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Vol. 37 • No.

3 • March 2013

Trial court can reduce fees requested by Borson motion based on


In This Issue spouse’s conduct without invoking Fam C §271 . . .

Custody In affirmance, Second District holds that award to


Chalmers v. Hirschkop . . . . . . . 12368 one spouse of community property encumbered by
E.U. and J.E. . . . . . . . . . . . . . . . . 12373 the other spouse’s FLARPL does not automatically
Ian J. v. Peter M. . . . . . . . . . . . . 12370 extinguish that FLARPL, but trial court may order it
Family Residence expunged under Fam C §2034(c)
Turkanis and Price . . . . . . . . . . . 12365
In re Marriage of Turkanis and Price
Interstate Custody
(January 30, 2013)
Gloria A. . . . . . . . . . . . . . . . . . . 12380
Juveniles California Court of Appeal 2 Civil B229482, B234011 (Div 8) 213
Marquis H. . . . . . . . . . . . . . . . . . 12367 Cal.App.4th 332, __ Cal.Rptr.3d __, 2013 FA 1575, per Flier, J
Noe F. . . . . . . . . . . . . . . . . . . . . 12367 (Rubin, Acting PJ and Grimes, J, concurring). Los Angeles County:
Procedure Nelson, J, affirmed. For appellants: pro per. For respondent:
Kassey S. v. City of Turlock . . . . 12380 Glenn Buzard, (310) 820-6700. CFLP §§A.65.2.3, A.65.2.10.

Professional Responsibility oan Price married Richard Turkanis in March 1995. Their daughter
Parker v. Harbert . . . . . . . . . . . . 12379
Setting Aside Judgments
Campi . . . . . . . . . . . . . . . . . . . . 12375
J was born in 1997. The marriage was not successful and the couple
separated on December 19, 2003. In February 2004, Richard filed for
divorce. The trial court issued their status-only disso judgment on
November 10, 2005. However, trial on the remaining issues was split into
Spousal Support
parts. Beginning on May 19, 2008, the trial court held a trial on the valua-
Melissa . . . . . . . . . . . . . . . . . . . 12377
tion of Richard’s closely held corporation. In July, Joan retained Daniel
Departments Spitzer, the tenth attorney to represent her in the disso. Spitzer associated
Subscriptions . . . . . . . . . . . . . . 12366 another attorney, Brian Kramer, in the matter in December 2008. Joan
CFLR/CFLP Update Service . . . . 12383 told Kramer that she had no funds with which to pay his fees, but he
Table of Statutes Cited . . . . . . . 12384 could record a FLARPL [Family Law Attorney’s Real Property Lien; Fam C
Topical Index . . . . . . . . . . . . . . . 12385 §2033] on one of the two community property residences that she and
Citalerter . . . . . . . . . . . . . . . . . . 12386 Richard owned. On February 13, 2009, Joan filed and served a notice of
intent to record Kramer’s FLARPL against 1234 Bundy Drive, whose esti-
mated fair market value (FMV) was over $1 million. She included a sup-
porting declaration, stating that she and Richard owned two residences,
1234 Bundy Drive and 1250 Bundy Drive. In response, Richard agreed to
the FLARPL on 1234 Bundy Drive, but objected to putting a FLARPL on
1250 Bundy Drive because he believed that the FLARPL should attach to
property that Joan was awarded in the disso and he expected 1234 Bundy
Drive to go to her. After further proceedings, Kramer’s FLARPL attached to
1234 Bundy Drive in the amount of $140,000. In June 2009, Joan filed
and served notice of her intent to allow Spitzer to record a FLARPL on
1234 Bundy Drive for $125,000. Although Richard initially objected, the
couple was able to agree that Spitzer could attach a $150,000 FLARPL to
1234 Bundy Drive, which Spitzer recorded on September 28, 2009. Spitzer
California Family Law Report

substituted out as Joan’s attorney on November 20, to the risk” that property values or other elements in
2009. Kramer soon followed, substituting out on the case “ ‘may eat up their client’s interest in the
December 9, but not before filing a Borson motion for property.’ ” The court then granted Richard’s
fees (In re Marriage of Borson (1974) 37 Cal.App.3d motion to expunge. In a subsequent written order,
632). the trial court found that Fam C §2034(c) gave it the
After a trial on the property division, the trial authority to deal with the FLARPLs and that, given
court awarded both 1234 Bundy Drive and 1250 the financial facts of the case, allowing the FLARPLs
Bundy Drive to Richard, and ordered Joan to make to remain would make for an unequal property divi-
an equalizing payment of $154,289. The trial court sion. When Kramer moved for reconsideration, the
did not specifically mention the FLARPLs on the trial court denied his motion and declined to issue a
property, but was aware of their existence and appar- statement of decision. Kramer and Spitzer then filed
ently did not consider them expunged. Richard did notices of appeal.
not mention them in the proposed judgment he pre- At a later hearing, the trial court considered
pared because he believed that Spitzer and Kramer Kramer’s Borson motion. On October 26, 2010, the
were entitled to a hearing before the FLARPLs were court issued a lengthy written decision in which it
expunged. The trial court agreed with that view and examined the parties’ respective financial positions,
after giving notice, Richard filed a motion to extin- the attorney’s fees that each of them owed, and
guish, expunge, or deny enforcement of the Joan’s litigation conduct. It focused on the fact that
FLARPLs, claiming that they were unjust in the cur- Richard would probably never collect on the equaliz-
rent circumstances, which included Richard’s pay- ing payment, “ ‘is the sole support for [the parties’
ment of two fee awards to Joan and the trial court’s daughter],’ ” and had his own attorney’s fees to pay.
award to him of both Bundy Drive properties. In The court also found that Richard could assert that
opposition, Kramer argued that his FLARPL should Joan’s conduct supported a fee offset under Fam C
not be expunged because Richard had agreed to it, §271. The court then ordered Richard to pay Kramer
Kramer had relied on it in agreeing to represent Joan, $39,000 toward his fees, a fraction of the $273,109
and there was no legal basis for expunging it. Kramer he had asked for. Kramer appealed that order. Acting
also asked the lower court to issue a statement of on both appeals, the Second District affirmed.
decision on Richard’s motion and his Borson motion.
Spitzer’s opposition to Richard’s motion echoed the Whys and wherefores of FLARPLs . . .
arguments made by Kramer. After a hearing, the trial
court found that both FLARPLs were properly The attorneys contended that the trial court erred by
recorded, but that attorneys take FLARPLs “subject expunging the FLARPLs. In opposition, Richard
countered that the FLARPLs attached to Joan’s inter-
est in 1234 Bundy Drive, but were extinguished
California Family Law Report (ISSN 0164-7040) is issued 13 times per year
(monthly except semimonthly in December); published and copyrighted when the trial court awarded that property to him
by West, a Thomson Reuters business, 610 Opperman Drive, P.O. Box and Joan no longer had any interest in it. The jus-
64526, St. Paul, MN 55164-0526. Periodicals postage paid at St. Paul,
MN. tices traced the case law and statutory history of the
Postmaster: Send address changes to California Family Law Report, 610
FLARPL statutes, noting that the Legislature
Opperman Drive, P.O. Box 64526, St. Paul, MN 55164-0526. intended them to abrogate the holding in Droeger v.
Research Attorney: Jill Scrivner Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 283
Editor: Patricia Valentine Cal.Rptr. 584, 1991 CFLR 4884, 1991 FA 497, where
SUBSCRIPTIONS: $495 in advance per annual volume mailed Periodicals the Supremes held that a husband was entitled to
rate. Additional copies billed to same address: half rate. All subscriptions
are on a complete volume basis only, with volumes running January
void a deed of trust given by his wife as security for
through December. Subscriptions received after the start of a volume will her attorney’s fees, and was not restricted to voiding
include all issues of that volume published to date and the remainder of
the volume as issued until reaching December expiration.
only his community property interest. The author of
the bill wanted to give the weaker spouse a means for
The editor welcomes suggestions and comments for making CFLR more
useful to the family law community. Trial court decisions of first impres- retaining disso counsel when he or she could not
sion, corrections or additions to our coverage, and changes in family law otherwise afford to. After reviewing the various parts
department procedures should be sent to California Family Law Report,
425 Market St., 4th Floor, San Francisco, CA 94105. of Fam C §2034, the panel noted that §2034(c) gives
This Report may be cited as 2013 Cal. Fam. Law Rep. __ or 2013 CFLR __.
the trial court authority “ ‘to resolve any dispute aris-
This publication is designed to provide accurate and authoritative infor- ing from the existence of a [FLARPL].’ ”
mation in regard to the subject matter covered and is sold with the under-
standing that the publisher is not engaged in rendering legal, accounting
or other professional service. If legal advice or other expert assistance is
required, the services of a competent professional person should be FLARPL is gone when court says it’s gone . . .
sought. Cases reported herein may be modified or reversed on appeal or
may be designated as "not for publication in the official reports" (thus The justices first considered whether the FLARPLs
imposing on attorneys an obligation not to cite them), and the full text were automatically extinguished when the trial
should always be consulted.
court awarded 1234 Bundy Drive to Richard. They

2013 CFLR 12366


March 2013

MINOR MATTERS—the latest from juvenile court

I
n In re Marquis H. (2013) 212 Cal.App.4th 718, and had himself inflicted a beating on one of the
151 Cal.Rptr.3d 284, the Fourth District affirmed kids. Given all that, the panel agreed with the lower
a juvenile court that assumed dependency juris- court that the son needed to be removed from “ ‘an
diction over the son of parents who did not mistreat exceedingly dangerous situation.’ ” X X X In
him, but seriously abused two of their grandchil- In re Noe F. (2013) 213 Cal.App.4th 358, __
dren who lived with them. The parents argued that Cal.Rptr.3d __, the Second District reversed a juve-
W&I C §300(a) allows the juvenile court to assume nile court that assumed dependency jurisdiction
dependency jurisdiction when a child or the child’s over a child, based on the parents’ failure to protect
siblings are at risk of serious physical harm, but the child or to provide for his care while they were
should not apply here because the abused kids both incarcerated, and had given custody of the
were not their son’s siblings. The appellate panel child to the father. The justices found that the evi-
reasoned that the juvenile court might reasonably dence was insufficient to support a finding that the
have found that the son was also at risk and had mother failed to protect the child, that her incarcer-
broad discretion to determine whether that risk was ation alone was not a sufficient basis for depen-
valid. Besides, the justices said, interpreting the stat- dency jurisdiction, and that the mother had given
ute as narrowly as the parents wanted would not be DCFS two possible placements for the child, both of
in keeping with its purpose of protecting at-risk chil- which were suitable. Moreover, the lower court had
dren. Moreover, the justices noted that the son had given custody of the child to the father without
witnessed the beatings inflicted on the grandchil- making the statutorily required findings. Accord-
dren, had been encouraged to participate in them, ingly, the panel reversed the orders. e

pointed out that the only California case to interpret to include limitations that were not currently there.
the FLARPL statutes, In re Marriage of Ramirez (2011) The attorneys also argued that permitting the trial
198 Cal.App.4th 336, 132 Cal.Rptr.3d 41, 2011 CFLR court to expunge properly recorded FLARPLs would
11920, 2011 FA 1501, does not address all of the frustrate the intent of the statute, but the justices
issues in this case. However, per Lezine v. Security reminded them that attorneys always run the risk
Pacific Fin. Servs., Inc. (1996) 14 Cal.4th 56, 58 that they won’t collect all of their earned fees in a fee
Cal.Rptr.2d 76, 1997 CFLR 7356, 1996 FA 778, where award. The justices were similarly unconvinced that
a trial court awards community real property that is the doctrine of waiver or equitable estoppels should
subject to a lien to one of the spouses in a disso, that preclude Richard from seeking to expunge FLARPLs
spouse takes the property subject to the lien. There- that he previously agreed to. The panel found that
fore, the justices concluded that the trial court’s Spitzer and Kramer were precluded from raising this
award of 1234 Bundy Drive to Richard did not auto- argument because they failed to raise it at trial. Sum-
matically extinguish the FLARPL on the property, ming up, the justices concluded that the lower court
and he took it subject to that lien. The justices then had the authority to expunge the FLARPLs under
turned to the question of the trial court’s authority Fam C §2034(c).
to expunge the FLARPLs. The panel noted that Fam
C §2034(c) gives the trial court broad jurisdiction to
Odds and ends . . .
resolve FLARPL disputes, and is not a part of the stat-
utory provisions governing ex parte objections to The panel quickly brushed aside the attorneys’ con-
FLARPLs. That indicated to the justices that the stat- tention that the trial court should have issued the
ute was intended to apply to already existing statement of decision that Kramer requested. The
FLARPLs, and could apply when one party asserts justices explained that CCP §632 provides that a trial
that the FLARPL should not have been permitted or court must issue a statement of decision requested by
should not be enforced. The panel was not per- a party only after a bench trial. Generally speaking,
suaded that, as the attorneys argued, the trial court’s they continued, the trial court is not required to
authority to reconsider a FLARPL under Fam C issue a statement of decision after a motion hearing.
§2034(c) should be limited to those cases where the The attorneys’ argument that they should have been
required procedures for recording one had not been joined in the action before the lower court expunged
followed or the attorney’s fees requested were unrea- the FLARPLs was equally unavailing. The panel rec-
sonable. They saw no reason to “rewrite the statute” ognized that in Ramirez, the court had found that an

