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Saturday, May 9th was the 41st Annual Family Law Symposium sponsored by the Los Angeles County Bar Family Law Section and the Los Angeles Superior Court. Attendance surpassed expectations, with approximately 400 attendees. I moderated the Recent Developments panel. Speakers were Garrett C. Dailey, Esq., Judge Robert A. Schnider (Ret.), Commissioner Michael Convey, a commissioner of the Los Angeles Superior Court, and myself. One of the more interesting cases dealt with attorney client fee agreements and held that contractual arbitration agreements in retainer agreements are valid.
In Schatz v. Allen, Matkins, Leck, Gamble & Mallory, LLP (2009) 45 Cal.4th 557, the client signed a fee agreement with attorney that provided for binding arbitration of fee and malpractice disputes. After a fee dispute arose, the attorney invoked the arbitration clause. The client requested non-binding arbitration under the MFAA. The attorney prevailed. The client asked for a trial de novo. The attorney filed a petition to compel arbitration. The attorney’s request was denied. The Court of Appeal affirmed. The Supreme Court reversed.
In Schatz, supra, the court held that the Mandatory Fee Arbitration Act (MFAA, Bus. & Prof. Code, §6200 et seq.), which for public policy reasons entitles clients to nonbinding arbitration and trial de novo, does not limit the ability of attorneys and clients to enter into predispute binding contractual arbitration. Accordingly, attorney retainer agreements can contain predispute arbitration agreements pursuant to the California Arbitration Act (CAA, Code Civ. Proc., §1280 et seq.), the statutory scheme regulating private arbitration in this state, and they will be upheld. Further, binding arbitration satisfies the MFAA requirements for a trial de novo.
A good tip for practitioners is that clients should read and initial the arbitration provisions in retainer agreements. An example of such provisions in retainer agreements follows.
1. All disputes between us regarding any aspect of our attorney-client relationship will be resolved by binding arbitration with the American Arbitration Association in Los Angeles, California. An award from any binding arbitration shall be enforceable in all courts of competent jurisdiction. The Arbitrator (s) shall apply the law of the State of California and shall award costs and attorneys fees to the prevailing party in such arbitrations. The parties agree that to the extent permitted by law, the resolution provisions provided in this paragraph are the sole and exclusive remedy of the parties and they waive and forego any right to pursue action in any court or other legal forum to resolve such claims. The parties acknowledge and agree that they are waiving their respective right to a jury trial. This provision applies to all disputes whether they are about financial matters (fees and costs) or about the quality of our services (malpractice). By this provision, we are both giving up our right to have any such dispute decided by a judge or a jury.
As to fees and costs only, you also have the right under the law to non-binding arbitration pursuant to sections 6200 et seq. of the Business and Professions Code. If there is an unresolved dispute as to fees, I will give you 30 days written notice of your right to nonbinding arbitration. If you decline to accept that nonbinding arbitration within that 30 day period, either you or I are then entitled to bring an action as set forth above. If you request non-binding arbitration, it will take place before the binding arbitration which is provided for above. If you ask for non-binding arbitration and you or we are unhappy with the result, it will be followed by binding arbitration. The arbitration which we are agreeing to replaces litigation in court before a judge or jury. It does not replace non-binding arbitration under Business and Professions Code sections 6200 et seq. The prevailing party in any arbitration or litigation arising out of or relating to any such arbitration between us, shall be entitled to reasonable attorneys fees and costs.
2. YOU ACKNOWLEDGE THAT YOU HAVE HAD AN OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL CONCERNING THE EXECUTION OF THIS AGREEMENT AND THE TERMS OF REPRESENTATION, ESPECIALLY THE PROVISIONS RELATING TO THE WAIVER OF A RIGHT TO JURY TRIAL, AND HAVE EITHER ENGAGED IN SUCH CONSULTATION OR HAVE VOLUNTARILY RELINQUISHED THAT RIGHT. PLEASE INITIAL THIS PARAGRAPH WHERE INDICATED THAT YOU UNDERSTAND AND AGREE WITH THE CONTENTS OF THIS PARAGRAPH.
