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By Dawn Gray
Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 110 Cal.Rptr.3d 369
Decided by the Third District on June 9, 2010
Summary of the facts: H and W married in 1991, had three children and separated in 2000 when W took the children and fled to a domestic violence shelter. She filed a petition for legal separation and requested restraining orders and the Yolo County Superior Court issued a TRO that allowed H no visitation until after the parties attended mediation. The parties stipulated that if the mediator found it appropriate, he could have supervised visitation and telephone the children. After a hearing at which H failed to appear, the court suspended visitation based on the mediator’s recommendation, awarded W sole legal and physical custody of the children and issued a permanent restraining order against H.
When W amended her petition to request a dissolution of marriage, H attempted to get the court to set aside the orders, but it refused. Over the next year, the parties did agree to some supervised visitation, but according to the mediator H was “obsessive” and had ongoing problems with drug use, emotional problems and violence. Ultimately, the mediator recommended that H undergo a psychological evaluation before being allowed to visit with the children and the trial court so ordered. H violated the RO on several occasions resulting in jail sentences; the trial court granted W’s request to renew it and extended it until the youngest child turned 18. When H moved to modify visitation, the trial court repeated the requirement that he have a psychological evaluation first and ultimately denied his motion, as well as his next motion for the same relief.
In May of 2006, W filed a petition in the Sacramento Superior Court requesting that the court terminate H’s parental rights and permit their adoption by her current husband. At about the same time, H filed another motion in the Yolo County dissolution action to modify visitation, but the trial court denied his motion “and ordered that father not file further such motions until he had completed the previously ordered psychiatric evaluation, anger management classes, individual counseling, and he had proof of random drug testing.” When the matter came on for trial, the court terminated H’s parental rights but on appeal, the Third District reversed on jurisdictional grounds. W refiled a petition in Yolo County alleging that H had abandoned the children “within the meaning of Family Code section 7822, in that he had not visited them since March 2001 and had ‘economically and emotionally abandoned his children.’” In opposition, H claimed that he did not leave the children and did not intend to abandon them. He also filed another visitation modification motion claiming that he had fulfilled the requirements of the prior order. At trial on W’s petition, H claimed that W and her family thwarted his visitation. As of that date, he owed $336,648.02 in back child support, but H claimed he did not pay because he was “broke.”
“The court found that father had abandoned the minors within the meaning of Family Code section 7822 and that termination of his parental rights was in the minors’ best interests. Specifically, the court found that father left the minors in mother’s custody and care in early 2001, for over a period of one year without any provision for support or communication from him; that father had intended to abandon the minors, as shown by his failure to support and communicate with them; and that father had not rebutted the statutory presumption of Family Code section 7822. Pointing out that father did not provide support for almost 23 months, the court found that father’s evidence about his financial condition was not credible, and that father had pursued work ‘under the table to avoid paying taxes and child support since 2003.’ As to father’s failure to communicate with the minors, the court noted ‘pounding your chest and saying you want to see your children is not the same as taking steps to do it…. [M]any of the steps that [father] took were more about the anger of his wife th[a]n they were about an intent to see his children.’ The court observed that, until 2006, father never took steps necessary to meet the court-ordered requirements to visit the minors. Finding it would be in the best interests of the minors to terminate father’s parental rights, the court did so.” H appealed; noting that “the facts … amply support the finding” that termination of parental rights was in the children’s best interests, the Third District affirmed.
The result on appeal: Stating that under the Family Code, “abandonment” for purposes of termination of parental rights “occurs when a ‘parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon,” the panel stated the issue as “whether, and if so when, a parent “left” his or her child in the care and custody of another person with the intent to abandon the child.” H argued that the court erred in starting its analysis with the date on which he first ceased contacting his children, contending that it should have considered the factors leading up to that time, including that W had sole legal and physical custody of the children. However, the court held that “(t)he relevant factual context for the trial court to examine in determining whether a parent has ‘left’ a child is the point at which there is a claimed voluntary relinquishment of custody and control by the parent. This may or may not be the same point at which the child came into the care and custody of the other parent. In this case, it is not the same.” Noting that “(t)here is no allegation that he, by action or inaction, abandoned the minors prior to February 2001,” but “(r)ather, the allegation was that, by his inaction, father abandoned the minors after February 2001,” it held that “the relevant factual circumstances to examine to determine whether he did so began in February 2001.”
