This should be a cautionary tale for clients who consider self-help and removal of kids to non-Hague Abduction Convention countries, but we learn instead why stealing a car in Dubai leads to a longer prison term than stealing a kid in Florida.

Today’s advance sheets bring us a [...]]]>

(And Hide Him There for Eight Years)

This should be a cautionary tale for clients who consider self-help and removal of kids to non-Hague Abduction Convention countries, but we learn instead why stealing a car in Dubai leads to a longer prison term than stealing a kid in Florida.

Today’s advance sheets bring us a rare family law case from a federal appellate court. In UNITED STATES OF AMERICA v. CLIFFORD ALLEN NEWMAN (No. 09-14557 D.C. Docket No. 04-00153-CR-J-34-HTS) we meet Clifford Newman, a father who abducted his child to Yemen for eight years and challenged the sentencing enhancement factors after after pleading guilty to one count of violating the International Parental Kidnapping Crime Act (“IPKCA”), 18 U.S.C. § 1204.

Mr. Newman’s actions were calculated to thwart the legal custody process and to ensure that he, and not a judge with jurisdiction over custody matters, would be the ultimate decisionmaker about who would retain custody of his child.

Mr. Newman didn’t like the custody orders made by the judge in his Florida divorce. So he picked up his son for a visit, and disappeared with him to Yemen for eight years. He enjoyed the fruits of his self-help custody arrangement for those eight years, followed by five years in a Dubai prison on an unrelated charge, followed by a U.S. sentence of 33 months for the child abduction count. He didn’t like that sentence either. But this time, instead of resorting to self-help, he appealed the sentence. (The Court of Appeal can’t resist pointing out to Mr. Newman that appeal, not child abduction, was the remedy for the unfavorable custody order.)

The opinion explains Mr. Newman’s rationale for taking his son to Yemen,

Mr. Newman abducted his son because, in his words, he “could not just sit back and let [his] son be taken away,” he “wanted to be his [son's] father and [he] wanted to raise him, and they wouldn’t allow [him] to do that here,” and contrary to the state court’s decision, he “knew what was best for [his son].”

The child didn’t see his mom again until he was age 11, when Mr. Newman was arrested in Dubai for auto theft and attempted robbery. Mr. Newman had left the son in the care of his second wife in Yemen. Custody proceedings in Yemen resulted in an order reuniting the boy with his mother.

Mr. Newman spent five years in a Dubai prison for the theft and robbery attempt. Then he was extradited to Florida to stand trial for the child abduction charge. The moral may be that one serves a longer sentence for stealing a car, than for stealing a child. The sentence in this case is shockingly short, and the Court of Appeal shortens it further.

He plead guilty to the single child abduction count. Next came the sentencing report.

First, the PSR recommended a three-level increase under U.S.S.G. § 2J1.2(b)(2) because the offense resulted in “substantial interference with the administration of justice.”   Second, the PSR recommended a two-level enhancement under § 2J1.2(b)(3)(C) based on the probation officer’s finding that the offense was “extensive in scope, planning, or preparation.”   With a criminal history category of III and a three-level decrease for acceptance of responsibility, Mr. Newman’s guidelines range was 27 to 33 months.

Mr. Newman objected, the Court followed the recommendation and Mr. Newman appealed.

The D.C. Circuit upheld the enhancement based upon substantial interference with justice, but reversed the other two enhancements.

This turned out to be an issue of first impression — check out the opinion and see if you can follow Mr. Newman’s reasoning attempting to wiggle out from under this enhancement. The Court explains,

Contrary to Mr. Newman’s argument, it is not the bare existence of the custody order that supports the enhancement in this case. Rather, it is the nexus between Mr. Newman’s dissatisfaction with the lawful custody determination and his intent to frustrate and avoid the judicial process-not just the order itself-that renders § 2J1.2(b)(2)  applicable. That being so, Mr. Newman’s argument about blanket application of the § 2J1.2(b)(2) enhancement to divorced parents based on the mere existence of custody orders sweeps far too broadly.

