The appellate angle in Marriage of Davis

Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule.

Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue very much.

I’ll leave that debate to the family law attorneys for now.

I, of course, am interested in what this decision teaches us about approaching appeals. The obvious lesson is this: an appellant needs to carefully consider the standard of review and, if at all possible, frame an issue on appeal subject to de novo review, in which the appellate court reviews the ruling without any deference to the trial court’s ruling or rationale, as if the case was being decided anew.

As the Supreme Court notes at the outset of its analysis, the date of separation “is normally a factual issue to be reviewed for substantial evidence.” However, the appellant raises an issue of statutory interpretation of Family Code section 771, subdivision(a), thus invoking the more favorable de novo standard of review, and prevails.

In this case, it probably was not too hard for appellant to realize how to latch onto an issue subject to de novo review, since the trial court’s decision went against a court of appeal opinion establishing separate residences a “threshold requirement” of living “separate and apart” for purposes of the statute. Voilà! De novo review of statutory interpretation.

It’s not always that easy. For more difficult cases, see this post and this one.

In re Marriage Cases Opinion on the Way

The California Supreme Court filed its notice of forthcoming opinion today for In re Marriage Cases, so expect the blogosphere — legal, political, personal, financial — to be abuzz tomorrow when the opinion is filed. For anyone who’s been under a rock, here’s the summary of the cases from the Supreme Court website:

Petitions for review after the Court of Appeal reversed and affirmed judgments in civil actions. This case includes the following issue: Does California’s statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?

Televised Coverage and More Regarding Supreme Court Marriage Cases

According to this link at the California Courts website, oral argument in six cases concerning the constitutionality of California’s marriage statutes will be televised on the California Channel shortly after they are heard on on March 4.  The court has also made many of the briefs available online, which you can access from the same link.

UPDATE (2/27/08):  An alert commenter points out that the television broadcast will be live instead of delayed.

Petition by One Parent in Juvenile Proceedings Does not Give other Parent Standing to Appeal Resulting Order

Rooting for the mother of your children to win her petition for modification isn’t enough to give you standing to appeal the ensuing order denying modification.  Thus, in In re D.S., case no. C055069 (3d Dist. Oct. 31, 2007), the court of appeal dismisses the father’s appeal from the order denying the mother’s petition for modification.

Appellant father appealed both from the order denying mother’s petition for modification and from the order terminating his and the mother’s parental rights.  But he never joined in the petition, which the court denied as untimely.  Since he did not join in the petition, he is not aggrieved by its denial, which had no effect on any right personal to him.

Domestic Violence Case Provides Grounds for Review Despite Mootness

It turns out that the Court of Appeal decided two cases yesterday, despite their mootness, on the ground that the issues presented involved important public policies and were “capable of repetition yet evading review.” Both are family law cases. (I wrote about the first in the post immediately preceding this one.)

In the second, Gonzalez v. Munoz, case no. B197860 (2d Dist. Oct. 24, 2007), the issue arises under the Domestic Violence Protection Act, and the Court of Appeal gives greater insight into its decision (footnotes omitted) to decide a moot case:

As this court observed just last year, “It is rare for a Court of Appeal to get a peek into the world of domestic violence proceedings, because these protective orders are nearly never appealed. We know something about these proceedings, not so much from he appellate brief and oral arguments, but because of judicial administration studies and nnovations over the past few years.” (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 861 (Ross).) These sources, coupled with the facts of this case itself, convince us of the potential importance of the ruling below for a significant portion of the state’s population, many of whom, as we noted in Ross and as was true here, are unrepresented n DVPA proceedings. (Id. at p. 861 & fn. 3 [estimated 90 percent of litigants in domestic violence restraining order cases appear pro se].) As we further observed, the high percentage of self-represented litigants (many of whom, again as here, do not speak English) places a special burden on bench officers who “cannot rely on the propria persona litigants to know each of the procedural steps, to raise objections, to ask all the elevant questions of witnesses, and to otherwise protect their due process rights.” (Id. at p. 861.)

Here, the appellant challenged the trial court’s refual to extend, after a noticed hearing, the original ex parte order of restraint and custody. The Court of Appeal finds that the trial court did not even consider relevant factors. Given the magnitude of the error, it is likely that the court decided the case despite mootness in large part because the appellant and amici curaie contended that the trial court’s handling of the proceedings “represents a common misunderstanding by bench officers handling DVPA proceedings in the Los Angeles Superior Court.”

Siblings are Siblings Regardless of Parental Rights Termination

Catherine’s parental rights to Jose were terminated by the court. A few years later, she gave birth to Miguel and Miguel sought sibling visitation with Jose. (Welf. & Inst. Code, § 388.) In In re Miguel A., case no. D050694 (4th Dist. Oct. 24, 2007), the trial court denied the petition for visitation on the ground that Miguel and Jose never concurrently shared a parent because of the termination of Catherine’s parental rights prior to Miguel’s birth, and thus they were not siblings. The Court of Appeal finds error as a matter of law.