_____
initial
3. Please countersign this letter Agreement and initial Paragraph 2 acknowledging that the contents accurately reflect your understanding of our relationship and return it to me in the enclosed envelope. Please note again that as set forth in Paragraphs 1 and 2 above, you are agreeing to waive your right to a jury trial, whether as to fees, quality of services rendered, or otherwise, arising hereunder. This Agreement, if signed by you, will be an important, legally binding contract having substantial financial impact upon you. You should not sign this Agreement if you have any questions about it.
www.DSFrankLawOffice.com
 Here’s a quick list of the key holdings in the Prop 8 cases, based upon my initial read of the decision.
1. All of the broad holdings* in In re The Marriage Cases other than the holding prohibiting restriction of the designation “marriage” to heterosexual couples, remain unmodified by Prop. 8. “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.”
2. Prop 8′s substantive change falls within the scope of a proper amendment to the California constitution because it does not change the structure of government or make many changes to the constitution in one ballot measure. Prior amendments changing the taxing structure of the government (Prop 13), restoring the death penalty, etc. were all held to be proper amendments — Prop 8 survives scrutiny under that same standard.
3. The voters may carve out narrow exceptions to broader privacy, equal protection and other liberty guarantees by amendment. Prop. 8 only “narrowly” restricts existing liberty guarantees of the constitution by restricting use of the term “marriage” while protecting all of the incidents of marriage other than equal dignity. [Comment: I wonder if an amendment that restricted the use of "attorney" and "lawyer" to heterosexual males and all female or gay lawyers "scriveners" would fall in the same narrow category -- I think one of the briefs argued similarly that an amendment that made all female judges "commissioners" would be the equivalent to restricting "marriage" to opposite-sex unions.]
4. Amendments to the Constitution that conflict with earlier provisions are construed to carve out an exception to the earlier provision.
5. “… the section added by Proposition 8 to the California Constitution ― properly must be interpreted to apply both to marriages performed in California and to marriages performed in other jurisdictions.”
[I'll finish this later -- I'm in New Orleans for the AFCC conference and want to go out and play in the city this afternoon.]
* “In sum, although Proposition 8 changes the state Constitution, as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, to provide that restricting the family designation of “marriage” to opposite-sex couples only, and withholding that designation from same-sex couples, no longer violates the state Constitution, in all other respects same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples and the same broad protections under the state equal protection clause that are set forth in the majority opinion in the Marriage Cases, including the general principle that sexual orientation constitutes a suspect classification and that statutes according differential treatment on the basis of sexual orientation are constitutionally permissible only if they satisfy the strict scrutiny standard of review.”
 Traffic to the Supreme Court website has died down today, so it is easy to download the opinion and the press release. Yesterday, when my flight to New Orleans for AFCC made a stop in Houston at 10:20 a.m., the site kept crashing — I had to go to CNN on the iPhone to find out what happened.
The most interesting news is that Bush v. Gore opposing counsel Theodore Olson (former U.S. Solicitor General) and David Boies are filing a challenge to Prop 8 (and request for a stay) in federal court here in California — on U.S. Constitution equal-protection grounds.
Counsel in the Prop 8 cases scrupulously avoided raising federal issues to avoid U.S. Supreme Court review in the event that the challenge to Prop 8 in the California Supreme Court was successful.
I think it is fascinating that Ted Olson has taken this position — and that it will be much easier for the U.S. Supremes to frame this as an equal-protection issue with him associated with that view. They are also much more likely to grant cert with those counsel on the case. But first, the case must work its way from the Federal District Court to the Ninth Circuit to the U.S. Supremes — so stay tuned.
Meanwhile, Equality California is working to put repeal of Prop 8 on the 2010 ballot.
I’ll post more thoughts about the opinion when I’ve digested it.
The Supreme Court opinion site appears to have crashed but per KQED/NPR that was the decision. I will post a link when it is up again.