Kidnapping your kid instead of filing an appeal, the appellate judges hold, constitutes substantial interference with justice. So far, so good. That comports with public policy and common sense.

But the Court of Appeal goes on to reverse the other two sentence enhancements, thereby reducing the already minimal sentence for felony child abduction.

The prosecution argued that hiding a kid in Yemen for eight years triggers an enhancement for a crime that is “extensive in scope, planning, or preparation.” Because it is extremely difficult to recover kids from Yemen (a non-Hague Abduction Convention country), and because he kept the boy in Yemen for eight years, the prosecution argued that this enhancement factor had been met. The trial court had considered the eight-year duration, and may also have considered the difficulty associated with recovering a child from Yemen when applying this factor.

Turning to the definition of “scope” in the context of sentencing for other crimes, the Second Circuit disagreed, holding that “duration” and “scope” are not synonymous. “Scope” does not address temporal factors since some federal sentencing guidelines set forth both “scope” and “duration” as factors. So that basis for sentence enhancement doesn’t fly.

The Court goes on to hold that the prosecution failed to introduce direct evidence that the prosecution failed to prove Mr. Newman choose Yemen because it is so hard  to recover kids from that country — that the trial court’s finding was not supported by substantial evidence. It seems to me that fact can reasonably be inferred from the surrounding facts of the case, and that the trial court was not bound to believe the defendant’s testimony that he chose Yemen for cultural and religious reasons. But the appellate judges characterize this inference as speculation. Evidently the mother’s eight years of futile efforts were insufficient to establish the difficulty factor. (Two recent dependency court decisions, and the an earlier family law case of mine, In re Marriage of Paillier and Pence (2006) 144 Cal.App.4th 461, also fault counsel for failing to present evidence to establish that foreign countries do not automatically agree to recognize, enforce, and not modify American custody orders — so be sure to call your expert witnesses to make these points for the record.)

The case got remanded for reduction of Mr. Newman’s sentence. I wonder how long a sentence for auto theft would be in Florida?

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 [...]]]> 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:

Teresa Merzoian and David Borges

President Leslie Shear remembers: “David was already on the [...]]]> 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.

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 [...]]]> 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 4^th __, 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.

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 [...]]]>

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 and n instead of the spacebar. That doesn’t happen with the dock, and the dock works more conventionally. One cool thing about the screen keyboard, though, is that it changes configuration to match the task at hand. I did most email on it for almost a week until the keyboard dock arrived today.

What is it? It isn’t a computer running the Mac OSX or Windows. It isn’t a big iPhone or iPod Touch. It isn’t an e-Reader like a Kindle, Nook or Sony Reader. However, it does many of the functions that each of those devices do, in a new and incredibly easy fashion.

It won’t replace your laptop, but you can tote it easily in many settings where you don’t need the full computer. In Court, I am now able to take notes: access my calendar, emall and address book: read any file documents I’ve downloaded to the iPad; do legal research; access the web; read anything on my Kindle or the iBooks app; read newspapers and magazines; play client ed videos or do online CLE, etc.

I’m likely to bring the iPad to CLE programs and to meetings where I plan to take notes. I’m likely to do some writing on the iPad, but not major briefs or legal documents.

One major frustration is the absence of multi-tasking. I can only use instant messaging for example, when all other apps are closed. That means I don’t know if someone is trying to IM me. This will be solved in the Fall with the upgrade to the iPhone OS (they will update the iPhones in the summer and the iPads in the fall, per Apple’s announcement).

The absence of a visible file/folder system is confusing. Applications simply recognize and list documents that can be read by that application. The new OS will also let you see some sort of file folder structure.

When the iPad comes out of the box, one must connect it via USB to a Mac or PC with iTunes. I had not updated my MacBook Pro to OSX version 10.5, so I had to do that first. I was already having difficulties resulting from lack of space on my MacBook Pro, so this was a full day enterprise, culminating in a trip to the Genius Bar in the nearby Apple store when the updated iTunes didn’t recognize the device. While I was there, the genius fixed a malfunction of my Mac Mail program, but failed to back up my preferences. So I had to manually set up all of those preferences over the next few days. Rumor has it that the new MacBook Pro’s hit the stores this week. I’ve been waiting to upgrade for the new intel chips, so I’ll be on the new computer soon.