2013 CFLR 12367


California Family Law Report

attorney with a FLARPL was an indispensable party & & &


in a spouse’s motion to vacate the FLARPL. They
found, however, that Ramirez was factually distin- COMMENT . . .
guishable because the attorney in that case was not This case will be relatively disheartening to family
given notice of the motion or opportunity to partici- law attorneys who make use of FLARPLs as security
for their fees. Those who believed that a FLARPL
pate in the proceedings, while here, the attorneys
actually provided some security may be surprised to
were parties to the motion to expunge, and they
learn that it ain’t necessarily so. What can family law
knew about and participated in the expungement attorneys do in cases like this? We’d be a little leery
proceedings. Thus, their due process rights were not of signing on to represent a client where we would be
violated here. the 10th or 11th attorney the client has retained in
the case. It’s just a big red flag that should not be
ignored. We’d hate to see family law attorneys refuse
Fees, but not sanctions . . .
to take the cases of clients who say up front that they
can’t pay. Still, just saying no is sometimes the best
Finally, Kramer contended that the lower court erred option, where counsel’s practice is such that he or
by offsetting Fam C §271 sanctions against his fee she simply can’t afford to do a lot of work and then
award. The justices advised Kramer that the trial not get paid.
court’s finding that Joan’s conduct would support a The attorney-appellants in this case represented
§271 fees as sanctions order did not mean that the Joan in only the first phase of the disso, in which the
trial court had reduced his fee request as such a sanc- trial court determined the value of a closely held cor-
poration that Richard brought into the marriage.
tion. In fact, the panel found that the lower court
They had substituted out by the time the trial court
had not relied on §271, but rather on various parts of made the property division. If they hadn’t, they
Fam C §2030 [fee award based on need and ability to might have negotiated a property settlement that
pay]. When they reviewed the record, the justices ensured that Joan would receive the property
found that the court had considered “the totality of encumbered by the FLARPLs. It might have been
the circumstances” in making its award and had not more difficult for Joan to have the FLARPLs
imposed sanctions. The lower court, the justices expunged. An attorney who negotiates with a
noted, had considered Joan’s conduct, but it also FLARPL in mind, however, must make sure that the
client’s community assets and liabilities have been
considered the parties’ respective incomes and
thoroughly explored and that the property division
expenses, assets and liabilities, Richard’s financial
doesn’t saddle the client with unwanted or unpleas-
obligation to his attorneys and to the support of his ant tax consequences in the future.
daughter, and the parties’ relative earning capacities.
Accordingly, they concluded that the trial court had Library References
not erred in reducing Kramer’s fee award, and they Hogoboom & King, Cal. Practice Guide: Family
affirmed the entire judgment. Law (The Rutter Group 2012) ¶8:658e

Stepparent may not substitute her judgment re child’s best interests for that of child’s parents . . .
In affirmance, First District holds that stepparent may not seek modification of
order denying visitation under Fam C §3101(a)
Chalmers v. Hirschkop
(January 30, 2013)

California Court of Appeal 1 Civil A133897 (Div 2) 213 Cal.App.4th 289, 152 Cal.Rptr.3d 361, 2013 FA
1575, per Kline, PJ (Haerle and Richman, JJ, concurring). San Francisco County: Mahoney, J, affirmed.
For appellant: Jennifer Knops, (415) 834-1120. For respondent: pro per. CFLP §§G.143, G.143.1.0.1.
hen Tiela Chalmers wished to have a joint legal and physical custody of their child. That

W child, she met with Michael F. to discuss


having a child through artificial insemina-
tion. On April 2, 2000, the two executed a co-parent-
child, Eliana, was born in 2001. Meanwhile, Tiela
and Lisa Hirschkop had begun a romantic relation-
ship. After Eliana’s birth, Lisa acted as her steppar-
ing contract, which provided that they would have ent. Tiela and Lisa registered as domestic partners in

2013 CFLR 12368


March 2013

2003, but separated in May 2006. Tiela filed for a noted that per Troxel v. Granville (2000) 530 U.S. 57,
domestic partnership disso in April 2007, but the 120 S.Ct. 2054, 2000 CFLR 8513, 2000 FA 953, par-
trial court did not issue their disso judgment until ents have a constitutionally protected due process
December 18, 2007. right to make decisions regarding their child’s care,
On January 24, 2008, Lisa filed a motion for step- custody, and control, and their decisions are entitled
parent visitation with Eliana. She followed up with to special weight. Moreover, the panel continued, in
an amended motion for visitation, attorney’s fees, Rich v. Thatcher (2011) 200 Cal.App.4th 1176, the
and an injunctive order. Tiela opposed the motion Second District held that a nonparent who seeks visi-
and Michael filed a declaration in support of her tation must overcome by clear and convincing evi-
opposition. At the hearing, the trial court noted that dence the presumption that a fit parent acts in the
Tiela and Michael had permitted Lisa to have limited child’s best interests. With all that in mind, the jus-
visitation with Eliana, but objected to increasing the tices turned to the merits of Lisa’s appeal.
visitation time. The court reminded Lisa that as Eli-
ana’s parents, Tiela and Michael had the legal Outside, looking in . . .
responsibility for making decisions regarding their
daughter and for determining what was in her best Lisa contended that the trial court erred by relying
solely on Tiela and Michael’s wishes and not consid-
interests. The trial court concluded that Lisa failed to
ering her wishes and concerns re visitation with Eli-
show why the current visitation was not in Eliana’s
ana. The justices reminded Lisa that as Eliana’s
best interests or was detrimental to her. Accordingly,
stepparent, she has no legal right to custody of or
the court denied Lisa’s motion. She did not appeal.
protected interest in the girl’s care, custody, and con-
On September 12, 2009, Tiela and Michael wrote
trol, and she may not substitute her judgment
a letter to Lisa, advising her that they were reducing
regarding Eliana’s best interests in place of Tiela and
her visitation time with Eliana, based on the girl’s
Michael’s. And, while Lisa had presented arguments
reaction to those visits and on discussions with Eli-
at trial regarding changed circumstances, the panel
ana’s child psychologist. On May 9, 2011, Lisa filed a
noted that she had properly acknowledged on
motion for stepparent visitation and for modifica-
appeal that the changed circumstances rule does not
tion of the October 2008 order that denied her addi-
apply where the issue is a modification of visitation.
tional visitation. Lisa also asked the trial court to Besides, the justices said, there were no changed cir-
order a psychological evaluation of the little girl to cumstances here. The justices believed that Lisa was,
determine Eliana’s real feelings regarding visitation. in effect, attempting to attack the provisions of the
At the hearing, the trial court denied Lisa’s motion 2008 order denying her added visitation. However,
and declined to order an evaluation, believing that they found that she cannot now attack a prior order
given Eliana’s age (10), an examination was not that she failed to timely appeal.
appropriate or in her best interests. In a subsequent
written order, the trial court found that applicable
law required it to give deference to Tiela and Floating on air . . .
Michael’s wishes, and that Lisa failed to meet her The justices pointed out that Lisa failed to cite any
burden of showing that additional visitation would statute or case law that would permit her to seek a
be in Eliana’s best interests or that denying addi- modification of a final order denying visitation
tional visitation would be detrimental to Eliana. under Fam C §3101. They also noted that other stat-
When Lisa appealed, the First District issued an utes, such as Fam C §3047, permit modification of
order requiring the parties to file supplemental briefs existing custody orders. The fact that the Legislature
as to whether there is statutory or other legal author- failed to include such a provision in §3101 con-
ity for a stepparent to seek a modification of an order vinced the panel that the solons intended to pre-
denying visitation. After receiving that briefing, the clude a stepparent from seeking a modification of an
appellate panel affirmed the lower court’s order. order denying visitation to a stepparent. Lisa coun-
tered that even if that is true, the statute does not
preclude her from filing another motion for visita-
Parents are paramount . . .
tion. The panel, however, reasoned that permitting a
The justices began by noting that Fam C §3101(a) stepparent to repeatedly seek visitation in the face of
permits a trial court to grant reasonable visitation to a parent’s objections would not be in the child’s best
a stepparent if visitation is in the child’s best inter- interests. They said that the trial court’s decision to
ests. However, Fam C §3101(c) prohibits the court deny visitation to a stepparent is a determination
from ordering such visitation if it would conflict that “there is absolutely no reason for the court to
with the custody or visitation rights of a birth parent substitute its judgment—or the judgment of the
who is not a party to the proceeding. The panel also stepparent—for the unified decision of the parents.”

2013 CFLR 12369


California Family Law Report

Therefore, the panel concluded, the trial court had she was told essentially that she really had no visita-
not abused its discretion when it denied Lisa’s tion rights. What’s different here? Michael is in the
motion to modify the order denying her additional picture and he and Tiela have a co-parenting con-
visitation. The justices further found that there was tract, giving them joint legal and physical custody of
no legal basis on which Lisa could seek a psychologi- Eliana. The opinion doesn’t tell us that Michael and
cal evaluation to determine Eliana’s preferences. Tiela have any relationship other than that of par-
And the lower court did not err by refusing to main- ents. However, that relationship trumps any visita-
tain continuing jurisdiction over the matter. tion rights that Lisa has. Their opposition is
sufficient.
& & & That is not to say that it is unfounded. In declara-
tions, the parents stated that they had decided to
COMMENT . . . curtail the scheduled visitation because “Eliana
For several years, we’ve seen cases in which one came home from these visits angry and confused
domestic partner gives birth to a child and the other because Lisa told Eliana that her parents were lying
shares in parenting until the couple breaks up. In to her about the schedule.” Moreover, they said,
most of those cases, the nonparent partner has had Eliana’s child psychologist had “ ‘expressed signifi-
some legal leg to stand on with regard to visitation, cant concern about her well-being.’ ” And, they
simply because of the co-parenting time and the claimed that Lisa had been given the opportunity to
relationship with the child. In those situations, the meet with the psychologist but had not done so. In
courts have not found that it was inappropriate to the meantime, they and the psychologist had
have an evaluation done to see how strong and/or “ ‘worked . . . on a plan to address Eliana’s distress.’ ”
how beneficial that relationship is. Here, Lisa was
Eliana’s stepparent from 2001 until 2006, when she Library References
and Tiela separated. Even after that, Lisa was able to
have scheduled visitation with the girl for another Hogoboom & King, Cal. Practice Guide: Family Law
couple of years. When she sought more, however, (The Rutter Group 2012) ¶7:513e

Grandparents don’t have the same rights as parents . . .

