Winter 2016, Issue 1

Hot Off the Press! Journal Edition

Editor’s Note:
The holdings from various cases are below. Dawn Gray’s extensive summaries of those cases, too lengthy to publish in the Journal, are on the ACFLS website on the ACFLS Family Law Specialist Current Newsletters page. The full text of her short summaries of other cases of interest is also provided below and on the website.

In re Marriage of Siegel, 191 Cal. Rptr. 3d 330 (2015), decided by the First District on July 28, 2015, ordered published on August 21, 2015.

Holding: In this case, published at the request of ACFLS, the First District reversed a trial court that “construed” a motion to disclose insurance information pursuant to a provision in the parties’ marital termination agreement as a motion to enforce the MTA, a remedy that W had not requested in her motion. It held that the trial court’s order “far exceeded the relief requested” in the motion and thus denied H due process.

In re Marriage of Brandes, 192 Cal. Rptr. 3d 1 (2015).
Holding: In this case, also published at the request of ACFLS, the Fourth District affirmed in part and reversed in part a trial court’s judgment that equitably apportioned Charles’s interest in Brandes Investment Partners (“BIP”) between the community and Charles’s separate estate. It held that the trial court properly applied a “hybrid” Pereira/Van Camp apportionment method, correctly determined that the community did not own most or all of the interest in BIP and properly denied Linda prejudgment interest on her share of the community interest in BIP. It reversed the trial court’s holding that shares in BIP that Charles purchased during marriage were his separate property, finding that he had failed to rebut the community property presumption that applied to the proceeds of loans obtained during marriage. It also affirmed the trial court’s order that Charles pay Linda $450,000 per month in spousal support, disagreeing with Charles that she could provide for her proper support from her share of the community estate.

In re Marriage of Walker, No. G050448, 2015 WL 5693299 (Cal. Ct. App. Sept. 28, 2015).

Holding: In this case, the Fourth District reversed a trial court that divided the proceeds from the sale of the family residence between the parties unequally based on W’s argument that she should not be responsible for payment of one of the loans secured by the residence because she had been discharged in a Chapter 7 bankruptcy proceeding. Holding that the liens survived the BK discharge and that the lien in question was discharged by payment in full out of escrow, the panel held that “(u)nder state law, the parties were entitled to equal shares of the proceeds” and that “(t)his result is consistent with bankruptcy law.”

Other cases of interest:

Michaels v. Turk, 191 Cal. Rptr. 3d 669 (2015): In this case, the second appellate opinion in this matter, the Fourth District reversed a Riverside County trial court’s DVPA TRO issued against a pro per defendant, holding that she did not consent to having a commissioner hear the matter. It held:

there is no indication in the record that defendant consented to the commissioner presiding over the hearing on plaintiff’s request for a restraining order. Plaintiff argues that defendant impliedly consented to the commissioner presiding over the restraining order hearing. He asserts that it is common practice for courts to post notices, which state that where parties do not object, they will be deemed to have stipulated to the authority of the commissioner. He also asserts that it is the defendant’s burden to establish such signs were not posted on the day of the hearing, and that she failed to carry this burden because she relied “only [on] the written record.”

Plaintiff’s argument was rejected in Frye, where the court held that a stipulation, even one that is constructive in the sense of parties proceeding with actual notice of a posted sign, must be apparent on the record. (Frye, supra, 150 Cal.App.3d at p. 409.) Because there was “no . . . indication in the record” that the appellant had seen a stipulation sign before or during the hearing over which the commissioner presided, the court held that the commissioner’s order was void. (Ibid.) That is also the case here. Whether or not stipulation signs were posted in or outside of the courtroom the day of the hearing, there is no indication in the record that defendant saw them. While there are circumstances where consent may be implied from the actions of a party or her counsel, those actions must be apparent from the record. (See e.g., In re Horton (1991) 54 Cal.3d 82, 91-93 [discussing cases where the “doctrine of tantamount stipulation” was applied based on statements or conduct apparent in the record].)

Moreover, Riverside County’s local rule on stipulations to commissioners hearing matters as temporary judges further precludes plaintiff’s argument for implied consent. That rule states that while stipulation is implied in default and uncontested matters and “when attorneys proceed without objection,” self-represented parties “will be asked on the record if they so stipulate.” (Super. Ct. Riverside County, Local Rules, rule 5145.) Defendant was representing herself at the hearing, and there is no indication in the record that she was asked to stipulate to the commissioner hearing the matter.

In re M.M., No. D067870, 2015 WL 5634506 (Cal. Ct. App., Sept. 25, 2015): In this dependency case, the Fourth District affirmed a trial court that deemed the minor’s home state (Japan) to have declined to exercise UCCJEA jurisdiction on the grounds that California was the more appropriate forum after the Japanese court declined to discuss the case with a California court. It held that the trial court was not required to inform M that she could commence custody proceeding in Japan before determining that Japan declined to exercise jurisdiction. Also,

viewing the evidence in the light most favorable to the juvenile court’s findings, we conclude there is ample evidence in the record to support the juvenile court’s finding there was a substantial risk minor will suffer serious physical harm “inflicted nonaccidently” by mother and/or father. Indeed, the record shows that minor not only was present during the December 2 domestic violence incident between mother and father, but that he was “at their feet” during most of the incident and that during some of the incident, father was actually holding minor while mother was hitting father and while father was choking mother.

In re Emma B., No. D067634, 2015 WL 5703693 (Cal. Ct. App. Sept. 29, 2015): In this dependency case, the Fourth District affirmed a trial court that refused to order paternity testing for a presumed father who did not contest the facts that made him a presumed father. It held that:

(w)e disagree that a biological paternity determination is an essential or relevant issue in the current proceeding, and noted that Michael does not argue that his conduct did not support a finding of presumed father status. He only challenges the trial court’s denial of his motion for genetic testing. In the context of a dependency hearing to determine presumed parentage of a child, where the court has identified a presumed father based on marital status and conduct, the issue of biology is not a relevant fact and the presumed father is not entitled to a genetic test. We emphasize that this opinion is limited to the factual situation presented and we do not comment on Michael’s future status in other proceedings (e.g. support).