But I have been enchanted by the iPad since the Genius got it up and running. It makes my MacBook seem cumbersome — large and slow. There is no boot time on an iPad. It is instant on, instantly working. Similarly, it takes no time to start up an application or open a file. Applications close instantly with whatever document or activity you were engaged in saved. Websites open at the speed of light.

I have the 64 gig version with wifi. I did not buy the 3G model because I intend to use the Mifi cellular hotspot device which lets me have five devices (my iPhone, my iPad, my MacBook Pro and two friends) on line at the same time. The first one Sprint shipped was defective, but the new one is here and ready for me to configure.

The screen is large, and clearer than any computer display I’ve ever seen. Television and movies are unreal on this device (you can get them thru the Netflix app, the ABC app, Hulu.com and the iTunes store). I’ve just tested the free TV at ABC and it is quite amazingly pleasurable to watch on this device.

How will I use it? Reading, websurfing, taking notes, writing short pieces, watching video, playing games, etc. It is seductively small, light, and accessible. Have I said clearly enough that everything is INSTANT! No waiting for things to open or close or download.

Email is actually easier on this device, but not for storage since you can’t set up dedicated mailboxes or save emails to client folders on a computer hard drive. All of that gets done on my computer, but I can read and respond on the fly with copies going to the computer for filing.

You can’t print directly from an iPad. You can move files to it via usb using iTunes, but you can’t use a flash drive or a physically connected external drive. Moving files is basically done through the cloud.

Apple’s Pages app theoretically recognizes word .doc files, but in practice has not located the .doc files that I have downloaded to this device via Apple’s cloud application — iDisk. I haven’t configured the Air-sharing app on the Mac yet — but that application which treats an iPad or an iPhone as if it was another drive on the computer may solve the problem. Apple touts iWorks, which includes a website for sharing, storing and collaborating on Pages documents. But I have an old version of iWorks on the MacBook, and am not going to upgrade there since I plan to get the new MacBook ASAP.

The QuickOffice App that imitates Microsoft products on the iPhone just crashes on the iPad. People are having good success with Google docs and various applications that work with that platform. I haven’t set up Google docs.

I can open and read .doc and .pdf files that I have moved to the iPad via iDisk using the GoodReader app. The iPad opens all document, spreadsheet and pdf attachments to email and lets me read them, but there appears to be no way to save them or edit them.

There is no way to add fonts to the iPad — one is stuck with the bundled font set.

There are a number of well-reviewed applications that let the iPad serve as a remote terminal for your PC or Mac. This seems to be the way to go if you need to access files or functions on the road.

When you set up the iPad, iTunes syncs your iPhone apps to your iPad and there is no extra charge for running them on the iPad. Some prove unnecessary because things just work better in Safari on this device — I took off the dedicated Huffington Post and Facebook apps, for example. Those sites are beautiful in Safari and don’t need the abbreviated apps. Other apps have improved iPad versions, so I deleted the iPhone clunky version and downloaded the dedicated iPad app.

All of my dedicated law iPhone apps, including the various versions of the California Codes and Rules of Court, work beautifully on this device. Fastcase lets me access every case and statute in the country. I haven’t tried Westlaw yet in Safari, but I don’t anticipate any difficulties. My apps that count court days and deadlines work beautifully. LawBox connects to various family law blogs — one can set it for the subscriptions one wants. There are a number of web-based judicial council forms sites that may be functional in a pinch.

This is my fifth e-reading device. I began with the RCA Rocket with its dialup modem. I still have a Sony Reader full of books. I’m on my second Kindle (a Kindle 2) and I also use the Kindle App on my iphone. But I’ve not used the Kindle more than once since the iPad arrived. Books on the Kindle app are more beautiful, display more content (meaning fewer page turns) and have color illustrations. The hyperlinks are fast and effective. The IBook app is also absolutely beautiful.

