family Code 4962 says that if all the parties “reside” in this state then this state can modify the judgment. Dad has been living in California for several years. Therefore he lives here and California can modify the order.” Dad argues: “No. The word “reside” as used in Family Code 4962 actually means “domicile.” A person can have several residences but only one domicile. My domicile is New Mexico . I intend to eventually return there. My domicile is still in New Mexico and the law is if one of the parties is still domiciled there that is the proper forum for a modification of support.” What would you do? You be the judge!


197. Wife wins. This expands on the Wolfe and Allen case. This holds that the community will receive reimbursement only when the Separate Property has not gained in value. If the Separate Property has gained in value there will be a proportionate share in the growth in the value of the Separate Property. Money spent on improvements is entitled to reimbursement just like payments to reduce the mortgage debt. Bono v.  Clark (2002) 103 Cal.App.4th 1409    filed 8-30-02. Major points are that Moore-Marsden principles of a gain in the appreciation apply to both principal reductions and improvements. Question not answered is, if this would apply to community efforts to improve the property. As an example: If wife was a gardener and spent a great amount of her time improving the property would the community also be entitled to the growth interest?                                         

198. Dad wins for reasons stated. Family Code 4962 is based on an interstate compact and the word “residence” has the same meaning as “domicile” here. She could still register the New Mexico order in California and it could be enforced, but not modified. Marriage of Amezquita (2002) 101 Cal.App.4th 1415.

199. THE  GEORGIA RESIDENT  Parties live in California . Andy moves to Georgia and buys a house there. 1 years later Cass file for dissolution in California . She can get a divorce here to end the marriage. Issue is can she get order for Spousal Support from Andy and have the court make orders on his Georgia house. Cass argues: “Yes, I can. He used to live here. The law is that this court can make orders on out of state realty.” Andy argues: “This is simply not fair. I object and have filed a motion to quash. I have virtually no contacts with California since 1998. It offends the notions of fair play and substantial justice for me to have to come to California to adjudicate the Georgia house and Spousal Support.” What would you do? You be the judge!

200. THE INSURANCE POLICY Dan has ERISA life insurance. He names wife Christine as his beneficiary. He divorces wife. In judgment there is an order that Michigan has in all judgments that insurance policies. The order is that all beneficiary designations in life insurance for the spouse are void. The old spousal beneficiary is revoked and the new beneficiary is the estate or new named person. Dan dies. He never took wife off the policy.  Former wife and daughters (who would receive the interests in his estate) both claim the money. Christine argues: “He kept me on as the beneficiary. It is ERISA life insurance which is federal and preempts the state law. I should receive the money because I was the named beneficiary.” Daughters argue: “We should be the beneficiaries. By state law the named beneficiary at the time of divorce is revoked. Therefore the money should go to us.” What would you do? You be the judge!


199. Andy wins. He wins because he objected. Had he not objected the orders would have been made. Andy had minimal contacts with this state. This is a form of divisible divorce. She can get an order ending the status of the marriage. However for Spousal Support and the Georgia realty she must go to Georgia . Marriage of Muckle, (2002) 102  Cal.App.4d 218    filed 9-19-02.

200. Wife wins for reasons stated. ERISA type insurance is by federal law and preempts state law. The state law could say anybody in the world is or is not the beneficiary and it would have no effect. The ERISA policy goes by federal ERISA law. The daughters should have had a QDRO order in the judgment of divorce. Metro Life v Mulligan, (2002) 210 Fed. Supp 2d 894.

201. THE PROMISSORY NOTE Parties marry. They own Community Property house. Wife spends large amounts of her Separate Property to pay down the mortgage on the Community Property home. To be sure she gets reimbursed in case of divorce she has husband sign promissory note on the house for the amount of her Separate Property investment plus interest. As you might guess the divorce happens. Is the promissory note valid? Wife argues: “Yes, it is valid. It was to be sure to get the Separate Property money I invested out of the house in case of a divorce. This was done instead of the Family Code 2640 reimbursement rights I had.” Husband argues: “No, this is not a valid note. She can still claim her reimbursement rights. Also with interest the note is now almost three times the note’s previous value. As a husband and wife we were in a fiduciary relationship and she came out way ahead on this.” What would you do? You be the judge!

202. THE MOVE AWAY  Stipulated custody order in judgment. However it has possible changes for the future. Mom has 85% custody time share and wants to move out of state. Does the court need to have a full de novo hearing on the custody and visitation issue or does father have to show change of circumstances to justify modifying custody? Dad argues: “This may have been a final adjudication in the judgment but not on custody or visitation. The wording in the judgment indicates we had changes and evaluations for the future. I should not have the burden of showing a change of circumstances. We should have a full new hearing.” Mom argues: This was a final adjudication of the issues. I have custody and should be able to move out of state unless he can prove it is against the child’s best interests. He has the burden of proof on this.” What would you do? You be the judge!


201. Husband wins for reasons stated. Undue influence was used here by one spouse getting an unfair advantage over the other. There is a fiduciary relationship between spouses. Also she never really waived her Family Code 2640 reimbursement rights. The note is not valid. Marriage of Lange  (2002) 102  Cal.App.4th 360 

202. Dad wins for reasons stated.  If the order was a “final judicial custody determination” then dad would have the burden of showing a change of circumstances in her moving. However when, as here, there is not final judicial custody determination then the court must have a new hearing to determine the best custody and visitation arrangement. This relates to the previous Montenegro case. Marriage of Rose and Richardson  (2002) 102 Cal.App.4th 941.

203. THE  QDRO AFTER DEATH  Parties divorce and in judgment it says that wife has an interest in his retirement plan. However a valid QDRO, which is a specialized type of retirement order, is never done. Husband married again and dies. New wife wants the money. Old former wife wants to do a QDRO to get her interest. New wife argues: “Old wife should get nothing. A valid QDRO was not done. I am the surviving spouse for the survivor benefit and should receive the money. I was the wife at the time of his death. I should receive the entire spousal survivor benefit. This is the rule for ERISA which is a federal law and it preempts state law. Just too bad for the old wife.” Old former wife argues: “I can do a QDRO retirement order and get my fair share. It is only fair since I was married to him for so long and we mentioned that I had an interest in the divorce judgment. We tried past QDRO orders but they were not accepted. Justice demands that I get my fair share.” What would you do? You be the judge!

