Judge Lewis’ CFLR Family Law Bench Blotters€¦ · Judge Lewis’ CFLR Family Law Bench Blotters...

Judge Lewis’ CFLR Family Law Bench Blotters

A tradition for keeping up to date with current case law, with in-depth analysis of trends in family law

Bench Blotters

Making and Opposing a Request for Support 1

Making and Opposing a Request for Attorney’s Fees and Costs 11

UCCJEA 19

Fiduciary Duties & Disclosures 23

Mediation Confidentiality 37

Statement of Decision 43

DVPA Cases & Principles 47

Agreements 57

Sanchez Doctrines 69

Sargon Doctrines 83

Transmutations 93

© 2020 by Thomson Reuters — All Rights Reserved

www.cflr.com

The Rutter Group 633 West 5th Street, Suite 2300

Los Angeles, CA 90071

Phone: 800-747-3161

© 2020 by Thomson Reuters — All Rights Reserved 1

Support

Rev 8/3/2019

SSuuppppoorrtt ((RReevv.. 11//11//2200))

Making a Request for Support Marriage of/ Case Name Key Principles: Making a Request for Support Citation

Opinion Year

Ackerman Child has right to support consistent with parent’s standard of living; MSOL as needs‐based analysis; T/Ct can impute reasonable rate of return.

146 Cal.App.4th 191 2006

Alter Recurring parental gifts, loans, and contributions to living expenses properly considered in fixing guideline CS.

171 Cal.App.4th 718 2009

Andrade, County of Placer v.

Predictable recurring bonuses properly considered in fixing monthly CS obligation.

55 Cal.App.4th 1393 1997

Anna M. v. Jeffrey E.

T/Ct properly ignored gifts from a legal and familial stranger of less than specific amounts paid for an unestablished duration in determining CS.

7 Cal.App.5th 439 2017

Asfaw v. Woldberhan

Add back of depreciation on residential real estate investment included as nontaxable income proper in fixing guideline CS.

147 Cal.App.4th 1407

2007

Bardzik Imputation of earning capacity B of P on party seeking to establish or rebut claim of earning capacity.


2008

Barth T/Ct can establish CS retroactive to petition per Fam C 4009. 210 Cal.App.4th 363 2012

Bereznak & Heminger

T/Ct cannot enforce stipulation to binding CS arbitration. 110 Cal.App.4th 1062

2003

Berger Deferred salary as special circumstance warranting departure from guideline.


2009

Berman T/Ct properly imputed income to H who sold his business to W2 where transfer was found to be in bad faith; imputing business income was permissible even though H was now over 65.

15 Cal.App.5th 914 2017

Beust Failure of expectations not as a result of a party’s misuse of assets or unreasonable conduct can be the basis for an increase in support or extension of jurisdiction to award support.

23 Cal.App.4th 24 1994

Blazer Broad discretion to determine amount and source of SS. 176 Cal.App.4th 1438

2009

Calcaterra & Badakhsh

Discretion to consider loan applications signed under penalty of perjury rather than tax returns.

132 Cal.App.4th 28 2005

Carlton Inclusion of mortgage deduction in fixing guideline CS appropriate unless deducted on new mate’s separate return.

91 Cal.App.4th 1213 2001

Castle, County of Kern v.

Court may impute earnings on liquidated capital assets. 75 Cal.App.4th 1442 1999

Cauley

T/Ct properly terminated nonmodifiable SS based on W’s campaign of domestic violence against H


2006

2 © 2020 by Thomson Reuters — All Rights Reserved

Page 2 of 90

Marriage of/ Case Name Key Principles: Making a Request for Support Citation

Opinion Year

Chakko In setting support T/Ct can draw adverse inference from documents presented.

115 Cal.App.4th 104 2004

Chapman While cohabitation period not properly considered in determining SS, T/Ct can consider combined length of the two marriages.

191 Cal.App.3d 1308

1987

Charisma R. v. Kristina S. II

While a CS trust is permissible for travel expenses, it is not a form of CS and guideline finding of CS is still required.

175 Cal.App.4th 361 2009

Cheriton Income, expenses, & lifestyle is part of MSOL & T/Ct can consider numerous assets in calculating support.

92 Cal.App.4th 269 2001

Ciprari T/Ct must use the most current tax return in calculating support if it is in evidence and provides adequate proof of the parties’ actual income. This principle is particularly important in awarding retroactive CS or SS.

32 Cal.App.5th 83 2019

Cryer CS to NCP permissibly exceeds guideline based on BIC. 198 Cal.App.4th 1039

2011

de Guigne Station in life, history of living expenses both contribute to setting support.

97 Cal.App.4th 1353 2002

Destein T/Ct can impute reasonable rate of return on non‐income producing assets in setting CS.

91 Cal.App.4th 1385 2001

Dick T/Ct has broad discretion to order temp SS to meet reasonable needs of spouse.

15 Cal.App.4th 144 1993

Dietz T/Ct must exercise its discretion along legal lines supported by substantial evidence

176 Cal.App.4th 387 2009

Drake Guideline CS for disabled adult C with insufficient other means. 53 Cal.App.4th 1139 1997

Drapeau Savings & investment proper MSOL consideration for permanent support [see Winter, below, for temporary SS].

93 Cal.App.4th 1086 2001

Fam C 4326 SS modifiable without further COC if CS terminated within past 6 months and not otherwise nonmodifiable or waived.

Ficke Imputation of earning capacity must comport with best interest of children whether CS or SS.

217 Cal.App.4th 10 2013

Frietas If T/Ct reserves jurisdiction to modify award of SS or CS upon receipt of additional evidence, it has power to modify the support notwithstanding holding in Gruen, below.


2012

Greiner v. Keller T/Ct must allocate CCE reasonably incurred toward education designed to improve a parent’s earnings.

36 Cal.App.5th 332 2019

Gruen T/Ct must have jurisdiction to make award of support retroactive. Where RFO went off calendar T/Ct lost jurisdiction.

191 Cal.App.4th 627 2011

Haggard v. Haggard

No hardship deduction for stepchildren. 38 Cal.App.4th 1566 1995


CFLR Family Law Bench Blotters • Support

Page 3 of 90


Opinion Year

Hubner I T/Ct must make guideline finding even if it is going to deviate from guideline CS.

205 Cal.App.3d 660 1988

Hubner II CS proper even where C not in home of parent; T/Ct must make finding of guideline amount even if it deviates.

94 Cal.App.4th 175 2001

Iberti Language terminating SS jurisdiction must be clear, explicit, unequivocal, and unambiguous.

55 Cal.App.4th 1434 1997

Jones T/Ct retains jurisdiction to award future SS absent clear waiver of prospective right until termination date.

222 Cal.App.3d 505 1990

Katzberg Timeshare of custodial parent can include time child is in boarding school for purpose of guideline CS.

88 Cal.App.4th 974 2001

Kerr General finding of upper middle or lower income sufficient description of MSOL; income from stock options properly considered in fixing SS and CS.

77 Cal.App.4th 87 1999

Knowles ½ share of investment income of obligor parent included in calculating guideline CS. New spouse’s ½ share not includable.

178 Cal.App.4th 35 2009

Kumar Family law court has jurisdiction to enforce Form I‐864 affidavit of support against supporting spouse promising to support the sponsored immigrant.

13 Cal.App.5th 1072 2017

Lambe & Meehan Stipulation cannot divest jurisdiction to award CS. 37 Cal.App.4th 388 1995

Loh Tax returns presumptively accurate unless contrary evidence. 93 Cal.App.4th 325 2001

M.S. v. O.S. Recurring bonus income from Indian tribe part of gross income for CS.

176 Cal.App.4th 548 2009

Macilwaine Once there are no longer any restrictions on employee‐parent’s ability to exercise stock options and sell his shares, the options must be counted as income for support. T/Ct failed to justify cap on parent’s child support as extraordinary high earner.

26 Cal.App.5th 514 2018

McHugh Imputation of income to H who voluntarily divested his earning capacity based on misconduct was permissible where it was within H’s power to resume work subject to reasonable expectations of employer.


2014

McLain Improper to impute earning capacity to unemployed person over age 65.

7 Cal.App.5th 262 2017

McQuoid History of nonpayment of taxes can be considered as basis for determining net income for CS.

9 Cal.App.4th 1353 1991

Mejia v Reed T/Ct can consider available assets as basis for deviating from guideline.

31 Cal.4th 657 2003

Morrison Abuse of discretion to terminate SS jurisdiction in long term marriage.

20 Cal.3d 437 1978

Morton State and federal tax refunds and voluntary 401k contributions are properly considered as income for CS

27 Cal.App.5th 1025 2018


Page 4 of 90


Opinion Year

Mosley Bonus dependent on performance and profitability can only be part of Ostler & Smith order for support.


2008

Murray Income is predominating factor in determining temporary SS. 101 Cal.App.4th 581 2002

Naughton T/Ct did not abuse discretion in determining that W needed additional support notwithstanding her estate of over $3M.

145 Cal.App.3d 845 1983

Nelson MSOL generally measured as of DOS. 139 Cal.App.4th 1546

2006

Padilla Changing careers for self‐fulfillment or a simpler life not a basis to ignore past earnings or capacity.

38 Cal.App.4th 1212 1995

Pearlstein Business sale proceeds not reinvested in other assets can be considered as income in fixing CS.


2006

Prietsch & Calhoun

T/Ct erred in failing to retain jurisdiction over SS for 24 year marriage absent evidence W would become self‐supporting.


2013

Regnery Public policy supports expansive use of earning capacity doctrine in setting CS.

214 Cal.App.3d 1367

1989

Richmond An order stepping down amount of support must be supported by a record justifying the timing of any change in amount or duration of support.

105 Cal.App.3d 352 1980

Romero New mate income not to be considered, directly or indirectly, in determining SS.

99 Cal.App.4th 1436 2002

Rosenfeld & Gross

Provision for payment of college expenses as a form of CS prospectively modifiable based on language in judgment.

225 Cal.App.4th 478 2014

San Diego County DCSS v. C.A.

When C is in care of maternal grandmother, Mom can be ordered to pay CS per Fam C 3951(a).

34 Cal.App.5th 614 2019

Schlafly Mortgage‐free housing can be considered in order deviating CS above guideline; T/Ct has discretion to determine discretionary CS add‐ons.

149 Cal.App.4th 747 2007

Schmir T/Ct should state expectations concerning reasonable time to become self‐supporting.

134 Cal.App.4th 43 2005

Schopfer In fixing CS For over 18 year old, T/Ct properly set timeshare at 0%.

186 Cal.App.4th 524 2010

Schu Language of judgment determines the extent to which SS is modifiable.

231 Cal.App.4th 394 2014

Schulze Perquisites included as income available for support if tax impacted.

60 Cal.App.4th 519 1997

Shimkus Retirement by fireman at normal age of retirement was grounds for modification of SS.


2016

Smith & Maescher While T/Ct cannot establish a CS trust, T/Ct has jurisdiction to enforce terms of a trust described in judgment or order.

21 Cal.App.4th 100 1993



Page 5 of 90


Opinion Year

Smith, County of Orange v.

Subletting space to tenant created income available for CS. 132 Cal.App.4th 1434

2005

Smith Incarceration not a defense to earning capacity. 90 Cal.App.4th 74 2001

Sorge Fiduciary duty to make disclosure about income continues until final judgment is entered; T/Ct can impute income, despite new failed business ventures and losses.

202 Cal.App.4th 626 2012

Spector T/Ct has inherent authority to retroactively modify a temporary support order under Le Francois v. Goel despite case law and statutory limitations imposed when a party seeks to modify an order.

24 Cal.App.5th 201 2018

Stallworth Absolute termination of SS on a specified date disfavored in long term marriage.

192 Cal.App.3d 742 1987

Stewart v. Gomez Free housing benefit is income for purpose of guideline CS. 47 Cal.App.4th 1748 1996

Stupp & Schilders A vocational evaluation under Fam C 4331 may only be ordered if support is at issue in a pending proceeding before the court.

11 Cal.App.5th 907 2017

Sullivan T/Ct properly considered contributions to earning capacity in fixing future SS above MSOL.

37 Cal.3d 762 1984

Swain Live testimony component of Fam C 217 requires opportunity to cross‐examine witnesses.

21 Cal.App.5th 830 2018

T.C. and D.C. In setting support, court must consider expectations of parties as contained in MSA or stipulated judgment.

30 Cal.App.5th 419 2018

Terry T/Ct can impute income on assets in setting SS. 80 Cal.App.4th 921 2000

Tydlaska Requirement of current I&E. 114 Cal.App.4th 572 2003

Usher T/Ct must impute a reasonable rate of return on a spouse’s assets in determining whether a COC has occurred.

6 Cal.App.5th 347 2016

Vomacka Waiver of SS requires voluntary act, knowingly done, with sufficient awareness of relevant circumstances and consequences.

36 Cal.3d 459 1984

Walker v. Grow Court can consider corporate income if parent is manipulating income to avoid support obligation.

170 Md.App. 255 2006

Watt Living below means not proper ceiling for MSOL analysis for prospective SS.

214 Cal.App.3d 340 1989

Weinstein Averaging income proper consideration for SS. 4 Cal.App.4th 555 1991

Wilson v. Shea T/Ct can establish a CS trust for travel expenses. 87 Cal.App.4th 887 2001

Winter Savings & investments proper temporary SS consideration [see Drapeau, above, for permanent SS].

7 Cal.App.4th 1926 1992

Wittgrove T/Ct may use DissoMaster in fixing temporary SS. 120 Cal.App.4th 1317

2004


Page 6 of 90


Opinion Year

Y.R. v. A.F. T/Ct must state why it believed below guideline amount was in C’s best interest.

9 Cal.App.5th 974 2017

Zywiciel Reliance on income of parties alone is error in award of permanent SS.

83 Cal.App.4th 1078 2000

Opposing a Request for Support Marriage of/Case

Name Key Principles: Opposing Request for Support Citation Opinion Year

Alter Gross income broadly defined but not limitless. 171 Cal.App.4th 718 2009

Andreen T/Ct must consider MSOL needs of both spouses, not just the supported spouse.

76 Cal.App.3d 667 1978

Antoni, County of Lake v.

Payment of extraordinarily high consumer debt obligations justifies deviation from guideline CS.

18 Cal.App.4th 1102 1993

Bardzik B of P on party seeking to modify support and on party seeking to establish earning capacity.


2008

Beck Once SS termination date passes, T/Ct loses jurisdiction to award SS.

57 Cal.App.4th 341 1997

Blazer T/Ct can consider need for enterprise capitalization of earnings to reduce income available for SS.


2009

Bodo Use of “substantial,” “material,” or “significant” change of circumstances are synonymous with modification.

198 Cal.App.4th 373 2011

Brand Retained earnings can be excluded in calculating income available for support.

(Ind. 2004) 815 N.E. 2d 180

2004

Bukaty No tacking of cohabitation period to lengthen marital period. 180 Cal.App.3d 143 1986

Burlini Temporary SS guidelines may not be used to fix permanent SS. 143 Cal.App.3d 65 1983

Butler & Gill Payment of parent’s mortgage not a permissible financial hardship for CS calculation.

53 Cal.App.4th 462 1997

Carlsen Additional tax burden from new mate income should be considered in fixing guideline CS.

50 Cal.App.4th 212 1996

Castle, County of Kern v.

Inheritance is not income for CS but income on inheritance is. 75 Cal.App.4th 1442 1999

Cecilia & David W.

To be eligible for adult CS C must be incapacitated from working and lack sufficient means to be self supporting. Loss of other benefits for C if he/she becomes employed not a proper consideration.


2015

Chandler Absent stipulation, T/Ct has no discretion to establish a CS trust. 60 Cal.App.4th 124 1997



Page 7 of 90

Marriage of/Case Name Key Principles: Opposing Request for Support Citation

Opinion Year

Cohen Parties cannot stipulate to de novo determination of CS as a means of eliminating obligation to show COC in order to reduce CS obligation.

3 Cal.App.5th 1014 2016

Cohn Earning capacity determination must have tangible evidentiary foundation of opportunity to work.

65 Cal.App.4th 923 1998

DaSilva v. DaSilva T/Ct can consider challenge to timeshare based on payment of tuition, other expenses, or school activities.


2004

de Guigne No discretion to create new forms of CS add‐ons. 97 Cal.App.4th 1353 2002

Deluca T/Ct shall determine the extent to which loan principal payments on rental property reasonably and legitimately reduce income for the purposes of support.

Rehg gr 12/2/19; prev. pub at 41 Cal.App.5th 418

2019

Drake Adult CS cannot be disguised form of SS. 241 Cal.App.4th 934 2015

Edwards v. Edwards

Guideline does not apply to CS for adult student. 162 Cal.App.4th 136 2008

Eggers H fired for surfing Internet porn at work; no imputed income for support because he did not voluntarily divest himself of job.

131 Cal.App.4th 695

2005

Fini T/Ct properly denied CCE expenses to Mom who had already become self‐supporting by completing her master’s degree. Her CCE related to pursuit of doctoral degree was not reasonably necessary to satisfy the reasonably incurred test.

26 Cal.App.4th 1033

1999

Gomez & Schu Domestic violence can be grounds for denial of SS under Fam C 4320(i), (m), (n), and (k).

6 Cal.App.5th 470 2016

Gruen T/Ct must have jurisdiction to make award of support retroactive. Where RFO went off calendar T/Ct lost jurisdiction.

191 Cal.App.4th 627 2011

Hebbring v. Hebbring

Reservation of jurisdiction for SS is abuse of discretion in short term marriage.

207 Cal.App.3d 1260 1989

Heiner Undifferentiated PI recovery settlement without specific recovery for lost earnings, not income for CS.


2006

Heistermann For short term marriage, T/Ct can balance all factors and permissibly end support even if spouse not self‐supporting at time of termination of SS.

234 Cal.App.3d 1195 1991

Henry Unrealized equity in residence not properly considered in fixing guideline CS.

126 Cal.App.4th 111 2005

Hinman No per se rule prohibiting imputation of earnings to parent who cares for preschool child.

55 Cal.App.4th 988 1997

Hoffmeister I Strike late filed I&E or grant continuance. 161 Cal.App.3d 1163 1984

Ilas Income imputed to F who quit job to go to med school. 12 Cal.App.4th 1630

1993


Page 8 of 90


Opinion Year

Johnson v. Superior Court

Parties may stipulate to gross annual income, otherwise T/Ct must make a finding even if it deviates from guideline.

66 Cal.App.4th 68 1998

Kelkar Plea of no contest with long history of prior abuse justified retroactive application of Fam C 4325 to terminate SS.

229 Cal.App.4th 833 2014

Kerr Income from stock options in excess of reasonable needs of C excluded; T/Ct may deviate from guideline.

77 Cal.App.4th 87 1999

Khera v. Sameer A motion for modification of support may only be granted if there has been a material change of circumstances since the last order.


2012

Kochan Spouse cannot be required to retire to maximize property division for benefit of supported spouse.

193 Cal.App.4th 420 2011

LaBass & Munsee

Judicial notice of classified ads for purpose of showing opportunity to work.

56 Cal.App.4th 1331 1997

Laudeman T/Ct must state reason why deviation from guideline is in best interest of child.

92 Cal.App.4th 1009 2001

Lim & Carrasco Reduced earning capacity resulting from DV and need to care for children justified 80% work regimen for large firm lawyer; T/Ct must consider best interest of children for imputing income.

214 Cal.App.4th 768 2013

Loh Tax returns presumptively correct absent contrary evidence. 93 Cal.App.4th 325 2001

Look v. Penovatz No right to recovery by a cohabiting third party under Fam C 3950 where Dad was paying CS to Mom.

34 Cal.App.5th 61 2019

McElwee SS recipient accountable for unwise financial decisions related to income & prudent use of assets.

197 Cal.App.3d 902 1988

McHugh To challenge order for mod of support on appeal, failure to request SOD under Fam 3654 results in imposition of doctrine of implied findings.


2014

Mendoza & Cuellar

T/Ct can make order for SS retroactive to date of petition so long as there is a pending RFO to establish support.

14 Cal.App.5th 939 2017

Minkin Party seeking to extend SS beyond fixed termination date has BofP to establish unrealized expectation as grounds for extending support. Merely making unwise financial decision does not require the supporting spouse to pick up the tab.

11 Cal.App.5th 939 2017

Mosley Speculative future bonus not properly considered in fixing monthly CS; may be considered for Ostler & Smith order.


2008

Nelson Moving party has burden of proof to establish MSOL. MSOL is a mere reference point for calculating support.


2006

Olson Improper to use DissoMaster in calculating permanent SS or modification of permanent SS [permissible only to determine tax impact of amount actually ordered].

14 Cal.App.4th 1 1993

Ostler & Smith MSOL is only a reference point. 223 Cal.App.3d 33 1990



Page 9 of 90


Opinion Year

Padilla Income imputed to F who quit job to start business. 38 Cal.App.4th 1212

1995

Paulin Hardship deductions for new children permissible, but not a foregone conclusion.

46 Cal.App.4th 1378 1996

Pearlstein Unrealized value of stock not gross income for purpose of determining guideline CS.


2006

Pearson T/Ct can set ceiling on amount of bonus considered for Ostler/Smith support.

21 Cal.App.5th 218 2018

Priem DV as basis to deny SS. 214 Cal.App.4th 505 2013

Prietsch & Calhoun

Length of marriage is a factor in stepping down SS. 190 Cal.App.3d 645 1987

Reynolds Spouse who reaches normal age of retirement cannot be required to invade retirement assets to pay SS.

63 Cal.App.4th 1373 1998

Richmond Record must demonstrate factual basis for step down in SS; mere hopes or speculative expectations are insufficient.

105 Cal.App.3d 352 1980

Riddle v. Riddle Sample of income must be fair and representative, based on stabilized number and reasonably predictive.


2005

Rising MSOL less relevant with passage of time from DOS. 76 Cal.App.4th 472 1999

Rothrock Annuity on undifferentiated PI settlement not income for CS. 159 Cal.App.4th 223 2008

Schaffer SS recipient must show prudent financial planning and realistic and reasonable career pursuits. T/Ct can consider totality of circumstances over course of the support award period, and may look beyond just the circumstances since the last order

69 Cal.App.4th 801 1999

Scheppers Life insurance death benefits not income for CS; earnings on invested recovery can be considered.

86 Cal.App.4th 646 2001

Schmir T/Ct should state expectations for reasonable time to become self‐supporting.

134 Cal.App.4th 43 2005

Schu Domestic violence can be grounds for denial of SS under Fam C 4320(i),(m), (n), and (k). W’s conduct amounted to DV against her children and was a factor T/Ct could equitably consider in denying her SS.

6 Cal.App.5th 470 2016

Serna Excessive work hours/onerous work schedule not properly considered in establishing earning capacity for SS.

85 Cal.App.4th 482 2000

Shaughnessy Terminating SS on 15 year marriage permissible based on length of order and fact W’s parents continued parental gifts and W’s failure to make reasonable efforts to becoming self supporting.


2006

Shimkus Retirement by fireman at normal age of retirement was grounds for modification of SS.


2016


Page 10 of 90


Opinion Year

Sierra, County of San Diego v.

Support of parents and two siblings not a hardship deduction for guideline CS.

217 Cal.App.3d 126 1990

Simpson Earning capacity capped at reasonable work regimen. 4 Cal.4th 225 1992

Smith If parties live beyond means, excessive spending not a proper MSOL consideration; T/Ct can consider economy of scale in setting future SS.

225 Cal.App.3d 469 1990

Sorge Fiduciary duty to make income disclosures for purpose of CS & SS ends with entry of judgment that results in permanent resolution of the issues.

202 Cal.App.4th 626 2012

S.P. v. F.G. T/Ct rationally deviated from guideline CS and properly ordered support in best interest of child based on C’s best interest and consistent with that of a financially privileged child. M’s I&E on proposed needs were profoundly overstated and patently unbelievable.

4 Cal.App.5th 921 2016

Stover v. Bruntz T/Ct cannot retroactively modify order for CCE where there was no RFO pending despite stipulation of parties permitting retroactivity.

12 Cal.App.5th 19 2017

Swain Live testimony component of Fam C 217 requires opportunity to cross‐examine witnesses.

21 Cal.App.5th 830 2018

Tong & Samson Improper to consider entire lump sum severance pay in setting SS. T/Ct must consider time frame for which severance was calculated.

197 Cal.App.4th 23 2011

Usher Parties cannot contract around the change of circumstances rule for modification of support.

6 Cal.App.5th 347 2016

Weinstein Court may cap MSOL at income if parties financed luxurious lifestyle through borrowings.

4 Cal.App.4th 555 1991

West T/Ct properly stated expectation that supported spouse would prudently invest and not squander assets received in property division; SS for ½ the length of marriage is one of many considerations.

152 Cal.App.4th 240 2007

Williams Improper to consider speculative investment income from equity in family residence.


2007

Williamson T/Ct may exercise discretion to ignore parental loans in calculating CS and SS.


2014

Wilson Despite poor health of supported spouse, terminating jurisdiction after 5 years of support on 6‐year marriage was not an abuse of discretion.

201 Cal.App.3d 913 1988

Zold Undistributed pass through income retained by S Corp for proper corporate purposes not income for support.

(Fla 2005) 91 So.2d 1222

2005

Zywiciel MSOL weighed with all other factors. Reliance on income alone is error in award of permanent SS. Impermissible to base support on DissoMaster printout for permanent SS.

83 Cal.App.4th 1078 2000


Page 11 of 90

AAttttoorrnneeyy’’ss FFeeeess && CCoossttss ((RReevv.. 11//11//2200))

Making a Request for Attorney’s Fees & Costs Marriage of/ Case Name

Key Principles: Making a Request for Attorney’s Fees & Costs Citation

Opinion Year

Askmo Spouse may seek fees to defend appeal granting set aside of her default.

85 Cal.App.4th 1032 2000

Berry v. Chaplin Court must consider nature of litigation, amount involved, skill of lawyer, attention given, success of efforts, lawyer’s background and time spent.

74 Cal.App.2d 669 1946

Braud Parties’ respective financial circumstances clearly justified higher award.

45 Cal.App.4th 797 1996

Cassinelli II Simply because W had sufficient personal assets to pay her fees, W is not barred from award of fees.

20 Cal.App.5th 1267 2018

Ciprari T/Ct must make a granular, nuanced, determination of fees awarding mandatory fees under Morton where there is a significant disparity in access to funds especially where W was forced to incur fees where H had hopelessly commingled his SP into CP accounts.

32 Cal.App.5th 83 2019

Dick Fees award must consider all sources of income including assets & investments.

15 Cal.App.4th 144 1993

Dietz Must consider all factors in fixing fees, not just merits of positions taken.