Hot Off the Press: Marriage of Lund
Marriage of Lund (2009) 2009 WL 1415965
Decided by the Fourth District on May 21, 2009
Summary of the facts: H and W married in 1990; on December 12, 1990, H had W review and sign a number of documents in his attorney’s office, including an “Agreement to Establish Interest in Property,” her Will and “The Earl E. Lund, Jr. Trust.” She spent 20 minutes reviewing and signing the documents. The “Agreement to Establish Interest in Property” provided, inter alia, as follows:
“C. At the date of marriage, Husband owned property, real or otherwise of substantial value and wife had assets of de minimus value; and
D. The Husband, for estate planning purposes desires to convert said separate property into community property.
NOW, THEREFORE, in order to evidence, confirm and ratify their agreement and intention it is agreed as follows:
A. SEPARATE PROPERTY: The following properties are acknowledged to be the separate property of:
1. Husband
(a) 6014-6030 Gifford Avenue, Huntington Park, CA
(b) 4601 E 58th Street, Maywood, CA
(c) 218 Ogle Street, Costa Mesa, CA
(d) 12 Wildwheat, Irvine, CA5
B. COMMUNITY PROPERTY
1. All other of the6 property, real and personal, of the parties hereto, whether title thereto is held in the names of one or the other of the parties or both of the parties as joint tenants or otherwise, is the community property of the parties hereto, each having a present, existing, and equal interest therein.
…
C. CONVERTED PROPERTY
All of the property, real and personal, held in the name of Husband having its origin in his separate property no matter how received and/or earned, is hereby converted to community property of Husband and Wife, and shall thereafter be the community property of the parties for estate planning hereto, each having a present, existing, and equal interest therein.
…
E. HEADING7
This Agreement is intended as a document of transfer for estate planning purposes to the extent necessary to conform the record ownership of the properties of the parties to the within Agreement. It is not intended by this Agreement to make any transfer of property between the parties hereto, nor shall this Agreement be construed for any purpose to affect any such transfer, but this Agreement is executed solely for the purpose of recognizing as between the parties the type of ownership of the properties acquired and now owned by them. In addition, the parties agree to join in the execution of such other deeds, assignments or documents as may be required to reflect the formal record ownership in accordance with this Agreement.
5 The parties crossed out this portion of the agreement and initialed next to the change. Neither party contests the legitimacy of this alteration.
6 The parties also crossed this phrase out and initialed next to this change; neither party contests the legitimacy of this alteration.
7 The word “HEADING” is the actual heading for this section of the contract. The court and the parties speculated that this was merely a drafting oversight on the part of the drafting attorney.
…
I have carefully read and understand all of the provisions of the foregoing Agreement and approve of and agree to all of the terms hereof. [Signed Earl E. Lund, Jr. and Anne K. Lund.]”
H had established his Trust shortly after the parties married, and the parties restated it on December 12, 2002, making both parties Trustees and settlers. On that date, H and W signed wills. The wills included a no-contest clause and a “construction” paragraph that stated “it is my intent that all of my estate planning documents ARE INTEGRATED so that if there is a breach, contest, violation or attack of one instrument, document or transfer of mine . . . then there is a breach, contest, violation or attack of any and/or all instruments, documents or transfers of mine as to that breaching, thwarting, contesting, violating or attacking party or entity.”
In their dissolution proceeding, the parties bifurcated the issue of whether the Agreement to Establish Interest in Property transmuted H’s separate property to community property. Each party called an estate planning expert witness to testify regarding the effect of the documents on each party’s property upon their death while still married. H did not testify, but W did. The trial court held that it the Agreement to Establish Interest in Property did not transmute H’s separate property, reasoning that some language in the agreement conflicted with the apparent statement regarding transmutation. It held that it was ambiguous “when read in conjunction with the trust,” and that if it was not ambiguous, “the most reasonable construction of the documents is the parties objectively intended the agreement to change separate property to community property only if they were married when one spouse died.” It also held that if it did validly transmute H’s separate property, it was procured by undue influence.
W appealed, and the Fourth District reversed.