204. THE RETIREMENT INTEREST  Al and Anna divorce. Order in judgment is that she is to receive 47% of his retirement benefits. She dies before Al retires and children want her 47% share or Al wants to get the entire amount. Not just the 53%. Children argue: “We should be entitled to this interest and do what we want to do with it. We have documents showing she left it to us. This is a right she had and she can leave it to her heirs.” Al argues: “I should receive the entire amount or the kids can give me theirs. This was never a QDRO in the first place. Since she died first I should get the part that was going to go for her.” What would you do? You be the judge!


203. New wife wins. Old former wife should have done her QDRO before he died. Once the death of the Participant in the plan it freezes the interests. It is like the Statute of Limitations in a personal injury action. You must get the QDRO before he dies or it all goes to the new wife. Stahl v. Exxon 212 F.Supp. 2d 657 (S.D. Texas 2002). Comment: Often in dissolution judgments the court just reserves jurisdiction over the retirement plan. This could be devastating for the former spouse in case the Participant has remarried and there is no QDRO order in effect. Comment: This case involved retirement  plans. 

204. Al wins. First of all this was not a valid QDRO order in the first place. On that basis alone the children’s claim fails. Al wins because there was no QDRO in place. As far as policy goes the concern of ERISA is to provide for the living and not the dead. A former spouse cannot will her interest to others unless they also qualify as a former spouse, child or other dependent of the Participant. Branco v. UFCW   279 F.3d 1154 (9th Cir. 2002). Comment: This case involved retirement  plans.

205. THE  GRANDPARENTS VISITATION Paul and Steph are married. During the dissolution Paul commits suicide. Paul’s parents (grandparents of child) want visitation rights with the minor child of the marriage. At court judge orders visitation based on judges belief that visitation with grandparents is good. Steph argues: “The judge did not use the correct legal standard. The judge substituted his belief that grandparent visitation was good and put the burden on me that it was not good. The standard should be what is in the best interests of the child. There should be no presumption that grandparent visitation is good.” Grandparents argue: “The judge has a large amount of discretion and he made his decision. Steph was not a fit parent because she did not want grandparent visitation. The order should stand.” What would you do? You be the judge!

206. THE NEW WIFE Tim and Nancy are divorced and have child together. Tim marries again and Nancy wants to restrict Tim’s new wife from interacting with the children during times that Nancy has custody. Mediator agrees with Nancy that Tim’s new wife should not be involved with the children when Nancy has the children and a recommendation to that effect is ordered. There is no hearing on it. The judge just rules after a meeting in his office. Is this the correct way to do things? What would you do? You be the appeals judge!


205. Steph wins for reasons stated. The trial judge went off on his own. The judge felt that Steph was not a good parent because she did not want to grant grandparent visitation. He gave no weight to her child raising decision. The basic test is what is in the best interest of the child. Greater weight should be given to the child rearing parent. The case is sent back to court to a different judge. Zasueta case, (2002) 102 Cal.App.4th 1242     filed 10-17-02. This case involved providing a good home.                       

206. Judge was in error. There should have been a hearing on if the restrictions are proper. There should have been testimony or other evidence on this issue. The case is remanded to the lower court again. A new hearing will take place on whether the new wife can take part in the extracurricular activities of the children when Nancy has custody. Marriage of Dunn (2002) 103 Cal.App.4th 345    filed 10-30-02. This and the above case illustrate the problem with many appeals. The appeals court just remands it back for a new hearing with instructions on how to have the hearing. More attorney fees. This case involved a marriage.

207. THE CONTEMPT BY THE COUNTY Idaho dissolution registered in California county. Father not paying Child Support and the country brings action for contempt against him. Father argues: “The county has no standing for taking me to court for contempt in my not paying Child Support. Just because the judgment is registered in California does not mean the county can go and enforce it. There has to be a request to enforce it from my former wife or the State of Idaho if she is on welfare.” County argues: “The mere fact that it is registered here is adequate. What do you think it is registered here for in the first place? No further authorization is necessary.” What would you do? You be the judge!

208. WHEN IS THE DATE OF SEPARATION? In June 1998 husband tells wife he is going to divorce her. He looks around for other housing but does not move out. He finally moves out in August 1998. Between these dates valuable stock options come in for husband. What the Date of Separation will be is critical. Usually anything accumulated after the Date of Separation is Separate Property. Husband argues: “I told her we were ending our marriage in June. I did stay in the house for a little bit but that is all. June should be our Date of Separation.” Wife argues: “No, the Date of Separation should be when he moved out in August. Before August we all took a trip together. Maintained the same bank accounts and various other things. The real Date of Separation was August.” What would you do? You be the judge!


207. For father. The state that the order is from must make a request to have the order enforced. If not that state then the mother. There is no authorization in the documents from the receiving state or the mother to enforce the order. Codoni case (2002) 103 Cal.App.4th 18    filed 10-25-02.                                     

208. Remanded back to lower court. The Date of Separation should not be June. Appeals court outlines factors for a valid separation. First one must spouse must have the subjective intent to end the marriage and there must be objective evidence of conduct following through on that intent. Usually, but not all the time, the parties must not live in the same residence. Marriage of Norviel (2002) , filed 10-15-02. Good case in spelling out requirements of valid separation. Date of Separation occurs when husband an wife live separate and apart, residing in  different places usually. In Moreno Valley , CA   many people going through a dissolution still stay in the same house. Very common. Probably actually filing from the dissolution would be a valid Date of Separation.   

