Articles Posted in California Courts of Appeal

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Mother has legal and physical custody of the child. Father was ordered to pay one-half of reasonable childcare costs. Mother sought an order, directing Father to pay one-half of childcare costs incurred while she attended a paralegal program. She was employed in a law office as a receptionist/assistant working 28 hours per week. Mother explained that since 2011, when she was laid off from a job due to government budget cuts, she had been unable to secure stable employment. She supplemented her income with public assistance. She anticipated that paralegal certification would provide the skills to secure permanent employment and become fully self-supporting without public assistance. Father argued that Mother was able to secure employment with her existing job skills and was not required by her employer to increase her skills, sp her decision to pursue paralegal studies was a personal choice unrelated to her “employment or to reasonably necessary education or training for employment skills.” The court denied Mother’s request. The court of appeal concluded that section 4062 applies “to a situation where a party is employed with marketable skills and is electing to improve their skills through education.” The statute’s plain language does not restrict “employment” or “employment skills” to current employment, or to general principles governing child support awards. View "Greiner v. Keller" on Justia Law

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Wife moved out of the couple's joint tenancy property and sought dissolution of marriage. The summons included an automatic Family Code section 2040 order, prohibiting the parties from transferring property without the other party's written consent or court order. "Before .... a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.” WIfe subsequently created a Trust, naming Raney, as the trustee and the sole beneficiary upon her death. Wife recorded a Deed, stating that she severed the joint tenancy pursuant to Civil Code 683.2; it transferred her interest to Raney, as trustee. Wife notified Husband that she had terminated the joint tenancy. Raney, as trustee, sought partition by sale. Meanwhile, Wife died. The court of appeal affirmed that severance of the joint tenancy substantially complied with the notice requirement but that the transfer to the Trust violated the automatic restraining order. It reformed the Deed to severing the joint tenancy only, concluding that Raney, as personal representative of Wife's estate, is the owner of an undivided one-half interest and entitled to an order of partition by sale. Parties to pending dissolution proceedings are restrained from unilaterally eliminating a right of survivorship unless, in addition to the general. When the Partition Complaint was filed and served on Husband, Wife’s severance of the joint tenancy became effective to eliminate the right of survivorship. When WIfe died, her tenancy in common interest was her separate property and became part of her estate. View "Raney v. Cerkueira" on Justia Law

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At the direction of the trial court, respondent Rebecca Tam filed a petition seeking to join appellant Dr. John Kachorek as a party to the marital dissolution proceeding between her and her former husband, Paul Benner. In her petition, Rebecca outlined the unusual procedural history of this case that led to her filing the petition for joinder. The trial court dissolved Rebecca and Paul's marriage in June 2010. In May 2011, Paul filed a postjudgment motion seeking modification of child custody. In June 2013, the trial court appointed Dr. Kachorek, pursuant to Evidence Code section 730, to conduct a child custody evaluation. Dr. Kachorek issued a child custody evaluation report in 2014. In 2016, the trial court determined that Dr. Kachorek's report was deficient in a number of respects and that the report was thus of no value in assisting the court in determining what would be the appropriate child custody arrangement. The court ordered Dr. Kachorek to repay Rebecca and Paul all of the expert fees that they had paid him pursuant to his appointment. In March 2017, the trial court set aside the repayment order and joined Dr. Kachorek, sua sponte, as a party to the action for the purpose of determining whether to order him to repay the fees. The trial court subsequently granted Dr. Kachorek's motion to quash the sua sponte joinder order and ordered Rebecca to file a formal petition to join Dr. Kachorek in the action. When she did, Dr. Kachorek filed a special motion to strike the petition pursuant to the anti-SLAPP statute, arguing "the claims asserted in the petition arise from protected activity" under the statute. Rebecca opposed the motion, in which she argued that her petition "does not even contain a cause of action," and that she sought merely to provide Dr. Kachorek with notice of a hearing regarding his fees under Evidence Code section 730, as directed by the trial court. The trial court denied Dr. Kachorek's anti- SLAPP motion, concluding that the petition did not state a cause of action arising from protected activity, but rather, merely joined Dr. Kachorek to the action for the purpose of "establishing the reasonableness of his fees." The Court of Appeal concluded the trial court properly denied Dr. Kachorek's motion, though it found Dr. Kachorek did not have to be joined as a party to the dissolution action in order for the court to determine the reasonableness of his expert fees—including whether to order him to repay fees already received—and it was error for the court to require that he be joined in the action. The matter was remanded with instruction on the proper procedural manner by which the trial court could determine this issue on remand. View "Marriage of Benner" on Justia Law