I haven’t found that the backlighting is causing any eyestrain. I like reading it in bed with the lights off. I love the color pictures and the hyperlinks. I still need my New Yorker subscription on the Kindle because the digital New Yorker is not user-friendly – one must keep zooming in and out. But I hear they are working on a tablet version. I plan to cancel my Kindle LA Times and NY Times subscriptions as I have been reading them on the iPad all week in their web incarnations.

So this device already seems indispensable because of size, speed and versatility. I lug my MacBook around to lots of places where the iPad will work well. Having an iPad in my purse instead of a Kindle gives me much more functionality. I can do most of the same things on the iPhone — but not all. And the iPhone now seems so small, cramped, awkward and slow.

Next step: I plan to add Timeslips remote to my Timeslips program (running in Windows XP under Parallels on the MacBook Pro) and then download iSlips to the Kindle so that I can bill the work I do on this device. I’m also thinking of downloading the WordPress app for blogging rather than pasting this text into WordPress at our blog site.

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.)

In a dissolution or legal separation proceeding, the bundle of rights in quasi-community property is determined under California community property law (equal division, rights of reimbursement, etc.). “California’s marital property laws are designed to provide for uniform treatment of quasi-community and community property when the parties have changed their domicile to this State and seek to legally alter their marital status in a California court. (Marriage of Craig, supra at p. 686.)

In 1994, Section 4800.2 became Family Code section 2640, with a few changes. In Section 2640, subdivision (b), the term “community property” was replaced with the term “community estate.” The 1993 Law Revision Commission explained why this replacement was made:

In subdivision (b), “community estate” has been substituted for “community property” to codify case law holding that this provision applies to quasi-community property as well as to community property. See In re Marriage of Craig, 219 Cal. App. 3d 683, 268 Cal. Rptr 396 (1990).

In Marriage of Walrath (1998) 17 Cal.4th 907, the majority opinion found that the property from which a Section 2640, subdivision (b) reimbursement can be satisfied is the initial asset to which the contribution can be traced or a subsequent asset that was acquired using the sale proceeds of the initial asset (the “Identifiable Asset Rule”). The majority emphasized that the party seeking reimbursement cannot look to community assets that were not acquired with separate funds.

The dissenting opinion of Justice Baxter in Walrath took a different approach. This opinion ignored the fact that the 1993 change from “community property” to “community estate” was a minor clarification based on Craig, and instead insisted that the entire “community estate” was burdened by a reimbursement claim – every community asset could be used to reimburse the separate property contribution to the acquisition of just one asset.

In Marriage of Cross (2001) 94 Cal.App.4th 1143, the court correctly found that Section 2640 did not apply to reimbursement claims for separate property contributions of one spouse to the separate property estate of the other spouse. Case law offered no relief either, since such a contribution was presumed a gift.

In 2004, Senator Sheila J. Kuehl introduced Senate Bill 1407 (2003-2004) (“The Bill”), which targeted the Cross decision head-on. The Bill, as introduced, initially amended Section 2640 to add Subdivision (c), as follows:

(c) A party shall be reimbursed for any separate property contributions made to the separate property estate, including assets or debts, of the other spouse during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values. (Emphasis added.)

This provision would have created a sweeping change to existing law by requiring reimbursement not only for contributions to the acquisition of an asset, but also for the payments of a debt. This version of The Bill received substantial opposition.

The 2003-2004 Senate Judiciary Committee analysis report for the April 27, 2004 hearing on The Bill (the “Senate Judiciary Report”) noted the following opposition from the Family Law Section of the Los Angeles County Bar Association:

As presently drafted, SB 1407 grants too broad a right of reimbursement and would appear, for example, to permit reimbursement for separate property contributions for such expenses as interest, maintenance, insurance and taxes, items for which reimbursement is not currently allowed under Family Code Section 2640.

If SB 1407 as presently drafted indeed grants such a broad reimbursement right, it goes too far beyond the definition of “contributions to the acquisition of property” currently set forth in Family Code Section 2640(a) and would permit undeserved windfall reimbursements out of harmony with Family Code Section 2640 and current case law.