It then cited previous cases and held that “(i)n determining the threshold issue of whether a parent has ‘left’ his or her child, the focus of the law is ‘on the voluntary nature of a parent’s abandonment of the parental role rather than on physical desertion by the parent.’ Thus, this court has held that a parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively ‘taken’ from the parent by court order; however, the parent’s later voluntary inaction may constitute a leaving with intent to abandon the child.” Analyzing the facts of the case under this law, the court concluded that
“(h)ere, as of February 2001, father stopped seeking to schedule visits with the minors. He left them in the care and custody of their mother for six months before the final custody and visitation orders were entered. The mediator could not find father after April 2001; indeed, father left California in August 2001 and did not notify the court or the mediator of his new address until October 2004. Father failed to attend the dissolution proceedings or oppose the relief sought by mother on the issues of custody, visitation, and child support. Father made no attempt to appeal the judgment and did not seek modification of the order for over three years. He made no effort to comply with the conditions that would have allowed him to contact the minors. And he did not provide for his children’s care in any way, did not seek any type of parental relationship with them, and did not pay child support until it was extracted from him through garnishment of his wages. This inaction is substantial evidence that father voluntarily surrendered his parental role and left the minors within the meaning of section 7822.”
In a footnote, the court said that “Father submitted evidence that he complied with drug testing in 2000 and had individual therapy sessions in 2000. As this was before the order specifying conditions necessary to contact the minors, it was not evidence of an effort to comply with the order. In addition, he submitted evidence that he signed up for chemical dependency classes in 2004; but there was no evidence he attended such classes or a parenting class in 2005. Evidence of simply signing up for classes, but not attending them, is not evidence of compliance with the court’s order that would have allowed father to contact the minors.”
Finally, H contended that there I was insufficient evidence that he intended to abandon his children. He admitted that that he did not pay child support or communicate with tyem for at least one year, and admitted that his failures to do so gave rise to the presumption that he intended to abandon them. However, he claimed that he rebutted that presumption “because he loved his children and wanted to see them.” He also argued that his repeated motions to modify his visitation rights “showed that he did not intend to abandon his children” and that although he moved to Florida, he “tried to communicate with the children through [mother] and his efforts resulted in him being arrested for violation of the restraining order.” He also admitted that he “never made any real concerted effort to comply with the support order,” but that what is “most important in looking at [his] failure to support is [mother's] feelings about that failure: she did not care if he[ ] ever paid support if he would voluntarily relinquish his parental rights. Hence, although there was a support order in place, [mother] essentially did not demand payment and [father] showed that he was unable to pay the support….”
The court disagreed, concluding that “the trial court was not required to believe father’s testimony regarding his intent and, in light of the other evidence, father’s testimony did not overcome the presumption of abandonment. Father need not have intended to abandon the minors permanently; it was sufficient that the evidence supports a finding he intended to abandon them during the statutory period.” It said that “(a)lthough father initially opposed mother’s efforts in court regarding custody and visitation, he did not appear at the hearing in August 2001, did not appeal the judgment from that hearing, and made no effort to modify the orders for over three years.” It also said that
“Father’s claim that he tried to communicate with the minors through mother rings hollow. Father knew there was a restraining order in place prohibiting him from contacting mother, and he knew that contacting her would not put him in communication with the minors. His leaving telephone messages and e-mails for mother and her parents was consistent with his earlier behavior of utilizing the minors as a cover to speak with mother. Father left signs for mother at the mediator’s office and attempted to pass messages to mother through the mediator, claiming that they were cards for the minors. However, when he earlier had supervised visitation with the minors, father obsessed with wanting to discuss mother and the divorce. When viewed in context, father’s behavior supports the court’s factual finding that the messages were more about father’s anger at mother than genuine attempts to communicate with or see the minors. Father knew what was required to allow him contact with the minors, namely his compliance with the court-ordered conditions. Yet, he made no effort to comply with those orders until 2006, some five years after they were issued. Equally telling is father’s failure to provide support for the minors. He made no support payments for almost two full years after he left the minors. At the time of trial, he was well over $300,000 in arrears in his child support payments. Over the course of seven years, he made a single voluntary child support payment, in the amount of $75.
