Justia California Court of Appeals Opinion SummariesArticles Posted in Family Law
Marriage of F.M. & M.M.
In 2018, Mother filed a petition for dissolution of the parties’ marriage. The parties resided together with their six children, ages three-13. Mother was a stay-at-home parent and the primary caregiver. Mother stated that Father had abused her throughout their marriage. For six months, the family continued to reside together. In August 2019, Mother filed a domestic violence restraining order (DVRO) application seeking orders forbidding Father from committing abuse, compelling him to stay away and to move out of their shared residence, and to be restrained from traveling with their children.Father was ordered not to abuse Mother and to stay at least five yards away from her. The court denied Mother’s other requests pending a hearing. Father denied committing any violence, claiming that Mother harassed him. The DVRO matter was heard over several days in late 2019. The court ordered Mother to move out of the home. Father was denied visitation. Mother, at various points, was living in a motel and out of her car with the children. The trial court found insufficient evidence to grant a DVRO.The court of appeal reversed. The trial court erroneously refused to consider evidence of abuse committed following the filing of the DVRO application, failed to properly evaluate the evidence that it heard, and improperly found that physical separation alone could substitute for the legal protections afforded by a restraining order. View "Marriage of F.M. & M.M." on Justia Law
Emilie D.L.M. v. Carlos C.
The Court of Appeal affirmed the family law court's order denying father's petition filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, concluding that father did not bear his burden of establishing the existence of ameliorative measures to ensure his children's safety. In this appeal concerning an international custody dispute involving the two minor children of an American mother and a Chilean father, mother was subjected to acts of domestic violence and emotional abuse by father, which was sometimes committed in the presence of the children.The court concluded that it is a reasonable inference from the evidence that father will continue to drink to excess and drive while intoxicated, thus exposing his children to a grave risk of harm. Given father's failure to acknowledge his excessive drinking and acts of domestic violence, as well as his repeated acts of driving while intoxicated, the court explained that there are no ameliorative measures that will mitigate the grave risk of harm to his children. View "Emilie D.L.M. v. Carlos C." on Justia Law
In re Daniel F.
In January 2019, the Agency filed a dependency petition concerning Daniel, then about 42 months old, based on Mother's untreated substance abuse. The petition alleged that Father’s whereabouts and ability and willingness to care for Daniel were unknown. Mother did not have Father's contact information but believed he resided in Mexico. The Agency contacted Father’s sister, Ana, in May 2019. In September 2019, Father was designated “not present.” The Agency reported its efforts to locate him. In October, the juvenile court terminated reunification services to Mother, and set the matter for a February 2020 permanency planning hearing. In November, Ana provided a telephone number for Father and said he was living in Mexico City “with no stable address.” The Agency left telephone messages but received no response. In January 2020, the juvenile court found that the Agency had exercised due diligence in searching for Father. At a February hearing, Mother did not appear, and the Agency reported that Father had been given notice by publication. In May, 2020, after contacting Ana, the Agency made telephone contact with Father, who opposed adoption, wanted custody, and requested an attorney.Ultimately, the juvenile court terminated parental rights, and placed Daniel for adoption. The court of appeal affirmed the denial of Mother’s oral request to continue the permanency planning hearing but reversed the order denying Father’s petition to vacate the disposition order. Liberally construing Father’s petition, Father was entitled to an evidentiary hearing as to whether the Agency ignored the most likely means of finding him, denying him due process. View "In re Daniel F." on Justia Law
In re S.R.
A Mother appealed a juvenile court’s order terminating her parental rights to her children, Isaiah R. and Summer R., who were four years old and one year old when removed from her custody in 2017. Her only challenge on appeal was that the court found the Indian Child Welfare Act (ICWA) didn’t apply to the children despite a report by both maternal grandparents revealing that their great-grandmother was a member of the Yaqui of Arizona. Mother and father were present at the initial detention hearing and both denied having Indian ancestry; the trial judge found ICWA didn’t apply. Both parents failed to reunify, and the maternal grandparents sought custody. At the Welfare and Institutions Code section 366 permanency planning review hearing, the grandparents completed forms where they indicated the children had Indian ancestry. The Court of Appeal agreed with Mother that the grandparents’ disclosure triggered a duty for the Children and Family Services department to inquire further, and therefore conditionally reversed the order terminating parental rights and remanded for further proceedings. View "In re S.R." on Justia Law
In re: Marriage of Kelpe
Lisa and Nicolas Kelpe married in 1997 and separated in 2010. The marriage was dissolved in 2013. Nicholas was a senior manager with Ernst & Young and accrued benefits under a qualified defined benefit retirement plan. In 2012, Nicholas became an equity partnership, which required a $150,000 capital contribution from his post-separation property. He then received profit distributions instead of a salary and participated in the Top-Hat deferred compensation retirement plan, which was not available to non-partner employees. Nicholas suffered a heart attack in 2014 and resigned before vesting in the Plan. Based on 20 years of service with the firm, 13 of which were during the marriage, Nicholas received a lump-sum payment of $928,243.The court of appeal affirmed that the lump-sum payment was Nicholas’s separate property, rejecting an argument that his right to receive the benefit accrued during the marriage by virtue of the years of service needed to qualify for the payout, even though he was not then a partner and therefore not eligible for the benefit. The payment was an additional benefit Nicholas acquired when he became a partner, after the parties’ separation. Nicholas was not equitably estopped from claiming the Top-Hat payout as separate property despite a letter expressing willingness to treat the asset as having a community component in order to reduce his tax liability and potentially his spousal support obligation. View "In re: Marriage of Kelpe" on Justia Law
In re Ma.V.