In reversal, Fourth District holds that trial court erred by ordering unsupervised
grandparent visitation under Fam C §3102 where dad objected and grandparents
failed to show by clear and convincing evidence that such visitation was in kids’
best interests

Ian J. v. Peter M.
(January 29, 2013)

California Court of Appeal 4 Civil D060197 (Div 1) 213 Cal.App.4th 189, 152 Cal.Rptr.3d 323, 2013 FA
1575, per Benke, J (McConnell, PJ and Aaron, J, concurring). San Diego County: Lowe, J, reversed with
directions. For appellant: William Hancock, (415) 544-0200, and Albert Gross, (858) 793-7636. For
respondent: Candace Carroll, (619) 233-4100. CFLP §§G.146.1.1, G.146.1.1.16, G.146.1.2.

inda M.’s parents, Ian J. and Jane J., moved vince her sister, Ann, that the abuse actually

L their family from South Africa to New York in


1989. Linda had trouble adjusting to life in the
U.S., where the family’s standard of living was not
occurred, and her feelings of conflict and self dis-
gust. In 1995, Linda moved to San Diego, where she
applied for grad school in psychology. In an essay
quite as luxurious as it had formerly been. From included in her application, Linda described Ian’s
March 1993 to September 1995, Linda received out- abuse, Jane’s apparent indifference to her feelings,
patient treatment for an eating disorder and border- and the coping mechanisms that she (Linda) used to
line personality disorder. During therapy, Linda told deal with the abuse. Ann would later confirm that
her therapists that she had been sexually abused by she too had been abused by Ian, but not to the extent
Ian. She made entries to that effect in her diary, as that Linda was. Ann attributed Linda’s statements to
well as statements regarding her inability to con- an extreme need for attention. When Linda wrote a

2013 CFLR 12370


March 2013

novel containing a character whose father had sexu- controlled by him, in accordance with Linda’s bene-
ally abused her, Ann took that as an example of ficiary designation. Ian opposed the action, asking
Linda’s “ ‘breaks from reality.’ ” the probate court to find that Peter and his agree-
In 1997, Linda married Peter M., who knew that ment regarding the policy benefits was enforceable
she had problems with Ian, but not about the abuse. and to order the money distributed to a trust for
When Linda became pregnant, she asked Ian and Susan and Nancy. The probate court agreed with Ian
Jane to move to San Diego to help her care for the and made the requested orders, which the Fourth
baby. After Linda gave birth to a daughter, Susan, in District affirmed on appeal.
1999, Jane was the baby’s primary caregiver, while Meanwhile, Peter had “reconnected with a
Linda and Peter worked to establish “a posture ther- friend,” Tricia, who began helping him care for
apy business.” Nonetheless, Linda continued to Susan and Nancy. Peter and Tricia were married in
write in her diary about Ian’s alleged abuse and to January 2007. In May, Nancy began engaging in a
have problems with him. When she had another “sexualized manner.” Susan told Tricia that Nancy
daughter, Nancy, in 2003, she still had Jane care for simulated intercourse, tongue kissed, and touched
both kids. Nancy’s birth, however, caused Linda’s Susan’s private parts. Jane would later confirm
emotional problems to resume and she entered ther- Nancy’s behavior, but attributed it to “natural exper-
apy with Dan Gallant, Ph.D. During therapy, Linda imentation and curiosity.” However, Nancy told
told group participants and Dr. Gallant about her Peter that she was afraid of Ian because “ ‘he hugs
history of incest and abuse. She later told her facilita- and kisses me too much, too much, too much.’ ”
tor about the abuse. Peter then contacted Linda’s former therapist, Dr.
In 2004, Linda and Peter got into a financial dis- Suzanne Marcus, who cautioned him against letting
pute with Ian and Jane, after the latter refused to the girls spend time with Ian. Not long after, Peter
loan them the same sum they had previously loaned found Linda’s diary, containing the allegations of
Linda’s brother, Richard. The dispute was finally incest. After consulting with Dr. Gallant, Peter and
resolved, but not before Linda threatened to cut off the therapist reported their suspicions of inappropri-
contact between the grandparents and the kids. ate behavior by Ian to the San Diego County Child
Meanwhile, Linda and her parents participated in Protective Services (CPS), and Peter cut off contact
family counseling to get their relationship back on between the girls and their grandparents. CPS later
track. By 2005, Linda and Peter were having marital reported that the allegations against Ian were
problems and Linda had become addicted to alcohol “ ‘unfounded for sexual abuse but substantiated for
and painkillers. In October 2005, Linda was hospital- substantial risk.’ ”
ized for a drug overdose. Her treating physician rec- After Peter cut off contact, Ian and Jane, joined
ommended rehab, but before a suitable facility could by Ann, filed a petition for visitation under Fam C
be found, Linda decided to go to South Africa to §3102, which permits a sibling or grandparents to
recover and to decide her future. On November 10, have visitation with the child of a deceased parent if
2005, while on safari, Linda was trampled to death visitation is in the child’s best interests. In June
by an elephant. 2007, Peter, Tricia, and the girls moved to another
After Linda’s death, Peter and the girls moved in part of California, mainly to get away from Ian. In
with Ian and Jane to make it easier for Jane to care for September, the trial court ordered monthly unsuper-
them. It wasn’t long before a dispute arose over the vised visits for Jane and Ann and that Ian would be
payment of a $1 million MetLife policy on Linda’s out of the county during these visits. The court
life, whose beneficiaries were a family trust and ordered Ian to undergo a psychosexual evaluation
Susan, and whose contingent beneficiary was with Dr. Alan Lieberman, who interviewed him in
Nancy. MetLife was balking at payment because September 2008 and conducted “a battery of tests.”
Linda had failed to pay the premiums, let the policy Dr. Lieberman opined that Dr. Wesley Maram
lapse, and then attempted to reinstate it. Peter asked should evaluate Ian and conduct tests that measured
Ian, who had a long-standing relationship with “ ‘sexual interest and arousal pattern.’ ” Before that
MetLife, to negotiate with the insurer to pay the ben- evaluation could be completed, Ian and Jane
efits. Ian agreed to advance Peter sufficient funds to obtained court records of Tricia’s divorce from her
pursue a claim against MetLife and to sue the safari first husband through an attorney service, which
providers in South Africa, in exchange for his prom- included a confidential custody evaluation. When
ise to place any recovery in trust for the girls. Ian’s their attorney reviewed the evaluation, it was discov-
negotiations resulted in MetLife’s paying the entire ered that when Tricia was a child she had been
$1 million, but he failed to tell Peter about the settle- molested by her stepfather. The attorney then used
ment. Peter later brought a probate action, seeking this confidential information at Peter and Tricia’s
deposit of half of that payment into the family trust depositions. Peter’s counsel then moved to disqual-

2013 CFLR 12371


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ify the grandparents’ attorney for accessing and of [Peter’s] concerns and the relief granted by the
using confidential information and the trial court trial court,” it was the applicable standard here. The
granted the motion. The court also disqualified Lie- justices believed that Peter had raised profound risks
berman, who was also believed to have seen the con- of harm to the girls from the visitation ordered and
fidential information. The court appointed a new that he would be powerless to protect them if the
evaluator, Clark Clipson, Ph.D. Dr. Clipson’s evalua- orders were not reversed.
tion found that Ian posed no risk of sexual abuse if
he had visitation with the girls. However, he seemed
Let them count the ways . . .
uncertain as to whether Ian had actually abused
Linda in the past. Dr. Clipson had difficulty squaring The panel found that the trial court failed to apply a
Linda’s abuse claims with her letting Jane and Ian clear and convincing standard, and instead had
take care of the girls. The psychological tests were treated Ian and Jane as if their rights as grandparents
inconclusive: Ian passed the ones with transparent were synonymous with those of parents in a divorce
questions with flying colors, but when faced with proceeding. Its order represented a substantial inva-
nontransparent questions, his responses fell into a sion and derogation of Peter’s parental role. The
grey area where “normal men and child molesters court ignored Dr. Clipson’s statements regarding the
overlap.” When Dr. Clipson interviewed the girls, legitimacy of Peter’s concerns about Ian, as well as
both told him about things Ian did that made them the opinions of other therapists regarding Ian’s rela-
uncomfortable and said they did not want to be tions with Linda, finding instead that there was no
around him. At the hearing, Dr. Clipson testified reasonable basis for Peter’s termination of visitation.
that if he were in Peter’s position, he “ ‘would have That finding, the panel determined, was error. Fur-
raised a stink, and filed a child abuse report, and ther, the trial court erred again by failing to give
been as concerned as well.’ ” He also stated that a rea- proper weight to the girls’ complaints regarding
sonable parent would fear that his or her child could Ian’s behavior. The panel found that the trial court
be abused by Ian. When the hearing concluded, the should have first determined whether Peter was a fit
trial court found that Peter’s concerns about Ian parent; then, it should have determined whether
were “not rational,” were influenced by Tricia’s his- Ian, Jane, and Ann had overcome the presumption
tory of having been abused, and were partially moti- that Peter’s decision regarding visitation was in the
vated by “revenge and retaliation for Ian’s success in girls’ best interests. Here, the justices said, it was
the trust litigation.” Discounting the girls’ objec- unquestioned that Peter was a fit parent. And, given
tions, the trial court ordered that Ian, Jane, and Ann the evidence of Ian’s behavior, the opinions of
be permitted unsupervised weekend visitation on experts, and the objections of both Peter and the
alternate months in San Diego and 10 days unsuper- girls, the panel did not believe that the moving par-
vised in the summer. ties could overcome the presumption. Given all that,
Peter appealed, and the Fourth District reversed the justices held that the trial court’s visitation order
with directions. impermissibly intruded on Peter’s right to make
decisions regarding his daughters’ best interests and
must be reversed. Declining to order remand, the
They have their standards . . . panel reversed the trial court’s order with directions
The justices emphasized that in Troxel v. Granville to that court to deny the visitation petition.
(2000) 530 U.S. 57, 120 S.Ct. 2054, 2000 CFLR 8513,
2000 FA 953, and the cases that followed it, there is a & & &
presumption that a fit parent acts in the child’s best
interests and parents have a constitutionally pro- COMMENT . . .
tected interest in the care, custody, and control of This is one of those cases that leaves us shaking our
their children. For that reason, the justices said, the heads. The procedural steps were properly taken; a
decisions of parents regarding their children’s best proper evaluation was ordered for Ian; the trial court
interests must be given special weight. Therefore, in appropriately removed counsel who made improper
the cases that follow Troxel, courts have generally use of confidential material, and in an abundance of
upheld parental objections to grandparent visita- caution, also dismissed the evaluator who might
tion. Peter argued that the grandparents and Ann have come in contact with the material and have
should have been required to prove by clear and con- been influenced by it. Yet, despite the evidence
vincing evidence that visitation would be in the before it and the testimony of experts, the trial court
girls’ best interests. The panel reasoned that the clear believed that Peter’s objections had no rational
and convincing standard is not always applicable to basis. In fact, it was the trial court’s decision that had
custody or visitation cases, but “in light of the nature no rational basis. It seems that despite all of the

2013 CFLR 12372


March 2013

media attention given to child molesters, the many Library References


educational seminars and writings on the subject,
and the copious statutory protections for victims Hogoboom & King, Cal. Practice Guide: Family Law
(The Rutter Group 2012) ¶7:535e
and penalties for perpetrators, decisions like this one
can still occur. We’re just amazed.

Facts in this case are not uncommon in military deployment custody cases . . .

In reversal, Fourth District holds that trial court erred by failing to enforce prior
order requiring custody restoration to dad when he returned from military
deployment and by failing to deal with custody issue in “fair, efficient, and
expeditious process” required by statute

In re Marriage of E.U. and J.E.