According to the Senate Judiciary Report, The Family Law Section of the Los Angeles County Bar Association stated that if The Bill were amended to limit the type of reimbursement permitted to be consistent with Family Code Section 2640 and current case law, it would withdraw its opposition and view The Bill . . .

. . . as a needed and appropriate logical extension of California’s current “right of reimbursement” law as represented by Family Code Section 2640 and the relatively recent cases of In re Marriage of Wolfe and In re Marriage of Allen . . . [holding the] community is entitled to reimbursements for community property funds used to make improvements on one spouse’s separate property . . . . [Citations omitted.]

As a practical matter, SB 1407 if amended as here recommended would close a hole in the area of “reimbursements” that has somehow not been previously clearly addressed by either statute or case law, and it would be a worthy statutory fix enabling some divorcing party to save the expense of having to establish by litigation the very same “reimbursement” result statutorily granted by SB 1407 amended as here recommended.

The Senate Judiciary Report further noted as follows:

SB 1407 appears to create a right to reimbursement for contributions from one spouse’s separate property to the other spouse’s separate asset or debt in the case when there is no community property or quasi-community property that could pay for the other spouse’s separate asset or debt, despite the fact that Family Code Section 4301 requires the expense from the one spouse’s separate property as an obligation and does not create a right to reimbursement.

The Senate Judiciary Report noted the following opposition from the California Judges Association:

Through a member judicial officer, CJA expressed concern that expanding the right to reimbursement beyond the circumstances presently permitted under the case law and Family Code Section 2640 could be inequitable and create hardship. For example, in a divorce involving no assets, only liabilities (which is common), if early in the marriage husband used separate property assets to pay pre-marriage consumer debt of wife totaling $10,000, and the couple divorces when both spouses are retired and living on limited income, wife would owe to husband $10,000 in addition to owing 50 percent of the community’s debts. Wife could be burdened with the debt with no source of income to repay husband.

Family Code Section 2640 limits the separate property reimbursement to amounts contributed to the acquisition of property, and caps reimbursement at the net value of the property at the time of division, ensures that there is a source for repayment of the contribution and protects the community from liability exceeding the net value of asset.

California Judges Association proposes that if the intent of the bill is to correct the problem stated in Marriage of Cross (which concerned husband’s separate property contribution for capital improvements to wife’s separate property house), Family Code Section 2640 should be extended:

i. only to allow reimbursement for payments made to reduce an encumbrance on the other spouse’s separate property and capital improvements to the other spouse’s separate property, but not payments made for taxes, interest, insurance or maintenance; and

ii. in addition to the amount reimbursed being without interest or adjustment for change in monetary values as stated in Family Code Section 2640(b) and SB 1407, reimbursement should only be available:

A. if the asset to which contributions were suggested by the Family Law made is still part of the other spouse’s separate property estate (in which case the amount reimbursed should not exceed the net value of the property at the time of the division), or

B. if the asset to which contributions were made is no longer part of the other spouse’s separate property estate but the proceeds of the asset are now traceable to some other asset of the other spouse’s separate property estate (in which case the amount reimbursed should not exceed the net value of that asset at the time of the division). (Emphases added.)

The California Judges Association made it clear that support would only be given to The Bill if it were redrafted and the Subdivision (b) Identifiable Asset Rule of Walrath were also applicable to Subdivision (c).

The Senate Judiciary Report noted the following, additional opposition to The Bill:

When the Conference of Delegates of California Bar Associations considered Resolution (8-05-2003), identical (after amended) to SB 1407, the Bar Association of Northern San Diego County stated as a counterargument to the Resolution:

This resolution attempts to create a category of rights and liabilities distinct from those common to marriage and existing domestic partnership by hand-picking certain privileges from both bodies of law and deleting basic liabilities common to both, such as a support obligation. Eliminating obligations would gut the domestic partnership laws and would leave the domestic partner with the least bargaining power unprotected.