209. THE  LATE REQUEST  Dissolution trial takes place. The appellant does not ask for a statement of decision at the end. The trial took place interspersed over two months. The judge determines that the total time in trial was less than 8 hours. Only after trial does appellant ask for a statement of decision. Appellant argues: “The trial took place over a period of several days. By my watch it all took over 8 hours. Since it lasted over 8 hours I should be able to file my notice of appeal later.” Respondent argues: “You failed to meet your burden of proof that the trial took place over 8 hours. It is up to you to prove that and you did not. The judge determined that it was less than 8 hours and you presented no evidence against it. Your notice of appeal is void for not being timely.” What would you do? You be the judge!

210. THE MORTGAGE PAYMENTS  Wife works for Kodak in New York . To encourage her to move to California Kodak offers to pay, among other things, her mortgage payments for a house in California . She accepts. Two years later a dissolution develops. Husband wants an interest in the mortgage payments to be made in the future. Wife argues: “The mortgage payments Kodak pays for are my Separate Property. It is part of my pay. After Date of Separation my own income is my Separate Property. The mortgage payments are part of my income and hence, Separate Property.” Husband argues: “Oh no, its not like that at all. The mortgage subsidy is a form of Community Property as long as it is received. This was a contract right acquired during the marriage. It is a Community Property asset.” What would you do? You be the judge!


209. For respondent for reasons stated. CCP 632 is clear that if the trial lasts less than 8 hours the request for statement of decision must be made prior to the submission of the case. Appellant failed to prove it was over 8 hours and so the appeal is void. Marriage of Gray (2002) 103 Cal.App.4th 974.

210. Wife wins for reasons stated. The housing allowance was a form of income. It was to be sure that she continued in the job. After the Date of Separation it is a form of Separate Property income and is hers alone. Marriage of Doherty  (2002) 103 Cal.App.4th 895.

211. THE CREDIT CARD PAY OFF Scott and Liz are married. They want to buy a house. However there is about $30k in Community Property credit card debts they have. In order to qualify for a loan for the house the credit cards must be paid off. Scott uses $30k of his Separate Property to pay off the credit card debts and they qualify for the loan. Years later they get a divorce. Issue is if Scott should get $30k reimbursement from the sale of the house since his Separate Property money was used to pay off the credit card debts to qualify for the loan for the house. Scott argues: “I should get reimbursement. Without me paying off those credit card debts we never would have been able to get the house in the first place.” Liz argues: “You should not get reimbursement. This was a pre-existing debt. We were not separated when you paid off the debt. The obligation on the credit card debts existed before we ever purchased the house. Paying those debts was not directly to purchase the house but rather to qualify for the loan.” What would you do? You be the judge!

212. THE IMPROVEMENTS Tim and Judy are married and own a house. Tim spends about $55k of his Separate Property to remodel the house. Divorce time comes and Tim wants reimbursement for his Separate Property expenditures. Tim argues: “There is no questions that I spent the $55k and it was my Separate Property.  Payments for improvements of Community Property with Separate Property of one of the spouses is entitled to reimbursement.” Judy argues: “Oh, no. There was no evidence that the remodeling increased the value of the house. You are usually entitled to reimbursement only when the Separate Property funds increase the value. There was no evidence of increased value.” What would you do? You be the judge!


211. Liz wins for the reasons stated. The credit card payments did not contribute to equity acquisition. The $30k did not go directly to pay for the loan or improvements on the house. It is not direct enough. Marriage of Nicholson and  Sparks  (2002) 104 Cal.App.4th 289     filed 12-11-02.

212. For Judy with conditions. Generally reimbursement is limited to improvements that increase the value. Not all the time. It may be that an improvement is made to preserve the asset or both parties consent. It is remanded to the lower court. Marriage of Reilley (1987) 196 Cal.App.3d 1119.

213. THE  PENALTY Family Code 4722 provides for penalty of 6% per month on unpaid Child Support when certain notices are given. All the hoops are jumped through. Judge still does not fully implement the penalty. Is this correct? Mom argues: “The full penalty should have been imposed. The word ‘shall’ is used in the law. The court has no discretion. The full penalty should have been imposed.” Dad argues: “No, the judge has discretion in imposing any penalties. The Judicial Council forms for this say that the penalty ‘may be imposed’ and not ‘shall be imposed’. Timeliness is also an issue. The bottom line is that the court has discretion on imposing the penalty.” What would you do? You be the judge!

214. THE EDUCATION LOAN PAYMENTS Before marriage Mike is in medical school and gets student loans. Later Mike marries Ann and they make payments on his student loan debt during the marriage. Marriage ends. Question is if the community should get reimbursement for the payments made on Mike’s Separate Property student loan debts from before marriage. Ann argues: “He should reimburse me for one half of the student loan debts paid during marriage. Whether his education benefited the marriage is not relevant. They were clear Separate Property debts and I should receive half the reimbursement for what was paid on them.” Mike argues: “Family Code 2641(c) provides that where the community has benefited from the education then that should be a factor. This is true even if the educational loans were from before marriage. The trial judge refused to even consider this. The judge should have to consider the benefit to the community from my educational debts.” What would you do? You be the judge!


213. Dad wins. The court has a great deal of discretion. The time for making the motion is vague and the Judicial Council forms say that the penalty may be imposed. Marriage of De Prieto, (2002) 104 Cal.App.4th 748, filed 12-20-02. This is the first time the court of appeal cited the Judicial Council forms for authority. It is almost like they don’t like the penalty and want to bend over backwards so the trial courts don’t have to enforce it.

214. For Mike. The debts were Separate Property debts. The Community Property usually will be reimbursed one half for payments made during marriage. However Mike may be able to show that the community benefited from his education (in terms of higher pay) and that should be considered by the court. Marriage of Weiner (2003) 105 Cal.App.4th 235.

215. THE  MOVE AWAY Mom has primary physical custody of the children. Mom wants to move out of the area because of her job, fiance and to help her father who is ill. Mediator recommends that best for kids to stay in the present area. If mom wants to move custody should go to dad, mediator feels. Trial court rules that mother can move out of the area. Judge said that mother only had the burden to show her decision to move was made in good faith and not designed to frustrate father’s parenting time with the children. Father has the burden of proof that a change is custody is warranted if mother moves. Judge reads the mediation recommendation but does not give it great weight. Judge feels that even if it gave the children’s preference great weight, their desire to stay was outweighed by the close bond built up with the mother. What would you do? You be the appellate justice!