(December 31, 2012; ordered published January 22, 2013)

California Court of Appeal 4 Civil G046687 (Div 3) 212 Cal.App.4th 1377, 152 Cal.Rptr.3d 58, 2013 FA
1574, per Ikola, J (Fybel, Acting PJ and Thompson, J, concurring). Orange County: McCartin, J,
reversed with directions. For appellant: Jeffrey Doeringer, (714) 841-6116. For respondent: Brian
Baron, (714) 516-9888. CFLP §§G.138.68, G.146.1.1.22.

n 2000, during marriage, J.E. and E.U. had a son, attached a letter from his commanding officer,

I S.U. Unfortunately, they were divorced the fol-


lowing year. A custody order issued in October
2005 and formalized in July 2006 provided that E.U.,
affirming his unavailability on the 28th. J.E. filed
another OSC, seeking sole legal and physical custody
of S.U. and a temporary order for the boy’s transfer
the boy’s father, would have primary custody of S.U., to a closer school, prompting E.U. to send another
who would attend a school near E.U.’s home in application for a stay, coupled with two more letters
Oceanside. This order acknowledged that either E.U. from his commanding officer attesting to his inabil-
or J.E. might be called to active military duty and ity to appear in court. Nevertheless, on September
provided that in that event, the other parent would 24, the trial court found that E.U. was deployed and
assume primary custody of S.U. until the deployed issued a temporary custody order giving custody of
parent returned, at which time custody would revert S.U. to J.E., ordering a school change, but providing
to the original provisions. that the order would remain in effect until E.U.’s
Between August 2005 and September 2009, S.U. return, at which time he could file an OSC for a cus-
attended an Oceanside school. Meanwhile, in July tody mod. In October 2009, E.U. moved to vacate all
2009, E.U. was called to active duty in Afghanistan. the orders made by the trial court after August 27
His orders required him to remain in quarters at and for a stay until he returned from active deploy-
Camp Pendleton between August 2 and November 2, ment, based on the 2006 custody order and the
2009. Then, he was to be in Afghanistan from SCRA. However, he apparently received no relief
November 3 through July 5, 2010, and to return to from that filing. On August 23, 2010, E.U. was
Camp Pendleton on July 16, where he would remain released from active duty.
through August 21. On August 7, 2009, E.U. filed an By that time, J.E. had moved to disqualify the
OSC, asking the trial court to order S.U.’s school trial judge, and the case was assigned to another
changed to one midway between his and J.E.’s judge; two weeks went by. On October 1, 2010, E.U.
homes. The trial court, however, denied his request appeared in pro per, expecting the trial court to order
and ordered the status quo to continue. On August custody of S.U. restored to him, but the court sug-
13, J.E. filed her own OSC, which was set for hearing gested that he file for a custody modification and
on September 28, 2009. In response, E.U. applied for continued the matter. Before anything more could
a stay of the proceedings under the Servicemembers take place, E.U. was again called to active duty, and
Civil Relief Act [SCRA; 50 USC App 501 et seq.], spent from mid-January to mid-February 2011 in
asserting that his military duties prevented him from Korea, returning to reserve status on February 11,
attending the hearing on September 28 and that he 2011. On February 16, he filed another OSC, seeking
would not be available until July 30, 2010. He custody of S.U. and reinstatement of the 2006 cus-

2013 CFLR 12373


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tody order under Fam C §3047(b)(1), which creates a the problems that custodial parents who have been
presumption that a custody modification due to a deployed face upon their return. In all too many
parent’s military deployment is temporary and that cases, they opined, those parents have been denied a
custody reverts when the deployment ends. At the custody restoration on the basis that the child has
hearing on March 16, 2011, E.U. argued that custody grown used to the new custody arrangement and
should revert to him. The trial court acknowledged should not have his or her life disrupted by another
that Fam C §3047 requires a “fair, efficient, expedi- change of residence. Our Legislature, the panel went
tious process” for dealing with custody modifica- on, attempted to solve this problem by enacting Fam
tions after deployment, but commented that fair, C §3047. The justices noted that when the trial court
expeditious, and efficient were “ ‘three things I don’t considered E.U.’s OSC in 2011, the statute provided
ever see in family law . . . because we aren’t,’ ” despite that a custody modification due to a parent’s mili-
everyone’s best efforts. The court then put the mat- tary deployment was a temporary order, subject to
ter on the law and motion calendar and continued review on the parent’s return and it created a pre-
the case to May 6, 2011, after which it was again con- sumption that custody should revert to the former
tinued, this time to July 29, 2011. At that hearing, custody order, absent evidence that it would not be
the trial court recognized that the procedural course in the child’s best interests. Moreover, the panel
of the case was the antithesis of what the Legislature said, the statute required the court to engage in a fair,
intended when it enacted Fam C §3047. It found efficient, and expeditious process to resolve the cus-
that E.U. was deployed when the trial court made its tody issues. J.E argued that the statute didn’t apply
September 2009 temporary order and that J.E. knew because there was no evidence that E.U. could not
he was deployed. When E.U.’s attorney asked for an appear at the September 24, 2009 hearing due to
evidentiary hearing, however, the trial court ordered deployment. The justices found that assertion merit-
an Ev C §730 custody evaluation instead and refused less. They pointed out that the trial court specifically
to order a custody reversion. The court reasoned that found that E.U. was deployed, he had presented the
E.U. himself was responsible for part of the delay and court with letters and documentation attesting to
that the evaluation was necessary because S.U. was the fact, and the court had made its September 24
almost six years older than when the 2006 custody order temporary, based on his deployment. Later,
order was made. E.U. petitioned the Fourth District the second trial judge again found that E.U. was
for writ relief, but the panel summarily denied his deployed at the time of the September 24 hearing,
petition. had previously notified that court that he would be,
The custody evaluator, Dr. Miriam Galindo, did and the resulting temporary order was based on that
not complete her report until January 20, 2012. Dr. deployment. As for J.E.’s assertion that E.U. had
Galindo opined that stability and continuity of cus- delayed seeking custody for almost a year, the trial
tody were the paramount factors in determining court had found that he was not responsible for
whether a custody reversion would be in S.U.’s best more than six months of delay, the panel noted.
interests and concluded that the boy should remain Moreover, none of that changed the fact that E.U.
with his mother. At the hearing on February 2, 2012, was entitled to an expeditious process after he filed
the trial court noted that E.U. and J.E. were both his OSC, and didn’t get one.
good parents, that E.U. had no mental or physical
impairments, and that S.U. was happy and healthy.
Not if, but when . . .
The court also noted that the boy loved both of his
parents and wanted to see more of E.U. Nonetheless, J.E. also argued that the second trial judge “ ‘had no
the trial court found that the length of time that S.U. choice but to enforce’ ” the prior court’s order for an
had been in his mother’s care was “significant to Ev C §730 custody evaluation because that court’s
temporary order permanently modified the 2006
[his] best interests” and that it would not be in the
custody order. The justices didn’t agree. They rea-
boy’s best interests to change custody.
soned that the 2006 order was still in effect when
E.U. appealed, and the Fourth District reversed E.U. returned from deployment. The panel did not,
with directions. however, agree with E.U.’s contention that the 2006
order was “self-executing” and custody should have
On the battlefield and at home . . . automatically reverted to him. The justices deter-
mined that a trial court that is considering whether
E.U. contended that the trial court should not have to enforce an order like the one here, must conduct a
refused to restore custody to him on the basis of “the limited inquiry as to whether the child’s young age
passage of time and court delays” over which he had at deployment requires a transitional period instead
no control. The justices were sadly aware that E.U.’s of an immediate custody reversion and/or to deter-
case was not unique, but rather a good example of mine whether the returning servicemember suffers

2013 CFLR 12374


March 2013

from mental or physical problems that impair his or case may be an eye-opener as to what servicemem-
her parenting ability before concluding that a cus- bers go through with regard to custody cases. This
tody reversion would not be in the child’s best inter- one, it seems, will have the resolution that E.U.
ests. When they focused on the facts here, the panel waited for so long to receive.
could find no evidence that either S.U.’s age at E.U.’s In a footnote, the panel comments on the trial
deployment or E.U.’s mental or physical condition court’s statement that “fair, expeditious, and effi-
mitigated against returning S.U. to his father’s cus- cient” are things not found in family law courts.
tody. Certainly, J.E. had not presented any evidence They say that the statement “may have been made in
that returning him would not be in the boy’s best jest, but humor is usually grounded in a modicum of
interests. In addition, the justices found that the truth. If so, steps should be taken to remedy this state
continuity and stability on which Dr. Galindo based of affairs. It should not take 12 months to conduct a
her recommendation are not sufficient to overcome
review of the temporary custody order under Fam C
the statutory presumption that a custody reinstate-
§3047(b)(1) when a servicemember returns from a
ment should be ordered. Accordingly, the justices
held that the trial court erred by refusing to enforce deployment.” To that we say, that’s all true, but it
the 2006 custody reinstatement order and reversed shouldn’t be news to the panel. The fact that these
with directions to the trial court to hold a hearing justices are apparently just learning about the delays,
within 20 days of remittitur on the sole issue of overcrowded calendars, and cuts in funding that
whether a custody reinstatement should take place have hit family law courtrooms so hard, is simply
immediately or when the current school year ends. mind boggling. Still, even if those things make it dif-
ficult for a trial court to be expeditious and efficient,
& & & they shouldn’t prevent the court from being fair. Fair
doesn’t cost anything.
COMMENT . . .
Many family law attorneys will agree to represent Library References
someone in the military service at some time during
their careers. Those who practice near military facili- Hogoboom & King, Cal. Practice Guide: Family Law
ties will see more of these cases. For the rest of us, this (The Rutter Group 2012) ¶17:327e

Dad can’t cite failure to provide PDD as reversible error after telling trial court he had provided one . . .

In affirmance, First District holds that dad cannot claim ineffective assistance of
counsel in appeal from disso judgment because he had no right to counsel in disso
proceeding

In re Marriage of Campi
(January 24, 2013)

California Court of Appeal 1 Civil A134030 (Div 4) 212 Cal.App.4th 1565, 152 Cal.Rptr.3d 179, 2013
FA 1574, per Baskin, J (Reardon, Acting PJ and Rivera, J, concurring). San Mateo County: DuBois, J,
affirmed. For appellant: Joseph Keiser, (415) 342-5394. For respondent: Robert Goetzinger, CFLS, (707)
762-3568, and Gregory Jilka, (707) 546-4677. CFLP §§A.9, A.113, T.33.6.15, T.49.

eorge and Mary Campi were married in July The two separated on January 4, 2002, but Mary

G 1981. During their marriage, George typi-


cally earned almost $84,000 a year and made
extra money playing the accordion at various events,
didn’t file for divorce until May 29, 2003. She sought
child custody and support, spousal support, and a
division of their community property. In response,
while Mary was a stay-at-home mom. The couple George asked for custody, termination of Mary’s
lived with their children in the family home in spousal support rights, and characterization and
Pacifica, but also had two time-share condos. They division of their community property. After their
also had various bank and retirement accounts and separation, Mary completed an intensive 8-month
George had a pension and stock option plan through program to become a pharmacy technician and got a
his employer. job paying $17 an hour. She held that job until June

2013 CFLR 12375


California Family Law Report

3, 2005, when she sustained back, neck, and shoul- Too little, but not too late . . .
der injuries in a traffic accident and spent a week in The justices quickly disposed of Mary’s assertion that
the hospital. After her release, Mary was unable to George’s appeal was untimely filed and should be
work at any job. dismissed. They found that the procedural progress
On April 5, 2007, after a settlement conference, of the appeal and the parties’ own statements made
George and Mary agreed to a stipulated order giving it difficult to determine whether it was untimely, but
him the option to buy the family home for its value chose to proceed to the merits of the appeal, as they
of $679,000. Four months later, they stipulated to were authorized to do “in doubtful cases.” The panel
another order, which provided that the family home noted that George had raised several issues on appeal
would be George’s separate property, listed its fair regarding the value of the family residence that he
had not raised at trial. For that reason, they contin-
market value at $679,000, and gave George credits
ued, the arguments are forfeited. However, even if
for his separate property down payment toward its
they weren’t, the panel said, the issues are meritless.
purchase. He was also given credits for his assump- Contrary to George’s contention, there was written
tion of the existing debt on the house and any spou- evidence as to the value of the house, in the form of
sal support overpayments he might have made. The the parties’ own stipulation as to its value. Moreover,
order also required a $30,000 payment to Mary from neither party objected to the trial court’s use of that
one of the parties’ brokerage accounts, and directed value or tried to rescind the stipulation. Moreover,
George to pay Mary her community property share the panel could find nothing in the stipulation to
of the family home on or before March 31, 2008, indicate that the value was conditioned on other fac-
plus 6% interest from July 13, 2007. tors, and neither party argued at trial that it was con-
After a bifurcated trial on the date of separation, ditional. Besides, the justices reasoned, in the
found to be January 4, 2002, trial on the remaining absence of any alternative values (and none were
issues began on December 9, 2010. Neither party dis- presented), the trial court did not err by using the
valuation to which the parties had stipulated. As for
puted that the fair market value of the family home
George’s argument that the trial court should have
was $679,000; they argued instead about the credits
revalued the house at the time of trial, they found
against the stipulated value that were due George, nothing in Fam C §2552 [trial court must value
specifically a $139,000 credit for overpaid spousal assets and liabilities as close to trial as possible,
support. The trial court issued a tentative decision on absent good cause to use another date], on which
March 2, 2011, in which it set the equalizing pay- George relied, which mandated such a reevaluation.
ment at $227,754. In his opposition to the tentative
decision, George did not contest the fair market Long on argument, short on merit . . .
value of the family home, but insisted that the equal-
The justices noted that George’s opening brief con-
izing payment should be $219,233. In a statement of
tained 12 pages in which he argued that the trial
decision issued on March 18, 2011, the trial court
court erred by refusing to order a new trial based on
agreed that the equalizing payment should be the alleged ineffective assistance of George’s coun-
$219,233, granted the disso petition, and terminated sel. Nevertheless, they were not persuaded. They
the marital status as of that date. The statement of could find no case, and neither party had cited one,
decision also directed George to prepare the disso in which the appellate court held that there is a right
judgment, but he didn’t do so. Instead, he hired a to counsel in a disso action. The panel was aware
new attorney and moved for a new trial, claiming that indigent parents in dependency cases may be
ineffective assistance of counsel (by his former attor- entitled to appointed counsel, but they could find
ney) and seeking modifications of a stipulated no corresponding statute or court rule applicable to
QDRO and the spousal support order. The trial court dissos. The justices reasoned that in dependency
subsequently denied his motion, finding that both cases, the parents run the risk of losing custody of
their children and having their parental rights termi-
attorneys were competent at trial and that George
nated, while divorcing parents do not. They also
prevailed on more issues than Mary did.
pointed out that as a general rule, there is no due
George filed a notice of motion on December 14,
process right to counsel in civil cases and any attor-
2011. The trial court entered the disso judgment on ney neglect is imputed to the client. Therefore, the
December 15, 2011, terminating the marital status as justices concluded, George could not contend that
of March 18, 2011, and incorporating the provisions he’d been denied effective counsel because he had
of the statement of decision. Acting on George’s no right to counsel. And even if he had, the panel
appeal, the First District affirmed. noted, the trial court specifically found that both

2013 CFLR 12376


March 2013

counsel in the case were competent and that George adjustments, the panel affirmed that court’s judg-
prevailed on most of the contested issues. ment.