This comment appears to be related to the statutory spousal support duty under Family Code Sections 4300 and 4301: “Subject to this division [(Fam. Code Sec. 3500 et seq.)], a person shall support the other person’s spouse” [Fam. Code Sec. 4300]; and “ . . . a person shall support the person’s spouse while they are living together out of the separate property of the person when there is no community property or quasi-community property” [Fam. Code Sec. 4301].

SB 1407 appears to create a right to reimbursement for contributions from one spouse’s separate property to the other spouse’s separate asset or debt in the case when there is no community property or quasi-community property that could pay for the other spouse’s separate asset or debt, despite the fact that Family Code Section 4301 requires the expense from the one spouse’s separate property as an obligation and does not create a right to reimbursement.

(In contrast to Family Code Section 4301, Family Code Section 914(b) (liability of a spouse’s separate property for “necessaries of life” debts of the other spouse incurred during marriage) does not require the exhaustion of the community estate before the nondebtor spouse’s separate property may be reached by a third party creditor, and expressly permits reimbursement for separate property funds used only to the extent community or separate property of the debtor spouse was available but not used. Family Code Section 920(c) provides that a right of reimbursement provided by Part 3 (commencing with Section 900) is limited to a three-year enforceability period, or less if a dissolution occurs before the end of the three-year period. SB 1407 has no limitations period.)

On May 4, 2004, The Bill was amended to substantially change the proposed Subdivision (c) to conform with Subdivision (b), as follows:

(c) A party shall be reimbursed for any separate property the

party’s contributions made to the acquisition of property of the

other spouse’s separate property estate, including assets or debts,

of the other spouse during the marriage, unless there has been a

transmutation in writing pursuant to Chapter 5 (commencing with

Section 850) of Part 2 of Division 4, or a written waiver of the right

to reimbursement. The amount reimbursed shall be without

interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

In that same amendment, a change was made to Subdivision (b) as well:

(b) In the division of the community estate under this division,

unless a party has made a written waiver of the right to

reimbursement or has signed a writing that has the effect of a

waiver, the party shall be reimbursed for the party’s contributions

to the acquisition of the property of the community property estate

to the extent the party traces the contributions to a separate

property source. The amount reimbursed shall be without interest

or adjustment for change in monetary values and shall may not exceed the net value of the property at the time of the division.

This proposed change to Subdivision (b) mirrored the language in the proposed Subdivision (c). In each, the term “estate” is used in the reference to identifying the acquisition. However, it is clear from the record above that no one contemplated that the term “separate property estate” as used in the proposed Subdivision (c) would mean the reimbursement would come from any asset of the separate property estate, so why should the term “community property estate” have different treatment in Subdivision (b)?

On May 27, 2004, The Bill was further amended in a minor way, as follows:

(c) A party shall be reimbursed for the party’s separate property contributions to the acquisition of property of the other spouse’s separate property estate during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

Subdivision (b) became law effective January 1, 2005 as it reads in the May 4, 2004 amendment.

Subdivision (c) became law effective January 1, 2005 as it reads in the May 27, 2004 amendment.

The May 4, 2004 amendment to Subdivision (b) was consistent with the clarification made to Family Code 2640 in 1993. The 1993 Law Revision Commission wanted to clarify, based on Craig, that property of the “community estate” (community and quasi-community property) was subject to the reimbursement rule, not just community property itself.

Here, again, is the 1984 version of Subdivision (b):

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 . . . .

In the 1984 version, the term “the property” specifically refers to the preceding term “community property.”

Here, again, is the 1993 version of Subdivision (b):

In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party’s contributions to the acquisition of the property . . . .

In the 1994 version, there is no preceding “property” reference to clarify the term “the property.” By changing the term in 2004 to “property of the community estate” the statute clarifies what property is subject to the reimbursement right. Not only was this clean up language that should have been inserted in 1993, it is also helpful in designating a source of reimbursement now that a separate estate reimbursement right was being created too.