M.V. (Mother) appealed juvenile court’s orders sustaining jurisdiction and removing her three children. She contended insufficient evidence supported dependency jurisdiction. Mother also argued the court’s dispositional order was not supported by clear and convincing evidence. After review, the Court of Appeal agreed with Mother, reversed the court's order and remanded for further proceedings. View "In re Ma.V." on Justia Law
Marriage of Wendt and Pullen
Appellant William Pullen appealed the family court’s denial of his Family Code section 2030 motion to compel respondent Windham Bremer, the trustee of the Elizabeth Anne Wendt Trust, to pay his attorney fees stemming from his successful motion to join the trustee as a third party to the dissolution action involving Pullen and his ex-wife Elizabeth Anne Wendt. Pullen contended the family court’s ruling was an abuse of discretion as it was based on legal error, and that it effectively precluded him from further litigating the matter. Bremer counters that under California law, a trustee could not be compelled to disburse money absent a showing of bad faith. He argued that Pullen’s claim was subject to Probate Code restrictions on claims against spendthrift trusts. He also claims that payment was barred under Indiana and Illinois law, and that appellant’s underlying claim was specious. The California Court of Appeal surmised the question presented involved the administration of the trust rather than interpreting its terms, Indiana law might apply, and Illinois law was inapplicable. "However, choice of law is immaterial as both Indiana and California follow the modern interpretation regarding the liability of trusts and trustees to third parties. This modern approach allows third parties to obtain relief from the trust for matters arising out of the trust’s administration, and is not limited by spendthrift provisions." The Court found section 2030 provided for the award of attorney fees against parties other than spouses, like the trustee. Since the award of attorney fees stemmed from the administration of the trust and did not involve a claim against the beneficiary, payment from a spendthrift trust was not contingent on the bad faith of the trustee. It was an abuse of discretion for the family court to make the award of fees contingent on such a showing and its judgment was reversed and remanded for additional proceedings. View "Marriage of Wendt and Pullen" on Justia Law
J.H. v. G.H.
G.H. and J.H. married in 2006 and had two children, L.H. and B.H. The couple separated in August 2018. A dependency case was initiated for the children based on allegations that J.H. was abusing G.H. in their presence. In January 2019, upon stipulation of the parties, the juvenile court issued a final judgment in the dependency matter granting joint legal custody of the children but awarding G.H. sole physical custody. The court granted J.H. supervised visitation, noting the expectation that the family would “move toward less restrictive visits.” No restraining order was sought against J.H. as part of this judgment, and no such order was imposed. In October 2018, J.H. filed for divorce. In April 2019, J.H. filed a request for a custody evaluation and “family therapy” with the children, which the court granted.In August 2019, G.H. filed a request for a domestic violence restraining order (DVRO) in favor of herself and her children against J.H. The court granted a two-year DVRO, rather than the five-year DVRO requested by G.H. The court of appeal affirmed. The trial court did not err in excluding the parties’ children as protected parties in the DVRO nor in precluding their 12-year-old daughter from testifying at the contested hearing. View "J.H. v. G.H." on Justia Law
Marriage of Maher and Strawn
David Maher appealed the judgment of dissolution of his marriage with Laurie Strawn. He primarily contended there was insufficient evidence to impute income to him and to step down the spousal support he received. In determining Laurie’s ability to pay David support, the court took into account numerous circumstances, including that Laurie was spending about $3,000 per month for their adult son’s college expenses. The question this case posed was whether the court could properly consider that expense in determining her ability to pay spousal support. The trial court determined that the "better reasoned cases" indicate that the court has discretion to consider an adult child’s college expenses like any other expenditure of discretionary income. "The ultimate question in determining ability to pay is whether the expense is reasonable and will result in a just and equitable award of spousal support." The main argument to the contrary was that supporting an adult child reduces the supporting spouse’s available funds to pay spousal support. "The supported spouse, so the argument goes, is in effect being compelled to pay adult child support, which the law prohibits." The Court of Appeal found that both In re Marriage of Epstein 24 Cal.3d 76 (1979) and section Family Code 4320 compelled the conclusion that a trial court may appropriately consider a supporting spouse’s payment of adult children’s college expenses in determining ability to pay spousal support. With no reversible error, the Court affirmed the trial court's support order. View "Marriage of Maher and Strawn" on Justia Law
A.M. v. Superior Court
By petition for writ of mandate A.M. (Mother) challenged the family court’s ruling subjecting her and her child (Minor) to its continued jurisdiction to adjudicate the paternal grandparents’ petition for visitation. Mother’s husband and father of her child died tragically in October 2018 while performing his job trimming trees. In 2019, father’s parents, R.M. and E.M. (Grandparents), filed a petition requesting visitation with Minor under Family Code section 3103. Concurrently with the petition, Grandparents filed a jurisdictional declaration in accordance with the UCCJEA stating Minor had lived in San Diego since birth in November 2015. Before any action on the petition, on January 31, 2019, Mother filed an ex parte application for an order allowing her and her child to move from San Diego to Washington state to be near Mother’s parents and other close family members. The family court denied the application on the ground it was “not an emergency.” The Court of Appeal agreed with mother that writ relief was warranted in this case, and issue a peremptory writ of mandate directing the court to vacate its October 22, 2020 order and enter a new order dismissing the petition for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (1997). View "A.M. v. Superior Court" on Justia Law