He asked for it . . . & & &


In conclusion, the justices gave short shrift to COMMENT . . .
George’s assertion that there was no evidence that he This is a nice little case in which the panel declines to
had filed a declaration of service of the preliminary let George use ineffective assistance of counsel as a
disclosure declaration (PDD). They reminded George means for a new trial. That’s undoubtedly good news
that he had told the trial court on several occasions for his former attorney, as well as for all family law
that he had provided a PDD, and that he failed to attorneys. Now, if some panel would just hold that
raise this issue at trial. If there was prejudicial error, family law attorneys can’t be sued for malpractice.
the panel said, it was invited error that he was
estopped to raise and he could not create such error
Library References
through his own conduct. Finding that substantial
evidence supported the trial court’s orders regarding Hogoboom & King, Cal. Practice Guide: Family Law
spousal support, arrearages, interest, and other (The Rutter Group 2012) ¶16:100e

Public policy shift was not judicially recognized until Pendleton . . .

In affirmance, Fourth District holds that trial court did not err in interpreting
and/or applying 1985 law to determine that spousal support waiver in 1985
prenup was invalid

In re Marriage of Melissa
(December 3, 2012; ordered published January 2, 2013)

California Court of Appeal 4 Civ G045899 (consolidated with G046261) 212 Cal.App.4th 598, 151
Cal.Rptr.3d 608, 2013 FA 1571, per O’Leary, PJ (Rylaarsdam and Fybel, JJ, concurring). Orange County:
Silbar, J, affirmed. For appellant: Tamara Mortensen, (714) 834-0175. For respondent: Richard
Derevan, CALS, (714) 427-7000. CFLP §U.110.6.

hen Raymond and Roberta Melissa met but Raymond maintained that Willford explained its

W and began dating in the summer of 1984,


he was a 41-year-old millionaire with a
house in Newport Beach and a new Jaguar, and she
contents to both of them in July 1985. Roberta
remembered that Willford advised her to have inde-
pendent counsel review the document before she
was a 32-year-old nurse living in a Huntington Beach signed it, but she declined to do so. In any event, the
rental apartment. After dating for a few months, the couple signed the prenup on August 5, 1985. It
couple decided to try living together for six months stated that both parties fully disclosed their assets to
as a prelude to a possible marriage. When Raymond each other and waived any claim to each other’s sep-
subsequently decided against marriage, Roberta arate property; and that Raymond had been repre-
moved out. Not long after, the couple reconciled and sented by counsel, while Roberta had been advised
made plans to marry on August 8, 1985. Roberta to seek independent counsel. The prenup also stated
moved back in and promptly became pregnant. that the parties were each capable of self-support,
Before the wedding, Raymond told Roberta that were aware of the ruling in In re Marriage of Higgason
he’d been burned in his previous disso and would (1973) 10 Cal.3d 476 [right to future spousal support
not marry again without a prenup. Roberta agreed to cannot be waived by agreement], but believed that
sign one. Raymond then asked a neighbor’s attorney the law re spousal support waivers was “in flux,” and
son, Craig Willford, to prepare the prenup according were mutually releasing and waiving any right to
to his instructions as to its content, but without any future spousal support. In addition, the document
input from Roberta. Roberta would later say that she made provisions for property division. After their
first saw the prenup three days before the wedding, marriage, Roberta gave birth to their son, R., who

2013 CFLR 12377


California Family Law Report

was born with fragile X syndrome and autism, and Agreement Act [now Fam C §1600 et seq.] in January
was mentally disabled. In 1997, Roberta stopped 1986, but declined to include the subdivision deal-
working to care for R. full time. She and Raymond ing with spousal support waivers and left the issue
separated in October 2009, and a month later, she for the courts to decide. Thus, in 1985, spousal sup-
filed for divorce. After that, Roberta lived with and port waivers were void as against public policy. And,
took care of R., who was only able to do part-time since the validity of prenups is analyzed by reference
janitorial work. to the date of execution, the law in 1985 governed
At their disso trial, the trial court bifurcated the the prenup in this case.
issue of the validity of the parties’ prenup, received
briefing, and heard oral argument. The court found
No going back . . .
that in 1985, per Higgason and other prevailing legal
authority, spousal support waivers were considered The justices explained that the public policy re spou-
void as against public policy and that In re Marriage of sal support waivers in prenups did not begin to shift
Pendleton and Fireman (2000) 24 Cal.4th 39, 99 until much later and was not judicially recognized
Cal.Rptr.2d, 2000 CFLR 8550, 2000 FA 964 [spousal until the Supremes issued their decision in Pendleton
support waiver does not necessarily violate public and Fireman. In that case, the high court reasoned
policy] had not overruled Higgason. Therefore, the that public policy still favors and encourages mar-
trial court concluded, the parties’ spousal support riage, but recognizes that dissos occur with more fre-
waiver was unenforceable. The trial court noted that quency than before. The former policy, intended to
this was a long-term marriage, and that Raymond protect women who had never worked outside the
had encouraged Roberta to stay home to care for R. home from being left without resources when their
instead of working full time; thus, the spousal sup- husbands divorced them, has necessarily given way
port waiver was also unjust. The rest of the prenup, to the reality of more women in the workplace who
the lower court found, was severable from the are capable of self support. Thus, the Supremes held,
invalid waiver and was enforceable. A little less than where, as in Pendleton and Fireman, intelligent,
a year later, Raymond moved for reconsideration, well-educated spouses have the ability and resources
citing In re Marriage of Howell (2011) 195 Cal.App.4th to be self-supporting and have been fully advised by
1062, 126 Cal.Rptr.3d 539, 2011 CFLR 11846, 2011 counsel, upholding the validity of a spousal support
FA 1491 [2002 amendments re spousal support waiv- waiver will not violate public policy. In response to
ers cannot be retroactively applied], but the trial this holding, the panel continued, the Legislature
court denied his motion as untimely and meritless. enacted Fam C §1612(c), which requires that a
After issuing additional partial judgments on prop- spouse against whom a spousal support waiver is
erty and spousal support, the trial court entered its sought to be enforced must have had representation
final judgment in October 2011. by independent counsel when he or she signed the
Raymond appealed, but the Fourth District prenup, and Fam C §1615, which creates a presump-
affirmed. tion that a prenup was not voluntarily signed unless
the trial court makes certain findings. It was the
addition of §1612(c) that the Howell court refused to
Then and there . . . apply retroactively, the justices noted. All of this, the
The justices began by noting that for more than 100 panel concluded, indicates that the law re spousal
years, our state’s public policy was against permit- support waivers is not what it was when Raymond
ting spouses to waive spousal support in premarital and Roberta signed their prenup. And, they declined
agreements. That policy governed the decision in to apply current law, reasoning that it would be
Higgason, where the Supremes held that a spousal unfair to Roberta to subject her to current law with-
support waiver in a premarital agreement between a out also giving her the benefit of the safeguards that
wealthy 73-year-old woman and her much younger it contains. Accordingly, the panel held that the trial
impecunious husband was unenforceable because court correctly applied the law as it was in 1985 to
she had a statutory duty to support him after mar- the parties’ prenup and did not err in concluding
riage. And, it was still in force when Raymond and that the spousal support waiver it contained was
Roberta signed their prenup. The panel acknowl- invalid and unenforceable.
edged that the parties apparently believed that the
law regarding prenups in 1985 was “in flux,” when
Library References
they signed their prenup, but the justices disagreed.
In the panel’s view, the law was not “in flux” until Hogoboom & King, Cal. Practice Guide: Family Law
after the Legislature enacted the Uniform Premarital (The Rutter Group 2012) ¶9:43e

2013 CFLR 12378


March 2013

increased litigation costs by failing to seek prompt


resolution of his issues and trying to punish Cynthia
In Brief for trivial violations of existing court orders. The
court didn’t buy Lee’s contention that it was barred
from awarding sanctions because it denied Cynthia’s
In affirmance, First District holds that trial motion for a directed acquittal, noting that Lee’s
court need not grant motion for acquittal nor contempt action violated the public policies under-
make a finding of frivolousness in family law lying Fam C §271 sanctions by frustrating settle-
contempt proceeding before making fee ment, and increasing litigation costs. Accordingly,
award under Fam C §271 for conduct that the trial court imposed §271 sanctions on Lee to the
frustrated settlement and added to cost of tune of $92,000. Lee appealed, but the First District
litigation affirmed.
Lee first argued that the fact that the trial court
Parker v. Harbert (2013) 212 Cal.App.4th 1172, 152 issued an OSC, along with its partial denial of
Cal.Rptr.3d 642. In 2005, Lee Harbert was driving in Cynthia’s motion for acquittal, were proof that his
Moraga when he hit a pedestrian, who later died. contempt action was supported by substantial evi-
Harbert was convicted of hit and run and sentenced dence. The justices didn’t agree. They pointed out
to a prison term. While he was in the pen, Cynthia that the trial court had already rejected the same
Parker had physical custody of their son. In Septem- argument, finding that its failure to grant the acquit-
ber 2009, Lee filed a contempt action against tal motion was no bar to an award of §271 fees as
Cynthia, claiming that she had violated two existing sanctions. Moreover, Lee failed to cite any authority
custody orders by refusing to bring the boy to visit to support this contention. As to Lee’s assertion that
him in prison or to give him access to the boy’s med- the lower court was required to find frivolousness
ical records, and by failing to make sure that the boy before making such an award, the panel noted that
took “ ‘the full course of medication for his poison this contention was rejected in In re Marriage of Tharp
oak medical problem.’ ” After the trial court issued (2010) 188 Cal.App.4th 1295, 116 Cal.Rptr.3d 375,
an OSC re contempt, Cynthia filed a lengthy respon- 2010 CFLR 11617, 2010 FA 1460, where that panel
sive declaration, denying all of Lee’s allegations. found that “ ‘[s]ection 271 does not require that the
When she moved for acquittal, the trial court sanctioned conduct be frivolous or taken solely for
granted her motion as to one of the allegations, but the purpose of delay’ ” because §271 is aimed at pro-
denied it as to the rest. Cynthia then moved for an moting settlement and reducing litigation costs in
award of attorney’s fees and costs under Fam C §271 family law actions and deterring litigants whose
[fees as sanctions for conduct that frustrates settle- actions go against those aims. The justices pointed
ment]. out that Lee’s conduct delayed settlement of several
After a 13-day trial, the trial court issued a tenta- pending child custody issues, increased court costs,
tive decision, finding that Lee failed to prove and “wasted the court and the parties’ time.” There-
Cynthia guilty beyond a reasonable doubt on any of fore, they concluded, the trial court had not erred by
his allegations, and imposed sanctions on him of imposing §271 sanctions. The panel quickly brushed
$87,000. The court also advised Lee that he could aside Lee’s contention that if the evidence was suffi-
request an evidentiary hearing on any of the issues cient to overcome a motion to dismiss it was suffi-
for which sanctions were imposed when he filed his cient to support the filing of a contempt proceeding.
objections to the proposed decision. Both Lee and Lee, they noted, had not made clear exactly what
Cynthia filed objections to the proposed decision. In evidence he was talking about, and he failed to offer
October 2011, the trial court issued a 30-page state- any evidence at trial that showed that his filing was
ment of decision, in which it went over the evidence reasonable.
in detail and found it insufficient to support a judg- In conclusion, Lee argued that the trial court had
ment of guilty beyond a reasonable doubt. The court violated his constitutional rights to due process by
explained that Cynthia hadn’t engaged in “ ‘the sort ordering §271 sanctions. The justices explained that
of egregious behavior that any objective party would a due process violation occurs when a party is not
have seen as warranting the pursuit of contempt alle- given notice of and opportunity to be heard regard-
gations that could result in the imposition of a jail ing the issues supporting an award of fees as sanc-
sentence.’ ” The court concluded that while many of tions. Lee, they noted, had been given notice in the
Lee’s allegations were frivolous, not all of them were. tentative decision that the trial court intended to
It reasoned that Lee had brought the action prima- impose §271 sanctions and had specified the con-
rily to force Cynthia to give in to his custody duct on which they would be based. The panel was
demands, and he had caused needless delay and similarly unimpressed with Lee’s assertion that the

