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…
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Rehearing Petition Filed in Marriage Cases
What a surprise! A petition for rehearing was filed today in In re Marriage Cases. The petition was filed by the Proposition 22 Legal Defense And Education Fund, but I can’t find the petition on the web anywhere.
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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…
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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.
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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…
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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 Las Vegas family law attorney observed just last year, “It is rare for a Court of…
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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…
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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.…
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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…
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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…
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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…
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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…
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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…