216. THE GOODWILL VALUE OF A LAW PRACTICE  Husband is an attorney who practices out of his home. One year he grossed $162,000. It was his best year. The court figures the goodwill value of his law practice based on that one year in the dissolution of marriage action. It this correct? What would you do? You be the appellate justice!


215. Trial judge is affirmed. The custodial parent does not need to show that the move is necessary, only that the parent has sound good faith reasons for moving which are not based upon a desire to frustrate the other parents contact with the children. The real issue is not if the move away is essential but whether a change in custody is essential or expedient for the welfare of the child. Bottom line is that father had the burden of showing that a move away would be so detrimental to the children that a change in custody was warranted. He did not meet his burden of proof to show this. Marriage of Abrams (2003) 105 Cal.App.4th 979    Filed 1-28-03            

216. The lower court was wrong. You don’t basis goodwill based on the one best year of income. You must look to other years also and average them out. The formula is in footnote 14 of another case: “Pursuant to this method, one first determines a practitioner’s average annual net earnings (before income taxes) by reference to any period that seems reasonably illustrative of the current rate of earnings. One then determines the annual salary of a typical salaried employee who has had experience commensurate with the spouse who is the sole practitioner or sole owner/employee. Next, one deducts from the average net pretax earnings of the business or practice a “fair return” on the net tangible assets used by the business. Then, one determines the “excess earnings” by subtracting the annual salary of the average salaried person from the average net pretax earning of the business or practice remaining after deducting a fair return on tangible assets. Finally, one capitalizes the excess earnings over a period of years by multiplying it by a factor equal to a specific period of years, discounted to reflect present value of the excess earnings over that period. The period varies according to factors such as the type of business, its stability, and its earnings trend.” Marriage of Rosen (2003) 105 Cal.App.4th 808    Filed 1-23-03.

217. THE  DISABLED ADULT SON  Mom takes care of disabled 40 year old adult son. Mom seeks order for father to pay Child Support for the disabled adult son. Mom argues: “Family Code section 3910 specifically spells out that parents have equal responsibility to maintain a child of whatever age who is incapacitated from earning a living and without sufficient means. Dad should help pay at guideline Child Support.” Dad argues: “OK, there was a finding that our son is disabled and I should have to pay Child Support. However the guideline support amount should not be used. Frequently adult children have SSI, VA benefits, disability or other benefits. I should not have to pay guideline Child Support.” What would you do? You be the judge!

218. THE MOVE AWAY  Mom has primary physical custody of the child. She wants to move away. Father does not want her to move with his child. Mom argues: “Family Code section 7501 gives me the right to move away. I am doing this to help with my job. It is not to frustrate the visitation of the father. That will happen here but it is not the reason I am moving.” Dad argues: “This is cutting down on my visitation time. It is breaking the bond that I have with my child. She should not be able to move. If she does, custody should be switched to me.” What would you do? You be the judge!


217. Mom wins. Guideline will be used. However any benefits from the state or other source will be subtracted from the Child Support ordered. VA benefits, SSI, or other benefits the disabled adult child receives will be subtracted from the Child Support amount. Marriage of Drake (1997) 53 Cal.App.4th 1139.                                       

218. Mom wins. When a finding is made that the custodial parent has good faith reasons to move and is not doing so to frustrate the other parent’s contact with the minor then the custodial parent has proven his or her case and can move. Note: The problem comes up when there is joint physical custody with the other parent having more than 20% visitation. Then an entirely new hearing must be made on what is in the best interests of the child. Marriage of Burgess (1996) 13 Cal.4th 25.

219. THE WRONG COURT  Attorney has order that wife is to pay him $4500 in attorney fees for his representation of husband. She goes bankrupt on it. Attorney files in family court for order that the attorney fees are not dischargeable in bankruptcy. Nothing in filed in bankruptcy court by attorney. She goes bankrupt on the attorney fee debt. Attorney gets order from the state court that it is in nature of support and not dischargeable in bankruptcy. Attorney argues: “Family Courts and Bankruptcy Courts have concurrent jurisdiction. I used the family court to establish that the order was in the nature of support and not dischargeable.” Wife argues: “You filed in the wrong court. You should have filed for an automatic stay in bankruptcy court. This is a bankruptcy core proceeding. You could proceed in state court on the characterization action only by first obtaining relief from the automatic stay in the bankruptcy court.” What would you do? You be the judge!

220. THE MARITAL DEBT  After Date of Separation a lender makes loan to wife of $57k. Divorce judgment orders that husband must pay this debt to the lender. Lender then sues husband based on the judgment order that husband pay the debt. Lender argues: “The divorce judgment specifically orders you to pay the money. Even though the loan was actually to the wife husband should still pay because of the divorce judgment.” Husband argues: “No, I should not have to pay directly to you. If you the lender want to sue you will have to sue her since the loan was just in her name. Family Code section 2023 is very specific that the creditor has not right to sue me just because the judge assigned the debt to me in the divorce. You will have to sue her.” What would you do? You be the judge!


219. Wife wins for reasons stated. Although bankruptcy and family court have concurrent jurisdiction it is not true in proceedings that are unique to bankruptcy. He should have sought relief from the stay and let the bankruptcy court let him proceed in family court to determine if the order was in the nature of support or not. Marriage of Sprague (2003) 105 Cal.App.4th 215                                                      

220. Husband wins. Family Code 2023 permits the court to order one or the other to pay debts to third parties but this just applies between the parties and not the creditor lender. Lender will have to sue the wife for the money and wife can go back into family court and get an order for reimbursement from husband. Pinson and Cole (2003) 106 Cal.App.4d 494    filed 2-24-03.