2013 CFLR 12379


California Family Law Report

sanctions somehow violated his constitutional right The justices found that per Doe 1 v. City of
to petition the government for redress of grievances Murrieta (2002) 102 Cal.App.4th 899, a police
or limited his access to the courts. As to his conten- officer’s employer is not vicariously liable for the
tion that §271 was impermissibly vague as applied to officer’s assault on an explorer program participant
him, the justices found it meritless, as it did his because the assault is outside the course and scope of
remaining arguments. Accordingly, the panel the officer’s employment. Kassey maintained, how-
affirmed the judgment. CFLP §§A.18.3.1, ever, that even though the City was not liable for the
A.18.3.1.25. first assault, it could be liable for the subsequent
ones, which could have been stopped if Cruz had ful-
Library References filled his duty of reporting child abuse. The justices
didn’t buy it. They agreed with the trial court that
Hogoboom & King, Cal. Practice Guide: Family Law requiring a mandated child abuse reporter to report
(The Rutter Group 2012) ¶14:112e abuse that he or she committed would violate the
reporter’s Fifth Amendment privilege against
self-incrimination. Moreover, they declined to inter-
pret PC §11166(a) as requiring such reporting, as
In affirmance, Fifth District holds that police Kassey urged them to do, because such an interpreta-
officer’s duty as mandated child abuse tion would make the statute unconstitutional. The
reporter does not require him or her to justices were similarly unconvinced that the “public
report his or her own acts of child abuse safety” exception should apply to these facts. They
because such a requirement would violate his reasoned that this exception, which permits admis-
or her Fifth Amendment privilege against sion of answers given to police without Miranda
self-incrimination warnings where answers will alleviate an immediate
threat to public safety, did not apply here because a
Kassey S. v. City of Turlock (2013) 212 Cal.App.4th
custodial interrogation was not involved and there
1276, 151 Cal.Rptr.3d 714, 2013 FA 1577. While
were no exigent circumstances. Summing up, the
minor Kassey S. was participating in the Turlock
panel held that Cruz had no mandatory duty to
Police Department explorer program, she went on
report his own criminal behavior and they affirmed
“one-on-one ride-alongs” with police officer Jorge
the trial court’s judgment. CFLP §§C.15.2, G.176.
Cruz. Kassey later alleged that Cruz sexually
assaulted her on several of those ride-alongs. She
sued the City of Turlock and the Turlock Police Library References
Department for damages. In her third amended
Hogoboom & King, Cal. Practice Guide: Family Law
complaint, Kassey asserted that the City was vicari- (The Rutter Group 2012) ¶11:165e
ously liable for Cruz’s negligent behavior in failing
to report his own sexual abuse of a minor. She
claimed that since Cruz had a mandatory duty to
report child abuse under PC §11166(a), he breached
In reversal, Second District holds that
that duty by failing to report the first instance of sex-
juvenile court erred by assuming UCCJEA
ual abuse that he perpetrated on her, and that if he
jurisdiction over Mexican child on basis of
had reported it, he would not have been able to com-
“home state” because evidence failed to show
mit the subsequent acts.
that the child had lived with her parent in
The City demurred to Kassey’s third amended California for six consecutive months
complaint, and the trial court sustained the demur- preceding commencement of dependency
rer without leave to amend. The court reasoned that proceeding
imposing a mandatory duty to report his or her own
child abuse on a mandated reporter would violate In re Gloria A. (2013) 213 Cal.App.4th 476, __
the reporter’s Fifth Amendment privilege against Cal.Rptr.3d __, 2013 FA 1576. Gloria A. was born in
self-incrimination. And, since Cruz had no manda- Nayarit, Mexico, on August 24, 2004. Sometime
tory duty to report his abuse of Kassey, and those around August 2008, her mother killed her father,
acts were not within the scope of his employment, and fled with Gloria to the U.S., apparently entering
the City could not be directly or vicariously liable for near Nogales. It was unclear where mother and child
them. Kassey appealed, but the Fifth District lived between the time they entered and the time
affirmed. that immigration authorities caught up with them.

2013 CFLR 12380


March 2013

However, on January 21, 2009, U.S. immigration to have the court order visitation for his wife and
officers found Gloria’s mother in San Fernando, Cal- him. The juvenile court denied his petition without
ifornia, arrested her, and sent her back to Mexico. a hearing. Guadalupe appealed. While his appeal
There, she was tried and convicted of the father’s was pending, the juvenile court terminated Gloria’s
murder and sentenced to prison. Meanwhile, the mother’s parental rights. Acting on Guadalupe’s
mother had left Gloria with her boyfriend, Francisco appeal, the Second District reversed with directions.
O., in Pacoima. In February 2009, Gloria’s paternal The justices first considered DCFS’s motion to
grandfather, Guadalupe S., went to Pacoima to get dismiss Guadalupe’s appeal on ground of lack of
her, but Francisco refused to let Gloria go. The grand- standing. They noted that any party aggrieved may
father then called the police, who contacted the Los appeal a decision that is statutorily appealable. There
Angeles County Department of Children and Family was no question, the panel said, that Guadalupe was
Services (DCFS). DCFS took Gloria from Francisco an aggrieved party, given that his rights and interests
and placed her in foster care. were immediately, substantially, and injuriously
On February 16, the grandfather filed a petition affected by the juvenile court’s orders. If they were
in a Nayarit trial court, seeking custody of Gloria. affirmed, the justices explained, Guadalupe would
Two days later, DCFS filed a dependency petition be unable to enforce any of the Nayarit trial court’s
regarding Gloria. The juvenile court ordered the girl orders, which were favorable to him. Thus, he had
detained and directed DCFS to notify the Mexican standing to appeal, and the panel denied DCFS’s
consulate that a dependency action was pending, to motion.
obtain documentation of Guadalupe’s case in The panel then looked to see whether the juve-
Nayarit, and to evaluate him as a possible placement nile court’s assumption of UCCJEA jurisdiction
for Gloria in Mexico. The court also told DCFS to under the “home state” provision was valid. They
similarly evaluate the mother’s cousin in Sylmar, noted that a trial court may assume UCCJEA jurisdic-
and later, placed Gloria with her. Around February tion under that provision “if it was ‘the home state of
25, the Nayarit trial court granted temporary cus- the child on the date of the commencement of the
tody of Gloria to her grandfather. proceeding’ ” and that Fam C §3402(g) defines
“home state” as “ ‘the state in which the child lived
Between June 2009 and August 2010, the juve-
with a parent or a person acting as a parent for at
nile court took evidence and heard argument on
least six consecutive months immediately before the
Guadalupe’s challenge to its subject matter jurisdic-
commencement of a child custody proceeding.’ ”
tion over Gloria’s case under the Uniform Child
Here, the justices found, the evidence failed to show
Custody Jurisdiction and Enforcement Act [UCCJEA;
that Gloria had lived with her mother in California
Fam C §3400 et seq.]. During that time, the juvenile
for six months immediately before the dependency
court received and considered a rogatory letter from
action commenced. Moreover, the panel continued,
the Nayarit trial court, demanding that Gloria be
regardless of when mother and child began living in
returned to Mexico, and stating that the California
California, their period of living together ended on
court lacked jurisdiction over her because she had
January 21, 2009, when immigration officials took
not lived in this state “for the requisite time before
the mother into custody, one month before DCFS
the filing of the dependency petition.” The juvenile filed the dependency action. Gloria asked the court
court, however, disagreed, finding that it had exclu- to find that her mother’s absence was simply tempo-
sive UCCJEA jurisdiction over Gloria because the girl rary, which would extend their six months of living
“ ‘had been here the requisite amount of time,’ ” and together, but the justices declined. They pointed out
that any orders made by the Nayarit trial court were that if Gloria’s mother were released from jail within
without jurisdiction. The juvenile court then found a day’s time, she still would have to wait five years to
that Gloria was a dependent child and continued her be eligible to reenter the U.S., absent a waiver from
placement with her mother’s cousin. The court also the Attorney General, which was unlikely on these
ordered weekend visits for Guadalupe, to include facts. Moreover, the panel found it “even more fanci-
overnight visits if they were approved by Gloria’s ful” to base a temporary absence on the remote pos-
therapist and DCFS. sibility that the mother would escape from prison
In January 2010, Guadalupe filed a petition for and make her way back across the border. Given all
modification, per W&I C §388 [changed circum- that, the justices reversed the juvenile court’s order
stances require different order], seeking to have for lack of subject matter jurisdiction and remanded
Gloria placed with him or to have the cousin with direction to that court to determine whether
appointed as Gloria’s guardian, but not adopted, and there was an alternative basis for jurisdiction at the

2013 CFLR 12381


California Family Law Report

time that the dependency action commenced. If Library References


there was not, the panel directed juvenile court “to
proceed in accordance with the provisions of the Hogoboom & King, Cal. Practice Guide: Family Law
(The Rutter Group 2012) ¶7:89e
Act.” CFLP §H.46.

2013 CFLR 12382


March 2013

CFLR/CFLP UPDATE SERVICE


The following chart should be used in conjunction with the Fall 2012 CFLP Update. The sections listed below have been affected by cases or other
developments reported in CFLR since the Fall 2012 Update. If a section in which you are working is listed, go to the CFLR page number indicated.
Bold, bulleted sections mark those that are mentioned in this issue of CFLR.