… Based on the evidence presented, the court reasonably could find that, since 2003, father hid his earnings to avoid paying taxes and child support, which he thought was ‘absurd’ and had ‘no intention of paying if he [could not] see his children.”’ Mother’s ‘feelings’ about father’s failure to pay child support were irrelevant. … In any event, even if mother did not demand such payments, this did not relieve father of his responsibility to provide child support for the minors. In sum, father did not rebut the presumption that he abandoned the minors.”
My comment: What struck me about this case is that H’s actions are not all that uncommon in high conflict cases. He visited with the children initially but was too focused on getting back together with W to have meaningful visits. He lost his visitation rights due to his anger issues but could have regained them if he had complied with the court’s requirements for doing so. He was ordered to pay child support but felt that he was not going to pay if he could not see the kids. He could still have communicated with them by phone but was apparently so angry with W and convinced that her family was trying to keep him from the kids that he stopped calling.
Obviously, it was not enough for H to argue that he couldn’t lose his parental rights because he loved his kids. Something more was required, but this case does not answer the question of exactly where the line is between “not enough” and “just enough.” What is clear is that H’s attitude problems eventually resulted in termination of parental rights on a finding that he had abandoned the children. He obviously did not have the advice of counsel, or heed it if he had it.
Your comments:
By Bonnie Riley
We were very sorry to learn that long-time ACFLS member David Borges lost his four-year battle with peripheral neuropathy on July 23, 2010. He is survived by his wife, Teresa Merzoian (CFLS, Tulare County), five children, and two granddaughters.
 Teresa Merzoian and David Borges President Leslie Shear remembers: “David was already on the ACFLS Board when I joined it about 15 years ago. He was an active, thoughtful board member who contributed much in every position he held. Many of you will remember that David was one of our newsletter editors before he became President. After he had to give up his practice, David continued taking CLE programs, volunteering his pro bono services, and actively contributing to ACFLS. He remained intellectually engaged in family law issues, and every time we were together,the conversations were interesting.”
David graduated from USC Law School and was admitted to the Bar in 1980. He was ACFLS president in 2001 and, in the words of past president Ron Granberg, he was “a fine lawyer and wonderful colleague, whose sharp intelligence and constant good cheer will be sorely missed.”
Last year David’s hard work on the ACFLS family law reform committee was particularly appreciated; he worked tirelessly on preparing for the Elkins retreat, helping us reach consensus on every issue, proposing a way to increase federal contributions to family court funding, and drafting and editing our Comments. In recent years, David represented Central California on our board, and worked on our program to provide CLE on DVD to family law bar groups in smaller counties.
David’s family was very important to him, and when disability prevented him from actively practicing family law, he took the opportunity for a lot of grandpa time. Teresa, their kids and grandkids often came with David to ACFLS functions, and he would enjoy talking about the family dinners they enjoyed on these trips. Leslie Shear goes on to remember: “One of the many joys of active ACFLS membership was getting to know David. For years we looked forward to Christmas photo cards showing all David and Teresa’s kids. In recent years, those cards have featured their granddaughters.”
We will post information about memorial services when we receive it. Please share photos and memories of David here.
By Leslie Ellen Shear
 This post also appeared in the LACBA Family Law ENews.
A recent Hague Abduction Convention case out of Mono County illustrates how the defenses to return under the Convention can be stretched to defeat the core purpose and policies of the treaty. In Escobar v. Flores (2010) __ Cal. App 4th __, 2010 WL 1347107, the DCA3 applied the deferential abuse of discretion review standard to uphold a family law judge’s refusal to return an eight-year-old boy to Chile under the Abduction Convention based upon the child’s stated “mature” preference to remain with his father in the U.S.