Since section 388, subdivision (b) permits sibling status to be proven by blood, adoption, or “affinity through a common legal or biological parent,” Miguel’s and Jose’s common biological mother suffices to establish they are siblings in the first instance. An order terminating parental rights affects only the relationship between the parent and child; their relationships to other biological relatives remains unaffected. A finding to the contrary would violate strong public policy in support of maintaining sibling relationships.

The fact that Miguel and Jose had no preexisting relationship when their mother’s rights to Jose were terminated — because Miguel had not even been born yet — doesn’t alter these considerations. Their biological relation remains.

The appellate procedure angle: It’s all moot. Because Jose had been adopted, the juvenile court lacked jurisdiction to order visitation with him. But the court decides to answer the question anyway because the case “raises important issues that are capable of repetition but likely to evade review,” and affirms even though it finds the trial court erred.

Failure to Brief and the Bounds of Discretion

Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action.

First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right?

Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error. Thus, as the Nakamura court reminds us:

Parker’s failure to file a respondent’s brief means that we “decide the appeal on the record, the opening brief, and any oral argument by the appellant” (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a)), examining the record and reversing only if prejudicial error is shown. [Citations.]

I imagine an unopposed appellant who loses might feel pretty badly about not prevailing, but it may just be that the appeal was doomed from the outset, opposition or not.

In this case, however, no such soul searching is necessary. The Court of Appeal finds that the trial court abused its discretion in denying the restraining order. Which leads us to the second issue.

Second Issue: In an order reviewed for abuse of discretion, how is the scope of the trial court’s discretion defined? Answer: By the scope of the law at issue.

The scope of discretion always resides in the particular law being applied by the court, i.e., in the “legal principles governing the subject of [the] action . . . .” City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297; County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].) As Nakamura’s petition is not jurisdictionally defective, it may be summarily denied only if the facts she alleged fail to constitute “abuse” within the meaning of the DVPA.

Here, there was plenty in the applicant’s sworn declaration showing that her estranged spouse committed acts constituting abuse justifying a restraining order under the DVPA.

But I have to wonder how much of a victory this is for the current litigant. The denial of the protective order was more than 14 months before her victory on appeal. Usually, there is great urgency to DVPA restraining orders. At least this should help the next victim of abuse. Which is why, I’m sure, amicus briefs were filed by 11 organizations.

UPDATE (10/25/07):  A Bay Area colleague e-mailed me a link to coverage of this case in the San Francisco Chronicle.

Proposition 13 and Domestic Partners

The State Board of Equalization adopted a rule exempting real property transfers to registered domestic partners via intestate succession from the definition of “change of ownership” under Proposition 13. In Strong v. State Board of Equalization, case no. C052818 (3d Dist. Oct. 2, 2007) County assessors claimed the rule was unconstitutional because such exceptions can only be implemented by constitutional amendment. The court disagrees.

Proposition 13 bases property taxes on value at the time of acquisition of the property, and a reassessment is triggered by a change in ownership. Here, the State Board of Equalization extended to domestic partners an exception to the definition of “change in ownership” similar to that afforded spouses by the California constitution.

The court upholds the rule. The rule was ratified by the legislature when it made corresponding changes to the Family Code and Revenue and Taxation Code that granted an exception for any transfer between domestic partners. The legislature has authority to create exceptions to the “change in ownership” definition in the Proposition 13 implementing statutes because the California constitution, unlike the federal constitution, does not grant powers to the legislature; rather, the legislature is vested with the law-making authority for the state except to the extent limited by the constitution. No such limit on exceptions for domestic partners is imposed here by the mere fact that the spousal transfer exception is already in the constitution. That provision only requires that the legislature may not amend or repeal the spousal exception without voter approval.

UPDATE (10/03/07): Tom Caso at The Opening Brief has an interesting comment on how this might impact the equal protection arguments against “one man – one women” marriage in the consolidated cases now fully briefed in the California Supreme Court.

When is an Order not an Order on the Merits?

When it trails the present hearing to another date, for one — at least if it purports to be an order terminating parental rights.  Thus, the court of appeal dismisses an appeal from such an order in In re Q.D., case no. G038343 (4th Dist. Sept. 18, 2007).

Mother appealed from a purported order terminating her parental rights.  Mother, her attorney, and a Vietnamese translator were at the hearing on her behalf.  Mother, through her counsel, waived her right to a contested hearing.  Only after the court stated its findings and orders from the bench, including an order that parental rights be terminated, did Mother object.  She claimed her waiver of a contested hearing was inadvertent and due to an ambiguity in the translation to Vietnamese.  The trial court, again from the bench, “trailed” the hearing to the following day.  Its minute order did likewise, but not before setting forth “the full panoply of orders and findings normally associated with the termination of parental rights.”