When using See 2012 When using See 2012 When using See 2012 When using See 2012
CFLP section: CFLR page: CFLP section: CFLR page: CFLP section: CFLR page: CFLP section: CFLR page:
• A.9 .................................12379 D.27 ................................. 12263 G.83.13............................. 12295 J.80.3.0.20 ........................ 12276
A.10.5 .............................. 12259 D.29.10 ............................ 12263 G.84.2.5 ........................... 12295 J.92, M.4.15 ...................... 12276
A.14.5 .............................. 12280 D.30 ................................. 12263 G.84.5 .............................. 12295 J.100.28 ............................12262
A.16.0.0.5 ........................ 12259 D.31 ................................. 12263 G.84.6 .............................. 12272 L.5.5.23 ............................ 12218
A.16.3.2.12.5 .................... 12304 D.38.2.5 ........................... 12261 G.123.17 ........................... 12261 L.117 .................................12262
A.16.3.2.14.5 .....................12199 D.40.0.5 ........................... 12263 G.124.30........................... 12239 M.4.15 .............................. 12276
• A.18.3.1..........................12380 D.40.0.10 ......................... 12263 G.124.30........................... 12270 N.106.4.1 ..........................12355
• A.18.3.1.25 .....................12380 D.63.10 ............................ 12263 G.125.2.10 ........................ 12243 N.106.4.3..........................12220
A.24 ................................. 12260 D.89 ................................. 12263 G.125.2.10 ........................ 12270 N.106.4.7..........................12355
• A.65.2.3 .........................12365 D.106 ................................12177 G.138.68........................... 12261 N.110.1.3.5........................ 12241
• A.65.2.10 .......................12365 D.108 ............................... 12222 • G.138.68 ........................ 12373 N.113 ................................ 12198
A.76.0.2 ............................12270 D.110................................ 12272 G.142................................ 12261 N.116.1 .............................12358
A.98.2.5 ............................12281 D.122 ............................... 12263 G.142.5............................. 12272 N.116.1.1 ........................... 12240
A.103.2.10.........................12219 D.120 ............................... 12222 • G.143 .............................12368 N.116.1.1 ...........................12356
A.103.2.112 ...................... 12303 E.0.0.12.1 ......................... 12277 • G.143.1.0.1..................... 12368 N.188 ................................12281
• A.113 ..............................12379 E.0.0.12.1 ......................... 12278 • G.146.1.1........................ 12370 N.207.0.4 ..........................12355
A.121.27............................12195 E.0.0.12.7 ......................... 12350 • G.146.1.1.16 ................... 12370 P.13 ...................................12353
A.121.37 ............................12196 E.0.0.12.7.10 ..................... 12347 • G.146.1.1.22 ................... 12373 P.14 ...................................12353
C.1.0.1 ............................. 12262 E.0.0.13.6.10......................12214 • G.146.1.2 ....................... 12370 P.14.3 ................................12260
C.9.5.................................12267 E.0.0.13.8.5 .......................12194 G.156................................ 12262 P.44.5 ...............................12263
C.13 ................................. 12265 E.0.0.13.9 ......................... 12277 G.166.3.35........................ 12197 R.3.3.15.............................12270
C.15.0.0.1......................... 12265 E.0.0.15.10........................ 12350 G.166.5............................. 12277 R.10.25 ............................. 12217
C.15.0.1.3......................... 12264 E.0.0.16 ............................ 12242 G.168.0.28........................ 12258 R.10.25 ............................. 12245
C.15.0.1.30....................... 12259 E.0.0.25.............................12189 G.168.0.75........................ 12271 R.13...................................12280
C.15.0.1.30....................... 12262 E.1.0.1.0.1..........................12189 G.168.0.85........................ 12271 R.14.15 ..............................12280
C.15.0.1.30....................... 12265 E.3.5................................. 12239 G.168.0.85........................ 12272 R.57 ..................................12280
C.15.0.1.30........................12276 E.20.................................. 12293 G.168.0.90........................ 12215 S.20.2 ...............................12267
C.15.0.1.30........................12281 E.21.0.0.1 ......................... 12299 G.168.0.90........................ 12271 S.38.1 ...............................12267
C.15.0.3.4.10.....................12267 E.22.8.15 .......................... 12261 G.168.1.30 ........................ 12193 S.47 ..................................12267
C.15.0.4.3.5 ......................12267 E.22.9.3.5......................... 12261 G.168.1.30 ........................ 12268 S.49 ..................................12267
C.15.0.5.5 ........................ 12265 E.27.................................. 12299 G.168.1.30 ........................ 12272 S.56.0.7 ............................ 12267
C.15.0.5.5 ........................ 12266 E.34.................................. 12299 G.168.1.30 ........................ 12273 S.60.7 ...............................12270
C.15.0.5.5 ........................ 12266 E.38.................................. 12299 G.169................................ 12271 S.63.2.3 ............................12270
C.15.0.5.5 .........................12267 E.38.5............................... 12299 G.169................................ 12271 S.64.2.1.45........................12268
C.15.0.6.20 ...................... 12264 F.13................................... 12281 G.169................................ 12272 S.64.2.2.25 .......................12270
C.15.0.6.20 ...................... 12265 F.44.4 ............................... 12209 G.170.10 ............................12176 S.169.................................12267
C.15.1............................... 12265 F.48.1 ............................... 12293 G.170.10 ........................... 12195 • T.33.6.15 ........................12379
• C.15.2.............................12380 F.52.10 ............................. 12281 G.170.10 ........................... 12241 T.42 ..................................12279
C.22.50............................ 12265 F.53.4 ............................... 12281 G.171.5 ............................. 12271 T.47 ..................................12279
C.29.4.70..........................12279 F.53.4 ............................... 12293 G.171.57 ........................... 12215 • T.49................................12379
C.47.5 .............................. 12223 F.81.5 ............................... 12209 G.175 ................................ 12260 T.51 ..................................12279
C.47.8.4.4.4 ..................... 12223 F.88 .................................. 12209 G.176 ................................ 12260 U.86.2.1............................ 12175
C.69.5.5............................12237 F.97.0.2..............................12169 • G.176 .............................12380 • U.110.6...........................12377
C.72.4 ...............................12279 F.97.0.15 ............................12169 G.177................................ 12260 U.139 ................................12345
C.97.2 .............................. 12280 F.100.9 ..............................12197 G.181................................ 12354 U.161 ................................ 12224
C.97.3.10...........................12219 G.25 ................................. 12262 G.196.10 ........................... 12272 U.161 ................................12277
C.180 ................................ 12173 G.25 ................................. 12262 G.196.15 ........................... 12272 U.164 ................................ 12224
D.3.10 .............................. 12263 G.26.2 .............................. 12262 H.5.1.5.............................. 12258 U.185 ................................12345
D.3.10 .............................. 12263 G.26.7 .............................. 12261 H.5.9.0.4.3.5 .................... 12297 U.194 ................................12332
D.3.20.............................. 12263 G.29.0.5 ............................12190 H.5.9.0.4.25 ..................... 12221 U.197 ................................12302
D.23................................. 12263 G.41 ................................. 12262 • H.46...............................12382 U.197 ................................12332
D.26................................. 12263 G.43 ................................. 12262 J.80.3................................ 12277

2013 CFLR 12383


California Family Law Report

2013 CFLR CUMULATIVE TABLE OF STATUTES CITED


Page numbers refer to 2013 CFLR (Vol. 37) 388 ...................................................................... 12381
5328(f)................................................................. 12329
California Ballot Initiatives 5328(l)................................................................. 12329
Prop. 8 (2008) ..........................................12332, 12346
California Rules and Regulations
California Statutes
Rules of Court
Code of Civil Procedure 2.30 ..................................................................... 12332
632 .......................................................................12367 2.30(d)................................................................. 12333
Evidence Code 3.650(a)–(c)......................................................... 12333
730 ....................................................................... 12374 Federal Statutes
Family Code Internal Revenue Code
271 ............................................... 12368, 12379, 12380 6015(f) ................................................................. 12335
1600 et seq. .........................................................12378 6662(a) ................................................................ 12355
1600–1617 ................................................ 12346, 12347 6662(b)(2) ........................................................... 12355
1612(c) .................................................................12378
1615...........................................................12347, 12378 U.S. Code
2030 .................................................................... 12368 1:7 ...................................................................... 12332
2033 .................................................................... 12368 10:1408 ............................................................... 12355
2034 .................................................................... 12366 10:1408(c)(1) ....................................................... 12355
2034(c) ..................................................... 12366, 12367 42:1983 ...................................................12353, 12354
2552 ....................................................................12376 42:11601 et seq. .................................................. 12330
3047 ......................................................... 12369, 12374 50:app 501 et seq. ...............................................12373
3047(b)(1) .................................................12374, 12375 U.S. Constitution
3101..........................................................12368, 12369 art. III, §2 ............................................................. 12332
3101(a) ................................................................ 12369 amend. V ..................................................12328, 12380
3101(c) ................................................................ 12369 amend. VI ............................................................ 12353
3102 ......................................................... 12370, 12371 amend. XIV .......................................................... 12332
3400 et seq. .........................................................12381
3402(g).................................................................12381 Federal Rules and Regulations
7552.5 ..................................................................12351 Code of Federal Regulations
7611..................................................................... 12349
7611(d) .................................................................12351 49:34455 ............................................................. 12355
7612(b) .................................................................12351 Federal Rules of Evidence
7630 .................................................................... 12352 408 .......................................................................12331
Penal Code Federal Administrative and
11166(a)............................................................... 12380 Executive Materials
11172 ................................................................... 12354
Probate Code Treasury Regulations
1.71-1T(b), Q&A-5 ............................................... 12355
21610....................................................................12347
1.152-4(e)(1) ........................................................ 12356
21611....................................................................12347
Welfare & Institutions Code International Law
300(a)...................................................................12367 Hague Convention
300(f)................................................................... 12334 art. 17 .................................................................. 12330

2013 CFLR 12384


March 2013

2013 CFLR CUMULATIVE TOPICAL INDEX


Adoption Nonmarital Relationships
A.S., Adoption of ................................................... 12345 Hollingsworth v. Perry.......................................... 12332
United States v. Windsor ...................................... 12332
Custody Wilson, Estate of .................................................. 12345
Arce v. County of Los Angeles................................. 12353
Chalmers v. Hirschkop ........................................... 12368 Procedure
David R., In re........................................................ 12356 Kassey S. v. City of Turlock ..................................... 12380
Drake M., In re ...................................................... 12325 Lujan, People v. ................................................... 12352
E.U. and J.E., In re Marriage of .................................12373 Sino Century Development Ltd. v. Farley.............. 12332
Ian J. v. Peter M.......................................................12370
J.R. v. D.P. ............................................................. 12350 Professional Responsibility
Los Angeles County DCFS v. Superior Ct. (Y.G.) ....... 12333 Parker v. Harbert .................................................... 12379
M.L., In re ............................................................. 12327
Setting Aside Judgments
Family Residence
Campi, In re Marriage of .........................................12375
Turkanis and Price, In re Marriage of ...................... 12365
Spousal Support
Hague Convention
Melissa, In re Marriage of ........................................12377
Walker v. Walker ................................................... 12330
Tax
Interstate Custody Armstrong v. Commissioner................................. 12355
Gloria A., In re ....................................................... 12380 George v. Commissioner ...................................... 12345
O’Neil v. Commissioner ....................................... 12334
Juveniles Schuller v. Commissioner ..................................... 12345
Marquis H., In re ...................................................12367
Noe F., In re...........................................................12367

2013 CFLR 12385


California Family Law Report

CFLR CITALERTER
This table lists all cases reported in CFLR from October 2012 through March 2013 (2012 CFLR 12209 through 2013
CFLR 12392), plus cases not yet final as of February 22, 2013.