221. THE WORKING PARENT  Dad has custody and works. He has kids in day care when he works. Mom is remarried and is a stay at home mom. Mom wants custody. Mediator recommends custody to mom because she can be with the kids more. Court relies on fact that mom able to be with kids more and awards custody to mom. Dad argues: “This is wrong. The court should not rely so much on the fact that mom can stay at home and watch the kids more. A custody determination must be based upon a true assessment of the emotional bonds between the child and parent and not so much on the assumption that a working parent cannot provide such care for a child.” Mom argues: “I am a full time wife and mother in my new marriage. I can watch the children more than dad. It is better that they be with me than in day care.” What would you do? You be the judge!

222. THE $100,000  Donna is divorced from a 24 year marriage and getting $993 Spousal Support per month. She has assets of about $60k. She meets Albert who is a multimillionaire. They draw up a prenuptial agreement. Donna is worried that if this marriage fails she will be without any money since the Spousal Support from her previous long term marriage would end. They have  clause that if there is a divorce he will pay her $100,000. They marry and divorce a year later. Should he have to pay her? Albert argues: “I should not have to pay. This violates public policy in that the clause encourages divorce. This should be void as against public policy.” Donna argues: “We were planning for a contingency of a possible divorce. It was not to encourage divorce. I wanted this as protection. In marrying Albert I was throwing the Spousal Support away that I was receiving. I should receive the $100,000.” What would you do? You be the judge!


221. For dad for reasons stated. Just because he will keep the children in day care it is no reason by itself that he is not as good a parent. She must show other specific evidence that being with mother is better for the children and his work schedule damaged the children. Marriage of Loyd (2003) 109 Cal.App.4th 754     filed 1-30-03                                                         

222. Donna wins. The amount is reasonable in comparison to what she was giving up. The purpose of the $100k was so wife would be no worse off than she would have been if she remained single. It was more insurance for her. It was not such a huge amount of money that it would be considered to be encouraging divorce. Marriage of Bellio (2003) 105 Cal.App.4th 630    Filed 1-21-03.

223. THE TERMINATION OF SPOUSAL SUPPORT Family Code 4337 says that Spousal Support ends when the supported spouse gets married again. It can be waived. What are the requirements? Ed and Glenda make a marital termination agreement. It does not say that Spousal Support ends upon remarriage or whether it continues. Glenda argues: “Spousal Support should continue even though I am married again. We bargained on this. It wasn’t just boiler plate language. Our judgment was tailored in critical ways.” Ed argues: “There was no specific clause that Spousal Support was to continue even after her remarriage. Because of that Spousal Support should end. What would you do? You be the judge!

224. THE RELOCATION TO ISRAEL   Mom and dad are citizens of Israel . They divorce in California . Mom wants to move to Israel with the child. Dad opposes this. Dad argues: “Yes, she does have primary physical custody. However Israel has suicide bombers all over the place and this is a danger. What guarantees to I have that I will be able to visit and see our child?” Mom argues: I am the parent with primary physical custody and have the presumptive right to move and take our child. There is danger all over the world and not just Israel . Various conditions can be imposed by the court to make sure that we use California law and that dad has visitation rights.” What would you do? You be the judge!


223. For Glenda for her reasons stated. No particular words are necessary to overcome Family Code 4337 on ending Spousal Support but mere silence will not do. Remarriage termination is not waived just because it is not stated as such. Termination and modification of Spousal Support are two separate things. The court looks to the tailoring of the language. Marriage of Cesnalis (2003) 106 Cal.App.4th 1267   filed 3-12-03. The attorneys here could have prevented this from going to the court of appeal just by spelling out that remarriage does not terminate Spousal Support.                                                        

224. Mom wins for reasons stated. The lower court found that the places mom wanted to live at in Israel were peaceful. Dad will get certain rights as per Marriage of Condon. She will post a financial bond to ensure her compliance with the courts order, she will register the California order in Israel as the order of the Israeli court and she can’t modify the judgment except in California . Marriage of Abargil (2003) 106 Cal.App.4th 1294    filed 3-12-03.

225. THE CREDIT REPORT  Dad owes $62k in back Child Support. BFSO (Bureau of Family Support Operations) get a credit report on dad to help them locate money or income he may have. BFSO did not give ten days notice to dad that they wanted his credit report as required in 15 USC 1681b(a)(4). Dad argues: “The law is clear that when a child support collection agency seeks to establish a persons capacity to pay Child Support or for determining the amount they must follow certain procedures. These procedures were not followed.” BFSO argues: “We sought the report for collection of past Child Support and not to establish his capacity to pay Child Support. This is permitted under 15 USC 1681b(a)(3)(A).” What would you do? You be the judge!

226. THE KIDS IN MEXICO Maria seeks a domestic violence restraining order against Raul. This includes protection for the children who are in Mexico . Issue is if  a United States court can issue a domestic violence restraining order concerning the children when they are in Mexico . In addition the trial judge feels she should go back to Mexico to be with her children. Judge does not make the protection order since he feels she has abandoned the children. Maria argues: “I should still be able to get a restraining order. Just because the kids are in Mexico and the judge does not approve of the fact that they are in a foreign country is no reason to refuse my requested order.” What would you do? You be the judge!


225. BFSO wins for reasons stated. Child Support Collection Agencies do not have to give the notice and other requirements of 15 USC 1681b(a)(4) when they seek enforcement of a Child Support order and not to determine his capacity to pay and the amount of Child Support. Hasbun v. L.A., filed 3-20-03. Comment: Real hair splitting here.

226. For Maria. The judge was clearly prejudice against her. The fact that the children are in Mexico has nothing to do with the order. The Judge showed his bias. Even if the court disagrees with Maria’s life style she is still entitled to the protection of the law. Quintana v. Guijosa (2003) 107 Cal.App.4d 1077    filed 3-13-03.