The result on appeal: The panel held that “(t)he most factually similar California case to the instant one is In re Marriage of Holtemann (2008) 166 Cal.App.4th 1166 (Holtemann), a case published after the court reached its decision in this case.” It reasoned that Holtemann’s holding that a party cannot conditionally transmute property to be effective only in the event of his or her death. The agreement either effectively transmutes property or it does not; in this case, held the Fourth District, the Agreement to Establish Interest in Property “unambiguously effects a transmutation of Earl’s separate property into community property” as a result of the language in Section C of the Agreement with its statements that H’s separate property “is hereby converted to community property of Husband and Wife, and shall thereafter be the community property of the parties for estate planning hereto, each having a present, existing, and equal interest therein.” It also held that the parties’ strikethrough of Section A “manifested their intent to eliminate any potential argument that the real properties identified in section A were not subject to the transmutation provided for in section C.”
It also held that the trial court was incorrectly “influenced” by the “language in the recitals and in section E of the agreement indicating the agreement was executed for ‘estate planning purposes,’ as well as the existence of other ‘estate planning’ documents (the trust and the wills);” under Holtemann, said the panel, “’the motivations underlying the documents’ are irrelevant;” the only thing that matters is
“whether ‘they contain the requisite express, unequivocal declarations of a present transmutation.’ It simply does not matter that the agreement, the trust, and the wills were all executed together as part of a single ‘estate planning’ strategy. The parties hotly dispute the question of whether we should interpret the agreement alone or in conjunction with all of the estate planning documents. But all the ‘estate planning’ documents show is the parties had a comprehensive estate plan which would operate to provide the surviving party with tax benefits had the marriage survived until the death of the other party. The ‘estate planning’ documents do not have any bearing on whether the agreement at issue contains the ‘requisite express, unequivocal declarations of a present transmutation.’”
H argued that the provision in section E of the agreement stating that “(i)t is not intended by this Agreement to make any transfer of property between the parties hereto, nor shall this Agreement be construed for any purpose to affect any such transfer, but this Agreement is executed solely for the purpose of recognizing as between the parties the type of ownership of the properties acquired and now owned by them” created an ambiguity that was not present in Holtemann and that given the ambiguity, the court must find that he did not intend a transmutation. The panel disagreed, reasoning as follows:
“Interpreting section E to simply undo or call into question the work done by sections B and C violates basic principles of contract interpretation. (Civ. Code §§1641 [‘The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other’], 1643 [‘A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violation the intention of the parties’], 3541 [‘An interpretation which gives effect is preferred to one which makes void’].) Sections B and C clearly transmute Earl’s separate property into community property; if at all possible, section E should be interpreted to be consistent with sections B and C. This can be accomplished by interpreting the contract as suggested by Kathryn. The agreement was not a deed. It was an agreement to transmute Earl’s separate property to community property. (See §850 [married persons may transmute separate property to community property ‘by agreement or transfer’ (italics added)].) The agreement transmutes Earl’s separate property to community property, but it does not ‘transfer’ title of the real property at issue.
Reduced to its essentials, Earl’s argument, if accepted, would interpret the agreement as effecting a transmutation of his separate property to community property only if he or Kathryn died while married. But the language of the agreement clearly disclaims the notion of a conditional future transmutation. ‘All of the property, real and personal, held in the name of Husband having its origin in his separate property no matter how received and/or earned, is hereby converted to community property of Husband and Wife, and shall thereafter be the community property of the parties for estate planning hereto, each having a present, existing, and equal interest therein.’ (Italics added.) A ‘present, existing, and equal interest’ is the antithesis of a ‘conditional future transmutation.” We suggest that only persons overschooled in the law could read this clear language to find an ambiguity where none exists. Persons unschooled in the law would read this language to mean exactly what it says. And the termination provision in the trust, whereby the trust is automatically revoked upon filing of a petition for dissolution of marriage, cannot be interpreted as automatically retransmuting the property upon the filing of a dissolution petition. ‘Community property, including any income or appreciation, that is distributed or withdrawn from a trust by revocation, power of withdrawal, or otherwise, remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal.’ (§761, subd.(b) (Italics added).)
Moreover, the notion that parties may execute a ‘conditional’ transmutation (or, as colorfully described by the court, cross their fingers while signing the agreement) was rejected by Holtemann, supra, 166 Cal.App.4th at p. 1173-1174. The transmutation either occurred in December 2002 (as we find it did) or it did not. We also note that interpreting the contract as a mere tax strategy and not an effective transmutation (i.e., the agreement would serve as documentary support for a representation to the IRS that a transmutation occurred notwithstanding the lack of an actual transmutation) seems to contravene section I of the agreement, which states: ‘Nothing contained herein shall be construed so as to require the commission of any act contrary to law . . . .’ We will not assume the parties intended to execute the agreement for the sole purpose of providing documentary support to a future materially false representation to the IRS.”
