Summer 2016 Issue 3

Hot Off the Press! Journal Edition

Editor’s Note:
Dawn Gray’s extensive summary and comments on In re Marriage of Cooper, No. C073014, 2016 WL 3138012 (Cal. Ct. App. May 6, 2016), too lengthy to publish in the Journal, are available in the full version of Hot Off the Press published on the ACFLS website on the ACFLS Family Law Specialist Current Newsletters page.

Cite: In re Marriage of Hall and Frencher, 201 Cal. Rptr. 3d 769 (Ct. App. 2016).

Holding: In this case, the Second District reversed a trial court’s order setting arrearages in husband’s child support payments. It held that the trial court incorrectly held that “excess” Social Security derivative benefits that child received due to husband’s disability could not be applied toward his support arrearages.

Summary of the facts: Winifred and Bruce have a daughter, Kayla. He was ordered to pay child support for her in various amounts over the years, but support was modified to $8.50 per month in August of 2011. At that time, it determined he owed $16,421.84 in arrears, and ordered him to pay $150 per month toward them, plus interest.

At some point, he began receiving Social Security disability benefits, and Kayla began receiving $960 per month in derivative benefits, payable to Winifred. Social Security also paid Kayla a lump sum payment in derivative benefits, which Winifred shared with Bruce. By June of 2014, Bruce had reduced his arrearages to $11,270.84; the court also calculated that by making the derivative benefit payments, Social Security had paid Bruce’s support of $8.50 per month, further reducing his arrears to $11,083.84. However, the trial court found no authority to order that the “excess” derivative benefits—the balance of $961 per month paid to Winifred for Kayla after deducting Bruce’s child support of $8.50—reduced Bruce’s support arrearages, so it ordered him to continue making monthly payments of $150 toward the remaining arrearages.

Result on appeal: Bruce appealed, and the Second District reversed. It held that Family Code section 4054(b), which states the order of crediting child support payments and which requires them to be credited as stated in Code of Civil Procedure section 695.221, requires that the derivative payments be applied first to the current support amount, and “then the excess amount should have been applied to the principle on the arrears, and then to the interest on the arrears. Accordingly, we will reverse the portion of the family court’s order reflecting Frencher owes $11,083.34 in arrears. The amount of arrears owed will need to be recalculated by the family court.”

The panel distinguished Marriage of Robinson, 65 Cal. App. 4th 93 (1998), which came to the opposite conclusion, by stating that “(t)he version of Family Code section 4504 in effect at the time of the Robinson opinion was different than the current version of the statute. … (W)e disagree with the Robinson opinion because the statutory wording has changed so as to contradict the Robinson court’s holding—Code of Civil Procedure section 695.221 is now expressly incorporated into Family Code section 4504.”

Cite: In re Marriage of Cooper, No. C073014, 2016 WL 3138012 (Cal. Ct. App. May 6, 2016).

Holding: In this case, the Third District reversed a trial court’s order holding that four investment accounts held in joint title by the parties during marriage were wife’s separate property and its order granting wife reimbursement for her separate property contribution to the acquisition of the family residence. It held that the court had the discretion to deny Watts charges to the community, but that it erred in not imposing such charges on wife while she had the exclusive use of the residence. It held that husband owed no Epstein credits for certain periods when the community was not entitled to Watts charges and also held that wife was entitled to certain Epstein credits when she owed Watts charges.

Cite: Elena s. v. Kroutik, No. D068831, 2016 WL 2943411 (Cal. Ct. App. May 18, 2016).

Holding: In this case, the Fourth District affirmed a trial court’s five-year DVRO, holding that the lack of a record on appeal precluded defendant from demonstrating that the parties did not orally stipulate to a commissioner hearing the matter. It also held that by participating in the hearing, defendant impliedly consented to the commissioner.

Summary of the facts: Vlad and Elena met online and got engaged four months later. However, before marriage, Vlad sexually assaulted Elena and threatened to report her to the immigration authorities. Elena filed a petition for a DVRO; after a three-hour hearing,
which included testimony and cross-examination of Vlad and Elena, introduction of over 20 exhibits, and closing arguments by both sides, Commissioner William Y. Wood granted a five-year domestic violence restraining order. Vlad timely appeals. In the notice designating the record on appeal, Vlad checked a box stating that he elected to proceed without a record of the oral proceedings in the trial court making it impossible for this court to consider what was said during those proceedings.

Result on appeal: Vlad contended that the order was void because the record did not “reflect a stipulation that a commissioner may hearing the matter,” but the Fourth District affirmed. It held that Vlad, who was self-represented, failed to provide a reporter’s transcript of the proceedings.

A proper record includes a reporter’s transcript or a settled statement of any hearing leading to the order being challenged on appeal. Although Vlad is representing himself in propria persona, he is not exempt from the rules governing appeals. A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys.

These proceedings were reported by a certified court reporter. In the “Appellant’s Notice Designating Record on Appeal,” Vlad signed the form after checking a box which stated that he elected to proceed “WITHOUT a record of the oral proceedings in the superior court. I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during these proceedings in determining whether an error was made in the superior court proceedings.” Nevertheless, he chose to forego the submission of the court reporter’s transcript of proceedings (which might reveal an oral stipulation of the parties to the commissioner) and elected to proceed on the clerk’s transcript.

In this case, without a transcript of the oral proceedings and given the presumption that the court acted properly, Vlad cannot meet his burden to establish that he did not orally stipulate on the record to the commissioner. Further, he fully participated in a three-hour hearing involving testimony and cross examination of the parties, introduction of 20 exhibits, and closing argument by both sides. Vlad cannot participate in the hearing, gamble on a successful outcome, and then, only after receiving an unfavorable ruling, decide to object to a commissioner handling the case.

In the absence of a proper record, which would include either a reporter’s transcript or settled statement (neither of which we have in this case), we must presume the trial court acted properly.
Therefore, the judgment is correct and must be affirmed. On this record, we cannot eliminate the possibility that Vlad orally stipulated to the commissioner handling the domestic violence restraining order. Even without this assumption, because Vlad fully participated in the hearing, he impliedly consented to allowing Commissioner Wood to determine whether the restraining order should be granted. Under these circumstances, by knowingly forgoing the preparation of a reporter’s transcript or a settled statement, Vlad made success on appeal unattainable.

Other cases of interest:

Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016): In this case, the Ninth Circuit held that an affidavit of support filed by a sponsor under 8 U.S.C. § 1183a is enforceable regardless of any dissolution judgment between the sponsor and the immigrant that provides for no spousal support. It also held that, for purposes of determining whether the sponsor was meeting his obligation to support the immigrant with “any support necessary to maintain [her] at an income that is at least 125 percent of the Federal Poverty Guidelines for [her] household size,” the court must assume that the immigrant is living in a one-person household and cannot consider the income of another person in the household.

Adoption of K.C., 2016 WL ___________ (Cal. Ct. App. June 10, 2016): In this case, the Second District affirmed a trial court’s holding that the UCCJEA does not apply to adoptions. The trial court granted a stepparent adoption petition over the natural father’s objections, holding that it did not lack jurisdiction because it failed to comply with the UCCJEA, and the Second District affirmed, holding that Family Code section 3403 “presents an insuperable barrier to Father’s contention. It provides, ‘This part does not govern an adoption proceeding . . . .’ (Italics added.) ‘This part’ refers to the UCCJEA. Jurisdiction over adoption proceedings is governed by section 9210. Father does not contest that the trial court has jurisdiction over the child’s adoption. Father argues that the instant petition is not part of an adoption proceeding. But the petition and the trial court’s findings show that it is.”