The Hague proceedings in Escobar represent one installment in a self-help international moveaway case involving never-married parents. Apparently without consulting counsel, the father agreed that the mother could take then 4-year-old Cesar to Chile in 2004. Dad testified that he agreed to a seven-month visit to relatives, and expected Cesar to return with his mother to Mammoth Lakes. Mom testified that it was to be a permanent move. When mother and child did not return, Dad did not petition for Cesar’s return under the Convention. In 2005 Mom obtained a custody decree in Chile. Dad married, and moved to North Carolina.
Mom sent the now eight-year-old Cesar to visit a maternal aunt in California in 2008. She did not register the Chilean custody orders for enforcement in California under Cal-UCCJEA. When Dad found out Cesar was in California, he sought emergency custody orders from the Mono County family court, and received permission to take his son to his new home in North Carolina. Mom responded with a Hague Abduction Convention petition for return Cesar to Chile. The family court concluded that the 8-year-old Cesar’s testimony about his experiences living with each parent established his mature objection to returning to Chile – a defense to return under Article 13 of the Abduction Convention.
The lesson for international custody practitioners is that an action to register and enforce a foreign child custody decree under California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (Cal-UCCJEA) is usually the better course of action, because there are fewer defenses, and because American family law judges are apt to be more familiar with Cal-UCCJEA principles. If Mom had registered the Chilean order for enforcement by the Mono County family law court, the judge could not have considered Cesar’s wishes. Chile had exercised jurisdiction under factual circumstances consistent with Cal-UCCJEA, so California would be obligated to enforce the Chilean orders and refrain from modifying them unless Dad proved that Chilean custody law violates fundamental human rights. (Fam. Code §3405).
On the other hand, when a parent seeks return of a child from California under the Hague Convention on the Civil Aspects of International Child Abduction, the action may be brought by the District Attorney, sparing the party the expense of private counsel.
The Abduction Convention and Cal-UCCJEA each require jurisdictional determinations be made without regard to the child’s best interests. Each was adopted to deter forum shopping and competing child custody orders. While Cal-UCCJEA provides for international recognition and enforcement of child custody orders, the Abduction Convention merely offers the summary remedy of returning the child physically to the country of the child’s habitual residence. The U.S. is not a party to any treaty or bi-lateral agreement for recognition and enforcement of custody orders.
The policy underlying both the Abduction Convention and Cal-UCCJEA is that the court deciding which court has jurisdiction to decide custody must not make its own “best interests” determination. Understandably, family courts accustomed to making best interests determinations find this very difficult to do in practice.
Under the Convention, a court must order a child returned to the nation of the child’s habitual residence where the child has been wrongfully removed, or retained in violation of a parent’s rights of custody. The purpose of return is so that the court in the child’s place of habitual residence can make or enforce custody orders.
However, it is clear that the nations negotiating the Convention were reluctant to give up the power to decide not to return children on a case-by-case basis. Article 13 contains a number of defenses to return – and permits the court to deny return based upon the child’s “mature” objection.
Here the exception has swallowed the rule. The International Child Abduction Remedies Act (ICARA) directs American courts to construe those defenses narrowly and return children promptly. (42 U.S.C.A. § 11601; England v. England (200) 234 F.3d 268). Typically the cases where the defense succeeds involve teenagers, not second-graders. See de Silva v. Pitts (2007) 481 F.3d 1279 for a more detailed discussion of the child’s mature objection defense cases.
Moreover, a young child’s expressed preferences need to be assessed and interpreted in context, ordinarily as part of a full child custody evaluation. (See the discussion at p. 15 of the ACFLS Comments to the Draft Recommendations of the Elkins Family Law Task Force (www.acfls.org/Elk) and Warshak (2003) Payoffs and Pitfalls of Listening to Children, 52 Family Relations, 373–384. Eight-year-olds do not have a mature concept of time or the capacity to assess their long-term best interests. Typically their most recent experiences shape their views. Moreover, children in contested custody disputes are subjected to intentional and unconscious parental influence. Once can’t determine whether their views are independent without a comprehensive child custody evaluation. This child’s preferences were properly a matter for the Chilean Court, not the California Court, to assess when it considered custody on its merits.