The trial court had also held that if the Agreement to Establish Interest in Property was a valid transmutation agreement, it was subject to the presumption of undue influence that W had failed to overcome it. W did not argue that she did not obtain an advantage over H as a result of the agreement. However, the trial court held that she demonstrated that H had “entered the transaction voluntarily with an understanding of all relevant facts, but failed to rebut the presumption that Earl did not understand the legal effect of the transaction…. The court also based its ruling on the perceived complexity of the agreement, which led the court to its conclusion that Earl was unlikely to understand its legal ramifications.” This holding, held the court, was not based on substantial evidence because H did not testify and thus presented no evidence as to his understanding of the agreement’s legal effect. It also said that
“(j)ust above Earl’s signature in the agreement is the following statement: ‘I have carefully read and understand all of the provisions of the foregoing Agreement and approve of and agree to all of the terms hereof.’ The agreement is only five pages long, including the signature page. And, as detailed above, the court wrongly interpreted the agreement to include ambiguity. Earl’s attestation to his understanding of the agreement served to rebut the presumption that he did not understand the legal import of the agreement.”
The panel thus reversed the trial court’s holding that the Agreement to Establish Interest in Property was not a valid transmutation agreement.
My comment: There’s a lot to say about this case. First is the fact that this is the second published transmutation case in a row to hold that the writing in question constituted a valid transmutation. Coming on the heels of 15 years of post-MacDonald cases that consistently held that the writings at issue did not constitute transmutations, this may signal a swing of the pendulum. On the other hand, both this case and Holtemann involved estate planning documents in which the party seeking to invalidate the apparent present transmutation of his property argued that he intended only a transmutation in the event of one party’s death during marriage. Both of these cases held that the writing either effected a valid transmutation under Family Code §852 or it did not, but there was no such thing as a “conditional” transmutation.
This is also one of the few cases involving a transmutation by agreement rather than by transfer, both of which §850 authorizes. Most of the transmutation cases involve deeds or other transmutations by transfer; this case and Holtemann involved estate planning documents and it was not considered relevant whether the assets in question had actually been transferred under the agreement’s terms; the Lund court said that
“the lack of evidence of additional deeds, assignments, or other documents reflecting community property ownership of the property at issue does not affect the interpretation of the other provisions of the agreement. Three of the properties at issue had been transferred to Earl as trustee before the December 2002 amendment and restatement of the trust, and the fourth property was transferred to Earl and Kathryn as trustees. We will not speculate as to whether Earl was required under the agreement to execute a deed reflecting community property ownership of his previously separate real properties. Even if Earl had been required to execute additional documents, a party’s alleged failure to meet executory obligations under a contract does not affect the meaning of other provisions in the contract.”
Lund, like Holtemann, points up the need for estate planning attorneys to know the family law effect of the documents they are drafting. Mr. Lund will surely look to his estate planning attorney for restitution for the loss of half of the value of his separate property that he thought he would own until they passed after his death or he changed his estate plan. Obviously, there is also a danger in trying to structure an estate plan that “looks like” a transmutation to the IRS but isn’t really; the family law court will enforce such a transmutation and “will not assume the parties intended to execute the agreement for the sole purpose of providing documentary support to a future materially false representation to the IRS.”
Your comments:
 On May 19, in In re Marriage of Nadkarni the 6th DCA published an earlier decision reversing a family court denial of DVPA orders arising in a post-dissolution case where the former husband was accused of accessing his ex-wife’s email account, and telling others information he learned there, including descriptions of her plans and activities.
The trial court had ruled that such conduct, as a matter of law, did not rise to the level to support DVPA protective orders. The DCA 6 disagreed, and reversed for an evidentiary hearing.
The Court next turned to the scope of the evidentiary hearing.