176 Cal.App.4th 387 2009

Faton v Ahmedo

T/Ct properly awarded post‐petition fees in DVPA. Failure to use JC forms did not violate due process.


2015

Fossum Fee award is mandatory upon finding of breach of fiduciary duty 192 Cal.App.4th 336 2011

Fransen Fee award was too low and an abuse of discretion considering amount of the request.

142 Cal.App.3d 419 1983

Hargrave Heavy discovery burden justifies higher fees for out‐spouse. 163 Cal.App.3d 346 1985

Harrison Supported spouse need not invade SP assets to fund litigation. 179 Cal.App.3d 1216

1986

Hatch Summary denial of pretrial fees or continuing issue to trial is abuse of discretion.

169 Cal.App.3d 1213

1985

Hobdy CCP 1008 does not preclude augmenting fees without showing of new facts.

123 Cal.App.4th 360 2004

Hofer Dicta ‐ Party can be expected to borrow to pay ordered fees with risk of disentitlement to pursue action if fees not paid.

208 Cal.App.4th 454 2012

Hublou Prevailing party is not the test for need/ability fee award. 231 Cal.App.3d 956 1991

Kopasz v. Kopasz Court has discretion to stay proceedings for nonpayment of fees. 34 Cal.2d 423 1949

Attorney’s Fees & Costs


Page 12 of 90

Marriage of/ Case Name


Opinion Year

Kozen Lack of cooperation by in‐spouse & excessive stonewalling justify fees.

185 Cal.App.3d 1258

1986

Loeffler v. Medina

Prevailing party generally entitled to fees in DVPA proceeding per Fam C 6344.


2009

Margulis T/Ct must award fees under Fam C 1101 for breach of fiduciary duty.


2011

McLain Age 65 is customary age of retirement; this factor can be considered in granting a request for fees.

7 Cal.App.5th 262 2017

Metzger Award of minor’s counsel fees justified given potential length of appointment.


2014

Morton T/Ct must make explicit findings on disparity of access to funds and ability to contribute fees to other party. If disparity and ability are found, then an award of fees is mandatory.

27 Cal.App.5th 1025 2018

N.S. v. D.M. Party may recover need‐based fees even if not entitled to UCCJEA fees.

21 Cal.App.5th 1040 2018

O'Connor Relative financial circumstances support fees to spouse with high assets.

59 Cal.App.4th 877 1997

Pont v. Pont Prevailing party fees properly awarded under terms of stipulated judgment. While H did not obtain financial recovery against W in defending her civil case, he obtained his overall litigation objective by enforcing terms of judgment.

31 Cal.App.5th 428 2018

Schleich Sanctions may be awarded for nondisclosure of SP or CP assets. 8 Cal.App.5th 267 2017

Shaban Need based fees awarded where applicant could lose all CP if judgment is reversed.

88 Cal.App.4th 398 2001

Sherry H. v. Thomas B.

Fees pending appeal. 203 Cal.App.3d 1500

1988

Smith W ordered to pay fees of former H and his new W totaling $276K based in part on testimony of W’s father who said he was paying W’s fees; and he would pay all her fees in litigation between W and H.

242 Cal.App.4th 529 2015

Sorge Substantial Fam C 2030 fees justified based on H’s failure to provide full financial disclosure (even absent fiduciary duty claim) and based on imputed income where H had considerable wealth invested in startup business he claimed was losing money.

202 Cal.App.4th 626 2012

Sullivan Analysis of ability to pay not restricted only to earned income. 37 Cal.3d 762 1984

Tharp Abuse of discretion to deny fees; T/Ct must meaningfully exercise discretion.


2010

Turkanis & Price FLARPL claimant can pursue enforcement of FLARPL against property (if any) even if attorney is not joined. Contra: Ramirez.

213 Cal.App.4th 332 2013


CFLR Family Law Bench Blotters • Attorney’s Fees & Costs

Page 13 of 90



Opinion Year

BORSON MOTIONS

Borson Client may consent to fee request against other spouse by former counsel.

37 Cal.App.3d 632 1974

Erickson & Simpson

Borson motion filed before substitution of attorney but heard after filing allowed.

141 Cal.App.4th 707 2006

Read Client may properly revoke previous consent to Borson up to date of hearing.

97 Cal.App.4th 476 2002

Tushinsky No right to appeal by Borson counsel. 203 Cal.App.3d 136 1988

Opposing a Request for Attorney’s Fees & Costs Marriage of/ Case Name Key Principles: Opposing a Request for Attorney’s Fees & Costs Citation

Opinion Year

Alan S., Jr. v. Superior Court

Court must conduct nuanced Fam C 4320 analysis. 172 Cal.App.4th 238 2009

Behrens Bitter prolongation of dispute is a factor in reasonableness assessment.

137 Cal.App.3d 562 1982

Bittenson T/Ct has discretionary authority to limit the amount of a FLARPL if the lien will impair the overall equal division of the CP estate.

41 Cal.App.5th 333 2019

Cueva Analysis of attorney experience & reasonableness factors. 86 Cal.App.3d 290 1978

Darab N. v. Olivera

Fees properly denied by T/Ct where fee declaration did not adequately differentiate the various aspects of fees incurred where Mom was found perpetrator of DV, lost motions to quash, failed in attempt to set aside default, and specify need for fees for future proceedings. T/Ct also made adverse credibility findings against Mom’s attorney. No abuse of discretion.

31 Cal.App.5th 1134 2019

Duncan Fee request denied to party with less earned income but more liquid assets.

90 Cal.App.4th 617 2001

Frick Lies & fabrication by party seeking fees as basis for reduced award. 181 Cal.App.3d 997 1986

Garrett v. Garrett

Waiver of future fees may be enforceable against right to fee award in later proceedings.

258 Cal.App.2d 407 1968

Huntington Excessive fees sought by spouse who over litigates are denied. 10 Cal.App.4th 1513 1992

Karton v. Dougherty

Prevailing party determined based on whether primary object of litigation was fulfilled in fee dispute litigation.

231 Cal.App.4th 600 2014

Keech Fees cannot be confiscatory & must be justified as to amount. 75 Cal.App.4th 860 1999

Kevin Q. v. Lauren W.

Continuous parental contributions to living expenses may impact fee award.

195 Cal.App.4th 633 2011


Page 14 of 90

Marriage of/ Case Name Key Principles: Opposing a Request for Attorney’s Fees & Costs Citation

Opinion Year

Lopez Unreasonable, unnecessary fees even by competent counsel not awarded.

38 Cal.App.3d 93 1974

McLain Age 65 is customary age of retirement. If age for earning capacity can be considered in making an award for fees it should apply equally where fees are sought.

7 Cal.App.5th 262 2017

Meadow v. Superior Court

Limits attorney's ability to enforce if case dismissed by parties. 59 Cal.2d 610 1963

Minkin T/Ct is not required to award all the fees incurred by a party even if there is a prevailing fee clause. T/Ct has discretion to determine the reasonable amount incurred including reducing fees based on over‐litigation.

11 Cal.App.5th 939 2017

Mooney v. Superior Court

T/Ct must make requisite findings under Fam C 2032 when awarding attorney’s fees and costs.

245 Cal.App.4th 523 2016

Mosley Improper to consider borrowing for fees based on circumstances of this support order.


2008

Nassimi T/Ct may deny fees and costs where billing statements contain unsupported block‐billing, not properly showing the purpose of the fees incurred

3 Cal.App.5th 667 2016

Pearson T/Ct can consider over‐litigation by W in denying additional fees under Fam C 2030.

21 Cal.App.5th 218 2018

Ramirez FLARPL subject to challenge. Joinder of claimant attorney proper to determine rights. Contra: Turkanis & Price on necessity of joinder.

198 Cal.App.4th 336 2011

Rosen ‘Churning’ of fees & unsubstantiated requests properly denied. 105 Cal.App.4th 808 2002

Schleich Fee award under Fam C 1101(g) not appropriate if no impairment to CP estate under this section. However, fees under Fam C 2030 or sanctions under Fam C 271 may be awarded.

8 Cal.App.5th 267 2017

Schulze Fee award cannot be confiscatory taking into account support. 60 Cal.App.4th 519 1997

Shapira v. LifeTech

If party dismiss case under CCP 581 before being submitted for decision, T/Ct cannot award prevailing party fees under CC 1717.

22 Cal.App.5th 429 2018

Smith T/Ct properly offset fees payable by H against fees payable to H from W.

242 Cal.App.529 2015

Tanner v. Tanner

Scope of prevailing party fee provision must be clear. 57 Cal.App.4th 419 1997

Wolfe Failure to reserve jurisdiction over prejudgment fees precludes award after entry of judgment.

173 Cal.App.3d 889 1985

Winternitz Even where H’s income far exceeded W’s income, parties excessive litigation rendered it unjust to order H to make a further contribution of fees to W.

235 Cal.App.4th 644 2015



Page 15 of 90

Fam C 271 Sanctions & Other Sanctions Marriage of/ Case Name

Key Principles: Fam C 271 Sanctions & Other Sanctions

Citation Opinion Year

Rules of Court Sanctions against party or attorney for violation of rules or order. CRC Rule 5.14

Abrams Overreaching settlement demand as basis for Fam C 271 sanctions. 105 Cal.App.4th 979 2003

Aninger No Fam C 271 sanctions where payor refused to settle based on order which was reversed.

220 Cal.App.3d 230 1990

Anka v. Yeager Sanctions of $50K against attorney properly awarded under Fam C 3025.5 and Fam C 3111(d) for disclosure of confidential information contained in custody evaluation.

31 Cal.App.5th 1115 2019

Bidna v. Rosen Fam C 271 intended to deter bad conduct. 19 Cal.App.4th 27 1993

Burgard Fam C 271 sanctions for bringing motion for reconsideration without new facts.

72 Cal.App.4th 74 1999

Burkle v. Burkle Sanctions against party & attorney under CCP 128.7 for Fam C 271 like conduct.

144 Cal.App.4th 387 2006

Corona Sanctions designed to deter conduct that flouts the policy of reducing litigation expenses.


2009

CPF Vaseo Associates, LLC v. Gray

Mere reference in correspondence that CCP 128.5 sanctions will be sought not sufficient to comply with CCP 128.7 safe harbor provisions applicable to request for sanctions under CCP 128.5.

29 Cal.App.5th 997 2018

Daniels Fam C 271 sanctions only against client not lawyer even if client not complicit.

19 Cal.App.4th 1102 1993

Davenport Unsupported motion and uncivil conduct by novice counsel justified fees and sanctions.


2011

Dellaria & Blickman‐Dellaria

No Fam C 271 sanctions for failure to acquiesce to order that was later reversed.

172 Cal.App.4th 196 2009

Duris & Urbany Sanctions permitted only if proper notice and opportunity to be heard.

193 Cal.App.4th 510 2011

E.M., In re Fam C 271 sanctions may be awarded under other proceedings under the family law act.

228 Cal.App.4th 828 2014

Falcone & Fyke I Baseless, reckless, and frivolous conduct justified Fam C 271 sanctions.

164 Cal.App.4th 814 2008

Falcone & Fyke II Falsified documents justify sanctions; W declared vexatious. 203 Cal.App.4th 964 2012

Feldman Sanctions designed to deter future conduct not based on fees incurred.


2007

Fong Sanctions are proper only if party is in compliance with any statutory requirements.

193 Cal.App.4th 278 2011

Fossum Court must award sanctions for breach of fiduciary duty under Fam C 1101(g).

192 Cal.App.4th 336 2011


Page 16 of 90




Fuller If sanctions sought against counsel, must show proper notice. 163 Cal.App.3d 1070 1985

Gong & Kwong Sanctions against attorney for bad behavior. 163 Cal.App.4th 510 2008

Green Sanctions proper where spouse tries to intimidate other spouse & counsel.

6 Cal.App.4th 584 1992

Hargrave Sanctions for frivolous refusal to sign joint tax return where stipulation provides for it.

36 Cal.App.4th 1313 1995

Hokanson Sanctions mandatory for Fam C 1101(g) violation. 68 Cal.App.4th 987 1998

Jovel Fees against joined party on relevant issues. 49 Cal.App.4th 575 1996

Lucio Fam C 271 sanctions not proper for order subsequently reversed on appeal.


2008

Margulis T/Ct has discretion to award Fam C 271 sanctions along with fees for breach of fiduciary duty.


2011

Norton Sanctions must be scaled to payor's ability to pay without undue burden.

206 Cal.App.3d 53 1988

Parker v. Harbert

Sanctions for F’s use of contempt to force M’s acquiescence to custody demands proper even if case not dismissed under PC 1118 after trial on the merits.


2012

Peake v. Underwood

If later acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the claim, sanctions may be imposed under CCP 128.7.

227 Cal.App.4th 428 2014

Pearson W’s income from SS is a source for payment of Fam C 271 sanctions and H may deduct the amount from future Ostler/Smith SS payments.

21 Cal.App.5th 218 2018

Perow & Uzelac Party may seek Fam C 271 sanctions in response to other party’s RFO as permissible relief under Fam C 213.

31 Cal.App.5th 984 2019

Petropoulos No requirement of separate hearing on Fam C 271 request where party had adequate notice

91 Cal.App.4th 161 2001

Quay Fam C 271 sanctions against client for selecting lawyer who acted unreasonably.

18 Cal.App.4th 961 1993

Sagonowsky v. Kekoa

Fam C 271 sanctions improperly awarded where sanction unrelated to H’s attorney’s fees and costs.

6 Cal.App.5th 1142 2016

Sahafzadeh‐Taeb CCP 128.5 Sanctions standard is subjectively bad faith conduct intended to harass or misuse the judicial system. The conduct itself can be evidence of the subjective bad faith.

39 Cal.App.5th 124 2019

Schnabel Joinder for the purpose of fees. 30 Cal.App.4th 747 1994

Sherman Prevailing party attorney’s fees & costs. 162 Cal.App.3d 1132 1984

Siller Interim fees against claimant allowed even if spouse does not prevail on merits.

187 Cal.App.3d 36 1986



Page 17 of 90




Sorge Fam C 271 sanctions not proper for postjudgment claim of breach of fiduciary duty since no duty to disclose existed on these facts.

202 Cal.App.4th 626 2012

Tharp Clear abuse of discretion to refuse to award Fam C 271 and 2107 sanctions.


2010

Turkanis & Price Fam C 271 Sanctions offset against Fam C 2030 fees. 213 Cal.App.4th 332 2013

Webb v. Webb Non‐party not entitled to award of Fam C 217 sanctions based on conduct of one of the parties.

12 Cal.App.5th 876 2017


Page 18 of 90

UUCCCCJJEEAA ((RReevv.. 11//11//2200))

Subject UCCJEA Principles Authority

Exclusive method UCCJEA is exclusive method to determine subject matter jurisdiction in all family law proceedings: divorce, paternity, DVPA, and dependency proceedings, but not adoptions [Fam C 3403].

In re Karla C. (2010) 186 Cal.App.4th 1236

Personal jurisdiction

Personal jurisdiction is not required or conferred based on proceedings under UCCJEA.

Fam C 3409

Notice Parties are entitled to proper notice under UCCJEA. Fam C 3425

Courts shall communicate

T/Ct may communicate with other court when appropriate and a record of proceedings shall be maintained and made accessible to the parties.

Fam C 3410

Home state not responsive to inquiry

T/Ct properly verified and authenticated contact information for Mexican authorities but Mexico court failed to respond. CA court had jurisdiction to act under Fam C 3421(a)(3).

In re A.C. (2017) 13 Cal.App.5th 661

Testimony of witnesses

Court shall take testimony of witnesses by any appropriate means consistent with available technology but court has broad discretion on method and may prohibit remote testimony.

Fam C 3411; Marriage of Nurie (2009) 176 Cal.App.4th 478

Coordinating proceedings

Court may establish method of securing testimony from witnesses in CA so testimony can be used in other jurisdiction.

Fam C 3412

Home state Home state has jurisdiction to make orders as initial decree state. Review of determination of residency is based on deferential substantial evidence test. CA retains jurisdiction if C lived in CA for at least six months before commencement of proceeding. Infant merely being born in CA does not confer home state jurisdiction under Fam C 3424

Fam C 3402(g); Schneer v. Llaurado (2015) 242 Cal.App.4th 1276; In re R.L. (2016) 4 Cal.App.5th 125

Burden of proof Burden of proof is on party asserting UCCJEA jurisdiction. In re Baby Boy M. (2006) 141 Cal.App.4th 588

Physical presence not sufficient

Mere presence in the state is not an adequate basis for exercise of UCCJEA subject matter jurisdiction although service of process while in CA may create personal jurisdiction.

Fam C 3421

Litigating in other jurisdiction

Even consensual litigation in another jurisdiction does not deprive home state of subject matter jurisdiction. Subject matter jurisdiction cannot be waived.

Marriage of Nurie (2009) 176 Cal.App.4th 478

Younger children For child under 6 mos., home state is state where child lived from birth; temporary absence doctrine may apply where newborn travels to CA, this does not confer jurisdiction if the absence is only temporary.

Guardianship of Ariana K. (2004) 120 Cal.App.4th 690; Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079

Runaway children Where child runs away from home state, the child’s absence is only temporary under Fam C 3428(a).

In re Nelson B. (2013) 215 Cal.App.4th 1121

Absence A period of temporary absence from the state does not trump home state doctrine.

Fam C 3402(g)

UCCJEA


Page 19 of 90


Abduction does not defeat home state doctrine

Where a parent abducts a child from the home state, the abduction does not defeat the subject matter jurisdiction of a court which otherwise has jurisdiction.

Marriage of Hopson (1980) 110 Cal.App.3d 884

Simultaneous proceedings

Absent bases under emergency jurisdiction, if there is a simultaneous proceeding in CA pending at time case begins in conformity with UCCJEA, then CA should decline to act; CA T/Ct shall communicate with other state’s bench officer.

Fam C 3426

Substantial conformity

Substantial conformity with provisions of UCCJEA under Fam C 3426(a), including international custody determinations [Fam C 3405], in conformity with UCCJEA unless violates fundamental human rights. Actual notice and an opportunity to be heard are mandated under UCCJEA 3425(a).

Marriage of Sareen (2007) 153 Cal.App.4th 371 W.M. v. V.A. (2018) 2018 WL 6566689

Significant connection test

T/Ct shall weigh all the relevant circumstances if there are simultaneous proceedings to determine whether to proceed.

Arnold & Cully (1990) 222 Cal.App.3d 499

Vacuum jurisdiction

CA may proceed in initial child custody proceeding if state with jurisdiction declines to exercise jurisdiction.

Fam C 3421

Domestic violence proceedings

DVPA proceeding is subject to UCCJEA under Fam C 3402; while T/Ct may have jurisdiction under emergency doctrine, it must defer to otherwise qualified decree state.

Marriage of Fernandez‐Abin (2011) 191 Cal.App.4th 1015

Inconvenient forum

CA can determine another state is more appropriate forum for hearing the case, but parties are entitled to notice of potential for change of venue based on T/Ct exercise of discretion. The two courts should communicate under Fam C 3410. If another jurisdiction is a more convenient forum, CA can deem the other jurisdiction more convenient even if they are not signatory to UCCJEA.

Fam C 3427; Brewer v. Carter (2013) 218 Cal.App.4th 1312 R.B. v. D.R. (2018) 28 Cal.App.5th 108

Declining jurisdiction

Improper or unjustified conduct of parent may serve as basis for CA to decline to exercise jurisdiction under UCCJEA. If CA declines jurisdiction, T/Ct must make appropriate orders to ensure the safety of the child.

Fam C 3428

Jurisdiction even where another state has home state jurisdiction

There is no dispute that Mexico was C’s home state. Exercise of UCCJEA jurisdiction was properly asserted since T/Ct had arranged to email Mexican court and the court did not respond

In re A.C. (2017) 13 Cal.App.5th 661

Continuing Jurisdiction

General rule Decree state keeps jurisdiction so long as one of the parties still resides in decree state.

Fam C 3422

Exercise of visitation sufficient

Where CA is decree state, but M moves to NY, F’s exercise of visitation in CA was sufficient basis for CA to exercise continuing jurisdiction.

Grahm v. Superior Court (Zohar) (2005) 132 Cal.App.4th 1193

Exceptions require All conditions apply under Fam C 3422

Fam C 3422 requires finding that neither child nor parent and child reside in decree state and substantial evidence is present in other state. Fam C 3422 only applies if relationship between parent and child has deteriorated to point at which exercise of jurisdiction would be unreasonable.

In re E.W. (2019) 37 Cal. App. 5th 1167


CFLR Family Law Bench Blotters • UCCJEA

Page 20 of 90


Modification Proceedings

Modification of prior order

To modify another state’s order, CA must have home state jurisdiction or home state must decline to act and there is significant connection with CA and substantial evidence in CA.

Fam C 3423 Marriage of Kent (2019) 35 Cal.App.5th 487

Both parents leave state

Where both parents leave decree state, and decree state declines to exercise jurisdiction, CA T/Ct may modify other state’s decree without contacting other state.

Keisha W. v. Marvin M. (2014) 229 Cal.App.4th 581

Home state cedes jurisdiction

When home state cedes jurisdiction under Fam C 3427, CA T/Ct can properly exercise modification jurisdiction where C is in CA and needs protection.

In re Cristian I. (2014) 224 Cal.App.4th 1088

Enforcement Proceedings

Registration of order

Proper procedure for enforcement includes registration of out of state decree.

Fam C 3445

Notice of registration

Court shall serve notice to parties named in child custody determination. Fam C 3445(b)

Failure to contest Failure to object to registration within 20 days results in confirmation of registration.

Fam C 3445(c)

Enforce the enforceable order

Registration requires proper service of order that remains in full effect and was not stayed or modified. Enforcement can include immediate award of custody under Fam C 3450(a) or warrant.

Fam C 3445(d); Fam C 3450(a); Fam C 3451

Hague Enforcement

T/Ct can enforce return of child under Hague for return of child to state of habitual residence.

Fam C 3441, Fam C 3442

Any available remedy

T/Ct may employ any remedy consistent with laws of CA to enforce the order of another state.

Fam C 3443

Fees & costs Court may award fees and costs in enforcement proceedings. Fam C 3450; N.S. v. D.M. (2018) 21 Cal.App.5th 1040

Emergency Proceedings

Exercise of emergency jurisdiction

Under Fam C 3424(c), T/Ct should only exercise emergency jurisdiction for a period necessary to resolve the emergency and then defer to initial decree state or home state.

In re Jorge G. (2008) 164 Cal.App.4th 125

Imminent harm T/Ct should only act where there is a sufficient showing of an imminent risk of harm.

In re Nada R. (2001) 89 Cal.App.4th 1166

Home state jurisdiction

Mere passage of time does not convert emergency jurisdiction into home state jurisdiction.

In re Gino C. (2014) 224 Cal.App.4th 959

Prompt hearings T/Ct must hold a prompt evidentiary hearing when issues of emergency jurisdiction are presented.

In re C.T. (2002) 100 Cal.App.4th 101

Where home state fails to act

If home state will not act to protect interests of C, CA may exercise emergency jurisdiction for extended period of time to ensure protection of C.

In re Angel L. (2008) 159 Cal.App.4th 1127; In re A.C. (2017) 13 Cal.App.5th 661


Page 21 of 90

FFiidduucciiaarryy DDuuttiieess && DDiisscclloossuurreess (Rev. 1/1/2020)

Statutory Provisions Subject Fiduciary Duties & Disclosures Principles Authority

Spouses as fiduciaries Spouses are subject to general rules governing fiduciary relationship as persons occupying confidential relationship imposing a duty of the highest good faith and fair dealing. Spouses shall provide access to books and records; provide true and full information of all things affecting any transaction that concerns the CP estate; account to the spouse, and hold as a trustee, any benefit or profit derived from a transaction by one spouse without the consent of the other spouse.

Fam C 721(b)

Access to books & records

Spouses are entitled to inspect, gain access to, and make copies of books and records. Without demand, communicate information concerning estate required for the proper exercise of partner’s rights and duties. On demand, provide information that is not unreasonable or improper under the circumstances.

Corp C 16403

Fiduciary duties Fiduciary duties include duty to account, hold property as trustee, to refrain from taking actions adverse to the property rights of the other spouse including unfair competition. Partners shall exercise due care and refrain from grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. Parties shall act consistently with the obligation of good faith and fair dealing. A party does not violate a duty or obligation merely because the partner’s conduct furthers his/her own interest.

Corp C 16404

Transfer of transferable interests

Partners may transfer interests but this transfer does not dissolve or wind up the partnership business. Limited right to access to accounting for transactions.

Corp C 16503

Claims for breach of fiduciary duty

Spouses have claims for breach of fiduciary duty that impair the claimant’s undivided one half interest in the CP estate whether as a result of a single or series of transactions that have caused or will cause a detrimental impact to claimant’s share of the estate.

Fam C 1101(a)

Order for accounting T/Ct may order accounting of property and obligations to assist in determining rights of ownership and access to property.

Fam C 1101(b)

Change in title T/Ct may order title reformation to reflect CP character of any asset. Fam C 1101(c)

Limitations of actions Party shall commence action within 3 years of actual knowledge of transaction. Action may be commenced upon death of party or in action for dissolution.

Fam C 1101(d)

Defense of laches The doctrine of laches may be raised in any action under Fam C 1101. Fam C 1101(d)(3)

Transaction limitations

Remedies under Fam C 1101(a) other than dissolution action apply only to transactions or events occurring on or after 7‐1‐87.

Fam C 1101(d)(4)

Transaction benefiting community

T/Ct may dispense with consent of other spouse if proposed transaction is in best interest of community and consent is arbitrarily refused or cannot be obtained due to physical incapacity, mental incapacity, or prolonged absence of nonconsenting spouse.

Fam C 1101(e)

Fiduciary Duties & Disclosures


Page 22 of 90

Subject Fiduciary Duties & Disclosures Principles Authority

Separate action permitted

Any action may be brought under this section without filing for dissolution, or may be brought in conjunction with the action or upon the death of a spouse.

Fam C 1101(f)

Remedies for breach including fees & costs

All remedies available under Fam C 721 and 1100, including award of 50% of any undisclosed or transferred asset, court costs, and attorney’s fees.

Fam C 1101(g)

Valuation of Interest Value of asset shall be its highest value at the date of the breach, date of sale or disposition, or date of the award by the court.

Fam C 1101(g)

Fraud may justify award of 100%

If breach involves fraud, oppression, or malice under CC 3294 award shall include an award of 100% of asset or an equivalent amount of any undisclosed asset or asset transferred in breach of fiduciary duty.