The present version of Subdivision (b), and all those preceding it, states the rule that the reimbursement can “not exceed the net value of the property at the time of the division.” That is not an unclear statement; there is no ambiguity that could lead to a reasonable interpretation that the reimbursement can “not exceed the [net value of the community estate],” thus allowing for reimbursement to come from any community asset. If the Legislature had intended for the entire community estate to be reached, then this is where it would have been stated, but it was not.

For example, Husband inherits a separate property home with equity of $400,000 and he immediately places Wife on title. At trial, several months later, the home is worth only $100,000 because of market conditions. Did the legislature intend, without saying so or any discussion, to accept the dissenting Justice Baxter opinion? Would the Husband have a claim of $300,000 against the rest of the community estate?

The 2004 amendment to Subdivision (b) should not be construed as creating a radical departure from the Walrath Identifiable Asset Rule for two reasons:

1. The Identifiable Asset Rule, let alone Walrath, was never discussed as part of the legislative record in relation to Subdivision (b); and

2. The Identifiable Asset Rule was specifically discussed in amending the proposed Subdivision (c) with the intent that it be applied to Subdivision (c).

As to the first reason, there are a myriad of rules of statutory interpretation. For each rule, there is an exception or a contrary rule for application. While it is true that the Legislature is presumed to have knowledge of case law, the Legislature is not presumed to make sweeping changes of law or policy without clearly indicating an intent to do so within the statute. When an ambiguity within a statute can be interpreted to abridge long-held rights or make a large policy change, courts will not interpret the statute to make the change unless the Legislature clearly stated it. This rule is based on the assumption that the Legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.

Here, in the context of the May 4, 2004 amendment to Subdivision (b), there was no legislative record to indicate that the Legislature intended to abrogate the California Supreme Court’s Identifiable Asset Rule of Walrath, and for a new reimbursement scheme to be set in place. To find that Walrath was abrogated would be a substantial change to existing law that is unsupported by any record that it was so intended. The stated purpose of The Bill was to abrogate the ruling in Cross, so the legislature could have easily named Walrath as well, but it did not.

As to the second reason, the tracing principles known under pre-2004 Subdivision (b) (which includes Walrath) were suggested to apply to Subdivision (c). Recall that the California Judges Association’s suggested that there should be a separate property reimbursement “if the asset to which contributions were made is no longer part of the other spouse’s separate property estate but the proceeds of the asset are now traceable to some other asset of the other spouse’s separate property estate (in which case the amount reimbursed should not exceed the net value of that asset at the time of the division).” This suggestion is in accord with Walrath and contributed to the reworking of the proposed Subdivision (c) into the final version, which is similar to Subdivision (b). The intent was to make Subdivision (c) conform with the then-existing Subdivision (b), thus, as envisioned by the California Judges Association, Walrath would be alive and well and applicable to both community and separate property contributions.

Is Section 2640, subdivision (c) retroactive?

Family Code section 4, subdivision (c) establishes that amendments to the California Family Code apply retroactively unless otherwise provided by law. However, notwithstanding legislative statement of intent to the contrary, a law cannot be retroactively applied if it violates due process.

In Marriage of Fabian (1986) 41 Cal.3d 440, the California Supreme Court found that that original version of Section 2640 (fmr. Civ. Code § 4800.2) could not be retroactively applied to pre-1984 transactions. The reasoning is that prior to 1984 a separate property contribution to the acquisition of community property amounted to an unconditional gift to the community, thus conferring upon the other spouse a vested property right. That vested property right could not be taken away by the mere passage of a retroactive law.

In Marriage of Craig (1990) 219 Cal.App.3d 683, the court followed the Fabian due process analysis in respect to quasi-community property and would not retroactively apply Section 2640.

In Marriage of Cross (2001) 94 Cal.App.4th 1143, the court found that there was no reimbursement for the contribution of separate funds by one spouse to the other spouses’ separate estate, either under Section 2640 or case law. Cross was to Subdivision (c) what Lucas was to Subdivision (b) – an observer of the state of the law and an initiator of change.

Prior to 2005, as noted in Cross, there was no right to reimbursement, thus the spouse who received separate funds from the other had a vested right in those funds. The retroactive application of Subdivision (c) would create the same due process problem addressed in Fabian.