Of course, denying the return petition based upon the child’s objection doesn’t end the case. Thereafter, an American state must exercise jurisdiction under Cal-UCCJEA criteria, and make a best interests determination based upon all of the best-interests factors, not just Cesar’s preference. At least theoretically, a hearing on the merits could result in an order for this child to live in Chile with his mother. Since neither parent, nor Cesar lives in California, it is likely that North Carolina would end up with jurisdiction over custody.
By not sending Cesar back to Chile, the court has made it impossible for the child’s time to be divided between his parents’ homes. It seems probable that if Cesar was physically present in Chile, Chile would prohibit further removals to the U.S. because the U.S. has failed to honor its jurisdiction. One wonders whether Chile would return Cesar if the father was the parent bringing a subsequent Abduction Convention petition. The U.S. would be the child’s habitual residence under the Convention.
There’s also an embedded, and unanswered jurisdictional question. Does a court’s decision not to return a child under the Abduction Convention thereby terminate the foreign jurisdiction’s exclusive and continuing Cal-UCCJEA jurisdiction so as to permit California or North Carolina to make custody orders on the merits?
Consensual Dispute Resolution (CDR) might have saved this family a lot of grief and expense. The National Council for Missing and Exploited Children is working with the University of Pennsylvania Law School and the University of Miami Law School that is studying the suitability and effectiveness of mediation in cases involving international child abduction. Teams of mediators are available in the pilot project to assist families.
By Thomas M. Hall
I’m sure that we have all heard that the State, City and Court budget problems are not due to Prop. 13, the elimination of taxes on corporations and the wealthy, or any other cause except welfare programs and waste in unionized civil service functions. This week I learned some about what really goes on, at least within the Court system.
I needed to find an old paternity case, which had been filed in Santa Monica. The clerk in the Santa Monica courthouse was able to find the case on the computer system with ease (I guess all that data entry is part of the wasteful unionized labor going on behind the scenes). She told me that the clerk’s records indicated that the file had been sent to the Archives section, in the Hall of Records.
So, one day after morning L&M (not even slightly like S&M – really) I strolled over to the Archives section. Again, a clerk initiated a search, and was able to find the “incoming files” record, and assured me that the file had not yet been sent by Santa Monica to the Archives. So, back to Santa Monica, armed with that information.
This could have incited the Santa Monica clerks to give me a more ‘businesslike’ response, like shrugging their shoulders and asking “Whaddya want me to do aboudit?” Instead, the horribly inefficient, unionized, lazy, etc. etc. clerk asked me to wait. About 20 minutes later, the clerk returned with a printout of records (wastefully generated at taxpayer expense) which indicated that files from number SF xxx xxx through SF xxx xxx (numbers bracketing my file #) had been shipped to the Archives on October 30, 2009, in “box #xxx”. The clerk said that using the box number might make it easier for the Archives people to find the file. He then gave me a number to call to talk to an Archives supervisor.
Rather than going back downtown, I called the supervisor. Yes, she said, the box number would make it easier to confirm whether the file had arrived. After another 15 minute wait she came back on the line and confirmed that box xxx was there, still on a pallet, wrapped in plastic, on the loading dock, because they hadn’t had a chance, or the manpower, since October to intake it. Because it still sat on the loading dock, the incoming files records had not yet been updated, so the original archives clerk who said it wasn’t there was actually working from the most current information available to him.
With a request for a file from the box, that pallet apparently goes to the head of the line for processing. The supervisor told me that she hopes that the file will be on her desk by lunchtime today, so that I can review it this afternoon.
Through all of this, not one of the clerks complained about my request, my insistence that they look further, or about too much work to do. But the supervisor was apologetic in every sentence when talking to me. “I’m really very sorry, but we’ve just lost 40% of our staff, and you can see from boxes sitting on the loading dock that we didn’t have enough people before the cuts.” She didn’t ask me to call my County Supervisor, or the presiding judge. She just apologized for the conditions under which all the clerks labor.