Fam C 1101(h)

Proof of oppression fraud or malice

Proof must be shown by clear and convincing evidence in which case actual damages and punitive damages may be awarded. Malice means intending to cause injury, despicable conduct, willful and conscious disregard for rights of others. Oppression means despicable conduct subjecting a person to cruel and unjust hardship. Fraud means intentional misrepresentation, deceit, or concealment of a material fact with the intention of depriving a person of property right.

CC 3294

Marshal, preserve, & protect CP estate

Policy to marshal, preserve, and protect CP assets and liabilities as of DOS to avoid dissipation of CP estate before distribution and to ensure fair and sufficient CS and SS award.

Fam C 2100(a)

Reduce conflict & foster full disclosure

Policy to reduce cost and adversarial nature of dissolution by fostering full disclosure and cooperative discovery.

Fam C 2100(b)

Full, accurate, & prompt disclosure of all material facts

Full, accurate, and prompt disclosure of assets and obligations early in the proceeding regardless of characterization as CP or SP and a continuing duty to fully disclose material changes so each party has complete knowledge of the relevant underlying facts.

Fam C 2100(c)

Definition of terms Definitions are operative in other provisions in this section and should be consulted if relevant or unclear.

Fam C 2101

Fiduciary relationship From DOS to date of distribution of the estate, parties have fiduciary obligation of disclosure as to all activities that affect the assets and liabilities of the other party.

Fam C 2102(a)

All material facts & information

Accurate and complete disclosure of all assets and liabilities in which party has or may have an interest or obligation including information about income and expenses of party.

Fam C 2102(a)(1)

Duty to augment Duty to make immediate, full, and accurate update or augmentation to the extent there have been any material changes.

Fam C 2102(a)(1)

Investment or business opportunity

Duty to disclose investment, business, or income producing opportunity that presents itself after the DOS that is outside the ordinary course of business. Disclosure must provide adequate time for spouse to make an informed decision as to whether to participate and for court to resolve any disputes.

Fam C 2102(a)(2)

Remedies for nondisclosure of opportunity

If a spouse does not make a proper disclosure, the division of any gain resulting from that opportunity shall be governed by Fam C 2556 for an undisposed of asset.

Fam C 2102(a)(2)


CFLR Family Law Bench Blotters • Fiduciary Duties & Disclosures

Page 23 of 90


Disclosure of management & operations

Spouses shall disclose the operation or management of a business or an interest in a business in which community may have an interest.

Fam C 2102(a)(3)

Duty of disclosure ends with agreement or distribution

Once the parties have a valid, enforceable, and binding resolution by order or agreement, the duties of disclosure under Fam C 721 end.

Fam C 2102(b)

End of disclosure duty The duties under Fam C 721 continue until the final determination of CS, SS, or Atty Fees. See Sorge below.

Fam C 2102(c)

Declaration of disclosure

Parties shall serve PDD under Fam C 2104 and FDD under Fam C 2105 unless not required under Fam C 2110.

Fam C 2103

Preliminary declaration of disclosure

Petitioner shall serve PDD within 60 days of filing Petition and file proof of service with court. Perjury in PDD may be grounds to set aside judgment in addition to all other remedies under law. PDD shall include last 2 years tax returns. Respondent shall serve with response or within 60 days of filing response. These times can be extended by agreement or order of court.

Fam C 2104

Requirements for PDD PDD shall identify all assets and obligations including percentage of ownership or liability. It may state characterization of assets or obligations. Party shall serve complete and current I&E with PDD unless one has already been provided and is current and valid.

Fam C 2104(c), Fam C 2104(e)

Amendments to PDD Parties may amend PDD without leave of court. Fam C 2104(d)

Exceptions for service of PDD

If Petitioner serves summons by publication or posting. Fam C 2104(f)

FDD Parties shall serve FDD 45 days before the first assigned trial date or before or at time of agreement for final resolution unless waived by the parties consistent with the provisions of the code.

Fam C 2105

Content of FDD FDD shall disclose all material facts and information concerning characterization and valuation of assets and obligations including income and expenses.

Fam C 2105(b)

Waiver of FDD Parties may knowingly, intelligently, and voluntarily waive FDD so long as they affirm that PDD is current and fully augmented including I&E & SAD and PDD fulfills disclosure required for an FDD.

Fam C 2105(d)

Entry of judgment Absent valid waiver or default cases or service by publication, parties shall serve FDD otherwise judgment shall not be entered.

Fam C 2106

Remedies for failure to serve PDD or FDD

If party fails to serve PDD or FDD (unless not required under Fam C 2110) the complying party may within a reasonable time request preparation of appropriate disclosure. Upon failure to comply, the complying party may file a motion to compel or a motion to preclude a party from presenting evidence on issues that should have been covered in the declaration of disclosure. Complying party can also move court for order waiving the other party’s compliance so the case can move forward.

Fam C 2107


Page 24 of 90


Court’s duty to set aside judgment for noncompliance

T/Ct shall set aside judgment if parties failure to comply with disclosure requirements. Noncompliance is not harmless error. There are limitations on setting aside judgments where a party has waived service by the other party. Judgment shall be set aside only at request of complying party. See Steiner v. Hosseni below on issue of effect of this statute.

Fam C 2107(d)

Service of PDD & FDD In default cases

In the case of a default, petitioner may waive FDD and shall not be required to serve a FDD or receive an FDD. PDD is not required if petitioner served by publication or posting pursuant to court order.

Fam C 2110

Attorney work product privilege preserved

Service of PDD or FDD does not abrogate attorney work product privilege or impede the power of the court to issue protective orders.

Fam C 2111

Public policy Strong public policy to ensure division of CP in dissolution, and fair and sufficient CS and SS awards. Nondisclosure or other misconduct can result in inequitable agreements. Set aside of agreements or judgments may be necessary to advance these public interests while assuring the finality of judgments.

Fam C 2120

Authority to provide relief

T/Ct may set aside all or some part of judgment after 6 months under CCP 473 based on grounds and time limits in Family Code.

Fam C 2121

Set aside for actual fraud: 1 year

One year after date on which complaining party discovered or should have discovered the fraud.

Fam C 2122(a)

Set aside for perjury: 1 year

One year based on perjury in FDD or waiver of FDD or current I&E from date complaining party discovered or should have discovered the perjury.

Fam C 2122(b)

Set aside for duress: 2 years

Action based on duress shall be brought within two years after date of entry of judgment.

Fam C 2122(c)

Set aside for mental incapacity: 2 years

Action based on mental incapacity shall be brought within two years after date of entry of judgment.

Fam C 2122(d)

Mistake of law or fact whether mutual or unilateral: 1 year

Action based on mistake of law or fact, either mutual or unilateral, shall be brought within one year after the date of entry of judgment.

Fam C 2122(e)

Failure to comply with disclosure requirements

Action based on failure to comply with disclosure requirements shall be brought within one year complaining party discovered or should have discovered the failure to comply.

Fam C 2122(f)

Asset division or support is inequitable

An inequitable division of the assets in a stipulated judgment or inadequate support are not a sufficient stand‐alone basis to set aside a judgment.

Fam C 2123

Attorney negligence not imputed to client

The negligence of an attorney shall not be imputed to a client to bar an order setting aside a judgment, unless the court finds that the client knew, or should have known, of the attorney's negligence and unreasonably failed to protect himself or herself.

Fam C 2124

Limitations on set aside

T/Ct should only set aside those portions of the judgment that materially affected the rights of the parties. T/Ct has discretion to set aside entire judgment for equitable reasons.

Fam C 2125

Valuation of assets T/Ct shall apply equitable principles in valuating assets and liabilities in the event of set aside.

Fam C 2126



Page 25 of 90


Statement of decision T/Ct shall issue statement of decision where the court has resolved controverted factual evidence.

Fam C 2127

Scope of application Set asides under these provisions of the Family Code apply to judgments entered on or after 1‐1‐93.

Fam C 2129

Fiduciary Duties & Disclosure Case Law Marriage of or Case Name Fiduciary Duties & Disclosures Principles Year Authority

Appeal

King W’s motion to set aside judgment based on mistake, fraud, or duress was untimely. Her failure to timely appeal was not excused by T/Ct reserving jurisdiction over issues regarding other property matters. Provisions permitting motions to set aside do not extend time for appeal.

2000 80 Cal.App.4th 92

Attorney’s Fees & Sanctions

Davenport T/Ct properly awarded fees as sanction against W for pursuing an unsubstantiated claim of breach of fiduciary duty in pendente lite proceedings.

2011 194 Cal.App.4th 1507

Feldman T/Ct can award sanctions for breach of fiduciary duty under Fam C 2107 and 271 even in an amount that exceeds the amount requested by moving party since purpose under 271 is to deter conduct such as a failure to disclose.

2007 153 Cal.App.4th 1470

Moore T/Ct was obligated to award W fees and should award sanctions where H failed to disclose existence of assets based on mandatory nature of statutory framework.

2014 226 Cal.App.4th 92

Schleich Sanctions may be awarded for nondisclosure of asset under Fam C 2107 and 271 but not under Fam C 1101 if the property is the non‐disclosing party’s SP.

2017 8 Cal.App.5th 267

Tharp T/Ct erred in not awarding fees and sanctions for breach of fiduciary duty in pendente lite proceedings.

2010 188 Cal.App.4th 1295

Breach of Duty

Binette H did not comply with obligation to complete PDD and FDD because he did not attach supporting documentation; any waiver must strictly comply with statutory limitations. Any claimed waiver was inadequate under the statutory scheme.

2018 24 Cal.App.5th 1119

Brewer & Federici

W breached her fiduciary duty by failing to disclose all material facts and information concerning value of her NBC defined contribution and defined benefit pension plans in her declarations of disclosure. An MSA is not an arms‐length transaction like an ordinary business transaction between adversaries. It is the result of negotiations between fiduciaries who are required to openly share information.

2001 93 Cal.App.4th 1334


Page 26 of 90

Marriage of or Case Name Fiduciary Duties & Disclosures Principles Year Authority

In re Cover’s Estate

Confidential relations are presumed to exist between H and W, and, in his dealings with W, if H obtains an advantage over W, he must stand unimpeached of any abuse of the confidence presumptively reposed in him by W and resulting from the marital relation, and, failing in this, he must bear the burden of showing that the transaction was fair and just and fully understood by the party from whom the advantage was obtained.

1922 188 Cal. 133

Feldman Duty to disclose extends to all assets for which spouse has management and control based on duties under Fam C 721 and 1100. H breached his duty by not disclosing complex financial transactions he used to shield his beneficial interest in real estate, his nondisclosure of a loan obligation secured by a bond, and his nondisclosure of a 401k account even if modest in value.

2007 153 Cal.App.4th 1470

Flores v. Arroyo

H’s acquisition and nondisclosure of real property in name of another breached his fiduciary duty to W in negotiating property settlement agreement as it deprived W of an opportunity to protect her rights in the concealed asset.

1961 56 Cal.2d 492

Fossum Prior to separation, W took a cash advance on her credit card of $24,000. She used $13,500 of the advance without permission or knowledge of H to purchase a horse trailer and a car for her son. These transactions by W breached her fiduciary duty to H under Fam C 712(b).

2011 192 Cal.App.4th 336

Jorgensen v. Jorgensen

The concealment of CP assets by the H from W in connection with an MSA is therefore a breach of a fiduciary duty of H that deprives W of an opportunity to protect her rights in the concealed assets and thus warrants equitable relief from a judgment approving such agreement. However under the facts of this case, W had her own duty to investigate and she did not.

1948 32 Cal.2d 13

Hokanson W caused unnecessary delay in consummating court ordered sale of residence. By causing delay she breached her fiduciary duty making her accountable to the CP estate for diminution in value of the property at the time of its eventual sale.

1998 68 Cal.App.4th 987

Kamgar H breaches duty when he invested in stock trades above the amount agreed upon by W without having informed her of the decision to increase the size of the portfolio above the agreed upon amount.

2017 18 Cal.App.5th 136

Burden of Proof

Bono v. Clark Mere absence of an asset does not mean a party disposed of the items in contravention of his fiduciary duties.

2002 103 Cal.App.4th 1409

Ciprari W failed to carry her burden of proof that H had breached his fiduciary duty by depositing CP funds into children’s IRC 529 accounts and funded a life insurance policy for benefit of children. She also failed to demonstrate H breached his fiduciary duty by using SP in making certain investments.

2019 32 Cal.App.5th 83



Page 27 of 90


Margulis H prepared a list of assets postseparation. He had the burden of proof to explain what happened to these assets after separation. In the absence of an adequate explanation as to the disposition of the assets they should be valued and awarded based on the list he prepared.

2011 198 Cal.App.4th 1252

Concealment of Assets or Income

Geraci H’s failure to voluntarily and accurately declare his actual earnings including falsely understating his postseparation income was a breach of fiduciary duty warranting the imposition of a punishment and or sanction against H.

2006 144 Cal.App.4th 1278

Orlando v. Orlando

Where H conceals from W the existence of community assets whether in the course of negotiations for a property settlement agreement or in the course of litigating their claims to CP, such conduct violates his fiduciary duty to account to her for the CP and deprives her of an opportunity to fully present her case.

1966 243 Cal.App.2d 248

Rossi H demonstrated by clear and convincing evidence that W breached her fiduciary duty by failing to disclose lottery winnings. T/Ct did not abuse its discretion in awarding H 100% of the winnings under Fam C 1101(h) based on provisions of CC 3294 based on her conduct of contacting lottery commission as to how to deprive H of his share, using her mother’s address for all communications with commission, and failing to disclose the winnings in the dissolution.

2001 90 Cal.App.4th 34

Sidebotham v. Robison

Concealment of assets by a managing spouse is a breach of fiduciary duty to the other spouse because it deprives the spouse the opportunity to protect her/his rights in the concealed asset.

1954 216 F.2d 816

In re Stanifer H retained lump sum distributions from his IRA as CP that was not divided at time of divorce. His failure to account to W was a breach of his fiduciary obligation rendering his obligation non‐dischargeable in his bankruptcy proceeding.

1999 236 B.R. 709

Compliance with Disclosure Requirements

Brewer & Federici

Stating that a pension had a value of “unknown” when W actually had information showing its value was a breach of her duty to disclose. Even if W did not intentionally mislead H, W was in a superior position to gain access to the information from which valuations for these assets could be determined. The two pension plans were financial assets whose monetary values were easily ascertainable. There was no evidence suggesting it would have been unreasonable for W to obtain current and accurate valuation information about the pension plans, both of which came from her employer. H was entitled to rely upon the information provided to him.

2001 93 Cal.App.4th 1334

Burkle Fam C 2104 & 2105 PDD and FDD requirements do not apply to spouses who negotiate and execute a PMA while a dissolution proceeding is in abeyance, and the spouses are attempting to reconcile rather than contemplating imminent dissolution of marriage.

2006 139 Cal.App.4th 712


Page 28 of 90


Elden v. Superior Court

H & W elected to non‐judicial arbitration proceedings for division of assets including whether they would exchange PDD and FDD. In this setting, the procedural rules established by the arbitration agency govern, not necessarily the CCP. Parties to a dissolution who have agreed to engage in private arbitration of their property issues are entitled to adopt other, more summary procedures for financial disclosure.

1997 53 Cal.App.4th 1497

Fell Noncompliance with FDD or then applicable provisions for waiver of FDD was legal error mandating set aside of MSA.

1997 55 Cal.App.4th 1058

Reuling H had no duty to make disclosures that would violate insider trading SEC regulations where disclosure might subject both parties to civil or criminal liability. State disclosure law was preempted by federal law.

1994 23 Cal.App.4th 1428

Woolsey Where W complied with disclosure requirements, T/Ct properly rejected H’s claim that his noncompliance with the disclosure law precluded entry of the mediated agreement under CCP 664.6 as a binding judgment.

2013 220 Cal.App.4th 881

Constructive Fraud

Brandes H did not commit constructive fraud in his organization of new business entities thus he did not breach his fiduciary duty to W by contributing his community efforts to his separate business. W was plainly not disadvantaged in any way by H’s efforts which produced substantial wealth to which W was entitled to a portion of.

2015 239 Cal.App.4th 1461

Coffin v. Coffin

H’s failure to disclose existence of pension and profit sharing accounts violated his fiduciary duty to W and deprived her of her CP rights and constituted constructive fraud thereby breaching his fiduciary duty under Fam C 721(b).

1976 63 Cal.App.3d 139

Starr v. Starr H’s failure to add W’s name to title to property was a constructive fraud where T/Ct found parties had agreed that W’s name would be added to title after acquisition.

2010 189 Cal.App.4th 277

Vai v. Bank of America

H, in negotiating property settlement agreement, failed to disclose fully and fairly material facts as to value of CP, from which H gained an advantage, constituted breach of his fiduciary duty and constructive fraud which entitled W to rescind agreement after death of H.

1961 56 Cal.2d 329

Duty to Account

Falk v. Falk Where H has control of CP funds and without consent invests a portion into his SP he is bound to account to the CP estate for such misappropriation

1941 48 Cal.App.2d 762

Jones v. Kauffmann

Substantial evidence supported T/Ct finding that H had fully disclosed all the assets of the marriage and there was no fraudulent concealment.

1968 264 Cal.App.2d 857

Williams v. Williams

Here court was not concerned with disposition of CP many years prior to a divorce action. Where $110K was in existence shortly before separation, H had a duty to account for the use of these funds.

1971 14 Cal.App.3d 560



Page 29 of 90


Exclusivity of Remedies

Burkle v. Burkle

W’s action against H and his accountants was dismissed, including claims for intentional infliction of emotional distress. W’s exclusive remedy was in the family court to set aside the agreement (she did not prevail on that claim either).

2006 144 Cal.App.4th 387

d’Elia v. d’Elia W’s action under state securities fraud law was inappropriate given exclusivity of remedies under the Family Code. Here, parties divided the stock by agreement and W has no action based on state securities fraud laws.

1997 58 Cal.App.4th 415

Kuehn v. Kuehn

Family Code establishes exclusive remedies for nondisclosure by a spouse and precludes an independent action for fraud or conversion. W’s remedies were in the family court not a civil action.

2000 85 Cal.App.4th 824

Rubenstein v. Rubenstein

In general, Family Code establishes exclusive remedies for spouses to attack unfair agreements or division of assets. W’s separate civil action is permitted to proceed despite this general rule.

2000 81 Cal.App.4th 1131

Grounds for Set Aside

Varner W submitted a psychological evaluation indicating that she had an IQ of 75. The report went on to state that “On the surface, the behavior of this woman is characterized by submissiveness, dependency, and the seeking of affection, attention, and security. A fear of abandonment often compels her to be overly compliant and obliging. She may be quite naive about interpersonal matters.” H breached his duty to disclose material facts and information concerning their financial affairs.

1997 55 Cal.App.4th 128

Harmless Error Standard Precludes Set Aside

Jones H failed to serve PDD but W failed to appear at contested trial and did not show how she was prejudiced. Unlike in Varner, W here did not present evidence to show how she would benefit by reversal.

1998 60 Cal.App.4th 685

Inequitable Agreement Alone is Not Sufficient to Set Aside

Heggie If a set‐aside motion is supported only by an imbalance in the division of CP, the T/Ct cannot grant the motion. Minor delay in effectuating transfer of IRA accounts and market run up in value of stock were not a sufficient basis to justify a set aside.

2002 99 Cal.App.4th 28

Rosevear W claimed mistake, duress, and undue influence but the record showed that she had adequate opportunity to protect her interests and sufficient access to information so that T/Ct did not abuse discretion in refusing to set aside agreement.

1998 65 Cal.App.4th 673


Page 30 of 90


Limitations of Actions & Laches

Bono v. Clark In W’s action against H’s estate for declaratory relief and conversion, doctrine of laches did not preclude W from pursuing her claims because any delay on her part did not operate to disadvantage or cause detriment of the estate. Estate failed to show how death of H prejudiced estate’s ability to defend W’s action. Existence of mutual restraining orders did not toll W’s claim for conversion of missing tangible personal SP.

2002 103 Cal.App.4th 1409

Coffin v. Coffin

W’s delay in bringing motion to set aside MSA for four months until after the parties eldest son’s marriage did not constitute unreasonable delay. Moreover, H showed no prejudice to his rights.

1976 63 Cal.App.3d 139

Georgiou & Leslie

Limitations period of 1 year under Fam C 2122(f) precluded W’s action for breach of fiduciary duty under Fam C 1101. W’s claim of mental incapacity under Fam C 2122(d) was untimely and not brought within 2 years. Claim under Fam C 2122(e) was not viable because more than 1 year had lapsed. Claim under Fam C 1101 was time barred under the 3 year statute.

2013 218 Cal.App.4th 561

King W’s motion to set aside judgment based on mistake, fraud, or duress was untimely. Her failure to timely appeal was not excused by T/Ct reserving jurisdiction over issues regarding other property matters. Provisions permitting motions to set aside do not extend time for appeal.

2000 80 Cal.App.4th 92

Patrick v. Alacer

No limitations period applies to claims brought pursuant to Fam C 1101(b), except for laches, when the marriage ends through litigation or death. Subdivision (d)(1) sets forth a three‐year limitations period for claims arising under subdivision (a). But the Legislature made no effort in subdivision (d)(2) to set forth a corresponding limitations period for claims arising under subdivision (b). The Legislature set forth a limitations period and immediately clarified that period's own limit.

2011 201 Cal.App.4th 1326

Sorge Fiduciary disclosure duties end when final judgment dividing assets or fixing support is entered. In general, there is no postjudgment duty to make disclosure if the assets are divided and support is fixed.

2012 202 Cal.App.4th 626

Misappropriation of Assets

Czapar Substantial evidence supported T/Ct order that H reimburse CP estate for use of business to pay personal expenditures including charitable contribution to his alma mater, payment of a salary to his GF, and purchase of Porsche automobile.

1991 232 Cal.App.3d 1308

Fields v. Michael

H (W.C. Fields) allegedly misappropriated $482K in assets by making various gifts without W’s knowledge or consent. W permitted to prosecute an action against H’s estate to recover her share of the community he had gifted in breach of his fiduciary duty.

1949 91 Cal.App.2d 443



Page 31 of 90


Lam v. Lam Debtor breached his fiduciary duty by using CP to pay his CS obligation from a prior marriage when he had SP available to pay the obligation. H’s conduct was based on H’s breach of Fam C 915(b) to use his available SP. This conversion debt was not dischargeable in H’s bankruptcy.

2007 364 B.R. 379

Not a Breach of Fiduciary Duty

Geraci Where H registered a fictitious name statement declaring the existence of a general partnership between H & W when in fact no such entity existed, this was not a breach of fiduciary duty. Simply put, if there was no partnership, there cannot be a breach of duty for failing to disclose something that doesn’t exist.

2006 144 Cal.App.4th 1278

Hixson H did not breach fiduciary duty to former spouse by failing to disclose his investments after the division of the assets between the parties. T/Ct properly quashed discovery on W’s Fam C 2556 motion for missed assets.

2003 111 Cal.App.4th 1116

Leni W was unwilling to allow H to purchase her interest in family residence. Her reluctance to allow him to buy her interest was not a breach of fiduciary duty despite her earlier willingness to sell the property to a third party at the same price.

2006 144 Cal.App.4th 1087

Mathews H did not breach his fiduciary duty to W where he fully disclosed the transaction and W was fully informed despite her claimed lack of understanding of English. T/Ct found she was not credible on this issue and H adequately rebutted presumption of undue influence.

2005 133 Cal.App.4th 624

Walker W did not breach fiduciary duty to H when she used his SP IRA funds to pay CP expenses where she did not use the funds only to her advantage for some clandestine self‐indulgent behavior. Instead, she used the money for community purposes such as trips, taxes, and household expenses.

2006 138 Cal.App.4th 1408

Remedies for Breach of Duty

Kahn T/Ct improperly awarded W $275K for breach of fiduciary duty in default proceedings where her petition did not specify the amount she sought for any breach.

2013 215 Cal.App.4th 1113

Kamgar Date of breach is date breach occurred rather than period over which highest value of assets was required to be determined.

2017 18 Cal.App.5th 136

Simmons T/Ct improperly awarded W 100% of H’s SP savings account as a remedy for his failure to disclose the asset. T/Ct can sanction H for nondisclosure but cannot award W the SP account as a remedy.

2013 215 Cal.App.4th 584

Retroactivity of Fiduciary Duty Law

Reuling For transactions before 1/1/91, the standard was good faith. Legislature did not make remedies for breach of fiduciary duty retroactive through a clear statement that would affect rights, obligations, acts, transactions, and conditions performed or existing prior to adoption of statute that substantially changes the legal effect of those past events.

1994 23 Cal.App.4th 1428


Page 32 of 90


Walker T/Ct improperly retroactively imposed upon W an affirmative obligation to make disclosure based on modifications to Family Code. Such a retroactive application of such a duty violates due process.

2006 138 Cal.App.4th 1408

Service of Declarations of Disclosure

Binette H did not comply with obligation to complete PDD and FDD because he did not attach supporting documentation; any waiver must strictly comply with statutory limitations. Any claimed waiver was inadequate under the statutory scheme.

2018 24 Cal.App.5th 1119

Burkle Waiver of service of PDD or FDD must be in strict compliance with terms of the statutes.

2006 139 Cal.App.4th 712

Evans Parties’ MSA was not subject to attack where they mediated agreement and signed it before filing of petition for dissolution. The disclosure requirements only become effective when an action is pending, albeit parties still have fiduciary duties while negotiating postnuptial agreement after separation.

2014 229 Cal.App.4th 374

Fell Parties did not properly waive FDD so that entry of judgment was a mistake of law warranting set aside of agreement where evidence showed parties were possessed of a substantial estate.

1997 55 Cal.App.4th 1058

McLaughlin W’s request to set aside judgment was properly denied by T/Ct since W failed to show that she would materially benefit from set aside. Any error by the T/Ct was harmless error. Note: amendments to Fam C 2107 erode this holding.

2000 82 Cal.App.4th 327

Steiner & Hosseini

2001 Amendments to disclosure requirements (post McLaughlin) do not defeat the requirement that there be a showing of a miscarriage of justice under Calif. Constitution article VI, section 13. The Calif. Constitution trumps any conflicting provision of the Family Code.

2004 117 Cal.App.4th 519

Undue Influence

Balcof W who benefited by transmutation agreement shouldered the burden concerning presumption of undue influence. The evidence shows W committed DV against H. W threatened to divorce H, threatened H that she would obstruct his relationship with the children screamed threats haranguing and berating H. W dictated the terms of the document to H which he wrote word for word and he signed it right then and there.

