Articles Posted in Family Law

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The Court of Appeal affirmed the trial court's order directing husband to pay wife child support for their three children. The court held that the trial court properly followed the case of Asfaw v. Wolberhan, 147 Cal.App.4th 1407, by disallowing husband's deduction of depreciation; husband failed to demonstrate any prejudicial error or abuse of discretion by the trial court and substantial evidence supported the trial court's finding that special circumstances existed in this case to support the grant of an upward departure from guideline support; and the trial court did not err in regard to husband's request for sanctions. View "Marriage of Rodriguez" on Justia Law

Posted in: Family Law

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Linda Marshall appealed a trial court’s judgment on reserved issues following the dissolution of her marriage to Bryan Marshall. Linda challenged two specific aspects of the family court’s division of marital property: (1) the court erred declaring a 2006 capital gains tax liability to be a community debt, notwithstanding the fact she had obtained an “innocent spouse” determination from the Internal Revenue Service (IRS); and (2) the court erred in awarding Bryan the post-separation proceeds of a disability insurance policy as his separate property, despite the fact the policy had been purchased with community funds and was purportedly intended to serve as retirement income. The Court of Appeal determined the trial court did not err: (1) the trial court was not bound by the IRS’s innocent spouse determination in characterizing the tax liability, and the decision to treat the liability as a community debt, notwithstanding that determination, was supported by substantial evidence; and (2) the disability insurance policy was intended to replace Bryan’s earned income, rather than to operate as part of a retirement plan, was amply supported by the evidence. View "Marriage of Marshall" on Justia Law

Posted in: Family Law

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R.W. appeals a judgment of dissolution of his marriage with his former husband, respondent, G.C. In the published portion of its opinion, the Court of Appeal addressed two of many claims R.W. raised. In particular, R.W. claimed the trial court erred in determining that the parties' date of union was in 2009 when the parties married, rather than in 2004, when they entered into a domestic partnership under New Jersey law. R.W. contended the parties' New Jersey domestic partnership was "substantially equivalent" (Fam. Code, sec. 299.2) to a California domestic partnership such that it could be dissolved pursuant to section 299, and thus, that the court should have considered the date of the parties' domestic partnership to be the date of union for purposes of the dissolution. After interpreting the meaning of "substantially equivalent" in section 299.2 as a matter of first impression, the Court of Appeal concluded that in light of the limited nature of the rights and obligations that the parties obtained in entering into a domestic partnership under New Jersey law, the trial court properly determined that the parties' 2004 New Jersey domestic partnership was not "substantially equivalent" to a California domestic partnership under section 299.2 so as to permit its dissolution under California law. Second, R.W. claimed the trial court erred in failing to divide equally the appreciation of the value of certain real property that the parties acquired as joint tenants during their marriage, as a community asset. Specifically, R.W. argued the trial court erred in applying a formula for apportioning separate and community property interests in the value of the appreciation because the joint title community property presumption contained in section 2581 applied to the property, and the appreciation therefore belonged entirely to the community. To this point, the Court of Appeal agreed with R.W. and concluded the trial court erred in failing to divide the appreciation in value of the marital residence equally. The Court rejected the remainder of R.W.'s claims in the unpublished portions of the opinion. View "Marriage of G.C. and R.W." on Justia Law

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After a loaded gun was found in an unlocked closet in a bedroom where two-year-old D.L. slept, the juvenile court determined that the parents' indifference to the risks posed by leaving a loaded gun in the child’s reach presented an ongoing risk of danger to the child. The juvenile court declared D.L. a dependent of the court and placed her in the home of her mother, with her father having monitored visitation. The Court of Appeal held that the juvenile court's finding as to mother regarding ongoing risk was not supported by substantial evidence. The court affirmed in all other respects. View "In re D.L." on Justia Law

Posted in: Family Law

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After having an affair, David petitioned to dissolve his 15-year marriage to Joannie. Joannie resisted and the parties attempted reconciliation, in connection with which the trial court would later conclude David gave “conflicting messages.” Meanwhile, Joannie heard David’s phone and saw a picture of the mistress. David walked in and confronted Joannie, who slapped him, scratching his neck, and in a subsequent confrontation grappling for the phone, shoved him. David moved for a domestic violence protective order. Following a lengthy hearing in which the court heard from seven witnesses, the court denied the request. The court of appeal affirmed. The Domestic Violence Prevention Act, Family Code 6340(a) gives courts discretion to deny a protective order even when abuse has been proven.” The court upheld findings that Joannie did not commit an act of abuse as defined in section 6203; Joannie’s discussion with her confidants was not unlawful harassment; denial of David’s request will not jeopardize his safety within the meaning of section 6340(a); and denial of David’s request will not impact the safety or welfare of the children. View "Fischer v Fischer" on Justia Law

Posted in: Family Law

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After having an affair, David petitioned to dissolve his 15-year marriage to Joannie. Joannie resisted and the parties attempted reconciliation, in connection with which the trial court would later conclude David gave “conflicting messages.” Meanwhile, Joannie heard David’s phone and saw a picture of the mistress. David walked in and confronted Joannie, who slapped him, scratching his neck, and in a subsequent confrontation grappling for the phone, shoved him. David moved for a domestic violence protective order. Following a lengthy hearing in which the court heard from seven witnesses, the court denied the request. The court of appeal affirmed. The Domestic Violence Prevention Act, Family Code 6340(a) gives courts discretion to deny a protective order even when abuse has been proven.” The court upheld findings that Joannie did not commit an act of abuse as defined in section 6203; Joannie’s discussion with her confidants was not unlawful harassment; denial of David’s request will not jeopardize his safety within the meaning of section 6340(a); and denial of David’s request will not impact the safety or welfare of the children. View "Fischer v Fischer" on Justia Law