At the next day’s hearing, mother’s counsel moved to set aside the findings of the previous day’s minute order.  The trial court was inclined to set aside the previous day’s order and give the mother a contested hearing on the termination issue, but concuded it could not because the minute order it entered the previous day had terminated appellant’s parental rights and Welfare and Institutions Code section 366.26, subdivision (i) precludes modification of an order terminating parental rights.

Mother appealed from the minute order entered at the conclusion of the first day’s proceedings.  The court of appeal finds that “there is actually no ‘order’ to appeal from” based on the following analysis:

As section 366.26, subdivision (i)(1) reflects, the order terminating parental rights must come at the end of the hearing. This must be so because when the court makes that order, it has no power to do anything further with respect to the issue. The proceeding is finished. Thus, the court cannot both officially make that order and trail the hearing to another day for further consideration.

In this case, as reflected in both the court’s oral statements and its minute order, the section 366.26 hearing did not end on February 8, 2007. Instead, the hearing was trailed for what the minute order characterized as a “366.26 hrg.” the next day. That provision for a further section 366.26 hearing the next day is simply incompatible with the conclusion the hearing had already been completed, and the final order entered, on that first day.

When the totality of the February 8, 2007 minute order is considered, it cannot be reasonably construed as a final order terminating M.’s parental rights. Accordingly, we have no choice but to dismiss this appeal and remand the case for further proceedings to complete the “trailed” section 366.26 hearing, including a ruling on whether or not to re-open and allow M. to contest the termination of her parental rights.

Had the mother’s lawyer asked the trial court at the conclusion of the first day’s hearing to explicitly defer ruling on the termination issue, I think the court would have accommodated that request, especially in light of the court’s willingness to grant relief the following day had it not found its hands tied.

Attorneys Can Bind Parties to Change of Jurisdiction under UIFSA

Is a stipulation to a change of jurisdiction from another state to California under the Uniform Interstate Family Support Act effective if it is signed only by the parties’ attorneys and not by the parties themselves?  In Knabe v. Brister, case no. C053225 (3d Dist. Sept. 6, 2007), the Court of Appeal says it is.

Family Code section 4960, subdivision (a)(2), part of California’s implementation of the UIFSA, requires (among other things) that before a California court can modify a child support order issued in another state, “all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order.”  Knabe insisted that because he did not sign the stipulation, this requirement was not satisfied.

The distinction between procedural and substantive rights — the normal division between what an attorney may bind a client to and what he may not — is complicated in family law cases, says the court, by the “complex and ongoing relationship between the parties and the matters they seek to resolve.”  While an attorney may not bind a client to a stipulation that resolves issues “central to the controversy,” an attorney may stipulate on behalf of the client to resolution of matters “which are insubstantial and collateral to the heart of the dispute.”

Here, even though the agreement to a change in jurisdiction is “a more significant procedural matter than simply agreeing to a continue a motion hearing to a new date,” it nonetheless “did not touch the heart of the dispute.”  “Indeed, the stipulation did not narrow any of the issues to be resolved on the merits of the motion.”  Thus, Knabe was bound by his attorney’s stipulation to the change in jurisdiction.

Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award

In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings.  The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a).

Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c).  The court determines that abuse of discretion applies here as well, since “the sanction is similar to that imposed under section 271 as well as similar to a sanction for civil discovery abuses (which are reviewed for abuse of discretion).”

USD Law Professor Shaun Martin has the local San Diego angle at California Appellate Report.

No Substitute for Certificate of Probable Cause to Appeal from Order on Bifurcated Family Law Issue

Dissolution matters are often bifurcated.  Ordinarily, a party must await final judgment before appealing.  However, Family Code section 2025 provides a means of appealing an order on a bifurcated issue in the appropriate circumstance:

“Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial Council.”

In Marriage of Lafkas, case no. B189280 (2d Dist. August 6, 2007) the pro per husband appealed from an order on the bifurcated issue of asset disposition.  Conceding that he faileed to obtain a certificate of probable cause from the trial court and move for leave in the Court of Appeal, he nonetheless contended that his appeal should not be dismissed because the court’s grant of wife’s application for attorney’s fees to retain appellate counsel operated as a de facto certificate of probable cause.  The court rejects this contention because neither the Family Code nor the applicable rules provide for de facto certificates.

Here, the rules are the rules.  Don’t try to bend them.  Besides, the court points out that husband still has an appellate remedy by way of appeal from the eventual judgment.

This is a short case worth a read from anyone who wants to gain some quick familiarity with principles of appellate jurisdiction, as the court sums some of those principles up as it begins its discussion of the merits.