2006 141 Cal.App.4th 1509

Brooks & Robinson

In this third party transaction, the provisions of Ev C 662 presumption that a party can only overcome the presumption of title by clear and convincing evidence applies notwithstanding case law imposing a presumption of undue influence as between H & W. The purpose of Ev C 662 is to protect the legal title owner from unfounded challenges to his/her beneficial title.

2008 169 Cal.App.4th 176

In re Cover’s Estate

There is a presumption of undue influence whenever a spouse obtains an undue advantage over his/her spouse so that the advantaged spouse bears the burden of showing the transaction was fair and just and fully understood by the party from whom the advantage was obtained.

1922 188 Cal. 133



Page 33 of 90


Delaney W, who had background as a paralegal specializing in probate, convinced H, who has a learning disability severely limiting his reading comprehension, to transfer his SP residence into joint name incident to a loan to remodel the residence. The presumption of undue influence applies to this transaction rather than Ev C 662.

2003 111 Cal.App.4th 991

Haines W quitclaimed her interest in the residence to H after a series of arguments which included acts of DV. The common law presumption in favor of title under Ev C 662, and its concomitant requirement of clear and convincing evidence to rebut the presumption, does not properly apply in family law proceedings because a husband and wife occupy a confidential relationship in their transactions with each other. Ev C 662 presumption of title must yield to a presumption of undue influence that is imposed upon a spouse who benefits from a transaction.

1995 33 Cal.App.4th 277

Lange W obtained a note secured by deed of trust from H to secure her Fam C 2640 reimbursement claims in an amount that would exceed her rights under the statute. In obtaining this advantage and benefit from the transaction, the presumption of undue influence applies and W did not dispel the presumption.

2002 102 Cal.App.4th 360

Lund H’s signature on transmutation agreement rebutted any presumption of undue influence that W was required to shoulder since there was no substantial evidence that H did not understand the document he signed.

2009 174 Cal.App.4th 40

Valuation of Assets

Brewer & Federici

Stating that a pension had a value of “unknown” when W actually had information showing the value of the plan was a breach of her duty to disclose. Even if W did not intentionally mislead H, W was in a superior position to gain access to the information from which valuations for these assets could be determined. The two pension plans were financial assets whose monetary values were easily ascertainable. There was no evidence suggesting it would have been unreasonable for W to obtain current and accurate valuation information about the pension plans, both of which came from her employer. H was entitled to rely upon the information provided to him.

2001 93 Cal.App.4th 1334

McTiernan & Dubrow

H sold stocks in violation of ATROs without W’s consent and violated H’s fiduciary duty. T/Ct properly valued stock at value during portion of trial rather than at time of sale

2005 133 Cal.App.4th 1090


Page 34 of 90

MMeeddiiaattiioonn CCoonnffiiddeennttiiaalliittyy ((RReevv.. 11//11//22002200))

Statutory Provisions Subject Mediation Confidentiality Principles Authority

Mediation A neutral person or persons facilitate communication to assist in reaching mutually acceptable agreement.

Ev C 1115(a)

Mediator Broadly defined to include the neutral person or anyone assisting in the mediation.

Ev C 1115(b)

Consultation Zone of consultation includes initiating, considering, or reconvening mediation or retaining mediator.

Ev C 1115(c)

Settlement offers Offers of settlement under Ev C 1152 remain inadmissible even if parties mediate case.

Ev C 1116(b)

Misc. & family court services exempted

Court imposed MSC under CRC Rule 3.1380 or Family Court Services Mediation under Fam C 3160 in non‐confidentiality counties are not protected as a form of mediation.

Ev C 1117

Oral agreements limited protection

Oral agreement is (a) recorded by reporter or audio recording; (b) terms recited in presence of parties and mediator with parties’ affirmation; (c) oral agreement states that it is enforceable or binding or words to that effect; and (d) recording is reduced to writing and signed by parties within 72 hours of recording.

Ev C 1118

Communications protected

Evidence of things said or admissions made for the purpose of, in the course of, or pursuant to mediation is not admissible or subject to discovery.

Ev C 1119(a)

Writings protected Writings prepared for purposes of, in course of, or pursuant to mediation are not admissible or subject to discovery.

Ev C 1119(b)

Negotiations & discussions protected

Communications, negotiations, or settlement discussions by and between participants in course of mediation are confidential.

Ev C 1119(c)

Disclosure documents Preliminary and Final Declarations and related documents are not protected by mediation confidentiality even if prepared for the purpose of, in the course of, or pursuant to a mediation consultation.

Ev C 1120

Otherwise admissible evidence is allowed

If evidence is otherwise admissible, it is not made inadmissible or protected from disclosure solely by reason of its introduction or use in mediation.

Ev C 1120(a)

Examples of admissible evidence

Mediation agreements are admissible (b)(1). Agreements not to take default or take other action are admissible (b)(2). Disclosure of fact a mediator has served is admissible (b)(3).

Ev C 1120(b)

No mediator reports except as otherwise provided by law

No mediation or other reports submitted to court except as otherwise provided by law absent an express written agreement of all parties to the mediation or orally consistent with Ev C 1118.

Ev C 1121

Mediation Confidentiality


Page 35 of 90

Subject Mediation Confidentiality Principles Authority

Conditions for admissibility of communications or writings

Protected communications or writings may be admissible if all parties expressly agree in writing or orally consistent with Ev C 1118 and the writing or communication does not disclose anything said or done or any admission made during mediation. If mediator signs off, it binds other persons described in Ev C 1115.

Ev C 1122

Admissibility of written agreements

So long as written settlement agreement provides it is admissible or subject to disclosure or words to that effect, and that the agreement is enforceable and binding, it is admissible. Agreements may also be used to show fraud, duress, or illegality if that is relevant under section (d).

Ev C 1123

Admissibility of oral agreements

Oral agreements in compliance with Ev C 1118 are admissible unless otherwise excluded; Agreements in compliance with Ev C 1118(a), (b), (d) are admissible unless otherwise excluded if parties agree in writing or orally to disclosure or if such agreements meet these requirements and the agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

Ev C 1124

End of mediation Mediation ends when parties execute a written agreement or an oral agreement in compliance with Ev C 1118, or mediator provides participants a signed writing that the mediation is terminated or words to that effect, or a party provides such a document, or for 10 calendar days there is no communication between the mediator and any of the parties relating to the dispute. This time can be shortened or extended by agreement. For purposes of confidentiality, mediation ends when parties have a signed agreement that partially resolves the dispute or an oral agreement in compliance with Ev C 1118. Parties are not precluded from ending a mediation without reaching an agreement.

Ev C 1125

Protections before and after mediation ends

Anything said, any admission made, or any writing that is inadmissible, protected from disclosure, and confidential before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.

Ev C 1126

Attorney’s fees & costs

If subpoenaed or otherwise sought to testify or produce documents, mediators are entitled to an award of reasonable attorney’s fees and costs against the person seeking the mediator’s testimony or any writing.

Ev C 1127

Subsequent trial’s reference to mediation

Reference to mediation during any subsequent trial is an irregularity in the proceedings for purposes of grant of new trial under CCP 657. Reference to mediation in noncriminal proceeding is grounds for vacating or modifying the decision.

Ev C 1128

Mediation Counsel Duty to Advise

Counsel in mediation cases must give disclosure to client about how mediation confidentiality may adversely affect his/her rights. Creates form for informed consent about mediation which must be signed before mediation.

Ev C 1129


CFLR Family Law Bench Blotters • Mediation Confidentiality

Page 36 of 90

Case Law Subject Mediation Confidentiality Principles Year Authority

Rinaker v. Superior Court

Juvenile defendants were entitled to examine mediator in criminal delinquency proceedings to assure due process protection. However in such limited settings T/Ct should conduct in camera review of materials and weigh constitutional considerations and mediation confidentiality concerns.

1998 62 Cal.App.4th 155

Olam v. Congress Mortgage Company

Mediators hold an independent privilege not to testify under Ev C 703.5 and 1119.

1999 68 F.Supp.2d 1110

Foxgate Homeowners v. Bramalea Calif., Inc.

Courts are not at liberty to construct exceptions to the broad provisions of mediation confidentiality. Mediator reports to the court are strictly prohibited under Ev C 1119 and 1121.

2001 26 Cal.4th 1

Eisendrath v. Superior Court

Communications between parties outside of mediator’s presence are protected under mediation confidentiality provided they are materially related to the mediation.

2003 109 Cal.App.4th 351

Rojas v. Superior Court

Photographs, videos, witness statements (with exception for physical objects) or test results exchanged in mediation are not admissible or subject to discovery if the writing was prepared for the purpose of the mediation, in the course of, or pursuant to the mediation. These phrases should be broadly construed to protect confidentiality.

2004 33 Cal.4th 407

Saeta v. Superior Court

Retired judge who participated in three member termination review board panel was not a participant in a mediation so as to protect him from sitting for his deposition.

2004 117 Cal.App.4th 261

Travelers Casualty v. Superior Court

Settlement exceeded bounds of mediation confidentiality by issuing order where he had no authority or making factual findings or determinations outside the scope of his role as settlement judge absent a signed agreement of all the parties consenting to the filing of such a report.

2005 126 Cal.App.4th 1131

Doe 1 v. Superior Court

Church may disclose personnel information about former priests derived from an independent source without violating mediation confidentiality.

2005 132 Cal.App.4th 1160

Stewart v. Preston Pipeline, Inc.

Parties’ agreement waived mediation confidentiality for the purpose of Ev C 1123 and stated agreement was enforceable under CCP 664.6.

2005 134 Cal.App.4th 1565

Fair v. Bakhtiari A signed mediation agreement may be admissible but a term sheet for a future agreement does not satisfy the requirements for admissibility.

2006 40 Cal.4th 189

Kieturakis, Marriage of

Mediation confidentiality precluded W from proof that she was induced to sign agreement as a result of undue influence during the mediation.

2006 138 Cal.App.4th 56

Wimsatt v. Superior Court

Mediation briefs, emails from firm, statements between parties and counsel, are protected by confidentiality even to the detriment of a subsequent claim against prior counsel for claimed malpractice.

2007 152 Cal.App.4th 137


Page 37 of 90

Subject Mediation Confidentiality Principles Year Authority

Simmons v. Ghaderi Doctrine of judicial estoppel cannot be used to create a judicial exception to the comprehensive statutory scheme of mediation confidentiality. Oral settlement agreements must strictly comply with the requirements of Ev C 1118

2008 44 Cal.4th 570

Rael v. Davis Unsigned proposed mediation agreement was protected from disclosure despite purported claim that provisions were severable and separately enforceable. This extends to any contract based fee claim since the contract was not admissible under Ev C 1115.

2008 166 Cal.App.4th 1608

Thottam, Estate of Mediator and parties signed a mediation and facilitation confidentiality agreement with an exception for enforcement of any agreement reached in mediation. Parties created a spreadsheet listing various real estate and assets with provisions on who would be allocated the asset. The spreadsheet was initialed by all the beneficiaries. While the chart was not a model of clarity, it provided sufficient information about allocation of assets to indicate the intended obligations of the parties.

2008 165 Cal.App.4th 1331

Continental Cas. Co. v. St. Paul Surplus Lines Ins. Co.

Where a person or entity does not participate in the mediation but is possessed of materials exchanged in mediation, confidentiality does not shield the information from disclosure.

2010 265 F.R.D. 510

Radford v. Shehorn In motion to enforce under CCP 664.6, T/Ct’s error in admitting mediator’s declaration into evidence was harmless. Atty’s declaration stating that the agreement consisted of two pages did not report or reveal communication. It was non‐communicative conduct.

2010 187 Cal.App.4th 852

Ellerbee v. County of Los Angeles

T/Ct properly imposed sanctions against County and other defendants for failure to participate in court ordered mediation. Sanctions award did not require disclosure of communications during mediation but solely called for evidence showing failure to attend the mediation.

2010 187 Cal.App.4th 1206

Cassel v. Superior Court

Confidentiality extends to all communications between attorneys and client related to mediation including private communications away from other mediation participants.

2011 51 Cal.4th 113

Provost v. Regents Evidence of claimed coercion or duress based on threat to initiate criminal complaint was not independent conduct subject to exception for mediation confidentiality but was communication as part of the mediation and barred from disclosure so that T/Ct properly granted CCP 664.6 motion.

2011 201 Cal.App.4th 1289

Facebook v. Pacific Northwest Software, Inc.

Federal court construes mediation confidentiality. Parties executed a nondisclosure confidentiality agreement that statements made during mediation were privileged, not discoverable, and inadmissible in any proceeding. This nondisclosure agreement is enforceable even if it precludes an action for securities violation under Rule 10b‐5.

2011 640 F. 3d 1034


CFLR Family Law Bench Blotters • Mediation Confidentiality

Page 38 of 90

Subject Mediation Confidentiality Principles Year Authority

Blix Street Records, Inc. v. Cassidy

Vagueness of a term sheet by failing to include certain terms did not render the underlying agreement unenforceable under CCP 664.6

2011 191 Cal.App.4th 39

Kurtin v. Elieff Claimed ambiguity in settlement agreement does not create an exception under mediation confidentiality. T/Ct properly disallowed evidence of what took place in mediation to clarify ambiguity.

2013 215 Cal.App.4th 455

Woolsey, Marriage of Mediation confidentiality precluded H’s claim of undue influence based on conduct during mediation.

2013 220 Cal.App.4th 881

Lappe v. Superior Court

Mediation confidentiality must be broadly construed in the absence of a countervailing statutory framework that implicates due process or where literal construction would produce absurd results.

2014 232 Cal.App.4th 774

Daly & Oyster, Marriage of

T/Ct properly granted CCP 664.6 motion for entry of stipulated agreement reached in first dissolution action even though judgment was entered in a subsequent proceeding initiated shortly after dismissal of the first action.

2014 228 Cal.App.4th 505

Optional Capital, Inc. v. DAS Corp.

Where a party’s acts or statements are not based upon statements made in a mediation setting, those acts or statements are not protected by mediation confidentiality.

2014 222 Cal.App.4th 1388

Amis v. Greenberg Traurig, LLP

Claims that defendant’s atty in malpractice action induced plaintiff to settle claims in underlying litigation based on communications during mediation were shielded from disclosure in subsequent action. Mediation confidentiality prohibits plaintiff from asking jury to infer what advice was given during mediation because this would turn confidentiality into a sword. Shielding lawyers may be an untended consequence of mediation confidentiality.

2015 235 Cal.App.4th 331

Yoshida’s Inc. v. Dunn Carney, et al. LLC

Secondary Authority: Oregon: T/Ct erroneously admitted evidence of confidential mediation communications in malpractice action against atty including emails between plaintiff and its employees and defendant about whether they should share information during mediation.

2015 272 Or.App. 436


Page 39 of 90

SSttaatteemmeenntt ooff DDeecciissiioonn ((RReevv.. 11//11//2200))

General Principles SUBJECT STATEMENT OF DECISION PRINCIPLE AUTHORITY

Tentative decision

Announce orally, entered in minutes, or in writing filed with clerk; served by clerk immediately.

CRC Rule 3.1590(a)

Consider Maxim: If it doesn't write it isn't right

Tentative decision not automatically an order or judgment. CRC Rule 3.1590(b)

Court may change tentative decision; clerk must serve

May declare tentative decision as statement of decision. CRC Rule 3.1590(c)

Parties have right to propose alternate statement of decision if requested within 10 days.

CRC Rule 3.1590(c)

Statement of decision

Any party may request; if matter less than 8 hours request before submitted. CRC Rule 3.1590(d) & (n)

Any affected party may file & serve objections to proposed statement of decision.

CRC Rule 3.1590(g)

Proposed statement of decision and proposed judgment must be prepared and served within 30 days if prepared by Court; Party that has been ordered to prepare has 30 days from announcement.

CRC Rule 3.1590(f)

Within 10 days of announcement or service of tentative decision, any party may make proposals as to SOD.

CRC Rule 3.1590(d)

If alternate proposals are made under (d), other party may make alternate proposals within 10 days.

CRC Rule 3.1590(e)

Settled statement not a substitute

A settled statement is not a substitute for a statement of decision. A settled statement may be only a condensed narrative of the oral proceedings without capturing the judge’s complete analysis of an issue of law or fact leaving appellant subject to the doctrine of implied findings.

A.G. v. C.S. (2016) 246 Cal.App.4th 1269

Objections to statement of decision

Within 15 days after proposed statement of decision and judgment are served, any affected party may file objections to proposed statement of decision or judgment.

Best Practice: Provide a hard copy & electronic version

Remember this is your statement of decision & method to communicate to Ct. of Appeal

Failure to object to SOD does not forfeit objections at time of appeal

CRC Rule 3.1590(g) Marriage of G.C. and R.W. (2018) 23 Cal.App.5th 1

Hearing on statement of decision

Court may order hearing on proposed statement of decision to resolve objections.

CRC Rule 3.1590(k)

Authority to extend time or excuse lateness

Court may extend times prescribed by CRC Rule 3.1590 by written order any time before entry of judgment or excuse noncompliance on terms as may be just.

CRC Rule 3.1590(m)

Statement of Decision


Page 40 of 90

SUBJECT STATEMENT OF DECISION PRINCIPLE AUTHORITY

Preparation and entry of judgment

Court must prepare and serve proposed judgment or assign to a party within 10 days if statement of decision is deemed waived.

CRC Rule 3.1590(i)

Objecting party may serve & file objections within 10 days. CRC Rule 3.1590(j)

Court must sign and file judgment within 50 days or may set hearing on objections but must sign judgment 10 days after hearing.

CRC Rule 3.1590(k) & (l)

Other Family Law Principles SUBJECT STATEMENT OF DECISION PRINCIPLE AUTHORITY

Child custody Any party may request. Fam C 3022.3

State reasons for award of sole custody or joint custody if award is made to parent accused of child abuse or substance abuse.

Fam C 3011(e)(1)

Statement of reasons for grant or denial of joint custody must state reasons beyond ultimate fact that award is not in best interest.

Fam C 3082 and 3087

State only ultimate fact that award to parent is detrimental if making award of custody to nonparent.

Fam C 3041(a)

Findings regarding testimony of minor child. Fam C 3042, CRC Rule 5.250

Findings regarding domestic violence. Fam C 3044 Ellis v. Lyons (2016) 2 Cal.App.5th 404

Risk of abduction factors findings; see also Hague Convention. Fam C 3048

Best Practice: In relocation case make all Marriage of LaMusga findings. Marriage of LaMusga (2004) 32 Cal.4th 1072

Custody or unsupervised visitation with sex offender. Fam C 3030

Custody & visitation consistent with restraining order. Fam C 3031

Fees & costs in custody proceeding. Fam C 3121(b)

Co‐parent counseling based on best interest and risk of harm to C. Fam C 3190(d)

Special fee provisions in custody proceedings. Fam C 3121(d)

T/Ct must make requisite and specific findings under Fam C 3044 beyond merely stating order is in best interest of the child.

Jaime G. v. H.L. (2018) 25 Cal.App.5th 794

Domestic violence

Emergency protective orders. Fam C 6251

Attorney’s fees. Fam C 6344

Mutual restraining orders. Fam C 6305

Denial of restraining order requires statement of reasons for denial. Fam C 6340(b)


CFLR Family Law Bench Blotters • Statement of Decision

Page 41 of 90


Court must make finding on which party was primary aggressor in dueling DVRO proceedings heard simultaneously.

Jaime G. v. H.L. (2018) 25 Cal.App.5th 794

Child support State reason for denial of retroactive modification of support. Fam C 3653(b)

Statement of findings required if requested when making support order. Fam C 4005

Statement of decision required if requested when modifying, terminating, or setting aside support order.

Fam C 3654

Must state reasons for deviating from guideline. Fam C 4056

State reasons for hardship deduction. Fam C 4072

State grounds for deviating from guideline child support in high earner case. S.P. v. F.G. (2016) 4 Cal.App.5th 921

T/Ct must state why it believed below guideline amount was in C’s best interest.

Y.R. v. A.F. (2017) 9 Cal.App.5th 974

Spousal support

Make findings on all spousal support factors even if no evidence. Fam C 4320

Marital standard of living factor. Fam C 4332

State factual basis for any step down order. Marriage of Richmond (1980) 105 Cal.App.3d 352

T/Ct’s failure to issue findings under Fam C 4320 was reversible error. Marriage of Shimkus (2016) 244 Cal.App.4th 1262

Attorney’s fees

Court shall make findings on whether award of attorney fees and costs is appropriate based on access to funds and ability to pay. If the court finds access and ability, then an award of fees is mandatory.

Fam C 2030 Marriage of Morton (2018) 27 Cal.App.5th 1025

Court shall rule on application of temporary fee order within 15 days. Fam C 2031

Can use community property to pay reasonable attorney’s fees. Fam C 2040(a)(2)

Contempt Contempt trials. CCP 1209

Paternity Rebuttal to the presumption of paternity. Fam C 7555

Determination of paternity. Fam C 7554

Attorney’s fees. Fam C 7605

Motion to vacate or set aside judgment of paternity. Fam C 7647

Procedure No requirement for written SOD following oral statement of decision. Marriage of Furie (2017) 16 Cal.App.5th 816

Good cause needed to refuse live hearing. Fam C 217

Modify or set aside order re joined retirement plan. Fam C 2074


Page 42 of 90


Orders setting aside judgments. Fam C 2121 and 2127

Statement of decision in manner required in civil cases. Fam C 2338

Special findings for military parents & modification of support. Fam C 3651

Findings for retroactive modification due to deployment. Fam C 3653(c)

If issue is properly raised during trial, no requirement to reassert claim in objection to SOD to preserve issue on appeal.

Marriage of G.C. and R.W. (2018) 23 Cal.App.5th 1

Warning T/Ct’s failure to issue SOD is no longer reversible error per se; you must show a miscarriage of justice.

F.P. v. Monier (2017) 3 Cal.5th 1099


Page 43 of 90

DDVVPPAA CCaasseess aanndd PPrriinncciipplleess ((RReevv.. 11//11//2200))

Marriage of or Case / Code Section DVPA Key Principles Citation

Opinion Year

QUALIFYING RELATIONSHIP

Fam C 6205 et seq.

Second degree of consanguinity, cohabitant, dating relationship, spouse, parents of child together.

Fam C 6229 Child under 12 may seek order through GAL.

Fam C 6320 Protected persons can include family or household members and pets.

C.Q., In re Teenage daughters represented by minor’s counsel in dependency proceeding had standing to object to being named as protected persons where evidence showed children were not in fear of or harmed by Dad. No dispute that Mom was entitled to an order for protection.

219 Cal.App.4th 355 2013

Hauck v. Riehl Stepparent not in qualifying relationship with Father. 224 Cal.App.4th 695 2014

O’Kane v. Irvine Tenants who sublet different rooms in a house that share common areas are not members of the same household for purposes of DVPA. May seek civil harassment protection.

47 Cal.App.4th 207 1996

Phillips v. Campbell

Past dating relationship is a question of fact for trial court under Fam C 6210 and will not be disturbed on appeal.

2 Cal.App.5th 844 2016

PROCEDURES

Fam C 242 Hearing shall be set within 21 days unless extended for good cause up to 25 days.

Fam C 245 Either party may request continuance of DVPA. Moving party upon showing of good cause; responding party has 1 continuance as matter of right. T/Ct may continue hearing with orders in full force and effect or for good cause order may be modified. Procedure calls for new application not a reissuance.

Ev C 756, Fam C 6221

Court is obliged to provide interpreter services for non‐English speakers in DVPA proceedings.

Fam C 6227, Lugo v. Corona

DVPA remedies are in addition to any other civil or criminal remedies available. Issuance of a CPO does not preclude issuance of a DVRO. See PC 136.2; Babalola v. Superior Court (2011) 192 Cal.App.4th 948

35 Cal.App.5th 865 2019

Fam C 6228 Parties are entitled to incident reports from law enforcement.

Fam C 6240 et seq.

Emergency Protective Orders (EPO) issued by law enforcement after judicial review.

Fam C 6303 Right to have support person at counsel table when party is not represented by an attorney.

DVPA Cases and Principles


Page 44 of 90


Opinion Year

Fam C 6304 Court obligation to advise of terms of order including firearm limitations.

Fam C 6305 All requests for mutual DVPA orders must be made in a separate application not just a responsive declaration.

Fam C 6306 Criminal records search required absent undue administrative burden to determine prior criminal records.

Fam C 6320.5 Court must state grounds for denial of ex parte application for order.

Fam C 6326 Ex parte orders shall be issued or denied on day of application unless filed too late in the day for effective review.

Fam C 6345 Orders for as long as 5 years; and on renewal either 5 years or permanent.

Fam C 6360 DVPA order may be incorporated into other family law proceeding judgments.

Fam C 6380 Whenever order is issued court shall transmit order to CLETS system. DVPA orders in CLETS system shall be on JC forms. Non‐CLETS restraining orders are expressly forbidden. All orders of protection must be entered into the CLETS system.

SB 1089, Section 1 (Stats 2018, Ch. 89)

2018

Fam C 6381 Orders entered into CLETS are self‐authenticating, documentary evidence of the order.

Fam C 6323 Criminal protective orders trump DVPA orders. Many counties allow family court to order visitation with a child of the parties. If child is the victim, must apply to criminal court for permission to visit.

Fam C 6388 Willful violation of DVPA order punishable under PC 273.6.

Hogue v. Hogue H’s conduct of sending mock suicide video via internet from Georgia to former W in CA is the type of exceptional conduct vesting CA with personal jurisdiction over H because the DVPA is a form of special regulation designed to protect victims.

16 Cal.App.5th 833 2017

Isidora M. v. Silvino M.

T/Ct may issue mutual order of protection only if both parties request relief. Fact that W had CPO issued against her was not basis for DVPA order against her when H never requested it.

239 Cal.App.4th 11 2015

Lin If there is no service of the DV‐130 order after hearing, time for appeal is 180 days after entry.

225 Cal.App.4th 471 2014

GROUNDS FOR DVPA ORDER

Fam C 6203 To cause reasonable apprehension of physical harm or engage in conduct that can be restrained. No requirement of physical injury or assault.

Fam C 6250 Past acts of abuse may be grounds for seeking protection.


CFLR Family Law Bench Blotters • DVPA Cases and Principles

Page 45 of 90


Opinion Year

Fam C 6301(c) Length of time since most recent act is not by itself determinative. Court shall consider totality of circumstances to determine whether relief will be granted or denied.

Fam C 6320 Physical acts, destruction of property, harassing statements, annoying phone calls, disturbing the peace. Credibly impersonating or falsely impersonating another person is grounds for order of protection since impersonating is punishable under PC 528.5.

Fam C 6321 Residence exclusion permitted if colorable right of law to possess, excluded person caused harm or threatened harm to party or person under care, physical harm or emotional harm would occur to party or person under care.