We determine that the trial court was not required to allow oral testimony by Darshana’s witnesses because the general rule is that “the trial court is empowered to determine motions upon affidavits, and has the discretion to refuse oral testimony.” (Velez v. Smith, supra, 142 Cal.App.4th at p. 1160; Cal. Rules of Court, Rule 3.1306.)
Because an order to show cause constitutes a notice of motion, a trial court may exercise its discretion, as it did here, by excluding oral testimony and denying “the [order to showcause] based on the insufficiency of the application.” (In re Marriage of Hunt (1985) 172 Cal.App.3d 872, 875; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 483; but see Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 [nothing in the Family Code suggests that the respondent in a DVPA proceeding may not challenge the issuance of a permanent restraining order through oral testimony at the hearing].)
In exercising its discretion to either allow or exclude oral testimony, however, the trial court should be guided by the constitutional principle that “[d]ue process guarantees‘ “notice and opportunity for hearing appropriate to the nature of the case.” ’ [Citation.]” (In re Jesusa V. (2004) 32 Cal.4th 588, 601.) Moreover, the trial court
should be mindful that “in light of the vulnerability of the targeted population (largely unrepresented women and their minor children), bench officers are ‘necessarily expected to play a far more active role in developing the facts, before then making the decision whether or not to issue the requested permanent protective order.’ [Citation.]” (Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 423.)
The Court went on to hold that DVPA cases are entitled to statutory calendar priority per Fam. Code §244.
This case pairs nicely with the 4th District (Orange County) DCA decision in Alan S., Jr. v. Superior Court (2009) 172 Cal.App.4th 238, 242 regarding the exercise of discretion to grant or deny an evidentiary hearing, and the statutory priority required for child custody matters.
 Today (May 22, 2009) the Supreme Court announced that it will release its decision in the Proposition 8 cases on Tuesday, May 27 at 10 a.m.
The Court will post the decision on line at http://www.courtinfo.ca.gov/opinions/.
Rumors were circulating this week that the decision would be released yesterday or today — although no notice of forthcoming opinion had been posted or emailed to counsel. One rumor reported that extra security had been ordered for the State Building where the Court is headquartered in San Francisco. Another rumor described Gavin Newsome as asking the Court to delay release of the opinion not to fall on the anniversary of the date that Dan White was aquitted of the murders of Moscone and Milk — in reliance on the “twinkie defense.” Mayor Newsome denied making such a request.
I’ll be in the air en route to AFCC New Orleans when the decision is released. I’ll try to post thoughts about the opinion here late Tuesday or sometime on Wednesday.
 The 4th DCA (San Diego)’s May 8 decision in In re E.S. (2009) — Cal.Rptr.3d —-, 2009 WL 1262315, 09 Cal. Daily Op. Serv. 5743 requires a careful read on issues of nonparent custody, the constitutional rights of parents to custody of their children, supervised visitation, delegation of authority to a therapist determine if and when supervision could end, and the requirements for Statements of Decision or Statements of Reasons in child custody cases.
Five-year-old E.S. has lived with her aunt and uncle for her entire life. Her bipolar mother has been in and out of psychiatric hospitals, and unable to assume primary care of her daughter. E.S.’s attorney father was daunted by the prospect of caring for an infant, and left her in the care of an aunt and uncle. Mom, dad, aunt and uncle all became parties to a Family Law custody case. As E grew up, and her parents made stabs at expanding their roles in her care, the Court made a series of interim orders. By the time E was five years old, there was no basis to believe that she could transition from her aunt and uncle’s care to her father’s care. Not only was E primarily attached to her aunt and uncle, but her father simply lacked the judgment, insight, empathy, and attunement necessary for caring for a young child.
Over the first five years of E’s life, her attorney dad was unavailable to care for her most of the time, not terribly interested in infant care and development. He was unable or unwilling to learn to care for her, recognize her physical or psychological needs, exercise good parental judgment, understand her as an individual person rather than an object, or develop a meaningful attached and attuned relationship with her. He would walk thru the mall separated from her by many feetl ignore her needs for food or bathroom breaks, fail to recognize when she was sick, make sexually suggestive remarks to her, make frightening remarks to her, take her to musicals with adult content — and on and on and on. Despite a series of interventions designed to help him come up to speed, he never learned how to take care of a little girl.