While the Santa Monica clerk was looking for the records, on my second trip, a long line of people formed, waiting to see a clerk. Santa Monica courthouse now has many more clerk windows than clerks to fill them. Just as the clerk returned with the shipping records, a man walked up to the window, apparently familiar with the procedure and asserting priority to cut to the head of the line. He pushed through the window a bag from Subway. The clerk accepted the sandwich and started to deal with it, even as he dealt with the line that had built up behind me. Multi-tasking indeed.
I wonder how many clients lose how much time, or incur how many bills, because we are slashing away at the muscle which makes the court system function. When we cut them all, leaving just a skeleton of a court system, will any justice be dispensed?
Thomas M. Hall
Law Offices of Michael L. Abrams
11766 Wilshire Blvd., Sixth Floor
Los Angeles, CA 90025
(310) 268-1000
By Leslie Ellen Shear
 This is my third attempt to write this blog from the new iPad WordPress app. The ACFLS blog and website are constructed using WordPress, so I was excited to download the app. Last week my first attempt to blog from Finney was scuttled when WordPress asked for a setting change for the site. Webmaster Bonnie Riley (by day she is a lawyer editing family law producers at CEB) tweaked the settings. Today I had no difficulty logging on from Finney the iPad (Note to Apple– women associate the name with a personal feminine hygiene product, not a legal pad. I cringe when I say or write IPad. Finney was my childhood neighborhood library).
So I wrote a detailed blog and tapped “save.” the post vanished and couldn’t be recovered. So I began again. Now “save” works just fine. In fact, I began this post from my family room and I am finishing it in a booth in Dos Arbolitos, while waiting for my huevos rancheros.
So where was I? Oh yeah, i am writing this on the onscreen keyboard. For long projects the external keyboard is better, but I have to have a stable surface or the iPad wobbles and looses it’s seating on the USB mount. Usually it is more convenient to just use the touchscreen. I do find that I do not use all of my fingers when typing. Even with the click sounds activated, I am looking at the keyboard since it is on the same screen as my text. I still hit the m or n instead of the spacebar too often.
I have now learned how to move documents back and forth between Finney and my computer via iTunes, mounting Finney wirelessly as another drive using the Airshare app, posting documents via MobileMe to my iDisk, or using the Goodreader app. Pages on the iPad doesn’t recognize the Word docs, so I may find myself using Google docs. From what I have read, use of a newer version of the Pages program on my laptop may be the answer.
I prefer Finney to paper, Kindle or the laptop screen for reading documents. Today I’ll be reading the Elkins Family Law Task Force report in PDF. There are apps that let you annotate a PDF.
One really, really disappointing feature is cut/paste/copy. One can’t mark a start and stop place. Either one applies the function to a single word, or to the entire document. There isn’t even the option of cutting/pasting/copying by sentence or paragraph.
In my last post, I said one can watch TV at Hulu.co, but Hulu uses Flash video rather than HTML5, and iPads do not run Adobe’s Flash. Apple says Flash uses too much battery life. The techie websites indicate that there are conversion options on the horizon. The most annoying Flash issue arose when I subscribed to the e-edition of the L.A. Times. The Times failed to disclose that this is a Flash based service that cannot be read on the iPad. My email complaining and canceling has not been answered. On the other hand, KCET (the local PBS station) announced that one can watch it’s shows on the iPad.
Mac Mail and Calendar are enhanced and beautiful on the iPad — searchable versions of a paper Daytimer-like book. They sync in the background via MobileMe. I’ve read that Google Calendar is another good alternative.
So I do my morning email on Finney and read the online newspapers. I’m particularly enjoying some news aggregators — Fluent News and SkyGrid. I also really like Instapaper, which lets one save articles for off line reading. I carry Finney with me for reading, calendar, and notetaking. It is instant on, instant off. No booting up a computer or waiting for a program to load. The battery life is astonishing. I think I’d be comfortable using it on a motion hearing with the key docs in PDF form (unusually bring the laptop to hearings as we scan all pleadings and I prefer not to wrangle multiple Bindertek volumes for most things.