Fam C 6322.7 Court may issue order prohibiting enjoined person from seeking protected person’s address or whereabouts.

Fam C 6340(b) If court denies order for protection, court must briefly state reasons for decision to deny requested order. The statement of reason for denial must be in writing, or on the record. Simply stating “denied” is not sufficient.

A.G. v. C.S. M failed to provide specific evidence to support her request for order for protection despite numerous requests by trial court. The court found M was not credible; and no evidence sufficient to support her request. The court also issued detailed findings on the issue of M’s failure to show proof of domestic violence.

246 Cal.App.4th 1269 2016

Altafulla v. Ervin DVPA based on text messages & other communications & telling Mom’s Cs from other relationship about her affair. Order includes restraint against BF disseminating info about her.

238 Cal.App.4th 571 2015

Burquet v. Brumbaugh

Unsettling the emotional or mental peace of mind by showing up at former girlfriend’s house or uninvited calls or texts.

223 Cal.App.4th 1140 2014

Davila & Mejia Based on W’s declaration that she feared physical harm, H had adequate notice of her testimony that H threatened her with a firearm. Victims of DV are not held to rigorous standards of pleading so long as other party has general notice that claims of abuse are being pursued. Note: H never asked for a continuance to prepare evidence.

29 Cal.App.5th 220 2018

Evilsizor & Sweeney

DVPA order based on downloading and disseminating ESI constitutes disturbing the peace for purpose of DVPA.

237 Cal.App.4th 1416 2015

Fregoso & Hernandez

Post TRO sexual relations was evidence of a pattern of violence, gifts, forgiveness, sex, and repeated violence.

5 Cal.App.5th 698 2016

Gou v. Xiao Where Mom observes Dad hitting and choking C, Mom qualifies as victim of domestic violence.

228 Cal.App.4th 812 2014

Hogue v. Hogue Purposeful act of sending video of mock suicide was sufficient basis for issuance of DVRO.

16 Cal.App.5th 833 2017


Page 46 of 90


Opinion Year

In re Jonathan V. Where prosecution sought DV order against minor, minor is entitled to a continuance and adequate notice of the claims being made. Distinguish Davila & Mejia.

19 Cal.App.5th 236 2018

Nadkarni Disturbing the peace as basis for DVPA by electronic stalking. 173 Cal.App.4th 1483 2009

Nakamura v. Parker

Under Fam C 6220 abuse is broadly defined. 156 Cal.App.4th 327 2007

Nevarez v. Tonna Pushing on stairwell, coming to workplace, grabbing wrist, repeated unwanted phone calls.

227 Cal.App.4th 774 2014

In re N.L. J/Ct erred by including C as protected person under RO requiring Mom to stay away from Dad where Mom held child’s educational rights and there was no evidence she had engaged in any violent or dangerous conduct toward or made any threats to C.

236 Cal.App.4th 1460 2015

N.T. v. H.T. Abuse includes behavior enjoined by TRO and is not limited to acts inflicting physical injury.

34 Cal.App.5th 595 2019

Phillips v. Campbell

Sending text messages, posting personal information on Facebook and videos on YouTube, showing up at the home of the other party uninvited or unexpectedly, are sufficient grounds for order of protection.

2 Cal.App.5th 844 2016

Rodriguez v. Menjivar

Mental abuse of a party can be a basis for an order for protection without showing of physical harm to victim

243 Cal.App.4th 816 2015

S.M. v. E.P. Dad argued, spoke critically, and badgered Mom about child custody issues but did not cause her injury. Dad was arrested. Not sufficient basis for DVPA order against him.

184 Cal.App.4th 1249 2010

MUTUAL ORDER LIMITATIONS

Fam C 6305 No mutual orders unless both parties are primary aggressor. Any application for mutual order must be made in separately filed DVPA application. Use of a responsive declaration is not adequate.

Ankola Issuance of a mutual order requires (1) a separate application (2) finding that neither party acted in self‐defense (3) neither party was the primary aggressor.

36 Cal.App.5th 560 2019

Isidora M. v. Silvino M.

T/Ct cannot issue mutual orders where H never requested DVPA orders in response or separate application.

239 Cal.App.4th 11 2015

J.J. v. M.F. Self‐defense by Mom against clearly abusive Dad did not justify mutual orders and was abuse of discretion.

223 Cal.App.4th 968 2014

Lugo v. Corona Existence of CPO does not preclude issuance of DVPA order. 35 Cal.App.5th.865 2019



Page 47 of 90


Opinion Year

Melissa G. v. Raymond M.

T/Ct must make findings under Fam C 6305 incorporating PC 836(c)(3) concerning whether parties both acted as primary aggressors. This requirement applies even if applications arise from different incidents between the parties. However, the requirement to choose one principal aggressor on competing applications only applies when the competing applications are heard at the same time.

27 Cal.App.5th 360 2018

Monterroso v. Moran

Prior stipulation to mutual orders did not estop party from challenging joint order. Detailed findings are required for mutual orders.

135 Cal.App.4th 732 2006

SELF‐DEFENSE

G. Party who justifiably and properly uses self‐defense but causes injury in confrontation between spouses does not inflict abuse within the meaning of Fam C 6203 but acts consistent with CC 50 if the force used is reasonable under all the circumstances.

11 Cal.App.5th 773 2017

PROTECTED SPEECH

Molinaro Restraining order prohibiting H from posting about divorce case on social networking website constitutes invalid prior restraint on free speech where neither W nor minor children received the information. H had a right to discuss his divorce on Facebook™.

33 Cal.App.5th 824 2019

CHILD CUSTODY

Fam C 3044 Presumption against joint custody to perpetrator of DV absent clear statement on record concerning best interest of child as basis to make award.

Fam C 6323 T/Ct may issue ex parte order of custody to protect C. Party has obligation to disclose prior orders. Party must qualify as parent, presumed parent, or legal guardian as defined.

Fam C 6346 T/Ct may make custody orders in favor of a party even if parentage not determined so long as action for parentage is filed.

In re Bruno M. Cs repeatedly witnessing abuse is sufficient basis for designating them as protected persons under DVPA based on disturbing the peace standard.

28 Cal.App.5th 990 2018

Christina L. v. Chauncey B.

T/Ct must apply Fam 3044 presumption and COC rule where award of custody is a final determination of custody.

229 Cal.App.4th 731 2014

Celia S. v. Hugo H.

T/Ct cannot simply circumvent Fam 3044 by leaving existing time‐share for 50/50 custody order in place by relabeling it as visitation.

3 Cal.App.5th 655 2016

Ellis v. Lyons If prior order of protection has expired, T/Ct must apply Fam C 3044 presumption and make requisite findings.

2 Cal.App.5th 404 2016


Page 48 of 90


Opinion Year

Fajota Even if T/Ct does not grant DVPA order, if there is a history of DV, T/Ct must apply Fam C 3044 presumption in making custody award.

230 Cal.App.4th 1487 2014

Fernandez‐Abin DVPA jurisdiction does not confer emergency jurisdiction under UCCJEA.

191 Cal.App.4th 1015 2011

Gonzalez v. Munoz

Failure to extend custody order is an abuse of discretion if court has extended order of protection.

156 Cal.App.4th 413 2007

Jaime G. v. H.L. T/Ct must make findings on all Fam C 3044 factors when finding rebuttal of presumption against award of joint custody

25 Cal.App.5th 794 2018

Jason P. v. Danielle S., II

Court cannot predicate rebuttal of Fam C 3044 based on future compliance with T/Ct mandate to complete DV or parenting courses.

9 Cal.App.5th 1000 2017

Keith R. v. Superior Court

Custody order in DVPA proceeding is only a temporary order. No requirement to show COC to modify, only BIC, but perpetrator must overcome presumption under Fam C 3044.

174 Cal.App.4th 1047 2009

Kelkar No contest plea to DV charge can serve as basis to terminate SS. 229 Cal.App.4th 833 2014

S.Y. v. Superior Court (Omar M.)

Consideration of a parent’s greater fluency in English is not a proper basis for determining C’s best interest or for rebuttal of Fam C 3044. Any error here was harmless based on the substantial evidence supporting the T/Ct findings that Fam C 3044 was rebutted.

29 Cal.App.5th 324 2018

PROPERTY & SUPPORT RELATED ORDERS

Fam C 6324 Orders for use and possession of property and payment of bills.

Fam C 6325 ATRO property orders against married persons permitted.

Fam C 6325.5 ATRO to protect against cancelling any insurance policy where protected person or C is named beneficiary.

Fam C 6340(c) Court may issue residence exclusion order upon finding of physical or emotional harm to party, C, or person under care of protected person.

Fam C 6342 Court may order restitution for expenses arising from DV including medical expenses and property damage.

Fam C 6347 Court may order phone service provider to transfer phone number of victim or child to a new account so long as requesting party takes financial responsibility.

J.Q. & T.B. No requirement for issuance or grant of order for protection as predicate to court making SS order; follows Moore v. Bedard.

223 Cal.App.4th 687 2014



Page 49 of 90


Opinion Year

Moore v. Bedard In DVPA proceeding where no RO is issued, T/Ct cannot summarily dismiss request for CS since court has general jurisdiction under Fam C 200, 290. Fam C 6341 permits orders for CS independent of whether an order of protection is issued.

213 Cal.App.4th 1206 2013

Rayan v. Dykeman

Where parties in DVPA proceedings stipulated that one would execute a quitclaim deed to the other, T/Ct had jurisdiction under CCP 664.6 to enforce the stipulation.

224 Cal.App.3d 1629 1990

DVPA SPOUSAL SUPPORT

Fam C 4320(i) History of domestic violence is SS factor.

Schu Domestic violence can be grounds for denial of SS under Fam C 4320(i), (m), (n), and (k).

6 Cal.App.5th 470 2016

BATTERER’S INTERVENTION PROGRAM

Fam C 6343 Court may order batterer’s intervention program approved by county probation department for up to 1 year. Restrained party must register within 30 days unless extended by order; provide court and protected party program information; sign consent for release of participant’s completion or termination of program.

NON‐CLETS ORDERS ARE PROHIBITED

Fam C 6380 Proposed stipulated orders, sometimes colloquially referred to as a “non‐CLETS restraining order,” are expressly prohibited. Any order of protection must be entered into the CLETS system.

SB 1089, Section 1 (Stats 2018, Ch. 89)

FIREARM RELINQUISHMENT ORDER

Fam C 6389 Person subject to protective order shall not possess firearm or ammunition and must properly relinquish.

Fam C 6389(h) Court may permit possession of a particular firearm necessary as condition of employment; in case of peace officer only after a psychological examination. Order may include order for counseling.

Ritchie v. Konrad T/Ct cannot strike mandatory firearm restriction provisions on JC forms.

115 Cal.App.4th 1275 2004

ATTORNEY’S FEES & COSTS

Fam C 6344 Prevailing party fees may be ordered consistent with income, needs, and respective ability to pay.

Fam C 6386 T/Ct may appoint counsel to represent protected person in enforcement of DVPA proceedings and assess fees against restrained party.

Faton v. Ahmedo T/Ct properly awarded postpetition fees. Failure to use JC forms does not violate due process.

236 Cal.App.4th 1160 2015


Page 50 of 90


Opinion Year

Loeffler v. Medina

T/Ct properly awarded $25K on $47K request for fees. Test is whether award shocks the conscience.

174 Cal.App.4th 1495 2009

OTHER DVPA RELATED RIGHTS

PC 3003(h) Inmate released on parole for stalking offense may not be returned to location within 35 miles of victim’s home or work place or transfer to another county if necessary.

Fam C 6347 Wireless carrier must allow transfer of mobile number for victim or child contingent upon properly accepting financial obligation.

CC 1946.7 Tenant may submit documentation from qualifying agency or police report to terminate tenancy with maximum liability of 14 days for obligation to pay rent from date of notice.

PC 136.2(i) Criminal T/Ct can issue CPO including when defendant is released under mandatory supervision.

PC 18100‐18205 Court may grant Gun Violence Restraining Orders (GVRO) to qualifying persons even without application under DVPA.

Govt C 13956 DV victim can apply for victim compensation from state program.

REQUEST FOR RENEWAL OF ORDERS

Fam C 6345 Protected person can apply for renewal of orders for an additional 5 years or permanently.

Perez v. Torres‐Hernandez

Contacting protected party about CS request, bullying text messages flaunting fact F was not prosecuted for abuse constituted sufficient basis for renewal abuse does not require violence

1 Cal.App.5th 389 2016

Cueto v. Dozier T/Ct abused discretion by not renewing orders based on 11 yr. history of abusive behavior; reasonable apprehension of future abuse shown.

241 Cal.App.4th 550 2015

Eneaji v. Ubboe No requirement of an actual violation of a prior order. Only required to show conduct that could be subject to order of protection.

229 Cal.App.4th 1457 2014

Garcia v. Escobar Family Court has jurisdiction under DVPA to renew DVRO originally issued in Dependency Proceeding when Juv/Ct judgment in case involved parentage rather than dissolution.

17 Cal.App.5th 267 2017

Priscilla N. v. Leonardo G

In intervening Juv/Ct proceeding T/Ct issued DVRO against H. T/Ct in the family law action had jurisdiction to renew the order originally issued in the dependency proceeding.

17 Cal.App.5th 1208 2017

Ritchie v. Konrad Protected party must entertain a reasonable apprehension of future abuse. Subjective fear alone is not sufficient.

115 Cal.App.4th 1275 2004



Page 51 of 90


Opinion Year

Rybolt v. Riley Renewal was properly granted where (a) Dad used C’s extracurricular activity as a pretext to manipulate and control Mom; (b) Dad repeatedly violated the order; (c) while Dad had attended law school and anger mgmt. courses he was still a risk to Mom; and (d) modification of the custody schedule was within T/Ct discretion given Dad’s conduct.

20 Cal.App.5th 864 2018

MOTION TO TERMINATE DVPA ORDER

Loeffler v. Medina

Movant must show how facts have changed since issuance of the order, change in the law, interests of justice. Test is same as request to dissolve any other injunctive order under CCP 533.

174 Cal.App.4th 1495 2009


Page 52 of 90

AAggrreeeemmeennttss ((RReevv.. 11//11//2200)) References to “Practice Guide” are to Hogoboom & King, Cal. Practice Guide: Family Law

General Policy Considerations Marriage of/Case or Code General Policy Considerations Principles Year Authority

CC 1550 et seq. General principles of contract law apply to PMA, Marital Agreements & MSA

Practice Guide 9:50

Hill & Dittmer Absent contractual defenses such as duress, menace, fraud, undue influence, mistake, or family law specific grounds such as breach of fiduciary duty, marital related agreements are enforceable

2011 202 Cal.App.4th 1046

Fam C 1600 Uniform Premarital Agreement Act controls enforceability of agreements entered on or after 1/1/1986

Practice Guide 9:6

Fam C 1612 Right to CS cannot be adversely affected by PMA Practice Guide 9:17

Bellio PMA to pay a fixed sum in the event of divorce or death did not promote divorce

2003 105 Cal.App.4th 630

Diosdado v. Diosdado

Contract provision that H would pay 450K in the event he was sexually unfaithful was unenforceable as contrary to public policy

2002 97 Cal.App.4th 470

Facter Error not to enforce valid waiver of CP rights in PMA where invalid SS, CS, and fee provisions were severable. Entire agreement is void if the invalid provision is inseverably linked

2013 212 Cal.App.4th 967; Practice Guide 9:16

Lappe v. Superior Court

Public policy may limit enforceability of agreements between prospective spouses

2014 232 Cal.App.4th 774

Mehren & Dargan Marital agreement requiring H to transfer all interest in CP if he used illicit drugs violated CA no fault dissolution policy

2004 118 Cal.App.4th 1167

Melissa If problem provision in PMA is distinct and severable agreement may be otherwise enforced

2012 212 Cal.App.4th 598

Turfe Even if a party fails to abide by a religious agreement [Islamic Maher] noncompliance is not grounds for nullity.

2018 23 Cal.App.5th 1118

Premarital Agreements Issue Premarital Agreements Principles Authority

Governing law Validity of the terms of a PMA turns on the date of execution Marriage of of Melissa (2012) 212 Cal.App.4th 598

No retroactivity of 2002 UPPA amendments

Three timeframes control: Pre 1986; 1986 to 2001; Post 2002. The 2002 amendments do not apply retroactively

Marriage of Facter (2013) 212 Cal.App.4th 967 Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046 Marriage of Howell (2011) 195 Cal.App.4th 1062

Agreements


Page 53 of 90

Issue Premarital Agreements Principles Authority

Public policy Public policy favors the enforceability of freely made PMAs; and the policy has evolved to include permissive but highly regulated waivers of SS.

Practice Guide 9:144

Waiver of SS Post 1985 premarital waiver of SS is not per se unenforceable. Waiver of SS in pre‐2002 PMA can be analogized to waiver of SS in an MSA. Standards concerning non‐modifiability can apply to SS waivers in PMA.

Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39 Marriage of Miotke (2019) 35 Cal.App.5th 849

No per se confidential relationship

The rules concerning fiduciary duties attendant upon marriage are not presumed between prospective spouses.

Marriage of Bonds (2000) 24 Cal.4th 1

Reasonable disclosure post 1/1/02

Party asserting PMA is unconscionable must also prove (1) no fair, reasonable, and full disclosure of other party’s property or financial obligations; (2) no independent knowledge of such info; and (3) no waiver of disclosures beyond those provided.

Practice Guide 9:151 and 9:184; Fam C 1615(a)(2)(A)

2002 UPAA amendments

Party against whom enforcement is sought must have counsel for SS waivers, and effectively for all types of PMAs; created presumption of invalidity of PMAs unless certain facts proven by party enforcing agreement.

Practice Guide 9:154.5

7‐day waiting period for self‐represented

There must be seven days between the time a PMA is first presented to an unrepresented party and it is signed. The 7 day waiting period does not apply to represented parties. Party’s false representation that 7‐day waiting period was satisfied was not binding under Ev C 662 because contract was invalid. Severability clause does not save unenforceable agreement.

Practice Guide 9:183:2; Fam C 1615(c)(2); Marriage of Caldwell‐Faso & Faso (2011) 191 Cal.App.4th 945 Marriage of Clarke and Akel (2018) 19 Cal.App.5th 914

Recordation of agreement

Permitted, advisable, but not essential to validity. Practice Guide 9:160

Contract defenses Capacity to contract, duress, fraud, undue influence are ordinary contract defenses. Fam C 1615 requires court to find the absence of these factors before enforcing a post‐2002 PMA; burden of proof was on party asserting the defense pre‐2002.

Practice Guide 9:183:8

Other Factors Any other factor the court deems just

Fam C 1615(c)(5) authorizes the court to deny enforceability of post‐2002 agreements. Fam C 1615(c)(5) authorizes the court to deny enforceability of post 2002 agreements based on this highly discretionary factor.


Statute of frauds Fam C 1611 operates as a statute of frauds still subject to other recognized exceptions in effect at time agreement was made, such as oral PMAs or partially performed oral agreements.

Practice Guide 9:158 and 9:198 et seq.; Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675

Not promotive of dissolution

PMA are not per se promotive of dissolution based on Fam C 1612(a)(3).

Practice Guide 9:164; Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39

Permissible waiver of inheritance rights

PMA can include waiver of rights in deceased spouse’s estate. Enforceable waiver under Prob C 140 et seq. even if underlying PMA is not enforceable.

Practice Guide 9:186; Estate of Gagnier (1993) 21 Cal.App.4th 124


CFLR Family Law Bench Blotters • Agreements

Page 54 of 90

Issue Premarital Agreements Principles Authority

No waiver of qualified joint survivor annuity

PMA cannot validly waive survivor annuity or other death benefits under an ERISA governed plan. Any such waiver requires a spouse’s consent within the statutory time frames for the specific plan.


Waiver of interest in ERISA plan

While the survivor benefits cannot be waived, other rights in an ERISA plan can be waived based on out of state cases construing ERISA.


Marital Agreements Issue Marital Agreements Principles Authority

Lawful object Parties to a marriage are in a confidential relationship and may contract to modify or prevent application of CP law to their property.


Public policy restraints

Limitations on marital agreements are subject to the same policy restrictions against imposing penalties upon dissolution or promoting divorce. Property agreements are enforceable even if support or custody terms are not.


Writing required for transmutation

The writing requirement applies to all transmutations that occur after 1‐1‐85 per Fam C 852(a). Oral transmutation rules still apply to pre‐1985 agreements,

Practice Guide 9:235, 9:255

Gift exception No writing required for gifts of personal property based on circumstances. Fam C 852(c).


Spouses occupy confidential relationship

Fiduciary duty concepts apply to all marital agreements based on Fam C 721(b).

Practice Guide 9:236; Marriage of Fossum (2011) 192

Cal.App.4th 336; Starr v. Starr (2010) 189 Cal.App.4th 277

Highest duty of good faith and fair dealing

Neither spouse shall take any “unfair advantage” of the other. Whether an advantage was truly unfair is a question of fact.

Practice Guide 9:240, 9:241.2; Marriage of Marguilis (2011) 198 Cal.App.4th 1252; Marriage of Burkle (2006) 139 Cal.App.4th

712

Rebuttable presumption

Presumption of undue influence is a rebuttable presumption. Advantaged spouse has burden to prove no undue influence was exercised

Practice Guide 9:242; Marriage of Mathews (2005) 133

Cal.App.4th 624

Knowing and voluntary execution

Proof that a party (1) knowingly and voluntarily entered into the transaction; (2) with full knowledge of all the facts; and (3) a complete understanding of the transaction rebuts the presumption

Practice Guide 9:243; Marriage of Mathews (2005) 133

Cal.App.4th 624

Full disclosure requirements

A spouse who foregoes investigation and accepts a proposed settlement may not later avoid the agreement unless there has been a misrepresentation or concealment of facts.



Page 55 of 90

Issue Marital Agreements Principles Authority

Opportunity for independent legal advice

An opportunity for independent legal advice may rebut presumption of undue influence, but fiduciary duties still apply

Practice Guide 9:243.2; Marriage of Burkle (2006) 139 Cal.App.4th

712; Vai v. Bank of America (1961) 56 Cal.2d 329

Remedies for breach of duty

A spouse may have claims for breach of fiduciary duty under Fam C 1101 if agreement set aside


Attempts to divide retirement

Parties can confirm interests in pension benefits by marital agreements, but these do not qualify as QDROs under ERISA. Special rules also apply to state public employee benefit plans

Practice Guide 9:267.5, 9:268

Post 1984 waivers of Prob C rights

Parties can waive intestate succession, prior testamentary dispositions, probate homestead, exempt property set asides, small estate set aside, election to take against a will, omitted spouses rights, estate representative appointment, rights by nonprobate transfer.

Practice Guide 9:274; Prob C 140‐146

Interpretation of stipulated judgment or agreement

Stipulated judgments and agreements are subject to the rules governing interpretation of contracts. When necessary, court may consider evidence concerning circumstances under which parties negotiate judgment.

Marriage of Minkin (2017) 11 Cal.App.5th 939; Marriage of Pearson (2018) 21 Cal.App.5th 218; Marriage of Iberti (1997) 55

Cal.App.4th 1434

Marital Settlement Agreements Issue Marital Settlement Agreements Principles Authority

Public policy favors enforcement

So long as an agreement is not tainted by fraud, compulsion, violation of fiduciary duty, or other public policy restraints, MSA’s occupy a favored position.

Practice Guide 9:333; Marriage of Egedi (2001) 88 Cal.App.4th

17

SS waiver permitted

MSA including waiver of SS permitted so long as waiver is voluntary, knowing, and intelligent.

Practice Guide 9:337; Marriage of Lynn (2002) 101 Cal.App.4th

120

Fiduciary obligations

The confidential relationship/fiduciary duties are broadly construed and impose duties to disclose all material facts and information. Beware of reliance on pre‐1992 cases when construing the fiduciary obligation.

Practice Guide 9:340, 9:346; Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334

Disclosures FDDs must be exchanged before or at the time the MSA is made; the failure to do so may result in a set aside of the judgment. The FDD requirement does not apply to MSAs made prior to filing of the disso action.

Practice Guide 9:339; Fam C 2105(a); Marriage of Evans (2014) 229 Cal.App.4th 374

Mutual waivers of FDD

It is unclear what effect mutual wavier of FDD has on enforceability of MSA. There are still rights to move to set aside for non‐disclosure.


QDRO required for enforcement

While MSA may divide the interest in ERISA pension, only the QDRO assures its enforceability.




Page 56 of 90

Issue Marital Settlement Agreements Principles Authority

Federal & state public retirement

Federal civil service benefits, state public retirement, or municipal plans all have specialized rules. Wise counsel will consult (or become) an expert in pension benefits laws.

Practice Guide 9:380‐9:385

After discovery property clauses

Absent contractual provision, Fam C 2556 governs undisposed of or after‐discovered property which may also be subject to breach of duty claim. See Marriage of Rossi (2001) 90 Cal.App.4th 34.

Practice Guide 9:402; Fam C 2556

Gavron warnings Form FL‐180 no longer automatically includes notice to supported spouse as discussed in Marriage of Gavron (1988) 203 Cal.App.3d 705, Marriage of Schmir (2005) 134 Cal.App.4th 43. See Fam C 4330(b).


Choice of laws MSA may include provision for choice of laws but provision cannot violate public policy.

Practice Guide 9:430; Marriage of Crosby & Grooms (2004) 116

Cal.App.4th 201

Effect of reconciliation

Absent specific terms within an MSA, it is not nullified as a matter of law because of reconciliation absent a clear intent to revoke. Question of reconciliation is a question of fact. Clauses stating that reconciliation shall not invalidate the agreement are enforceable.

Practice Guide 9:435; Crossley v. Crossley (1950) 97 Cal.App.2d 627; Marriage of Broderick (1989) 209 Cal.App.3d 489;

Marriage of Tamraz (1994) 24 Cal.App.4th 1740

MSA merger into judgment

If the MSA is merged into the judgment it is enforceable as one. Practice Guide 9:443; Marriage of Corona (2009) 172 Cal.App.4th 1205

Child Custody Marriage of/Case

or Code Child Custody Principles Year Authority

Goodarzirad Parents can make agreements concerning custody but cannot divest T/Ct jurisdiction to award or modify custody based on best interest of C.

1986 185 Cal.App.3d 1020

Jensen Parties cannot contract custody and visitation of adult child. 2003 114 Cal.App.4th 587

Joseph Cannot impede or diminish court’s custody jurisdiction. 1990 217 Cal.App.3d 1277

Weiss Parent agreements purporting to control religious upbringing of C are legally unenforceable.