227. THE  HUSBAND WHO WASN’T THE BIOLOGICAL FATHER Divorce case. Husband is not the biological father of the child. However husband told the minor that he was the father, acts like he is the father, represents to the public that he is the father and does this for several years. Husband argues: “I am still not the biological father. Tests show this. The minor was 22 months old before I married the mother. Even though I held out to the public that I was the father I am still not the biological father for Child Support. She should go against the biological father to get Child Support.” Wife argues: “He held himself out to the public and the minor that he was the father. He did this for years. It is such that it would now be difficult to locate the biological father. He should be the father by estoppel (his actions prevent him from denying the fact).” What would you do? You be the judge!

228. THE CUSTODY REPORT In divorce husband and wife hire psychologist to do a custody recommendation report. Ex-wife Vickie feels that psychologist Robin did a very poor job and sues Robin. Psychologist Robin argues: “Vickie should not be able to sue me. I am entitled to immunity as a quasi judicial officer participating in the judicial process. Just as a judge cannot be sued in a case concerning the judges ruling, so also I should not be sued because of judicial immunity. There is also a litigation privilege that protects me.” Vickie argues: “The fact is that you did a lousy job. You yelled at me and only finished your report the night before court at close to midnight. You were also friends of people at my husbands law firm and I was never told of this. I should be able to sue you.” What would you do? You be the judge!


227. For wife for reasons stated. A line of cases holds that the conduct of a husband with no biological ties to a child may nonetheless estop (prevent) the husband from avoiding parental responsibilities even after the husband’s marriage to the child’s mother is dissolved. Marriage of Pedregon (2003) 107 Cal.App.4th 1284    filed 4-21-03                                             

228. For Psychologist for reasons stated. Policy reasons confer quasi-judicial immunity to neutral third persons who are engaged in mediation or evaluation or similar dispute resolution efforts. There is also a privilege as to what is said in the report. Even though the psychologist did a lousy job she cannot be sued by one of the parties. Howard v. Drapkin (1990) 222 Cal.App.3d 843.

229. THE  MOVE AWAY  Mom has custody of the children. She remarried and wants to move two hours away. Dad uses his visitation. Court finds that mom does not want to move away in bad faith and permits her to move with the children. Dad appeals. Mom argues: “The trial court was right. A finding was made that I am not doing this in bad faith. I am the one with primary custody. That is all that is necessary and I should be able to move.” Dad argues: “The trial judge only went half way. The judge did make a finding of no bad faith. However he failed to have a hearing and make a finding on detriment to the children with mom moving with him. I should have a new court hearing.” What would you do? You be the judge!

230. THE RETROACTIVE QDRO  Husband divorces Margot and court reserves jurisdiction over his retirement. Husband then marries Louan and dies one month after he is eligible to retire. Question is, who gets the surviving spouse benefits? Louan argues: “I was the wife at the time of his death. I should get the surviving spouse benefits. Margot never had a QDRO in effect to secure her interests. The death of husband means I should be able to get the surviving spouse benefits.”  Margot argues: “This is not fair. I was married to him for many years and should be able to do a nunc pro tunc QDRO that goes back in time and is retroactive. I put in over 20 years in this marriage. I should still have my rights even though he has died.” What would you do? You be the judge!


229. For dad for reasons stated. When the custodial parent wants to move with the children and the other parent protests, there must be two showings by the custodial parent. 1. that she is not using bad faith in wanting to move away and 2. will there be no detriment to the child from the move that is so great to cause a change in custody. The court made findings on only one of these issues. There must be a new hearing. Marriage of Brown and  Campos (2003) 108 Cal.App.4th 839    filed 4-16-03

230. For Margot. This is the Supreme Court of Hawaii. Several federal cases have said the former wife has no rights after the former husband dies unless she has a QDRO in effect. This is relief for those former wives who never did get a QDRO. Problem is that this is a Hawaii and not California case. In state decisions of appellate courts are binding. Out of state decisions are persuasive only. Hawaii is better than nothing. Torres case, filed 12-17-02 in Supreme Court of Hawaii. 100 Haw. 397, 60 P.3d 798 (2002).

231. THE QDRO THAT WAS NOT MAILED IN  Barbara and Mark divorce. They don’t do a formal QDRO but rather a property settlement agreement. They spell out various rights in the property settlement agreement as to the retirement plan but do not mail it to the retirement plan. Mark dies years later. Does the retirement plan have to pay Barbara? Retirement plan argues: “It was not a formal QDRO and you never sent it in to us. The first time we found out about it is after Mark died. This should not be treated as a QDRO order.” Barbara argues: “Our property settlement agreement spelled out the four requirements of a QDRO and did not have the three things forbidden in a QDRO. The fact that we did not mail it in does not defeat it being a QDRO. I should receive the benefits.” What would you do? You be the judge!

232. THE HOURLY RATE  Dissolution case where mother is a Registered Nurse. She only works on a daily basis but could work full time. Court imputes income to her. She could work three twelve hour shifts for three days. The first eight hours is regular pay and the next four each day is time and a half. Court imputes her income as 36 hours regular pay and 12 hours over time. Did the court mess up? What would you do? You be the appeals judge!


231. Barbara wins for reasons stated. The property settlement agreement substantially satisfied the requirements for a QDRO. The requirements for a QDRO are at 29 USC 1056 (d) (3) (C) and (D). The fact that the plan did not receive it till after the Participant’s death does not defeat the claim of the Alternate Payee. Smith v. Estate of Smith 248 F.Supp2d 348 (D.N.J. 2003). This is a New Jersey Federal case. It seems that the court wants to find a QDRO to help Barbara.     

232. You bet it did. The accounting was wrong. She could have worked a full 36 hour week of three 12 hour days. The court should have figured regular pay for 24 hours and time and a half for 12 hours more. Marriage of Graham (2003) 109 Cal.App.4th 1321, filed 5-21-03. Not a major case. Appeals court just corrects the faulty figuring of income.