Posted in: Family Law

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S.K. was born with methamphetamine in his system and, after defendant-appellant, R.B. (mother), absconded with him, he was hospitalized with toxic levels of oxycodone in his system. The juvenile court removed S.K. from mother based on her untreated substance abuse. On appeal, mother challenged the court’s finding that the social worker exercised due diligence in conducting an investigation “to identify, locate, and notify” S.K.’s relatives of his removal. In April 2017, DPSS filed a petition alleging that (1) S.K. tested positive for methamphetamine and opiates at birth, and approximately a month later, he suffered a seizure and had high levels of oxycodone in his system, (2) mother had an extensive and untreated history of abusing controlled substances, (3) father’s whereabouts were unknown and he had failed to provide for S.K., and (4) mother failed to cooperate with preplacement preventative services. Department of Public Social Services attempted to locate all persons identified by mother, and the trial court found "based upon the limited information we have gathered from the mother thus far, will make a finding that [DPSS] is actively working towards relative assessments if there are any available. The duty is ongoing. It does not end simply because we had a hearing denying services to one side or offering services or other [sic]. [DPSS] must continue to do so.” Mother argued the trial court abused its discretion in finding DPSS exercised due diligence in trying to locate relatives for placement of S.K. The Court of Appeal disagreed: "Mother’s own conduct held back the investigation." Finding no reversible error, the Court of Appeal affirmed the child's removal. View "In re S.K." on Justia Law

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S.K. was born with methamphetamine in his system and, after defendant-appellant, R.B. (mother), absconded with him, he was hospitalized with toxic levels of oxycodone in his system. The juvenile court removed S.K. from mother based on her untreated substance abuse. On appeal, mother challenged the court’s finding that the social worker exercised due diligence in conducting an investigation “to identify, locate, and notify” S.K.’s relatives of his removal. In April 2017, DPSS filed a petition alleging that (1) S.K. tested positive for methamphetamine and opiates at birth, and approximately a month later, he suffered a seizure and had high levels of oxycodone in his system, (2) mother had an extensive and untreated history of abusing controlled substances, (3) father’s whereabouts were unknown and he had failed to provide for S.K., and (4) mother failed to cooperate with preplacement preventative services. Department of Public Social Services attempted to locate all persons identified by mother, and the trial court found "based upon the limited information we have gathered from the mother thus far, will make a finding that [DPSS] is actively working towards relative assessments if there are any available. The duty is ongoing. It does not end simply because we had a hearing denying services to one side or offering services or other [sic]. [DPSS] must continue to do so.” Mother argued the trial court abused its discretion in finding DPSS exercised due diligence in trying to locate relatives for placement of S.K. The Court of Appeal disagreed: "Mother’s own conduct held back the investigation." Finding no reversible error, the Court of Appeal affirmed the child's removal. View "In re S.K." on Justia Law

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In April 2016, M.H. was born with a positive toxicology screening for methamphetamine and cocaine; his mother has a history of substance abuse and psychiatric illness. The identity of his father was unknown. Days later, M.H. was placed in the foster home where he remains. M.H.’s great-aunt E.W., who resides in Minnesota, expressed an interest in having M.H. placed with her. Mother’s services were terminated and E.W’s home was approved. The court granted the foster parents the status of de facto parents.The agency report described M.H. as a happy child with a positive relationship with his foster family; during five visits, the child was comfortable with E.W., who is 66 and has raised five children and has close ties to her extended family. The child welfare worker opined that with proper services M.H. would overcome the grieving process and settle into his new placement and that he had considered culture, heritage, and family connections. M.H. is African-American and his foster family is not. The court of appeal affirmed a ruling in favor of the foster family, rejecting an argument that the court disregarded the statutory preference for relative placement (Welf. & Inst. Code 361.3) in favor of the statutory preference for caretaker placement (section 366.26(k)). Neither preference applies; the trial court was best able to make the hard call of which placement was in M.H.’s best interests. View "In re M.H." on Justia Law

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In April 2016, M.H. was born with a positive toxicology screening for methamphetamine and cocaine; his mother has a history of substance abuse and psychiatric illness. The identity of his father was unknown. Days later, M.H. was placed in the foster home where he remains. M.H.’s great-aunt E.W., who resides in Minnesota, expressed an interest in having M.H. placed with her. Mother’s services were terminated and E.W’s home was approved. The court granted the foster parents the status of de facto parents.The agency report described M.H. as a happy child with a positive relationship with his foster family; during five visits, the child was comfortable with E.W., who is 66 and has raised five children and has close ties to her extended family. The child welfare worker opined that with proper services M.H. would overcome the grieving process and settle into his new placement and that he had considered culture, heritage, and family connections. M.H. is African-American and his foster family is not. The court of appeal affirmed a ruling in favor of the foster family, rejecting an argument that the court disregarded the statutory preference for relative placement (Welf. & Inst. Code 361.3) in favor of the statutory preference for caretaker placement (section 366.26(k)). Neither preference applies; the trial court was best able to make the hard call of which placement was in M.H.’s best interests. View "In re M.H." on Justia Law