1996 42 Cal.App.4th 106

Child Support Marriage of/Case or Code Child Support Principles Year Authority

Fam C 1612 Right to CS cannot be adversely affected by premarital agreement

Alter MSA provision cannot limit ability of court to downwardly modify CS

2009 171 Cal.App.4th 718


Page 57 of 90

Marriage of/Case or Code Child Support Principles Year Authority

Bodo CS obligation is court‐imposed and modifiable as court deems necessary

2011 198 Cal.App.4th 373

Crosby & Grooms Out of state agreement cannot adversely affect authority of court to order CS pursuant to CA guideline

2004 116 Cal.App.4th 201

Dawley Parties may stipulate to provide support to the other’s children from a prior relationship

1976 17 Cal.3d 342

LaBass & Munsee MSA cannot limit T/Ct ability to order CS add‐ons 1997 56 Cal.App.4th 1331

Rosenfeld & Gross Parents can stipulate to provide for adult CS under Fam C 3587 2014 225 Cal.App.4th 478

Spousal Support Marriage of/Case

or Code Spousal Support Principles Year Authority

Fam C 721(b) & 2102

Fiduciary duty governs SS including waivers in MSA

Fam C 4300‐4302 Statutory duty of support during marriage cannot be waived Practice Guide 9:21

Fam C 1612(c) Waiver of SS in premarital agreement is highly regulated area

Fam C 4336 For marriages of long duration, T/Ct reserves jurisdiction over SS absent written agreement that specifically provides to the contrary

Practice Guide 9:133; Marriage of Brown (1995) 35 Cal.App.4th 785

Fam C 4337 SS jurisdiction presumptively ends upon remarriage absent clear and convincing evidence of an intent for support to ride through remarriage.

Practice Guide 9:134.1 Marriage of Thornton (2002) 95 Cal.App.4th 251; Marriage of

Cesnalis (2003) 106 Cal.App.4th 1267

Estate of Wamack Waiver of probate allowance under Prob C 6540 is permissible. 1955 137 Cal.App.3d 112

Facter Waiver of SS not enforceable if unconscionable at time enforcement is sought.

2013 212 Cal.App.4th 967

Melissa Pre‐1986 waiver of SS in PMA is not enforceable. 2012 212 Cal.App.4th 598

Moore MSA with knowing and intelligent waiver of SS enforceable but subject to ordinary contract defenses.

1980 113 Cal.App.3d 22

Pendleton & Fireman

Post dissolution waiver of spousal support is not per se unenforceable.

2000 24 Cal.4th 39

T.C. and D.C. T/Ct must consider parties expectations at time original agreement was executed regarding future limits on consideration of W’s income for purpose of her paying H SS

2018 30 Cal.App.5th 419



Page 58 of 90

Property Rights Marriage of/Case

or Code Property Rights Principles Year Authority

Fam C 850 Parties may transmute property by properly drawn writing. Practice Guide 9:38

Fam C 1612(a)(3) No case squarely decides whether PMAs under UPAA promote divorce.

Practice Guide 9:43

Fam C 1612 PMA may affect rights to insurance, property, inheritance, and choice of laws. There is an open issue on enforceability of clauses regarding property division on dissolution.

Practice Guide 9:165 et seq.

Diosdado v. Diosdado

Contract provision that H would pay 450K in the event he was sexually unfaithful was unenforceable as contrary to public policy.

2002 97 Cal.App.4th 470

Facter PMA to give $200K upon dissolution, plus car, furniture and ½ home sale proceeds enforceable.

2013 212 Cal.App.4th 967

Mehren & Dargan Marital agreement requiring H to transfer all interest in CP if he used illicit drugs violated CA no fault dissolution policy.

2004 118 Cal.App.4th 1167

Noghrey PMA promise of $500K or half of my assets whichever is greater promotes divorce.

1985 169 Cal.App.3d 326

Pendleton & Fireman

Public policy is not offended by agreements that protect property rights. PMAs are not per se promotive of divorce.

2000 24 Cal.4th 39

Thorne & Raccina Per CC 1669, agreements that impose a forfeiture of property rights upon remarriage are unenforceable.

2012 203 Cal.App.4th 492

Attorney Fees Marriage of/Case

or Code Attorney Fees Principles Year Authority

Joseph Waiver of right to fees in action to modify CS not enforceable 1990 217 Cal.App.3d 1277

Sherman MSA containing prevailing party fee awards are enforceable 1984 162 Cal.App.3d 1132

Rules of Construction Issue Rules of Construction Principles Authority

Attorney approval

Counsel’s signed approval as to form and content does not amount to an actionable representation to the other party’s attorney or giving legal advice to the opposing party.


Ambiguity General rules of construction apply under CC 1635 cases apply this principle to PMA, Postnuptial agreement, or MSA. Ambiguity about SS is construed in favor of right to support for long term marriages

Practice Guide 9:115, 9:121.1; Marriage of Vomacka (1984) 36

Cal.3d 459


Page 59 of 90

Issue Rules of Construction Principles Authority

Mutual intent Agreement is interpreted to give effect to parties’ mutual intent. Practice Guide 9:116; Marriage of Facter (2013) 212 Cal.App.4th 967

Effect to entire contract

To the extent reasonably practicable, contract interpreted to give effect to every part, and each clause is to be used in interpreting the other.

Practice Guide 9:117; CC 1641

Related contracts construed together

Related contracts are construed together. Practice Guide 9:118; CC 1642

Construed to uphold validity

To the extent consistent with the parties' intent, a contract must be interpreted so as to make it “lawful, operative, definite, reasonable, and capable of being carried into effect.”


Choice of Laws Unless parties specify otherwise, contract construed by law of the place where it is executed.


Construed against drafter

The general rule applies to all agreements. Both parties typically are represented so the doctrine can have more limited application.

Practice Guide 9:121 and 9:121.2; Marriage of Ousterman (1996) 46 Cal.App.4th 1090

Implied terms Implied terms are not favored and may be read into contracts only upon grounds of obvious necessity.

Practice Guide 9:123:5; Marriage of Corona (2009) 172

Cal.App.4th 1205

Parol evidence Extrinsic evidence is admissible to aid in interpretation but not to vary the meaning of a written agreement. If allowed, only parol evidence that supports a meaning to which the agreement is reasonably susceptible is admissible.

Practice Guide 9:124; CCP 1856; Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492

Extrinsic evidence exclusion

Extrinsic evidence can be precluded by statute such as Fam C 852 for transmutation agreements after 1‐1‐84.

Practice Guide 9:128; Estate of MacDonald (1990) 51 Cal.3d

262

Other Agreements Considerations Issue Other Agreements Considerations Principles Authority

Bankruptcy Agreements cannot affect discharge of debt in bankruptcy. Practice Guide 9:46.1

Enforcement as judgment

For MSA to be enforceable under CCP 664.6 it should expressly state this intent, and must be signed while an action is pending.

Practice Guide 9:76

Fraudulent transfer Voidable Transactions Act (CC 3439 et seq.) applies to the extent agreement or transfer is fraudulent as to creditors.

Practice Guide 9:110; Mejia v. Reed (2003) 31 Cal.4th 657

Liability for debt Debtor spouse remains liable for debts even if awarded to other spouse. Non‐debtor spouse is only liable for debts assigned to him/her in property division.




Page 60 of 90

Issue Other Agreements Considerations Principles Authority

No restraint on remarriage

MSA terms cannot restrain future marriage or cause forfeiture of property rights upon remarriage.

Practice Guide 9:44.10; Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492

Representation by counsel

Counsel not required in pre‐2002 PMA, but effectively required for post‐2002 PMAs. No requirement for counsel in MSA. No requirement for separate counsel in postmarital transmutation agreement. Risk of finding of ethical conflict depending on the extent to which attorney acts as scrivener for both parties. Unrepresented party should be strongly encouraged to seek independent legal counsel.

Practice Guide 9:113; Marriage of Grissom (1994) 30

Cal.App.4th 40; Marriage of Holtemann (2008) 166

Cal.App.4th 1166; Marriage of Egedi (2001) 88 Cal.App.4th 17

Tax considerations Counsel has duty to make appropriate referral to tax expert. Practice Guide 9:111; Nichols v. Keller (1993) 15 Cal.App.4th

1672

Agreements: Defenses Marriage of/Case

or Code Defenses Principles Year Authority

CC 1576‐1578 Consent given by mistake of fact or law is not free and affords a basis to rescind or set aside an agreement.


Fam C 850 No consideration necessary for written transmutation agreement executed on or after 1‐1‐85.

Practice Guide 9:87

Fam C 3580 No consideration necessary for MSA other than mutual consent. Practice Guide 9:88

Fam C 1100 Fiduciary duty prohibits party from taking unfair advantage of the other party.

Practice Guide 9:74

Fam C 1611 No consideration necessary for PMA executed on or after 1‐1‐86. Practice Guide 9:85

Fam C 1612 SS waiver in post‐2002 PMA is tested for unconscionability at the time enforcement is sought.


Fam C 1615 PMA executed post‐2002 by self‐represented party generally not enforceable against such party without compliance with onerous exceptions.


Fam C 2122 Motion to set aside judgments burden to show grounds rests with moving party.


Adkins Party’s ignorance of legal rights and reliance on other party may render MSA unenforceable.

1982 137 Cal.App.3d 68

Balcof Threats made even to a sophisticated business person may warrant set aside for duress.

2006 141 Cal.App.4th 1509

Baltins Actively interfering with a party obtaining legal counsel may warrant set aside.

1989 212 Cal.App.3d 66


Page 61 of 90

Marriage of/Case or Code Defenses Principles Year Authority

Bonds Court must consider totality of circumstances to determine if undue influence has occurred.

2000 24 Cal.4th 1

Broderick Idle threats or puffing not sufficient to justify set aside. Must show intentional use of threats or pressure to induce action or inaction.

1989 209 Cal.App.3d 489

Burkle Any advantage must be an unfair advantage which may not apply if parties are capably represented.

2006 139 Cal.App.4th 712

Cairo Consent obtained through concealment or misrepresentation renders agreements voidable for fraud.

1988 204 Cal.App.3d 1255

Estate of Nelson Substantial bargaining disparities, business sophistication, general knowledge, and age are factors in determining whether undue influence was exerted.

1964 224 Cal.App.2d 138

Friedman Premarital agreements are not interpreted and enforced under the same standards as interspousal agreement. Fam C 1615(c) does not apply to postnuptial agreements.

2002 100 Cal.App.4th 65

Gonzalez Threats to take away the parties children justified set aside for duress.

1976 57 Cal.App.3d 736

Helsel Client has right to repudiate unauthorized stipulation that affects substantive rights.

1988 198 Cal.App.3d 332

Kieturakis Mediation confidentiality may preclude a party’s ability to show undue influence.

2006 138 Cal.App.4th 56

Mergenthaler Statute of limitations no bar to claim of undue influence although laches may apply.

1945 69 Cal.App.2d 525

Saslow W’s undue influence over H who signed trust documents while in an utter state of dismay and withdrawal.

1985 40 Cal.3d 848

Disclosure Law Requirements Marriage of/Case

or Code Disclosure Law Requirements Principles Year Authority

Fam C 1615 PMAs must be accompanied with disclosure of property and obligations by parties, unless waived or party had independent knowledge of such information.

Fam C 2100 Waivers of statutory disclosure laws are narrowly construed and are permitted only to the extent permitted by statute. Declarations of Disclosure are an essential step in every MSA while disso action pending.

Practice Guide 9:45 Practice Guide 9:329

Burkle Agreements that do not contemplate imminent dissolution but show an effort to reconcile are not subject to disclosure law because party put dissolution in abeyance by contemplated effort to reconcile.

2006 139 Cal.App.4th 712



Page 62 of 90

Marriage of/Case or Code Disclosure Law Requirements Principles Year Authority

Evans Prepetition property settlement agreements executed after separation but before petition is filed are not subject to disclosure requirements.

2014 229 Cal.App.4th 374

Steiner & Hosseini Noncompliance may result in set aside only to the extent some portion of judgment is materially affected by nondisclosure resulting in prejudicial error.

2004 117 Cal.App.4th 519

Woolsey Strict compliance with declaration of disclosure requirements excused in private mediation or arbitration proceedings.

2013 220 Cal.App.4th 881


Page 63 of 90

SSaanncchheezz DDooccttrriinneess ((RReevv.. 11//11//22002200))

Doctrine Principles Authority

THE NINE KEY SANCHEZ TAKE AWAYS Case specific or background information

Distinguish case specific and general background information. A diamond tattoo is a gang sign. This defendant had a diamond tattoo.

People v. Meraz (2016) 6 Cal.App.5th 1162 People v. Sanchez (2016) 63 Cal.4th 665

Connect hypothetical questions with independent evidence

Consider the impact of the hearsay rule on each category of inquiry including hypothetical questions. Prove case specific facts with independent evidence.

People v. Sanchez (2016) 63 Cal.4th 665

Distinguish relying on and relating case specific information

The core holding in Sanchez permits experts to rely on hearsay but prohibits them from relating case specific information. Experts may relate in general terms the source of the information they relied on.


If an expert relies on the information as true and relates it as true it is hearsay

The historical construct that the expert is not relying on the information as true as a work around the hearsay rule is debunked by Sanchez. Sanchez rejects People v. Gardeley (1996) 14 Cal. 4th 605.


What are the limits on experts relying on inadmissible matter

Ev C 801(b) permits an expert to rely on inadmissible matter. The expert may relate what they relied upon, but they cannot be the conduit for inadmissible hearsay.

People v. Perez (2018) 4 Cal. 5th 421

Experts may testify as to sources and give an independent opinion

Experts may testify as to sources they relied upon. In each post‐Sanchez case heard by the California Supreme Court, there was other sufficient evidence such as photographs, X‐rays, and the weapon serving as a foundation for the expert’s opinion. It remains an open question whether an opinion must be tethered to other substantial, admissible evidence to survive a foundational or relevancy challenge.

People v. Perez (2018) 4 Cal. 5th 421 People v. Garton (2018) 4 Cal.5th 485

Expert cannot directly or implicitly convey the inadmissible material but can convey in general terms his reliance

Experts cannot directly convey inadmissible hearsay. And the limitation restricts an attempt to do so implicitly. The expert must exercise his own independent judgment and only convey in general terms his reliance on the inadmissible hearsay. The question of inability to provide reasons may be grounds for excluding the opinion if no admissible evidence supports the opinion.

People v. Perez (2018) 4 Cal.5th 421 People v. Garton (2018) 4 Cal.5th 485 People v. McVey (2018) 24 Cal.App.5th 405

Use of hearsay for impeachment and rehabilitation

Use of the hearsay for impeachment or rehabilitation raises the issue of whether the material is being offered for the truth of the matter asserted. Under the theory it must be true to be relevant‐ if it is not true, how can it impeach or rehabilitate.

People v. Townsel (2016) 63 Cal.4th 25 People v. Malik (2017) 16 Cal.App.5th 587

Sanchez Doctrines


Page 64 of 90


Data relied upon could not justify the opinion. How do you challenge it?

If the expert identifies the source relied upon, but none of the sources provided the expert with admissible evidence, can an expert then give a meaningful independent opinion. One challenge would be under Ev C 802, that the data relied on could not justify the opinion. Under Sargon reasoning, the reasoning process is flawed. The law does not support this argument so make other challenges. Argue weight not admissibility. Use cross‐examination to bring out the weakness of the opinion. Use your expert to present a contrary opinion supported by substantial reasons. Argue to exclude under Ev C 352 because there is little probative value to the opinion and there is a risk of creating confusion. There will be undue consumption of time necessary for other experts to testify.

Ev C 352 Ev C 400‐406 Ev C 801 People v. Sanchez (2016) 63 Cal.4th 665 Sargon Enterprises, Inc. v. U.S.C. (2012) 55 Cal.4th 747 People v. Conagra (2017) 17 Cal.App.5th 51

BASIC SANCHEZ DOCTRINES Not every opinion requires an expert

Lay witnesses can testify so long as the opinion is rationally based on the perception of the witness and the opinion is helpful to a clear understanding of their testimony. Some examples of permissible lay opinion ‐ physical condition, knowledge of the effect of their diseases, that a person appeared drunk or on drugs, angry or sad, or insane. A party can testify to the value of property he/she owns or has an interest in.

Ev C 800 Ev C 813 Ev C 870 Marriage of Hargrave (1985) 163 Cal.App.3d 346 Marriage of Stoll (1998) 63 Cal.App.4th 837

Experts may rely on hearsay

Experts may rely on hearsay in formulating their opinions; and may tell the trier of fact in general terms that he/she did so.

People v. Sanchez (2016) 63 Cal.4th 665 People v. Bona (2017) 15 Cal.App.5th 511 People v. Espinoza (2018) 23 Cal.App.5th 317

Experts may not be the conduit for inadmissible hearsay

Experts may not be the conduit for otherwise inadmissible hearsay.


Case specific defined

Case specific facts are those relating to the particular events and participants alleged to have been involved being tried.

People v. Sanchez (2016) 63 Cal.4th 665 People v. Meraz (2016) 6 Cal.App.5th 1162

The evidence is being offered for the truth of the matter asserted

There is a fundamental paradigm shift away from the concept that the evidence is not being offered for the truth of the matter asserted. When experts are the conduit for case‐specific hearsay the testimony is only relevant if it is true.


Sanchez is not limited to criminal cases

Sanchez presents two challenges to admissibility of expert opinions. The first applies in civil cases, namely the use of inadmissible hearsay as a foundation for the expert’s opinion. This is a separate challenge from the confrontation clause challenge.

People v. Burroughs (2016) 6 Cal.App.5th 378 People v. Acuna (2017) 9 Cal.App.5th 1 Conservatorship of K.W. (2017) 13 Cal.App.5th 1274


CFLR Family Law Bench Blotters • Sanchez Doctrines

Page 65 of 90


Sanchez limitations apply only if a witness is offered as an expert

Sanchez only applies if a witness is qualified and testifies as an expert. Otherwise general principles of evidence apply. Absent a hearsay exception or other grounds, lay witnesses may not be the conduit for inadmissible hearsay.

People v. Jones (2017) 3 Cal.5th 583

Two‐step process: Is it hearsay; is there an exception

Is the statement one made out of court; is it offered to prove the truth of the facts asserted; and does it fall under a hearsay exception.

People v. Sanchez (2016) 63 Cal.4th 665 People v. Mooring (2017) 15 Cal.App.5th 928

Is it hearsay Is the evidence case‐specific hearsay? People v. Sanchez (2016) 63 Cal.4th 665

Is it not hearsay Is the information not hearsay so it can be relied upon if there is a sufficient foundation such as CGI?

People v. Sanchez (2016) 63 Cal.4th 665 People v. Goldsmith (2014) 59 Cal.4th 258

Exceptions Is there a hearsay exception making this evidence admissible? People v. Sanchez (2016) 63 Cal.4th 665

If admitted through a hearsay exception expert may relay those facts

Where evidence is admitted based on a hearsay exception, experts may permissibly relate those facts to the trier of fact as the basis for their opinions.

People v. Roa (2017) 11 Cal.App.5th 428

Double hearsay problems

Is there a double hearsay problem with this evidence? Reliance upon multiple layers of inadmissible hearsay by one expert who becomes the conduit for another expert’s opinion is improper.

People v. Sanchez (2016) 63 Cal.4th 665 People v. Landau (2016) 246 Cal.App.4th 850

Permissible reliance on publications

Is this the evidence experts may be permissibly relied upon such as a reliable treatise or publication?


Experts may testify about more generalized information to assist trier of fact

While Sanchez precludes the expert from being the conduit of otherwise inadmissible hearsay, experts can testify about more generalized information to help the trier of fact understand the significance of those case‐specific facts and may express an opinion about what those facts may mean.

People v. Williams (2016) 1 Cal.5th 1166 People v. Meraz (2016) 6 Cal.App.5th 1162

Expert may testify to his/her own observations

While the expert cannot become the conduit for otherwise inadmissible hearsay, the expert can testify to his or her own observations of a party. Evidence obtained through personal observation is not case‐specific hearsay. This extends to medical diagnoses where a doctor relies on hearsay descriptions by a patient as the basis for a diagnosis.

Ev C 401, 402, 801, 802 Conservatorship of K.W. (2017) 13 Cal.App.5th 1274 People v. Meraz (2016) 6 Cal.App.5th 1162 People v. Roa (2017) 11 Cal.App.5th 428 People v. Iraheta (2017) 14 Cal.App.5th 1228

Independent evidence may support opinion

An expert may rely on other evidence properly admitted even though he/she could not be the conduit for otherwise inadmissible evidence. Expert may indicate the facts he relied upon in formulating his/her opinion.

People v. Perez (2018) 4 Cal.5th 421


Page 66 of 90


Sufficient evidentiary basis for the opinion

If the case‐specific, impermissible hearsay is excluded is there a sufficient evidentiary basis for the opinion expressed by the expert

Ev C 803

Inappropriate for expert to recount details of another expert’s report

The opinions of another expert must be independently established. Experts may testify about generalized information to help the trier of fact understand the significance of case‐specific facts, but those facts must be independently established by other witnesses or documents.

People v. Williams (2016) 1 Cal.5th 1166 People v. Landau (2016) 246 Cal.App.4th 850

Absent stipulation expert reports not admissible

Absent a stipulation, an expert’s written report is not admissible in evidence unless qualified under an exception to the hearsay rule. Any such report must comply with the foundational requirements for admission of expert testimony.

Ev C 1220‐1341 Ev C 801 Fam C 3111(a), (c)

Must move expert declaration into evidence

Failure to move an expert’s declaration into evidence may cause the court to disregard the evidence in the declaration.

Marriage of Shimkus (2016) 244 Cal.App.4th 1262

The expert must be available for cross‐examination in Fam C 217 hearings

Moving party must make witnesses available in Fam C 217 hearing to permit cross‐examination. Otherwise the court may strike the declaration and should decide the case without regard to the declaration.

Marriage of Swain (2018) 21 Cal.App.5th 830

Request an evidentiary hearing

If you want an evidentiary hearing you should affirmatively request it under Fam C 217 and make offers of proof if the court denies the request.

Marriage of Binette (2018) 24 Cal.App.5th 1119

Hypothetical questions must be connected to admissible evidence

When an expert testifies based on hypothetical questions, those hypotheticals must be anchored in admissible evidence or based upon a determination that the evidence will be presented during the trial or proceeding. If it is not later admitted, a motion to strike the expert’s testimony in whole or in part should be made.

Ev C 401,402 Ev C 801, 802 Ev C 803

Confrontation clause challenges require a separate analysis from evidence code challenges

In reviewing criminal cases, the court of appeals must consider confrontation clause challenges subject to federal law case law. Evidentiary challenges under the evidence code are subject to uniform standards for construing Ev C 801 and 802.

People v. Ochoa (2017) 7 Cal.App.5th 575 People v. Perez (2018) 4 Cal.5th 421

Sanchez Evidence Code restrictions apply in all civil cases

Sanchez presents two challenges: The first is the case‐specific challenge; the second is the confrontation clause challenge. While the confrontation clause challenge only applies in criminal cases, the remaining Sanchez doctrines apply in all civil cases.

People v. Sanchez (2016) 63 Cal.4th 665 Conservatorship of K.W. (2017) 13 Cal.App.5th 1274 David v. Hernandez (2017) 13 Cal.App.5th 692 People v. Bona (2017) 15 Cal.App.5th 511

Sanchez applies when cross‐examining another expert

The Sanchez doctrines equally apply when cross‐examining the other party’s expert where the expert is asked to assume as true certain facts.

People v. Malik (2017) 16 Cal.App.5th 587



Page 67 of 90


Inherent authority to limit examination of experts

Court may limit the examination and cross‐examination of witness by imposing reasonable time limitations consistent with fairness and due process. There is no automatic right to redirect or re‐cross of a witness.

People v. Conagra (2017) 17 Cal.App.5th 51

Failure to timely object or move to strike constitutes a wavier

Failure to make a timely and specific Sanchez objection under Ev C 353(a) in the trial court constitutes a waiver. To preserve the objection, you must make the objection in the trial court. If the expert’s testimony was permitted on the pretext it would be connected up, you must move to strike the expert’s testimony. This extends to the exhibits the expert relied upon. Sanchez applies prospectively only per Ruedas

David v. Hernandez (2017) 13 Cal.App.5th 692 Ev C 401, 402, 801, 802 Ev C 803 People v. Polk (2010) 190 Cal.App.4th 1183 (construes Ev C 353(a)) People v. Burroughs (2016) 6 Cal.App.5th 378 In re Ruedas (2018) 23 Cal.App.5th 777

Expert may rely on otherwise inadmissible hearsay in rendering opinion

Where the expert relies on a matter not in evidence, the expert can rely on the information; although the expert cannot relay the information except in general terms.

Ev C 802 People v. Perez (2018) 4 Cal.5th 421

There must be a sufficient foundation for the expert’s opinion

Expert testimony must have a sufficient evidentiary foundation otherwise it is irrelevant, confusing, or will cause the undue consumption of time.

Ev C 350 Ev C 352 Ev C 400‐402 Simons on Calif. Evid. §1:36 People v. Balderas (1985) 41 Cal.3d 144

Proof of a preliminary fact may require presentation of expert testimony

In Balderas, the Supreme Court upheld the rejection of evidence ‐ the witness’ ability to recall because he had taken narcotics ‐ absent expert testimony on the probable effect of such drug use on perception and memory.

People v. Balderas (1985) 41 Cal.3d 144

Use of Ev C 402 hearing about expert

A 402 hearing is commonly used before an expert testifies about their expertise, the methodology used, or the basis for the opinion. The 402 hearing can be used preemptively as a form of cross‐examination before the witness testifies on direct.

Ev C 402 People v. Fierro (1991) 1 Cal.4th 173 Simons on Calif. Evid. §1:37

IS IT HEARSAY Diligence to obtain declarant

A party must show the declarant actually made the statement; the declarant is not available, and diligence was made to secure the witness and the statement is inherently trustworthy.

Ev C 1200

What is hearsay An out of court statement made by a speaker other than by the witness while testifying offered to prove the truth of the matter stated.

Ev C 1200 Simons on Calif. Evid. §2:2 Simons on Calif. Evid. §2:3


Page 68 of 90


Conduct can be a statement

Gestures, pointing, nodding the head can be a statement. The question is whether it was made to communicate information. Passive nonverbal behavior can be construed as a statement.

Ev C 225 Simons on Calif. Evid. §2:4 People v. Snow (1987) 44 Cal.3d 216 People v. Jurado (2006) 38 Cal.4th 72 Cabe v. Superior Court (1998) 63 Cal.App.4th 732

Not all spoken words are hearsay

Questions, requests, words of direction, or words of authorization are not hearsay.