233. THE  BANKRUPTCY  Issue is if certain obligations of Paul in divorce are alimony that is not dischargeable in bankruptcy or a property division that is usually dischargeable in bankruptcy. Alimony and support are spelled out in a paragraph in the judgment but are very small. Paul is also to make payments over a period of time. Can he go bankrupt on these payments? Paul argues: “Yes, I should be able to go bankrupt on these. This is just a structured payment of past bonus and stock awards. It is not spelled out as being for support. Support was dealt with in another paragraph.” Kathleen argues: “This is in the nature of support. Under the laws of this state ( Massachusetts ) courts are allowed to order property as a form of support. The lengthy pay out period, my limited income and resources and other factors indicate that this is a form of support.” What would you do? You be the judge!

234. THE GRANDPARENTS Mother dies. Maternal grandparents want to visit the children. Father remarries and new wife adopts the children. They do not want the grandparents to have any visitation. Parents argue: “Family Code 3104 is clear that if the parents don’t want the grandparents to visit then the grandparents don�t have any visitation rights. The law is clear.” Grandparents argue: “Oh no, the law that applies to us is Family Code 3102. This provides that if a parent dies the grandparents do have visitation even if the new stepparent adopts the children. We should have visitation rights.” What would you do? You be the judge!


233. For Kathleen for reasons stated. Keep in mind that this is a Massachusetts case. The court indicated it was a close case and that Paul should have argued for a remand back to the lower court to spell out what was a property division and what was support. There are other factors here. Even if it was not for support the court could do a balance as to  “paragraph 15” on who it has more of a hardship. Werthen case, 1st Circuit Federal, filed 5-27-03                            

234. For grandparents. Under Family Code 3102 the law makes a special exception when a parent dies. The grandparents do have a right of visitation as long as it is in the best interests of the minor child. Obviously special weight is given to the rights of the new parents. However the courts still have the power to order grandparent visitation when a natural parent of the child dies. Fenn v. Sherriff (2003) 109 Cal.App.4d 1466   filed 6-25-03.

235. THE OTHER FORMS OF INCOME  Dad has job and received rent free housing and free meals. Should this be treated as a from or income for purposes of figuring Child Support? Dad argues: “This is part of my job. It should not be considered as income. Family Code 4058 does not list meals and housing as income for support purposes.” Mom argues: “It should be considered as income. Even though it is not specifically mentioned in Family Code 4058 the section does mention ‘included but not limited to’ in listing what the forms of income are. The meals and housing should be considered as income.” What would you do? You be the judge!

236. THE STATEMENT OF DECISION Post judgment modification of Spousal Support made by court. Husband requests a statement of decision (this is a statement as to how the decision was arrived at by the court). Later husband waives this request. Now wife wants a statement of decision. Husband argues that wife waived it by not requesting it herself. Husband argues: “I asked for the statement of decision and she did not. I later waived it. The fact that she never requested a statement of decision means that she cannot ask for one now.” Wife argues: “As long as one of us makes the request that is all that is necessary. Family Code 3654 states that either party may request one. It does not require both parties to request one.” What would you do? You be the judge!


235. For mom for reasons stated. Under Family Code 4058 income can include many different things. There is really no limit to what can be considered income. The court here limited it to income that was job related. An argument could be made that living with the parents rent free is a form of income. Stewart v. Gomez (1996) 47 Cal.App.4th 1748         

236. For wife for reasons stated. The statement of decision is necessary for purposes of appeal. The court of appeals needs to know how the court reached its decision. Very few family law cases are appealed. Marriage of Sellers (2003) 110 Cal.App.4th 1007.

237. THE  FRAUDULENT TRANSFER This is a continuation of YBJ 171 but this is in the California Supreme Court. Husband gets another woman pregnant. This causes wife to divorce husband. Husband in dissolution transfers all his property to wife as her sole and separate property. He then quits his job. Probably all to avoid paying Child Support for the out of wedlock baby. Husband argues: “I can transfer what I want to my wife. Also the Child Support owed should not be figured into any alleged fraudulent transfer.” Mother of the baby argues: “The property division may be set aside under the Uniform Fraudulent Transfers Act (UFTA) under Civil Code section 5120.160. Future Child Support payments should also be figured into the UFTA.” What would you do? You be the judge!

238. THE ASSETS  Divorce four years ago and assets divided. Georgia wants to reopen the case.  She thinks there could be some assets not known about four years ago that have not been divided. This can be done under Family Code 2556. Harry argues; “This is just a fishing expedition. In the case four years ago all discovery was done.  There are no other assets. She has to show some sort of evidence that there are assets still that have not been divided. She should not be allowed to do this.” Georgia argues: “There may have been some assets that were not adjudicated. I want to do discovery to find them. There is nothing in Family Code 2556 that says I can’t do this.” What would you do? You be the judge!


237. The lower appeals court decision in this is at YBJ 171. The Supremes hold that the UFTA does apply to property divisions in dissolutions. However the UFTA does not apply to future Child Support owed. The future Child Support owed should not be considered a debt under the UFTA. Mejia v. Reed (2003) 31 Cal.4th 657    filed 8-14-03                          

238. Harry wins. The case was adjudicated four years ago after ample discovery. She cannot go back to court later under Family Code 2556 and not have any idea of other assets. She must have some evidence or indication that there are other assets that have not been adjudicated. Marriage of Hixson  (2003) 111 Cal.App.4th 1116.

239. THE  ARBITRATION  Brad and Susan are divorced. They decide to let an arbitrator rule on a Child Support modification. Arbitrator rules and Brad does not like it. Brad argues: “This should not have been delegated to arbitration. It takes away from the court it’s jurisdiction to make orders to protect the minor children. The arbitration award is void.” Susan argues: “We both consented to arbitration in open court. You are an attorney yourself and should know the law. The arbitration award should stand.” What would you do? You be the judge!

240. THE PAST DUE SUPPORT  Dad owes Child Support. He seeks to modify the order. He wants an order for no Child Support during the time he was in jail. The trial court eliminated the Child Support arrearage that accrued before he filed for a modification. Dad argues: “I was in jail. I could not pay the support. There is a previous case Marriage of Dancy that supports me (ybj93). The court has the power to forgive the arrears that I owe.” Mom argues: “Oh no, it’s not like that at all. The Dancy case only says that the enforcement of Child Support arrears can be defended by laches. However this is different since dad is trying to modify. It is not an enforcement case.” What would you do? You be the judge!