Does Section 2640, subdivision (c) apply outside the context of the division of the community estate in a dissolution or separation proceeding?

The following is a summary of the statutory organization of Section 2640, subdivision (c):

1. In a dissolution or legal separation proceeding, the court must divide community property equally, except if one of the following special rules applies. (Fam. Code § 2550.)

2. The following is a special rule. (Fam. Code § 2600.)

3. Family Code section 2640, subdivision (c)

Can this be read to mean that, since Family Code section 2640, subdivision (c) itself does not state it is a special rule, and itself does not state it only applies in a dissolution or legal separation proceeding, then Subdivision (c) could be applied in any proceeding (e.g., probate, bankruptcy, creditor’s suit)? This requires the first two statutory restrictors on the application of Section 2640 to be ignored.

Consider the following:

Sam Student reviews his school’s student handbook, which contains all the rules for all the classes.

The history class has the following pertinent rules in the student handbook:

1. All assignments must be turned in on time, except if one of the following special rules applies.

2. The following is a special rule.

3. Any essay assignment can be turned in up to two days late.

Sam Student looks at the rules for the English class, and finds there are no rules about when assignments must be turned in. Sam Student concludes that any essay assignment in his English can be turned in up to two days late because the history class rule number 3 does not say it is only for history class and there is no English class rule on point. Is Sam Student right?

The preamble of stated intent to The Bill is as follows:

Existing law regulates the division of property upon the dissolution of marriage or the legal separation of the parties. Existing law provides for reimbursement, as specified, of a party’s contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source, unless the party has waived this right. Existing law, relating to the characterization of marital property, addresses the application of separate property for specified debts under certain circumstances, and establishes specific conditions governing the right of reimbursement in this regard. This bill would require, in connection with the division of property upon the dissolution of marriage, that a party shall be reimbursed for any separate property contributions made to the separate property estate, including assets or debts, of the other spouse during the marriage, unless there has been a transmutation in writing, as specified, or a written waiver of this right. The bill would require that the reimbursed amount be without interest or adjustment for change in monetary value. (Emphases added.)

The Legislative intent is clear: the new rule is to apply in the division of the community estate in a dissolution or legal separation proceeding. However, the new subsection does not state as much, so what other context clues could help resolve any perceived ambiguity?

With the passage of the Family Law Act, the Civil Code sections governing Family Law proceedings were renumbered. The relevant portions of former Civil Code section 4800 are now found in the Family Code under Division 7 entitled “Division of Property.”

Former Civil Code section 4800, subdivision (a) is now found in Family Code section 2550:

Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in [Family Code Division 7], in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally. (Emphasis supplied.)

Former Civil Code section 4800.2 is now found in Family Code section 2640 of Division 7, Part 4 of the Family Code, entitled “Special Rules for Division of Community Estate.” Part 4 begins with Family Code section 2600, which provides in pertinent part:

Notwithstanding Sections 2550 to 2552, inclusive, the court may divide the community estate as provided in this part.

The renumbering of Civil Code section 4800, and the reorganization of its parts, left the underlying statutory scheme predominantly intact. The Legislature, in organizing the Family Code, placed the special rule of Section 2640 in the division containing the rules of property division in a dissolution proceeding. There is no indication that the Legislature intended to apply the Part 4 “Special Rules for Division of Community Estate” in any other type of proceeding (e.g., a probate proceeding).

Statutory construction also lends to this conclusion. The meaning of a particular word or expression in one statute is by no means to be automatically carried over to use in another statute, which may present an entirely different set of considerations. The silence in Subdivision (c) as to what type of proceeding it applies to alone might give rise to an ambiguity. However, where different statutes relating to a subject are in pari materia, their meaning may be determined in relation to one another. Here, Section 2640 is organized in such a way that, when looking to the subject matter of the other statutes in Division 7 (division of property in a dissolution proceeding) any ambiguities can be resolved. Context clues indicate the Legislature intended Subdivision (c) to only apply in a dissolution or separation proceeding.

Justin M. O’Connell, Esq.

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