Ev C 225 People v. Jurado (2006) 38 Cal.4th 72

Truth of the matter stated

Often the question is raised whether the evidence is relevant if false. For instance, John told Bill, “it’s outside.” And Bill said, “OK” and he went outside. The statement is not offered for the truth. Testimony that certain text messages with photos, video, and text were received is not offered for the truth of the content of those things.

Simons on Calif. Evid. §2:5, 2:6, 2:8, 2:14 Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855

Computer printouts are not hearsay compared with electronic documents

Computer generated information (CGI) is not hearsay. A proper foundation must still be laid. CGI is presumptively accurate. Burden is on the opponent to show inaccurate or unreliable electronically stored information (ESI) is a writing and subject to relevancy, authentication, and hearsay considerations

People v. Goldsmith (2014) 59 Cal.4th 258 People v. Rodriguez (2017) 16 Cal.App.5th 355

Multiple hearsay requires a separate exception for each item

Often there is hearsay within hearsay. For instance, a police report is a hearsay document and the statements by witnesses in the report are also hearsay.

Ev C 1201 Simons on Calif. Evid. §2:2 to 2:5

Attacking credibility of hearsay declarant

An inconsistent statement or conduct by a hearsay declarant is admissible to attack the credibility even if the hearsay declarant is available. There is no requirement to first call the declarant as a witness.

Ev C 1202 Simons on Calif. Evid. §2:17, People v. Farmer (1989) 47 Cal.3d 888

Hearsay declarant examined under Ev C 776

A declarant may be examined under Ev C 776 as if under cross‐examination.

Ev C 1203

COMMON FAMILY LAW HEARSAY EXCEPTIONS Just because there’s an exception doesn’t mean the hearsay is admissible

Even if there is a hearsay exception, the evidence must be relevant. The structure of the exceptions (not made inadmissible by the hearsay rule) acknowledges the requirements of foundation and relevancy.

Ev C 350, 352 Ev C 401, 402 Ev C 1220 to 1390 Simons on Calif. Evid §§2:22 to 2:27



Page 69 of 90


Declarant must be unavailable

Unavailability of the declarant is a foundational element for invoking a hearsay exception. The proponent must establish that the witness is unavailable. This requirement may substantially undercut the ability to propose hearsay statements of a child if the child is competent to testify.

Ev C 240 Ev C 401, 402 Ev C 1200(a) Ev C 1251 Simons on Calif. Evid. §§2:22 to 2:27

Party admission Any relevant statement by a party may be offered against the party. It need not be a declaration against interest. Judicial admissions in pleadings are conclusive on the issue and not simply evidence. However not every document filed by a party constitutes a judicial admission. Experts may rely on party statements in formulating opinions.

Ev C 1220 Valerio v. Andrew Youngquist Constr. (2002) 103 Cal.App.4th 1264 Simons on Calif. Evid. §2:28 People v. Huynh (2018) 19 Cal.App.5th 680

Adoptive admission Proponent must establish a statement was made that would normally call for a response if the statement were untrue. Evasive or untrue responses are admissible.

Ev C 1221 People v Riel (2000) 22 Cal.4th 1153

Authorized admissions

This exception applies only if the party authorized this speaker to make statements on this specific subject. Each case should be viewed under the law of agency. Experts are not automatically agents. An expert could properly rely upon an authenticated QuickBooks printout properly authenticated and received into evidence as an authorized admission.

Ev C 1222 O’Mary v. Mitsubishi Electronics (1997) 59 Cal.App.4th 563 O’Neill v. Novartis (2007) 147 Cal.App.4th 1388 People v. Selivanov (2016) 5 Cal.App.5th 726

Declaration against interest

Declarant must be unavailable. Declarant must know of the subject to understand the statement is adverse to the declarant’s interest.

Ev C 1230

Prior inconsistent statement

There is no requirement to disclose information about the prior inconsistent statement. If the statement is admitted it is admissible for all purposes. Documents can refresh recollection but distinguish this from past recollection recorded.

Ev C 780(g) Ev C 770 Ev C 1235

Prior consistent statement

Prior consistent statement is admissible if offered to rehabilitate witness after admission of an inconsistent statement. The prior consistent statement must be made before the inconsistent statement.

Ev C 1236 Ev C 791

Past recollection recorded

This involves the use of a writing made when the recorded fact occurred or was fresh. The writing was made by the witness or under his/her direction or to record the facts. The document may be offered after the witness testifies that the statement was true. It must be authenticated as an accurate record.

Ev C 1237


Page 70 of 90


Spontaneous statement

The reliability is inherent from the stress of nervous excitement. The statement narrates, describes, or explains an act, condition, or event perceived. The statement is made before there is time to contrive or misrepresent. Witness cannot simply repeat what others told him. The statement must be made at the first secure opportunity for disclosure. A statement can be disallowed since there is no evidence the individual remained under the stress of the traumatic event. A 2‐yr. old’s statement of sexual molestation was admissible as a spontaneous statement.

Ev C 1240 People v. Phillips (2000) 22 Cal.4th 226 People v. Trimble (1992) 5 Cal.App.4th 1225 People v. Gutierrez (2009) 45 Cal.4th 789 [distinguishes Trimble] In re Damon H. (1985) 165 Cal.App.3d 471

Contemporaneous statement

The statement by the declarant is offered to explain, qualify, or make understandable, and explains disputed conduct. Verbal or written statements that help explain a transaction are admissible to show the nature of the transaction.

Ev C 1241 Mecchi v. Picchi (1966) 245 Cal.App.2d 470

Statement of mental or physical state

A person’s mental or physical state must be at issue. The statements of the declarant’s then existing state of mind, emotion, or physical sensation. Trustworthiness is a specific condition of admissibility. Statements made hours or even months earlier may be admissible to prove state of mind. Statements of one party’s state of mind cannot be used to prove the conduct of another person.

Ev C 1250 Ev C 1251 People v. Waidla (2000) 22 Cal.4th 690 People v. Kovacich (2011) 201 Cal.App.4th 863 People v. Armendariz (1984) 37 Cal.3d 573

Business records Writing made in the regular course of business, made at or near the time of the act, condition or event; these conditions must be met. The document may contain other hearsay or inadmissible material so be careful about double hearsay. The preparer must know of the conditions. A business is broadly defined as any enterprise. The qualifying business record can include records of another entity maintained as part of this business. Police reports often contain statements made by civilians with no official duty to observe or relate information accurately to officers. Such reports or portions should not be admitted. The absence of a business record is an admissible fact. Compliance for delivery of documents or personal appearance is essential.

Ev C 1271 Ev C 1562, 1563, 1564 Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d 711 People v. Hernandez (1997) 55 Cal.App.4th 225

Compilations Evidence of a statement other than an opinion in a tabulation, list, directory, register, or other compilation is admissible If the compilation is authenticated, relevant, and generally used and relied upon as accurate in the course of a business under Ev C 1270. A compilation can apply to published and reliable internet postings of information.

Ev C 1340 People v. Mooring (2017) 15 Cal.App.5th 928 People v. Franzen (2012) 210 Cal.App.4th 1193 People v. Veamatahau (2018) 24 Cal.App.5th 68 [review granted]

Definition of business

A business is every kind of business, governmental activity, profession, occupation, calling, operation of institutions, whether operated for profit or not.

Ev C 1270



Page 71 of 90


Official records An official record is a writing made as a record of an act, condition, or event made by a public employee within the scope of his/her duty. The writing was made at or near the time of the act, condition, or event. The source method, and time of preparation indicate trustworthiness. No requirement to show identity and mode of preparation. Often coupled with a request for judicial notice. Experts may rely on published reports such a registry showing prescriptions issued for controlled substances.

Ev C 1280 Ev C 452, 453 Simons on Calif. Evid. §2:68 Cross v. Superior Court (2017) 11 Cal.App.5th 305

Limited admissibility of social services reports in dependency proceedings

In dependency proceedings, social service reports are admissible, including the hearsay statements in the reports. While the court may gain access to the reports under W&I C 827.10, this does not make the reports admissible in the family law proceeding even if the court ordered the investigation under W&I C 328.

W&I C 281, 359 J.H. v. Superior Court (2018) 20 Cal.App.5th 530

Former testimony The former testimony of a hearsay declarant from a deposition may be used during trial if the witness is unavailable. A witness’ testimony can be preserved through deposition by petition.

Ev C 1271 CCP 2025.620 CCP 2035.060 O’Neill v. Novartis (2007) 147 Cal.App.4th 1388

Forfeiture by wrongdoing

If a party aids or abets in wrongdoing intended to result in witness unavailability, this may cause the hearsay statements to be admitted. This exception may serve as the basis to sweep into evidence otherwise inadmissible hearsay.

Ev C 1390 People v. Kerley (2018) 23 Cal.App.5th 513

Exclusionary rule for illegally obtained evidence

There is a specific exclusionary rule for evidence obtained in violation of the Penal Code. Such evidence is not admissible in the family law proceeding. The court has broad discretion to exclude illegally obtained evidence.

Fam C 2022 PC 632 et seq.

Child abuse or neglect victim

Exception for hearsay statements for medical diagnosis or treatment of child abuse or neglect victim under 12.

Ev C 1253

Judicial notice Operates like a hearsay exception so court can judicially notice documents in the file but this is not a substitute for securing the admission of the contents of the documents. This probably can be easily solved by authenticating and offering the document into evidence. Court may take judicial notice of classified newspaper ads to show an opportunity to work.

Ev C 450 et seq. Simons on Calif. Evid. §7:1 Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331

Doctrine of completeness

This operates like a hearsay exception. It permits the admission of evidence that completes the thought on the same subject. The evidence must not be unduly time consuming and it must relate to admitted evidence. Remember this doctrine before you object to other evidence because you may use this doctrine to secure the admissibility of otherwise inadmissible evidence that benefits your client.

Ev C 210 Ev C 350 Ev C 351 Ev C 352 Ev C 356

ADMISSIBLITY OF DOCUMENTS Prehearing exchange

Except in domestic violence proceedings there must be a prehearing exchange of all documentary evidence to be relied upon for proof of any material fact.

CRC Rule 5.98


Page 72 of 90


What is a writing The code broadly describes a writing as any form of communication by any means of storage.

Ev C 250

Authentication Authentication is a foundational issue and a relevancy issue. A writing can be authenticated by anyone who saw it made or executed. Videos and photos can be authenticated by anyone who saw the events and can testify that the medium accurately depicts them and is not misleading. For audio recordings a transcript is required.

Ev C 1400 et seq.

Child custody evaluations

Child custody evaluations are only admissible upon stipulation of the parties and if properly in compliance with statutory and case law‐imposed requirements. The report must be rendered consistent with the scope determined by court order or stipulation. Any noncompliance to prepare the report renders it inadmissible; it shall not be considered by the court unless the errors are nonsubstantive or inconsequential. Evidence of bias or evidence of improper ex parte communication between the evaluator and another may be a basis for excluding consideration of a report. The court cannot impermissibly delegate decision making authority to an evaluator.

Fam C 3111 CRC 5.220 Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 Leslie O. v. Superior Court (2014) 231 Cal.App.4th 1191 Marriage of Laurenti (2007) 154 Cal.App.4th 395 Marriage of Matthews (1980) 101 Cal.App.3d 811

Child sex abuse reports

The court can order a report by a multidisciplinary team to investigate abuse. The report is not admissible per se.

Fam C 3118

GENERAL LAW OF EXPERTS Qualifying an expert Experts possess skill, special knowledge, training, or experience

sufficient to justify qualifying them as an expert on a particular subject where expert testimony would help the court.

Ev C 720 Ev C 721

Need for an expert An expert’s opinion must be related to a subject sufficiently beyond common experience, so the testimony will assist the trier of fact.

Ev C 801 Simons on Evidence Chapter 4

Basis for opinion Experts can testify based on personal observation; or on a matter made known to the expert of an appropriate type whether or not admissible unless the expert is precluded by law from using such reasons or matter for expert’s opinion.

Ev C 801 Ev C 802 Simons on Calif. Evid. §4:7

Excluding expert opinion

T/Ct may exclude expert opinion based in whole or in part on a matter that is not a proper basis for such an opinion.

Ev C 803 Simons on Calif. Evid. Chapter 4

Is there a sufficient basis for the opinion

If there remains a proper basis for the opinion, expert may state his opinion without reference to the excluded matter. The exclusionary principle under Ev C 803 is often imposed when an expert tries to draw a nexus between research and drawing a conclusion between the research and the specifics of the pending case.

Ev C 803

Examining expert from professional texts

Examination of expert can include testimony about reliable publications admitted into evidence and relied upon by the expert. Expert may be examined about established as reliable authorities based on admission of the text, the testimony of the witness, testimony of another expert, or by judicial notice.

Ev C 721 See Legislative Comments for 721 for further support and explanation



Page 73 of 90


Cross‐examination of experts

Experts are subject to cross‐examination like any other witness including qualifications and the basis and reasons for his/her opinion. T/Ct may impose time limits and may restrict redirect and re‐cross of an expert. Examination may extend to texts relied upon by the expert if otherwise established as reliable in the field.

CCP 128 Ev C 721 People v. Conagra Grocery (2017) 17 Cal.App.5th 51 California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12

Motions in limine Court can exclude testimony of a designated expert who has testified at deposition or trial who has stated his/her entire opinion and the basis for it. The exclusion applies to new opinions or opinions contrary to the deposition testimony of the designated expert.

Kennemur v. State of California (1982) 133 Cal.App.3d 907 Sargon Enterprises, Inc. v. U.S.C. (2012) 55 Cal.4th 747

Use of Motion in limine to secure admissibility

A motion in limine can exclude evidence, but it can also establish admissibility prior to the trial.

CCP 128 People v. Kerley (2018) 23 Cal.App.5th 513

Impeachment of an expert is narrowly defined

Ev C 780 is narrowly defined as a challenge to the truthfulness of a witness.

Ev C 780 Kennemur v. California (1982) 133 Cal.App.3d 907

Testimony of undesignated expert

An undesignated expert can testify that a fact relied upon by the opponent was incorrect or nonexistent. An undesignated expert’s testimony is limited to impeachment. Expert is prohibited from testifying under the guises of “foundational fact”. If the testimony exceeds the scope of permissible rebuttal and error is prejudicial, reversal is required.

Kennemur v. California (1982) 133 Cal.App.3d 907 Pina v. County of Los Angeles (2019) 38 Cal. App. 5th 531

Evidence offered to prove its falsity is not hearsay

If a document is offered to prove it is false it is not hearsay; as a document it must still be properly authenticated.

People v. Selivanov (2016) 5 Cal.App.5th 726

Doctrine of limited admissibility

T/Ct may permit consideration of hearsay for limited purposes and not for the truth of the matter asserted; expert may rely on the evidence as restricted.

People v. Conagra Grocery (2017) 17 Cal.App.5th 51

Hypothetical questions permitted

An expert may be asked hypothetical questions, but the assumed facts must be adequately proven, otherwise the expert’s testimony has no foundation and should be stricken. However, a motion to strike must be timely and clearly presented.

People v. Vega‐Robles (2017) 9 Cal.App.5th 382

If evidence is excluded is there still evidentiary foundation for any opinion

If the court excludes evidence which the expert has relied upon, the court may exclude the opinion based in whole or in part on a matter that is not a proper basis for such an opinion. If there remains a proper basis for the opinion, the expert may state the opinion without reference to the excluded matter. Experts may rely on otherwise inadmissible evidence; and expert can generally describe the evidence relied upon but the expert may not relay the evidence to the trier of fact.

Ev C 801, 802, 803 People v. Perez (2018) 4 Cal.5th 421


Page 74 of 90


CHALLENGES TO CASE SPECIFIC HEARSAY

Inadmissible medical records and hospital records

Expert may not properly testify about party’s failure to obey hospital rules, or the nature of their interpersonal relationships, or their spotty attendance at treatment programs. If sufficiently prejudicial, reversal is required where expert’s testimony is peppered with inadmissible hearsay. An expert cannot be the conduit of inadmissible hearsay in expressing testimony about the cause of death. However, an expert can testify that he/she relied upon other information not received into evidence.

Ev C 802 People v. Jeffrey G. (2017) 13 Cal.App.5th 501 People v. Roa (2017) 11 Cal.App.5th 428 People v. Garton (2018) 4 Cal.5th 485 People v. Perez (2018) 4 Cal.5th 421

Experts may rely on compensation studies

Experts may rely on reasonable compensation studies for similarly situated individuals as guidelines to determine reasonable compensation. In selecting a representative year, the expert must choose a reasonably representative period for average net earnings.

Marriage of Rosen (2002) 105 Cal.App.4th 808 Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675 Marriage of Ackerman (2006) 146 Cal.App.4th 191

Recordings While a transcript was provided, the recording was not admitted into evidence. It was impermissible for expert to be the conduit for the statements in the recording.

People v. Martinez (2018) 19 Cal.App.5th 853

Expert may testify to their own observations

Expert can testify based on personal observations and correlate those observations with other generalized information on the subject.

People Meraz (2016) 6 Cal.App.5th 1162

Expert can rely on investigator’s reports if they are admitted into evidence

Getting the investigator’s report into evidence is the first challenge because of its hearsay nature; but if the report is received into evidence, the expert may rely upon it just like any other item of evidence.

People v. Roa (2017) 11 Cal.App.5th 428

Probation reports and minute orders

Expert improperly opined based on information in probation reports and minute order listing prior offenses; they were not admissible under hearsay exception.

People v. Burroughs (2016) 6 Cal.App.5th 378

Website content as case specific hearsay or not

An expert comparing pills to website pictures was impermissible, but using a pill identification from a website was within the published compilation exception to the hearsay rule and is permissible if expert qualifies to explain its use. Merely being posted on the internet does not assure accuracy. Consider how these compilations apply to common areas for family law such as job postings, compensation surveys, school rating sites, crime rate statistics, or sState Department travel alerts.

People v. Stamps (2017) 3 Cal.App.5th 988 People v. Mooring (2017) 15 Cal.App.5th 928 People v. Espinoza (2018) 23 Cal.App.5th 317 People v. Franzen (2012) 210 Cal.App.4th 1193

X‐rays and photos separately admitted not case specific hearsay

Where other writings such as x‐rays or photos are properly received into evidence, an expert may rely on these writings and testify about their opinion based on this evidence. There is no Sanchez violation in this setting.

People v. Garton (2018) 4 Cal.5th 485



Page 75 of 90


SOUND BASIS FOR EXPERT’S OPINION STILL REQUIRED

Court serves as gatekeeper to exclude unsound or speculative opinions

Even if all the Sanchez elements are satisfied, the opinion may be excluded if it is based on unsound, or speculative opinions not founded on logic. The court must exclude such opinions even if there is a sufficient evidentiary basis for the opinion.

Sargon Enterprises, Inc. v. U.S.C. (2012) 55 Cal.4th 747

Sargon challenges apply at all stages of the proceeding

A challenge to an expert opinion applies to expert opinion evidence submitted in all stages of the proceedings; a trial court’s erroneous disregard for Sargon may be prejudicial.

Apple, Inc. v. Superior Court (2018) 19 Cal.App.5th 1101

PROCEDURAL CHALLENGES TO EXPERT DECLARATIONS OR DESIGNATIONS

Declarations must be offered into evidence

T/Ct can refuse to consider declarations not received into evidence. Counsel must move the declaration into evidence notwithstanding CCP 2009.

Marriage of Shimkus (2016) 244 Cal.App.4th 1262 CCP 2009 Fam C 217

Court may exclude declaration if expert unavailable to testify

The live testimony component of Fam C 217 requires that experts be available for cross‐examination; court should exclude expert declarations where expert is not available for cross‐examination.

Marriage of Swain (2018) 21 Cal.App.5th 830 Fam C 217

CCP based expert examination must be a permissible form of discovery

When ordering an expert examination under the CCP, the court cannot order an examination not enumerated by the code. If the statute dos not permit the requested examination such an appointment violates the Sargon standard since any opinion would be irrelevant and impermissible.

CCP 2016.10 Haniff v. Superior Court (2017) 9 Cal.App.5th 191

Stipulations may remove matter from controversy

Parties may stipulate to facts. The stipulation cannot bar presentation of inconsistent evidence or evidence of the nature or extent of the stipulated fact.

Fuentes v. Tucker (1947) 31 Cal.2d 1

WAIVER BY FAILURE TO ASSERT SANCHEZ OBJECTION Timely objection Failure to timely object to an expert relaying case‐specific

hearsay forfeits the argument. David v. Hernandez (2017) 13 Cal.App.5th 692 People v. Acuna (2017) 9 Cal.App.5th 1 People v. Blessett (2018) 22 Cal.App.5th 903

Forfeiture of objections by not raising them to specific exhibits

Defendant forfeited some of his objections by not raising them on specific exhibits.

People v. Burroughs (2016) 6 Cal.App.5th 378

Timely request for evidentiary hearing

An evidentiary hearing under Ev C 402 must be requested if a challenge is made to the foundational elements of an expert’s opinion; otherwise the objection is waived.

David v. Hernandez (2017) 13 Cal.App.5th 692


Page 76 of 90


Evidentiary rulings on authentication foundation and hearsay

T/Ct evidentiary rulings on issues of authentication, foundation, and hearsay are reviewed under the abuse of discretion standard. Witness with general knowledge of an automated system is sufficient for foundation. No requirement for complex computer hardware or software testimony.

People v. Goldsmith (2014) 59 Cal.4th 258

STANDARDS FOR REVIEW Evidentiary rulings on authentication, foundation, and hearsay

T/Ct evidentiary rulings on issues of authentication, foundation, and hearsay are reviewed under the abuse of discretion standard; there must be a showing the rulings resulted in prejudice.

People v. Landau (2016) 246 Cal.App.4th 850

Abuse of discretion standard

T/Ct ruling on sufficiency of expert’s opinion or admissibility of the opinion is reviewed under the abuse of discretion standard.

Sargon Enterprises, Inc. v. U.S.C. (2012) 55 Cal.4th 747 Cooper v. Takeda Pharma. (2015) 239 Cal.App.4th 555


Page 77 of 90

SSaarrggoonn DDooccttrriinneess ((RReevv.. 11//11//22002200))


SARGON CHALLENGES

Limitations on expert testimony

Expert’s testimony must be supported by admissible evidence, consistent with the information experts reasonably rely upon, and not subject to speculation.

Ev C 801, 802


Undesignated Expert testimony limited to impeachment

An undesignated expert’s testimony is limited to impeachment. Expert may not testify under guise of “foundational fact”. Impeachment testimony cannot exceed scope of permissible rebuttal. If sufficiently prejudicial then reversal is required.

Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531

Erroneous view of expert’s qualifications is abuse of discretion

If the trial court excludes an expert based on an erroneous view of his/her qualifications, such an exclusion is an abuse of discretion. Evidence exclusion under Sargon should be cautiously applied especially if it forecloses a party’s ability to present his/her case.


ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277

Gatekeeping function does not involve choice between competing experts

The T/Ct gatekeeping function does not involve choosing between competing experts. The function must be solely on principles and methodology, not on the conclusions they generate. Parties must be permitted to present their case.

Ev C 801, 802


Dueling experts allowed Dueling experts with different opinions are allowed. Excluding evidence must be based on the methodology of the expert not on conflicting evidence or opinions.

Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173

Sargon challenge is proper at any stage in the proceeding or any case

A Sargon challenge to the admissibility of an expert’s opinion applies to the expert’s opinion at any stage of the proceeding. Failure to apply Sargon to expert opinion evidence may be prejudicial.

Apple Inc. v. Superior Court (2018) 19 Cal.App.5th 1101

Does the evidence support the expert’s opinion

Opinions must be based on assumptions of fact with evidentiary support. Whether the evidence supports the expert’s opinion is a question of fact for the trier of fact.

Cooper v. Takeda Pharma. (2015) 239 Cal.App.4th 555

Expert testimony may render party opinion irrelevant

If the court permits expert testimony on the meaning of a document, it can reasonably exclude the testimony of a party about the same topic. The court can also limit examination of an expert.

Marriage of Pearson (2018) 21 Cal.App.5th 218

Anticipated profits must be based on reliable economic data

Profitability can be shown by economic and financial data, market surveys and analysis, or business records of similar enterprises. The test is whether there is a substantial similarity between the profit projections and the business opportunity.

Asahi Kasei Pharma Corp. v. Actelion, Ltd. (2013) 222 Cal.App.4th 945

Sargon Doctrines


Page 78 of 90


Not proper to consider goodwill testimony if there is no predicate showing of goodwill

The proponent of goodwill testimony must show the predicate fact there is goodwill before the court should permit expert testimony calculating the value of the goodwill.

Dept. of Transportation v. Dry Canyon Enterprises, LLC (2012) 211 Cal.App.4th 486

Must show evidentiary foundation for method of calculation of profits before opinion can be received

There must be an evidentiary foundation for the existence of profits before the expert’s opinion on the method of calculating the profits can be received.

Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370

Fair market value The value of any asset is its fair market value, which is the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell, and both knowing of the relevant facts. Unless specifically indicated, the court valued the assets and liabilities of the parties as near as practicable to the time of trial as required by Fam C 2552(a). Where a spouse impairs the court’s ability to value the assets at time of trial, the court may utilize a different date. See Marriage of Stallcup (1979) 97 Cal.App.3d 294. The mere passage of time is not grounds for an alternate valuation. See Marriage of Priddis (1982) 132 Cal.App.3d 349, where the court denied alternative valuation of the family residence even though 12 years intervened between trial and date of separation. Absent nonmarket factors, the parties should share all gains and losses equally. Increases in valuation that occur because of nonpersonal factors such as inflation or market fluctuations and not resulting from the postseparation efforts of one spouse alone, the property should be valued during trial. See Marriage of Sherman (2005) 133 Cal.App.4th 795. Under appropriate circumstances, the court may elect to defer valuation of an asset until its value can be better ascertained. See Marriage of Munguia (1983) 146 Cal.App.3d 853.

Ev C 810

Fam C 2552(a)

Treas. Reg. Sec. 20.2031‐1(b)

Marriage of Hewitson (1983) 142 Cal.App.3d 874

Marriage of Foster (1974) 42 Cal.App.3d 577

Marriage of Cream (1993) 13 Cal.App.4th 81

Court need not order sale to determine value of business

The court may reject the theory that it must order the sale of a business to determine its value.

Marriage of Honer (2015) 236 Cal.App.4th 687

Use of fair market value and marital value are interchangeable

Based on the testimony at trial, the experts used fair market value and the concept of marital value interchangeably.

Marriage of Honer (2015) 236 Cal.App.4th 687

Alternate valuation Upon showing good cause, the trial court may order an alternative valuation date. For instance, where a spouse keeps poor records, the court may select an alternative valuation date.