239. For Brad for reasons stated. The parties cannot stipulate to future binding arbitration. The court implies the arbitration award may have been acceptable if the court was just asked to review it. The court seems negative on arbitration on Child Support issues. Even if an arbitrator is used the court can still review it. Marriage of Bereznak (2003) 110 Cal.App.4th 1062

240. Mom wins. This was a modification by dad to reduce the amount retroactively. This he cannot do. Only if mom or the state was seeking to enforce the order against him could the court make a retroactive reduction. Santa Clara v.  Wilson (2003) 111 Cal.App.4th 1324   filed 9-11-03. Comment: Hair splitting here. Dad will just have to wait till the state or mom seeks to enforce it. Then he can ask for retroactive modification. Really does not make that much sense.

241. THE  BACK CHILD SUPPORT Mom conceals child until child is age 18. Previously dad was ordered to pay Child Support. Should he have to pay Child Support when she concealed the child? Mom argues: “Yes he should. He was already ordered to pay support before I concealed the child. Also I brought our child out of concealment after the age of 18 but he was still a full time high school student and eligible for Child Support.” Dad argues: “No, I should not have to pay for the time our child was concealed. A previous case called Marriage of Comer held that I would still be liable for Child Support if the child concealment ended when the child was still a minor. Here our child was not a minor. The child was over age 18.” What would you do if you were the judge?

242. THE ARREARAGES New Family Code section 4502 (c) states that the court can’t consider laches in reference to back support unless it is money owed to the state. Mom brings an action for back Child Support before the effective date of Family Code 4502(c) which was January 1, 2003. Can she collect when she brought it before the effective date? Mom argues: “Other cases have held that laches is not a defense. I rely on those other cases. I mean, really, he didn’t pay Child Support so he should have to pay sooner or later. Dad argues: “The law is the law. Family Code 4502(c) went into effect on 1-1-03 and anything brought prior to that date uses the old law. You should have waited longer before you filed your motion.” What would you do if you were the judge?


241. Dad wins for reasons stated. Real hair splitting here. Court gets around the previous Comer case. Comer case held that if the concealment ends when the child is still a minor it is not a defense to the Child Support arrearages. In this case it ended after age 18. That is adequate. The fact that Child Support was still owing because the child was still a full time high school student did not mean he still had to pay arrearages on Child Support. Stanislaus v. Jensen (2003) 112 Cal.App.4th 453   filed 10-2-03, DJDAR 11189.    

242. Dad wins for reasons stated. The change in Family Code 4502 (c) was not a clarification of existing law. It was a change in the law. The legislature did not indicate they wanted the new law to be applied retroactively. This change in the law will be applied retrospectively only. Marriage of Garcia (2003) 111 Cal.App.4th 140.


            The below is from a California court case. The cite may not be here. It often comes out a month or so later. Always read the actual case. If you know of neighbors, co-workers, friends or anyone that may have family law interests please fax, e-mail or pass this on to them. They will be interested. We have many other forms like this. Thank you!  –  THE TRANSFER OF THE HOUSE CASE

FACTS AND THE ARGUMENTS  —  Husband owned house before marriage as his Separate Property. Parties live together and marry in 1995. Wife is a legal secretary and he has a learning disability. They refinance the house for a home improvement loan. Husband signs a deed to both of them as joint tenants, apparently to get the bank loan. Husband said he did not realize he was giving up half the realty until he saw the deed.

Parties separate and at the divorce trial the issue is if the joint tenancy deed is valid. Wife argues: “You signed the deed. We both have a Community Property interest. I never forced you to sign. Evidence Code 662 says that title can only be overturned by clear and convincing evidence. There is also a presumption in Family Code 2581 that property acquired during marriage in joint form is Community Property.” Husband argues: “This is simply not fair. Family Code 721 requires both of us to be fair and trusting with each other. We are in a fiduciary relationship. Because this is so unfair there is a presumption of undue influence and the house should be mine again.” What would you do? You decide!

HOW THE COURT DECIDED  —  Marriage of Delaney (2003) 111 Cal.App.4th 991.

The trial court felt the grant deed was void because:

a)     Wife had not given sufficient payment or an interest in exchange for the transfer of husband’s property to joint tenancy;

b)     As a fiduciary, she bore the burden of establishing that the joint tenancy deed was not the product of undue influence;

c)      She has failed to sustain her burden in this regard; and the joint tenancy deed was void.

d)     She was ordered to sign a quit claim deed to husband and vacate the residence.

�        The court of appeal affirmed the trial court.

a)     The facts establishing undue influence trumps the record title of joint tenancy

b)     The claim under Family Code 2581 fails because it just applies to property acquired by the parties. This was a transmutation and not a new acquisition.

HOW YOU CAN USE THIS CASE  —  PRO: It your spouse signs a deed over to you and you want to keep the realty:

1)     Your position is stronger if it is an ex-spouse rather than a current spouse who signs the deed. As long as you are married to that person you are in a fiduciary relationship.

2)     If the house is given to you in the judgment make sure you spell out that the other spouse is getting property or something in equal to the approximate value of the house.

3)     If the spouse is transferring it out of the kindness of his or her heart, make sure that you spell this out in the judgment or stipulation. You might put in wording like: “This house is being transferred by petitioner without an equal amount of property going to him. He is doing this out of the goodness of his heart. He realizes he has a one half Community Property interest in the realty but voluntarily gives this up.”

CON: If you signed a deed over to your former spouse and want to set it aside:

1)     Basically see the above. You would be seeing it from the other point of view.

2)     File a motion to set aside the deed and order in family court As Soon As Possible. The longer you wait the stronger the argument of laches which is taking too much time applies.

3)     Get appraisals of the value of the house at the time of the transfer and show you never received property equal to it.