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Natalia and Peter Miotke began communicating in 1995. Natalia lived in Russia and Peter in the U.S. Both were trained architects. All of their correspondence was in English. Natalia began working for a Houston architectural firm, doing her work in English. Natalia moved to California and became pregnant with the parties’ child, born in September 1996. Peter wanted a premarital agreement (PMA); he “secured a paralegal’s help.” The parties signed the PMA in October 1996. Natalia denied seeing the agreement before the signing. Peter disputed that and testified they had previously discussed a waiver of spousal support and that Natalia would be awarded custody of their children in the event of a dissolution of the marriage. The four-page PMA states that there will be no spousal support and that all children will remain in Natalia's custody. The parties married 19 days after the execution of the PMA. Peter filed an I-130 Immigrant Petition, which was approved in 1997. The parties separated after 14 years of marriage. The trial court entered a judgment dissolving the marriage. A private judge found the PMA enforceable, including the provision waiving spousal support to either party. The court of appeal affirmed the entry of judgment on that decision. Three judicial officers carefully considered Natalia’s arguments, including her assertion that she suffered from serious mental illness at the time she signed the agreement. The trial court was in the best position to evaluate her concerns. View "Marriage of Miotke" on Justia Law

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Criminal and civil protective orders may coexist, and the issuance of one does not bar the other. Plaintiff challenged the family court's denial of her request for a domestic violence restraining order (DVRO) against her husband. The family court concluded that a DVRO was not necessary because a criminal protective order was already in place. The Court of Appeal reversed and held that the Domestic Violence Prevention Act (DVPA) makes clear that both criminal and civil protective orders may coexist and address the same parties. Furthermore, the Penal Code also acknowledges that criminal and civil protective orders may address the same parties. Therefore, the trial court erred in summarily denying plaintiff's DVRO request. View "Lugo v. Corona" on Justia Law

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After a Welfare and Institutions Code section 366.26 hearing, the parental rights for eight-year-old B.D. were terminated. The court approved a permanent plan of adoption and determined that the parents failed to meet their burden of establishing the applicability of the beneficial parental relationship exception. The parties stipulated to reversal, jointly recognizing that, following the termination of parental rights, “subsequent events [have] undermined the juvenile court’s finding that [Minor] was likely to be adopted.” Those events concerned injuries B.D. suffered in foster care and the criminal history of her foster father. The court of appeal reversed, holding that this is a “rare and compelling case … where post-judgment evidence stands to completely undermine the legal underpinnings of the juvenile court’s judgment under review, and all parties recognize as much. Rather than relying on the stipulation, the court decided the case on the merits, finding that the Contra Costa Children and Family Services Bureau violated section 366.22(c)(1)(D), by withholding from the court information material to the “preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker[.]” For B.D., who has joined her parents in requesting reversal, this breach rises to the level of a due process violation. View "In re B.D." on Justia Law

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Appellant Molly Kent challenged a specific ruling of the family court on her request to modify a child custody and child support order issued by a North Carolina court. The family court granted in part and denied in part the appellant's request, without first determining whether the California court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Accordingly, without reaching the merits of the arguments related to the substantive ruling on appeal, the California Court of Appeal reversed the order because, based on the record before the family court at the time it ruled, the court lacked jurisdiction to modify the North Carolina order. View "In re Marriage of Kent" on Justia Law

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In this dissolution proceeding, Stephanie George appeals an order requiring her to pay $10,000 in sanctions pursuant to Family Code section 271 to her ex-husband Daniel Deamon after Deamon was required to file a motion for entry of judgment pursuant to the terms of the parties' settlement. George contends that the family court erred by awarding sanctions without considering any oral testimony, relying instead on documents submitted in support of the sanctions motion. The Court of Appeal concluded George's argument lacked merit, and accordingly affirm the order. View "In re Marriage of George & Deamon" on Justia Law

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Recognizing she suffered from addiction, S.D. (mother) agreed to let her ex-husband, E.D. (father), assume full custody of their two daughters, who had previously lived primarily with her, until she could get clean and sober. She underwent treatment, and 14 months later, sought to regain partial custody in family court. About a week after mother filed for custody, father’s wife, J.D. (stepmother), filed petitions to free the girls from mother’s custody and control based on abandonment, so stepmother could adopt them. The trial court granted the petitions and terminated mother’s parental rights. The court concluded mother had abandoned her daughters because she had failed to communicate with or financially support them for at least one year. Mother argued on appeal the evidence was insufficient to support the court’s ruling, and the Court of Appeal agreed. Under Family Code section 7822 (a)(3), a parent abandons their child when they leave the child with the other parent for a year, with no communication or financial support, “with the intent . . . to abandon the child.” Mother’s failure to communicate with and financially support her daughters was not due to any intent on her part to abandon her daughters. "Indeed, mother did the opposite of abandon her children, she diligently treated her addictions before trying to regain custody." Because the record contained uncontradicted evidence of her abiding desire and plan to reunify with her children, judgment terminating her parental rights was reversed. View "In re H.D." on Justia Law

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The County of San Diego Department of Child Support Services (the Department) challenged an order denying its request for establishment of child support against C.A. (Mother), for her daughter J.H. J.H. lived in Maryland with her paternal grandmother, who had sole legal and physical custody. The Department contended the court's denial incorrectly applied California Family Code section 3951(a) which eliminated a parent's obligation to pay child support when a relative voluntarily voluntarily supported the parent's child and there was no compensation agreement between the parties. The Department contended the grandmother's custody status in this case was not "voluntary" as that term was used in the statute. The Court of Appeal agreed with the Department and vacated the order. View "County of San Diego Dept. of Child Support Services v. C.A." on Justia Law