Fam C 2552(b)

Marriage of Nelson (2006) 139 Cal.App.4th 1546


CFLR Family Law Bench Blotters • Sargon Doctrines

Page 79 of 90


Valuation of business interests

Typically, one spouse maintains sole management and control of a business enterprise after the date of separation. See Marriage of Rives. Frequently a spouse will apply for an alternative valuation of a closely held corporation or small business. See Fam C 2552(a). Valuation of a business interest at the date of separation ameliorates the impact of postseparation increases or decreases in value of the business. See Marriage of Imperato. The court has authority to reimburse the community estate where one spouse has enjoyed the exclusive use of the business enterprise after the date of separation. See Marriage of Watts.

Fam C 2552(a)

Marriage of Rives (1982) 130 Cal.App.3d 138

Marriage of Imperato (1975) 45 Cal.App.3d 432

Marriage of Watts (1985) 171 Cal.App.3d 366

Marriage of Duncan (2001) 90 Cal.App.4th 617

Valuation of business interests (cont’d)

Marriage of Green (Green II) (1989) held that it was appropriate to value a professional practice such as a law practice as of separation. Likewise, where the business enterprise depends on the operating skill, reputation, and guidance of one spouse, it should be valued at the date of separation. See Marriage of Stevenson. It is not the size alone of the business that determines whether the court should use a date of separation value. For instance, Marriage of Duncan involved an institutional advisory business with funds totaling $84 million. The Duncan court measured the method not by the capital assets, but the skill, industry, guidance, and reputation of the operating spouse.

Marriage of Green (1989) 213 Cal.App.3d 14

Marriage of Stevenson (1993) 20 Cal.App.4th 250

Marriage of Duncan (2001) 90 Cal.App.4th 617

Terms of a covenant not to compete

The court may impose a covenant not to compete in awarding one party or the other the business.

Marriage of Greaux and Mermin (2014) 223 Cal.App.4th 1242

Apportionment of interests

Typically, the labor intensive professional practice or service business is valued under the Pereira method of computing a fair return on the separate property investment as a long‐term investment well secured, then allocating the balance of the increase to the community estate. If the business is capital intensive and capitalized with separate property then the Van Camp method of computing a fair compensation for the community efforts, skill, and talent rendered during the marriage, then allocating the balance of the increased value to the separate property of the business owner is used. The court has broad discretion to apply whichever method accomplishes substantial justice. See Marriage of Imperato (1975) 45 Cal.App.3d 432 and Marriage of Dekker (1993) 17 Cal.App.4th 842. If there is a minimal expenditure of time devoted to a stock investment portfolio, the court may deny any apportionment to the community estate. See Estate of Ney (1963) 212 Cal.App.2d 891. If the business increased in value because of inflationary appreciation, the Van Camp method is probably more appropriate. The court may also use a blended approach using different values for different times in the life of the entity.

Marriage of Brandes (2015) 239 Cal.App.4th 1461


Page 80 of 90


Tracing of SP funds in commingled and non‐comingled accounts

Tracing of SP into a commingled account can be based on the credible testimony of a spouse and adequate, even if incomplete accounts. Where no records are available, tracing can be completed through the community expense method. For non‐ comingled accounts, the credible testimony of a party can establish the SP interest in the account. Expert may testify to alternative theory for tracing so long as supported by common sense and fairness.

Marriage of Mix (1975) 14 Cal.3d 604 Marriage of See (1966) 64 Cal.2d 778 Marriage of Ficke (2013) 217 Cal.App.4th 10 Marriage of Ciprari (2019) 32 Cal.App.5th 83

Vocational evaluation T/Ct may only order a vocational evaluation when there is a pending proceeding involving SS and CS. Vocational evaluation in CS proceeding mandates consideration of statutory factors relating to impact on children if stay‐at‐home parent commences employment. Substantial evidence must support opinions of evaluator.

Fam C 4331 Marriage of Stupp and Schilders (2017) 11 Cal.App.5th 907 Marriage of Pearson (2018) 21 Cal.App.5th 218

Reasonable compensation

Determining reasonable compensation probably requires the presentation of expert testimony. See Ev C §§ 801, 802. Factors for consideration by the court on reasonable compensation include established comparable compensation from similar enterprises; the expert must quantify the amount and importance of the working spouse’s efforts; the nature and amount of time spent in operating the business; the risk factor for the particular industry or business; the actual duties performed by the spouse within the business. Expert testimony is the preferable method of demonstrating reasonable compensation. See Marriage of Rosen (2002) and Marriage of Ackerman (2006) where the court suggested using a headhunter or compensation expert to establish reasonable compensation of a similarly situated person.

Ev C 801, 802

Marriage of Rosen (2002) 105 Cal.App.4th 808

Marriage of Ackerman (2006) 146 Cal.App.4th 191

Licudine v. Cedars‐Sinai (2016) 3 Cal.App.5th 881

Accounts receivable Accounts receivable earned during the marriage are community property even if paid after separation. See Marriage of House (1975) 50 Cal.App.3d 578. Valuation of accounts receivable appropriately includes aging the accounts receivable for collectability. See Marriage of Marx (1979) 97 Cal.App.3d 552, Marriage of Lopez (1974) 38 Cal.App.3d 93, Thomasset v. Thomasset (1953) 122 Cal.App.2d 116. The court must protect against disclosing confidential information when reviewing accounts receivable for doctors, lawyers, therapists, and others with a confidential relationship protected by law.

Marriage of Green (1989) 50 Cal.App.3d 578



Page 81 of 90


Valuation of work in progress

Characterization of work in progress depends on the nature, necessity, and extent of the work and when it was completed. See Jewel v. Boxer (1984) 156 Cal.App.3d 171, Champion v. Superior Court (Boccardo) (1988) 201 Cal.App.3d 777, Grossman v. Davis (1993) 28 Cal.App.4th 1833, Rothman v. Dolin (1993) 20 Cal.App.4th 755. The Court may apportion between the community estate and the separate property services rendered in securing a recovery for a contingent fee case. See Waters v. Waters (1946) 75 Cal.App.2d 265. Any apportionment is not necessarily a function of the time spent in producing the result. See Marriage of Poppe (1979) 97 Cal.App.3d 1. However, use of a time rule formula for apportionment may be appropriate.

Marriage of Kilbourne (1991) 232 Cal.App.3d 1518

Minority discounts Where a spouse owns a minority interest in a business enterprise, the court will typically adjust the value of the interest based on this factor. See Marriage of Behrens (1982) 137 Cal.App.3d 562. In the minority interest setting, the degree of control is a significant factor. In Ronald v. 4‐C’s Electronic Packaging, Inc. (1985) 168 Cal.App.3d 290, the court observed that the lack of control inherent in minority shares would substantially decrease their value on the open market. Conversely, if there is a majority ownership interest, the court may consider a bonus being awarded for control. Where there are restrictive stock ownership agreements, valuation may be governed by the agreement. See Marriage of Micalizio (1988) 199 Cal.App.3d 662 and Marriage of Rosan. Significant restrictions on transferability of a minority interest results in illiquidity that will affect valuation.

Marriage of Rosan (1972) 24 Cal.App.3d 885


Page 82 of 90


Goodwill Case law supports the proposition that goodwill does not exist in certain settings. For instance, a partner in a large medical partnership (Kaiser Permanente) is actually like an employee with no ownership interest paid for services rendered. See Marriage of Slivka (1986) 183 Cal.App.3d 159. Further, an individual whose personal skill, experience, and knowledge affording him or her elite professional standing may individually expect continued opportunity to perform services, but the individual person is not possessed of a transferable asset sufficient to result in a finding of goodwill. In Marriage of Iredale and Cates (2004) 121 Cal.App.4th 321, the Court of Appeal affirmed a finding that a partner in a large nationwide law practice had no individual component of goodwill within the firm since her partnership agreement provided there was no goodwill in the firm for any member of it. See Marriage of McTiernan and Dubrow (2005) 133 Cal.App.4th 1090 where the trial court held that a successful movie producer’s standing in the community did not warrant a finding of a transferable business justifying a finding of goodwill. Within certain limitations, the court may use whatever formula to determine goodwill that accomplishes substantial justice. In Mueller v. Mueller (1956) 144 Cal.App.2d 245, the Court of Appeal approved the use of capitalization of excess earnings method. In Marriage of Ackerman (2006) 146 Cal.App.4th 191, the court approved the capitalization of excess earnings method to calculate goodwill in a medical practice. Typically, the capitalization of excess earnings method relies upon determining the comparable salary of an employee with experience comparable to the business owner by reference to appropriate journals cataloguing compensation, and then determining the amount by which this business owner’s income exceeds the normed income resulting in “excess earnings” which are then capitalized at a justified rate. To arrive at a fair representation of the business, evaluators typically use three to five years to determine business trends. Sometimes averaging or weighting the past years to indicate fair value. The court must consider average annual net earnings before taxes by looking at a reasonably illustrative period of earnings. See: Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675 and Marriage of Rosen (2002) 105 Cal.App.4th 808. The court cannot speculate about a hypothetical employment contract in determining goodwill valuation. See Marriage of Duncan (2001) 90 Cal.App.4th 617. Revenue Ruling 68‐609 provides that the excess earnings approach is a percentage return on the average annual value of the tangible assets used in a business determined by using a period of years (preferably not less than five) immediately prior to the valuation date. The percentage return on tangible assets determined is deducted from the average earnings of the business for such a period and the remainder if any, is considered the average annual earnings from the intangible assets of the business for the period.

Rev Rul 59‐60

Marriage of Hargrave (1985) 163 Cal.App.3d 346

Marriage of Hewitson (1983) 142 Cal.App.3d 874



Page 83 of 90


Goodwill (cont’d) This amount considered as the average annual earnings from intangibles is capitalized a percentage of say 15 to 20 percent is the value of the intangible assets of the business determined under the formula approach. In the typical family law proceeding, business evaluations usually equate to factors of 1 to 5. This is typically called the factor or multiplier. For example, if the excess earnings are $10,000 and the gross multiplier is 3, then the goodwill is $30,000. There are no standardized methods for determining capitalization rates. See Revenue Ruling 59‐60. The court has authority to reject all the testimony on goodwill, but if it does so, the court should appoint its own expert under the authority of Ev C §460 and Marriage of Hargrave.

Stock Options Stock options are a property right divisible upon dissolution of marriage. See Marriage of Harrison. The principle question is when the option was earned by the employee spouse, which usually requires considering the corporation’s motives for granting the options and the options awarded. The grant of the options involves a “striking price” defined as the price at which an employee may buy stock on or after a fixed date. If an option is granted and vested during the marriage, the option is divisible community property in which each spouse has a present and equal interest under Fam C §§ 65, 751, and 760. Where options require a spouse to remain employed after the separation for the options to vest, then typically there is an apportionment between the community (§ 760) and separate property interests (§ 770). Case law supports a time rule formula in making an apportionment. See Marriage of Judd (1977) 68 Cal.App.3d 515. Typically, in using the time rule apportionment, the date of the grant is used in the formula although where the court finds that the options replace an earlier set of options that had become worthless, the court may use the date of employment. See Marriage of Hug. Options are typically not transferable; so that only the employee spouse can exercise the option. The court may order the employee spouse to exercise the option (Marriage of Harrison) and hold the proceeds in trust with an appropriate allocation for the income tax consequences (Marriage of Nelson). Most cases are very fact specific on the terms of the grant date and exercise date. In Marriage of Walker (1989) 216 Cal.App.3d 644, the court observed that: "Considerations of exercisability of the options and vesting of the stocks are, however, extremely significant . . . . To ignore this difference is to misconstrue the entire time rule concept . . . . [T]he community does not lose its interest in [employment benefits conferred during marriage] simply because they are received after separation. Conversely, however, when the parties separate before the benefits are vested, the community does not receive all of them. There must be an allocation taking into account the periods of time before and after separation." The case law differentiates between whether the options attracted new employees or reward future efforts.

Marriage of Harrison (1986) 179 Cal.App.3d 1216

Marriage of Hug (1984) 154 Cal.App.3d 780

Marriage of Nelson (1986) 177 Cal.App.3d 150


Page 84 of 90


Stock Options (cont’d) The date on which the option is no longer subject to risk of forfeiture is a key component in the apportionment. See Marriage of Harrison. In Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, the court observed that unlike actual shares of stock, stock options represent no ownership interest in the underlying business, but are merely a contractual right to purchase stock at a set price (strike price). This right to purchase stock is usually subject to conditions, such as limitations on when the options may be exercised, and a requirement that the option holder continue employment with the issuing company. The value of unexercised stock options is inherently speculative, because it lies in the potential that a difference may arise, by the time the options are exercised, between the strike price and the market price. If the market price climbs higher than the strike price, the holder of the options can realize income, in the difference between the two prices, if he or she purchases the underlying stock and then immediately sells it. Only if the option holder purchases the stock at the strike price, but does not sell it, will he or she have acquired an equity interest in the underlying business. To do that, however, the option holder must invest funds in the amount of the strike price times the number of shares purchased.

Moore/Marsden claims Marriage of Moore permits apportionment between the community property and the separate property where community property is used to improve or service debt on separate property. A return of the community property contribution based on the reduction of the principal balance on the loan is made to the community estate. And the community estate is awarded an apportioned interest in the increased value of the separate property under Marriage of Marsden. The trial court may properly apportion appreciation in residential or commercial properties using the Moore/Marsden formula calculating separate and community property percentages based on the purchase price. See Marriage of Frick 181 Cal.App.3d 997, and Marriage of Nelson (2006) 139 Cal.App.4th 1546.

Marriage of Moore (1980) 28 Cal.3d 366

Marriage of Marsden (1982) 130 Cal.App.3d 426

Watts & Jefferies claims Where one spouse has the use of an asset, the court has jurisdiction to order the spouse with the use of the asset to reimburse the community estate for the use of the asset. See Marriage of Watts. Authority to order reimbursement includes the power to order a spouse to reimburse the community estate for the reasonable rental value of the asset. See Marriage of Jeffries (1991). The power to order reimbursement includes reimbursement to the spouse who paid any expenses related to the asset such as the mortgage. An owner of property may testify to its rental value.

Marriage of Watts (1985) 171 Cal.App.3d 366

Marriage of Jeffries (1991) 228 Cal.App.3d 548

Castillo v. Friedman (1987) 197 Cal.App.3d Supp. 6

Tracing SP in commingled accounts

Separate property does not lose its character as separate property if it is ascertainable as separate property under Hicks v. Hicks (1962) 211 Cal.App.2d 144. The two methods of tracing are commonly called the direct tracing method and the indirect tracing method.

See v. See (1966) 64 Cal.2d 778

Marriage of Mix (1975) 14 Cal.3d 604



Page 85 of 90


Tracing SP in commingled accounts (cont’d)

The burden of proof to trace a separate property interest rests with the person claiming it. See Mason v. Mason (1960) 186 Cal.App.2d 209. In Marriage of Mix, the court held that separate property is directly traced if there is shown a chronological itemization of the source and use of funds with credible testimony establishing an intention to use separate property. See Beam v. Bank of America (1971) 6 Cal.3d 12 and Marriage of Johnson (1983) 143 Cal.App.3d 57. A lack of adequate records may cause the court to find a failure to trace the separate property interest. See Marriage of Marsden (1982) 130 Cal.App.3d 426 and Marriage of Higinbotham (1988) 203 Cal.App.3d 322. Courts may rely on the credible testimony of a single witness as a basis to justify a finding that separate property was traced. See Marriage of Mix where the court found that the spouse seeking reimbursement of separate property had not traced every transaction. Under the family expense method of tracing separate property, there must be showing an agreement for reimbursement and there must be a restatement of the family finances demonstrating that the community expenses exceeded the community property income at the time of the acquisition as established by the court in See v. See. Further, there must be shown the actual use of funds and payments made when separate property funds were present in the account as required by Marriage of Higinbotham. T/Ct is not limited to the direct and indirect tracing methods so long as the tracing methodology is logical, sound, and supported by substantial evidence Marriage of Ciprari (2019) 32 Cal.App.5th 83. If there are unexplained gaps in the tracing data and unsupported assumptions, then the tracing report should be rejected Marriage of Deluca (2019) 2019 WL 5586579.

Tax consequences To be considered in a family law case, tax consequence must be immediate, specific, and in connection with the dissolution. Speculative or future tax considerations should not be considered

Marriage of Fonstein (1976) 17 Cal.3d 738

Marriage of Epstein (1979) 24 Cal.3d 76

Method for valuation of judgment

Determining the collectability of a judgment must be based on the likelihood of actual collection, not on the premise that an aggressive collection effort would cause pressuring the obligor to borrow money to pay the judgment. An opinion on collectability cannot rely on speculation, factual assumptions, or conclusions not supported by the record. Consider: application to accounts receivables.

Wise v. DLA Piper LLP (2013) 220 Cal.App.4th 1180

Test results must actually support the testimony of the expert

T/Ct properly excluded evidence on whether a driver was under the influence of marijuana based on the urine test results where there was no other evidence supporting the expert’s opinion. Under these circumstances the opinion should be excluded under Ev C 801(b).

Ev C 801(b)

David v. Hernandez (2017) 13 Cal.App.5th 692


Page 86 of 90


Child custody evaluations

Child custody evaluations are only admissible upon stipulation of the parties and if properly in compliance with statutory and case law‐imposed requirements. The report must be rendered consistent with the scope determined by court order or stipulation. Any noncompliance to prepare the report renders it inadmissible; it shall not be considered by the court unless the errors are nonsubstantive or inconsequential. Evidence of bias or evidence of improper ex parte communication between the evaluator and another may be a basis for excluding consideration of a report. The court cannot impermissibly delegate decision making authority to an evaluator.

Fam C 3111 CRC 5.220 Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 Leslie O. v. Superior Court (2014) 231 Cal.App.4th 1191 Marriage of Laurenti (2007) 154 Cal.App.4th 395

Marriage of Matthews (1980) 101 Cal.App.3d 811

Child sex abuse reports The court can order a report by a multidisciplinary team to investigate abuse. The report is not admissible per se.

Fam C 3118


Transmutation

Page 87 of 90

TTrraannssmmuuttaattiioonn ((RReevv.. 11//11//2200))

Subject/Case Transmutation Principles Authority

STATUTORY AND CASE LAW OVERVIEW

Elimination of oral transmutation

The statutory scheme avoids the unreliable and easily manipulated efforts to prove a transmutation based on oral evidence.

Fam C §850 Marriage of Benson (2005) 36 Cal.4th 1096

Old law applies to transmutations before 1‐1‐85

A transmutation affects property rights. The statutory scheme does not apply if the transmutation occurred before 1‐1‐85. The prior scheme permitted proof of oral transmutation of property.

Fam C §852(e)

Transmutation by agreement or transfer

Parties may transfer with or without consideration to transmute character of property from SP to CP, from CP to SP of the other, or from SP of one to SP of the other.

Fam C §850

Statute of Frauds applies

A transmutation is subject to the law governing fraudulent transfers, so a written instrument is required. This section precludes “oral transmutations” for events after 1‐1‐94.

Fam C §851

Express declaration required

A transmutation must be made in writing, contained in an express declaration made, joined in, consented to, or accepted by the spouse whose interest is adversely affected.

Fam C §852(a)

Recording if real property affected

A transmutation of real property is not effective as to third parties without notice thereof unless it is recorded.

Fam C §852(b)

Certain gifts excluded

Section does not apply to a gift between spouses of personal property used solely or principally by the spouse to whom the gift is made if the gift was not of substantial value considering the circumstances of the marriage.

Fam C §852(c)

Statement in a will of the character of property is not proof of transmutation

In a dissolution proceeding commenced before the death of a party, any statement in a will about the character of the property is not admissible.

Fam C §853(a)

Waiver of survivor annuity

A waiver of a right to a joint and survivor annuity or survivor’s benefits is not a transmutation of the CP rights of the person executing the waiver.

Fam C §853(b)

Nonprobate transfers by a will

Written joinder or written consent to a nonprobate transfer of CP on death that satisfies Section 852 is a transmutation and governed by law applicable to transmutation. This provision applies only to wills, not trust or transmutation agreements.

Fam C §853(c) Marriage of Holtemann (2008) 166 Cal.App.4th 1166 Estate of Gallo (1995) 33 Cal.App.4th 592

Apportionment is distinct from characterization

Apportionment between SP & CP is distinct from characterization of the property.

Marriage of Rossin (2009) 172 Cal.App.4th 725


Page 88 of 90


Commingling of funds

Commingling of funds does not destroy the character of the SP although tracing may be a more difficult task when funds are placed into a CP account. Inability to trace does not change the character of the property.

Marriage of Rossin (2009) 172 Cal.App.4th 725 citing Marriage of Mix (1975) 14 Cal.3d 604

Purchases not exempt from rules

A purchase of property in the name of one spouse alone made during the marriage with CP does not qualify as a transmutation.

Marriage of Valli (2014) 58 Cal.4th 1396

Express declaration

While no magic words are required, the document must expressly state that the character of the property is being changed.

Estate of MacDonald (1990) 51 Cal.3d 262

TRANSMUTATION OCCURRED

Grant deed A grant deed from one spouse to another spouse will satisfy Fam C §852(a). Deed from mother‐in‐law and W to H would create a CP interest in the property for H.

Estate of Bibb (2001) 87 Cal.App.4th 461 Marriage of Begian and Sarajian (2018) 31 Cal.App.5th 506

Interspousal transfer grant deed

An interspousal transfer grant deed is sufficient under Estate of Bibb to qualify as a transmutation, but contrast Marriage of Begian and Sarajian supra where a transfer deed was not sufficient.

Marriage of Kushesh and Kushesh‐Kaviani (2018) 27 Cal.App.5th 449

NO TRANSMUTATION

No oral transmutation or partial performance exception

H claimed W agreed to waive her interest in his retirement accounts in exchange for H transferring interest in family residence. The deed was not evidence of a transmutation of W’s interest in the retirement accounts. The doctrine of partial performance does not save the claim under Fam C §852(a). Extrinsic evidence shown W.

Marriage of Benson (2005) 36 Cal.4th 1096 Marriage of Campbell (1999) 74 Cal.App.4th 1058

Beneficiary designation for survivor annuity

H executed a beneficiary designation providing W would be his survivor. However, the designation did not qualify as an express transmutation under Fam C §852. Because the beneficiary designation is now irrevocable. To revoke the designation H must buy out W’s interest.

Marriage of Cooper (2008) 160 Cal.App.4th 574

Diamond ring 5 carat unset diamond purchased with CP was not a gift under Fam C §852(c) given its value. No document was executed to satisfy Fam C §852(a) requirement for a transmutation.

Marriage of Steinberger (2001) 91 Cal.App.4th 1449

DMV transfer documents not sufficient

H transferred title of his automobile into joint names. The DMW Vehicle Registration form could not transmute (even if it could transfer) H’s interest in the automobile to the CP estate. Where H used funds from W’s SP account and acquired automobile, the vehicle remained subject to CP presumption because of the lack of written agreement and the vehicle was not subject to the gift exception.

Estate of Bibb (2001) 87 Cal.App.4th 461 Marriage of Buie and Neighbors (2009) 179 Cal.App.4th 1170

Escrow instructions dividing sale proceeds

H & W instructed escrow to make a 50/50 split of the net proceeds of sale. The instructions do not qualify as a sufficient document to effectuate a transmutation of the marital property.

Marriage of Leni (2006) 144 Cal.App.4th 1087


CFLR Family Law Bench Blotters • Transmutation

Page 89 of 90


Estate planning documents

Merely characterizing separate property transferred to a trust established under an estate plan as CP could not effectuate a transmutation absent language which expressly states the characterization of property is being changed.

Marriage of Starkman (2005) 129 Cal.App.4th 659

Individual Retirement Accounts

Designation of beneficiary documents signed by W when H opened IRA accounts did not waive her CP interest in the pension funds or transmute her CP share of those funds to H’s SP.

Estate of MacDonald (1990) 51 Cal.3d 262

Life insurance W took title to life insurance policy in her name alone using CP to acquire the policy. The acquisition was subject to the rules governing a writing.

Marriage of Valli (2014) 58 Cal.4th 1396

Loan documents and other documents of title

H acquired property in his name alone sourcing the down payment from his SP and retiring the loan shortly after acquisition. On these facts home was H’s SP so Fam C §2640 does not apply. If property is acquired during marriage with both separate and community funds, the transmutation requirements of Fam C §852 must be satisfied before the reimbursement provisions of Fam C §2640 apply.

Marriage of Bonvino (2015) 241 Cal.App.4th 1411

Partnership modification agreement

H executed partnership modification agreements, but those agreements did not expressly declare an intent to transmute H’s SP interest in the partnership.

Marriage of Lafkas (2015) 237 Cal.App.4th 921

Real property H not entitled to reimbursement of SP contributions to W’s SP residence under transmutation statute. W did not agree in writing to transmute her SP residence into H’s SP residence or CP.

Marriage of Cross (2001) 94 Cal.App.4th 1143

Trust Transfer Deed

H’s transfer deed to W’s trust was not an express declaration sufficient under Fam C §852(a).

Marriage of Begian and Sarajian (2018) 31 Cal.App.5th 506

Trust documents H executed a transmutation agreement with a provision for establishing a trust. The documents satisfied Fam C §852(d) as a clear expression of an intention to change the character of the property. Use of the word “transmute” is not required. (It might be advisable.)

Marriage of Holtemann (2008) 166 Cal.App.4th 1166

Stock journal & stock documents

H transferred stock into a stock account in W’s name. These transfer documents could not complete a transmutation of the stock.

Marriage of Barneson (1999) 69 Cal.App.4th 583

GIFT EXCEPTION

Automobile not a tangible personal article

H acquired a Porsche automobile by withdrawing $60K from W’s account and taking title in his name. This purchase did not qualify as a tangible article of a personal nature not substantial in value.

Marriage of Buie and Neighbors (2009) 179 Cal.App.4th 1170

Unset diamond converted to ring did not meet the marital gift exception

T/Ct believed H’s testimony that a 5‐carat stone purchased with CP remained CP even though it was later placed into a setting and worn by W. While it was a tangible article of a personal nature, it had substantial value based on the marital lifestyle. It was not a gift under Fam C §770.

Marriage of Steinberger (2001) 91 Cal.App.4th 1449

Judge Lewis’ CFLR Family Law Bench Blotters€¦ · Judge Lewis’ CFLR Family Law Bench Blotters...

Documents

Transcript of Judge Lewis’ CFLR Family Law Bench Blotters€¦ · Judge Lewis’ CFLR Family Law Bench Blotters...