As E got older, and more verbal, her dad started asking for greater parental responsibility — and ultimately sought custody. But E’s aunt and uncle were her psychological parents, and E’s dad never came up to speed. During visits he delegated her care to others, and failed to provide the level of attuned and thoughtful care necessary to keep her physically or emotionally safe. Despite therapy, parenting classes, repeated recommendations by the court and professionals, and opportunities to develop parenting competencies, E’s dad never learned how to care for her. Ultimately the family law court awarded the aunt and uncle sole legal custody, and ordered that the father’s visits be monitored until E’s and the father’s therapist agreed that supervision would no longer be necessary — and father agreed to follow the safety guidelines established by the aunt and uncle. The Court also retained jurisdiction to hear modification requests — including requests for unmonitored visitation. The father asked the Court to continue to make interim orders, and set further review hearings. The Court concluded that E.S. needed permanence, and denied that request.
Both the trial court and the Court of Appeal concluded that E’s right to family stability and continuity outweighed her father’s interest in her custody, and that an award of custody to her father would be detrimental to her best interests.This holding is consistent with a long line of Supreme Court and Court of Appeal decisions weighing children’s interests family stability and continuity of psychologically-significant relationships more heavily than the claims of biological parents.
In the published portion of the case, the Court rejects the father’s constitutional challenges to nonparent custody, and explains the detriment standard that replaced the “unfit” standard for non-parent custody.
One of the troubling things about the opinion is the extent to which the minors’ counsels (the first lawyer retired and was replaced by another) are treated by the trial court as de facto expert witnesses who make reports and recommendations to the Court, rather than as lawyers who marshal evidence and arguments. But the opinion contains no suggestion that anyone questioned this role, and it is not an issue on appeal in the case.
To be continued …
 In September, 2006 I attended a presentation sponsored by the ACFLS at the State Bar meeting in Monterey on fiduciary duties and disclosures given by Stephen Wagner and Dawn Gray. In the materials there were samples of a Notice of Fiduciary Duties and Remedies for the Breach Thereof along with sample letters to send to opposing counsel and clients. I had a particular case filed in the court in Torrance [admin note: Los Angeles County] that was showing signs that it was going to be difficult to get discovery. I represented Petitioner, the out spouse wife, and the case was in front of Commissioner Glenda Veasey. The case involved vacation rental properties that were acquired during marriage in British Columbia, Canada. The properties were held in the name of Respondent alone. After separation and being served with the Petition, Respondent refinanced the Canadian property several times, removed equity, and acquired more real property in Canada.
In November, 2006, using the samples I had acquired from the ACFLS program, I filed a Notice of Fiduciary Duties and Remedies for the Breach Thereof in the Torrance case and served it on opposing counsel. I then began making written demands on opposing counsel for his client to provide information and to provide bank documents from the Canadian banks regarding the refinances, rental proceeds, and deposit accounts held in the Canadian banks.
Opposing counsel sent me several letters informing me that it was “…not his client’s responsibility to conduct Petitioner’s discovery in Canada,” and that if the Canadian banks were not cooperating in supplying information, it was “…not his client’s fault or problem.” There were continuous attempts at getting cooperation and constant stonewalling on the part of the Respondent.
Meanwhile Marriage of Feldman was decided in 2007 and reading the facts of that case and what the court had said about the obligation regarding cooperative discovery, I began citing the case to opposing counsel in my requests for cooperation.
Finally, after several warnings that I would bring a motion to enforce fiduciary duties to no avail, I filed the motion in July, 2008. After several continuances for various reasons the court finally heard the matter over four days of testimony and argument by counsel.
On April 7, 2009, Commissioner Veasey made a finding that Respondent was in a superior position to have supplied information and documents and that he had delayed in providing information to Petitioner. She sanctioned Respondent $200,000 for his breach and awarded Petitioner $100,000 in attorneys’ fees pursuant to Family Code 271.
Thanks to great programs sponsored by ACFLS, I was able to succeed on behalf of my client and prove that the courts in Los Angeles County are serious about the fiduciary duty compliance by parties.
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