Finney doesn’t replace my computer (I work on a MacBook Pro). Finney doesn’t replace my iPhone. But Finney does many things better than either and is carving out a new role for itself in my workday and recreational life.
Some of you sent emails after my last iPad blog. Please consider posting a comment instead by clicking on “Comment” below.
So now that I have composed this post on Finney, I find that WordPress gives me no clue how to upload it. If you see the blog, you’ll know that I figured it out.
P.S. I forgot to say that I solved the instant messaging issue. I turned notifications on for AIM in settings, and then set my preferences in AIM not to log out for 24 hours. Now when I’m using Finney, any instant messages pop up and give me the option to view them and respond. My new MacBook Pro with the current version of iWork arrived today. When I finish getting several more tasks done, I’m going to migrate from the 2006 MacBook Pro to the brand new 2010 MacBook Pro. My CrashPlan harddrive also arrived today. As soon as the new MacBook is working smoothly, I’ll be backing it up to CrashPlan’s hard drive, shipping it back to them and then updating via the cloud whenever I am on line.
By Leslie Ellen Shear
Here are my thoughts about the iPad after a week of using it. My keyboard dock arrived today, and makes typing much easier. I am writing this on my lap using the keyboard dock. The screen keyboard is much easier to use than contemplated, but I have a bad tendency to hit the m [...]
By Frieda Gordon
As I sit here listening to our valiant and dedicated President Leslie Shear this Saturday morning in the Conference Center at Indian Wells Hyatt Grand Champions Resort Hotel I am reminded of each Spring Seminar that proceeded this one and the work in progress that each program built upon the other programs until reaching the top [...]
By Justin O'Connell
Recently, the ACFLS listserv members discussed the 2005 amendment to Family Code section 2640 and the legislative intent behind that amendment. Below is a review of the legislative intent and an attempt to answer questions about the amendment that have not been decided in case law.
Did the 2005 amendment to Family Code section 2640, subdivision (b) abrogate the “Identifiable Asset Rule” of Walrath?
Former Civil Code section 4800.2 (effective January 1, 1984) provided in relevant part:
In the division of community property under this part unless a party has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver, the party shall be reimbursed for his or her contributions to the acquisition of the property to the extent the party traces the contributions to a separate property source. (Emphases added.)
In Marriage of Craig (1990) 219 Cal.App.3d 683, the husband argued that the use of the specific term “community property” in 4800.2 excluded quasi-community property from the code section. The court disagreed, finding that Section 4800.2 also applied to quasi-community property. In a marriage dissolution or legal separation proceeding, the quasi-community property is deemed part of the community estate and thus is divided exactly as if it were true community property pursuant to Family code section 2500, et seq. (Fam. Code § 63 – “community estate” includes both community property and quasi-community property”; and Fam. Code § 2502 – “separate property” does not include quasi-community property.) Continue reading The 2005 amendment to Family Code section 2640
By Bonnie Riley
On Monday the California Supreme Court published its opinion in Marriage of Sonne. The case involved a pension buy-out of a PERS retirement in a first marriage and the division of repurchased credits during a subsequent, second marriage. Here is a link to the opinion on the court’s website. Marriage of Sonne 2010 WL 597225; [...]
By Leslie Ellen Shear
“Is this a standard room?,” I asked. My room key unlocked a split level room (what most hotels call a mini-suite) with a living room area, bedroom area, huge bathroom, and a balcony overlooking a golf course. It is, I learned, the standard room that your ACFLS discount will get you for less than the price you would ordinarily pay for the kind of mid-level business hotel typically used for family law CLE programs. The base room rate here is $169 a night for our Spring Seminar. ($169 rooms sold out, $199 rooms available as of 2/13/10.)
I’m liveblogging from the Hyatt Grand Champions Resort, Spa and Villas in Indian Wells — site of this year’s ACFLS Spring Seminar. I joined Spring Seminar Continue reading Spring Seminar in the Desert (March 26-28, Indian Wells) “My Brain is Full — Time to Play”
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