A.A. v. Superior Court (San Diego County Burnham v. CalPERS (Honeyman) (8/31/12) 3
Health and Human Services Agency) Civ C067715 (Robie) 2012 WL 3775875,
(9/12/11) 4 Civ D062114 (Div 1, Huffman) 2012 DJDAR 12361, 208 Cal.App.4th 1576,
2012 WL 3968917, 2012 DJDAR 12877, 209 146 Cal.Rptr.3d 607, CFLP §§U.161,
Cal.App.4th 237, 146 Cal.Rptr.3d 805, 2012 U.164.10, 2012 CFLR 12224, 2012 FA 1555
CFLR 12243, 2012 FA 1557 (no pet f) (no pet f)
A.S., Adoption of (11/29/12; ord pub Campi, In re Marriage of (1/24/13) 1 Civ
12/19/12) 1 Civ A134219 (Div 2, Kline) 2012 A134030 (Div 4, Baskin) 2013 WL 266048,
WL 6677671, 2012 DJDAR 16997, 212 2013 DJDAR 1113, 212 Cal.App.4th 1565,
Cal.App.4th 188, 151 Cal.Rptr.3d 15, CFLP 152 Cal.Rptr.3d 179, CFLP §§A.9, A.113,
§E.0.0.12.7.10, 2013 CFLR 12347, 2012 FA T.33.6.15, T.49, 2013 CFLR 12375, 2013 FA
1569 (pet rev f 1/22/13) 1574
Adams and A., In re Marriage of (10/16/12) 4 Ceja v. Rudolph & Sletten (rev gr 8/10/11)
C i v G 0 4 5 9 2 0 ( D i v 3 , I ko l a ) 2 0 1 2 W L S193493, 194 Adv. Cal.App.4th 584, 125
4881510, 2012 DJDAR 14320, 209 Cal.Rptr.3d 98, CFLP §§C.0.4.1.2, U.85.1,
Cal.App.4th 1543, 148 Cal.Rptr.3d 83, CFLP 2011 CFLR 11895, 2011 FA 1501 [prior his-
§§G.84.2.5, G.84.5, G.83.13, 2012 CFLR tory: 2011 CFLR 11820, 2011 FA 1486] (not
12295, 2012 FA 1561 (depub den 2/13/13) yet argued)
Adoption of (see under name of adopted per- Chafin v. Chafin (cert gr 8/13/12) USSCT
son) 11-1347, 2012 WL 572532, __ U.S. __, 133
Adoptive Couple v. Baby Girl (cert gr 1/4/13) S.Ct. 81, CFLP §H.5.9.0.45, 2012 CFLR
USSCT 12-399, 2013 WL 49813, __ U.S. __, 12218, 2012 FA 1552, 2013 FA 1578 (argued
133 S.Ct. 831, 2013 FA 1577 12/5/12; see also Larbie v. Larbie, USSCT
12-304)
Anthony T., In re (8/22/12) 4 Civ D061309
(Div 1, Huffman) 2012 WL 3590808, 2012 Chaker v. Mateo (10/4/12) 4 Civ D058753 (Div
DJDAR 11666, 208 Cal.App.4th 1019, 146 1, Benke) 2012 WL 4711885, 2012 DJDAR
Cal.Rptr.3d 124, CFLP §G.171.57, 2012 13830, 209 Cal.App.4th 1138, 147
CFLR 12215 (depub req den 11/14/12) Cal.Rptr.3d 496, CFLP §A.103.2.112, 2012
CFLR 12303, 2012 FA 1560 (no pet f)
Arce v. County of Los Angeles (12/17/12) 2 Civ
B233214 (Div 7, Zelon) 2012 WL 6595896, Chalmers v. Hirschkop (1/30/13, mod 2/6/13)
2012 DJDAR 16833, 211 Cal.App.4th 1455, 1 Civ A133897 (Div 2, Kline) 2013 WL
150 Cal.Rptr.3d 735, CFLP §G.181, 2013 341902, 2013 DJDAR 1312, 213 Cal.App.4th
CFLR 12353 (no pet f) 289, 152 Cal.Rptr.3d 361, CFLP §§G.143,
G.143.1.0.1, 2013 CFLR 12368, 2013 FA
Armstrong v. Commissioner (12/19/12) USTC 1575
28738-09 (Gustafson) 2012 WL 6618720,
139 T.C. No. 18, CFLP §N.116.1.1, 2013 Chodos v. Cole (10/25/12, mod 11/17/12) 2
CFLR 12355 Civ B236361 (Div 5, Mosk) 2012 DJDAR
14885, 210 Cal.App.4th 692, 148
B.S., In re (9/12/12) 2 Civ B237034 (Div 3, Cal.Rptr.3d 451, 2012 CFLR 12308 (rehg
Aldrich) 2012 DJDAR 12873, 209 den 11/14/12, rev den 2/13/13)
Cal.App.4th 246, 147 Cal.Rptr.3d 1, 2012
CFLR 12243 (no pet f) City of (see under name of defendant)
Barth, In re Marriage of (10/22/12) 4 Civ County of (see under name of defendant or
G045142 (Div 3, Moore) 2012 WL 5194026, real party in interest)
2012 DJDAR 14651, 210 Cal.App.4th 363,
147 Cal.Rptr.3d 910, CFLP §§E.21.0.0.1, D.M., In re (10/24/12) 6 Civ H038322 (Premo)
E.27, E.34, E.38, E.38.5, 2012 CFLR 12299, 2012 WL 5233504, 2012 DJDAR 14762, 210
2012 FA 1563 (rehg den 11/8/12, rev den Cal.App.4th 541, 148 Cal.Rptr.3d 349, 2012
1/16/13) CFLR 12305, 2012 FA 1564 (rev den 1/3/13)

2013 CFLR 12386


March 2013

David R., In re (12/31/12) 2 Civ B239629 (Div Freitas, In re Marriage of (10/3/12) 4 Civ
1, Rothschild) 2012 WL 6737811, 2012 D060281 (Div 1, Aaron) 2012 WL 4513480,
DJ DA R 5 5, 2 12 Ca l. A pp . 4t h 5 76 , 15 1 2012 DJDAR 13762, 209 Cal.App.4th 1059,
Cal.Rptr.3d 253, 2013 CFLR 12356, 2013 FA 147 Cal.Rptr.3d 453, CFLP §§E.20, F.48.1,
1571 (pet rev f 2/6/13) F.53.4, 2012 CFLR 12293, 2012 FA 1559 (rev
den 12/19/12)
Destiny S., In re (10/31/12) 2 Civ B239393 (Div
1, Rothschild) 2012 WL 5353552, 2012 George v. Commissioner (12/19/12) USTC
DJDAR 15121, 210 Cal.App.4th 999, 148 15083-10, 6116-11 (Gustafson) 2012 WL
Cal.Rptr.3d 800, 2012 CFLR 12309, 2012 FA 6618756, 139 T.C. No. 19, CFLP §N.116.1,
1565 (rev den and depub req den 2/13/13) 2013 CFLR 12357, 2012 FA 1570

Diepenbrock v. Brown (7/31/12; ord pub Gloria A., In re (1/31/13) 2 Civ B239465 (Div 1,
8/20/12) 1 Civ A132749 (Div 3, Pollack) Rothschild) 2013 WL 364249, 2013 DJDAR
1446, 213 Cal.App.4th 476, __ Cal.Rptr.3d
2012 WL 3090244, 2012 DJDAR 11582, 208
__, CFLP §H.46, 2013 CFLR 12380, 2013 FA
Cal.App.4th 743, 145 Cal.Rptr.3d 659, CFLP 1576 (req to correct opn f 2/13/13)
§§D.108, D.120, 2012 CFLR 12222 (rev den
11/20/12) H.R., In re (8/20/12) 1 Civ A134137 (Div 3, Pol-
lak) 2012 WL 3568325, 2012 DJDAR 11585,
Drake M., In re (12/5/12) 2 Civ B236769 (Div 208 Cal.App.4th 751, 145 Cal.Rptr.3d 782,
3, Croskey) 2012 WL 6048996, 2012 DJDAR CFLP §G.168.0.90, 2012 CFLR 12215, 2012
16304, 211 Cal.App.4th 754, 149 FA 1554 (rehg den 9/11/12) (no pet f)
Cal.Rptr.3d 875, 2013 CFLR 12332, 2012 FA
1567 (no pet f) Hibbard, In re Marriage of (1/15/13) 1 Civ
A135901 (Div 4, Baskin) 2013 WL 151180,
Dwight R. v. Christy B. (1/7/13) 4 Civ E053797 2013 DJDAR 631, 212 Cal.App.4th 1007,
(Div 2, King) 2013 WL 63404, 2013 DJDAR 151 Cal.Rptr.3d 553, CFLP §F.103, 2013
195, 212 Cal.App.4th 697, 151 Cal.Rptr.3d CFLR ___, 2013 FA 1573 (rehg den 2/8/13,
406, CFLP §§A.103.3.0.39, C.15.2.4, G.181, pet rev f 2/22/13)
2013 CFLR ___, 2013 FA 1572 (rehg den
2/4/13, pet rev f 2/19/13) Hofer, In re Marriage of (8/13/12) 2 Civ
B228461 (Div 6, Gilbert) 2012 WL 3286084,
E. and Stephen P., In re Marriage of (2/13/13) 2 2012 DJDAR 11241, 208 Cal.App.4th 454,
Civ B243469 (Div 5, Mosk) 2013 WL 145 Cal.Rptr.3d 697, CFLP §R.10.25, 2012
519735, 2013 DJDAR 2089, __ Cal.App.4th CFLR 12 217 , 201 2 FA 15 52 ( rehg den
__, __ Cal.Rptr.3d __, CFLP §G.168.10, 2013 9/12/12, rev den 11/20/12)
CFLR ___, 2013 FA 1577 Holland v. Jones (9/27/12; ord pub 10/23/12) 2
E.A., In re (8/27/12, ord pub 9/26/12) 2 Civ Civ B241535 (Div 1, Rothschild) 2012 WL
B237684 (Div 8, Flier) 2012 WL 3642826, 4460410, 2012 DJDAR 14721, 210
2012 DJDAR 13508, 209 Cal.App.4th 787, Cal.App.4th 378, 148 Cal.Rptr.3d 550, 2012
147 Cal.Rptr.3d 327, CFLP §R.10.25, 2012 CFLR 12307 (no pet f)
CFLR 12245, 2012 FA 1558 (no pet f) Hollingsworth v. Perry (cert gr 12/7/12) USSCT
E.U. and J.E., In re Marriage of (12/31/12, ord 12-144, 2012 WL 3109489, __ U.S. __, 133
S.Ct. 786 (Mem), CFLP §§U.194, U.197,
pub 1/22/13) 4 Civ G046687 (Div 3, Ikola),
2013 CFLR 12330, 12332, 2012 FA 1568
2012 WL 6929461, 2013 DJDAR 969, 212 [prior history: Perry v. Brown (9 Cir 2012) 671
Cal.App.4th 1377, 152 Cal.Rptr.3d 58, CFLP F.3d 1052, 2012 CFLR 12091, 2011 FA 1471,
§§G.138.68, G.146.1.1.22, G.146.1.1.2, 2012 FA 1525; (CASCT 2011) 52 Cal.4th
2013 CFLR 12373, 2013 FA 1574 (pet rev f 1116, 265 P.3d 1002, 2012 CFLR 12019,
2/22/13) 2011 FA 1515; Perry v. Schwarzenegger (ND
Facter, In re Marriage of (1/14/13) 1 Civ Cal 2010) 2010 FA 1451, 2010 FA 1452] (not
A134191 (Div 1, Dondero) 2013 WL 142459, yet argued)
2013 DJDAR 570, 212 Cal.App.4th 967, 152 I.J., In re (rev gr 9/19/12) S204622, 207 Adv.
Cal.Rptr.3d 79, CFLP §§U.110.6, U.149.5, Cal.App.4th 1351, 144 Cal.Rptr.3d 503,
2013 CFLR ___, 2013 FA 1573 (rehg den 2012 FA 1557 [prior history: 2012 CFLR
2/6/13, pet rev f 2/22/13) 12193] (not yet argued)

2013 CFLR 12387


California Family Law Report

Ian J. v. Peter M. (1/29/13) 4 Civ D060197 (Div Liu v. Mund (7/12/12, amended 7/27/12) 7 Cir
1, Benke) 2013 WL 324045, 2013 DJDAR 11-1453 (Posner) 2012 WL 2861886, 686
1257, 213 Cal.App.4th 189, 152 Cal.Rptr.3d F.3d 418, CFLP §F.100.9, 2012 CFLR 12197,
323, CFLP §§G.146.1.1, G.146.1.1.16, 2012 FA 1546
G.146.1.2, 2013 CFLR 12370, 2013 FA 1575
Los Angeles County Department of Children
In re (see under name of party) and Family Services v. Superior Court (Y.G.
et al.) (10/29/12, ord pub 11/15/12) 2 Civ
In re Marriage of (see under surname) B241552 (Div 3, Aldrich) 2012 WL 5306293,
J.R. v. D.P. et al. (12/21/12) 2 Civ B236047 (Div 2012 DJDAR 15558, 211 Cal.App.4th 13,
8, Grimes) 2012 WL 6635004, 2012 DJDAR 149 Cal. Rptr.3d 273, 2013 CFLR 12333,
17170, 212 Cal.App.4th 374, 150 2012 FA 1566 (no pet f)
Cal.Rptr.3d 882, CFLP §§E.0.0.12.7,
Lozano v. Alvarez (10/1/12) 2 Cir 11-2224-cv
E.0.0.15.10, 2013 CFLR 12350, 2012 FA
1570 (pet rev f 1/31/13) (Katzmann) 2012 WL 4479007, 697 F.3d 41,
CFLP §H.5.9.0.4.3.5, 2012 CFLR 12297,
K.L., In re (10/25/12) 4 Civ D061577 (Div 1, 2012 FA 1563
McIntyre) 2012 WL 5264984, 2012 DJDAR
14826, 210 Cal.App.4th 632, 148 Lujan, People v. (12/17/12, mod 1/15/13) 2
Cal.Rptr.3d 606, 2012 CFLR 12306, 2012 FA Civ B231123 (Div 6, Hoffstadt) 2012 WL
1564 (no pet f) 6573078, 2012 DJDAR 16888, 211
Cal.App.4th 1499, 150 Cal.Rptr.3d 727,
Kassey S. v. City of Turlock (1/17/13) 5 Civ CFLP §§P.13, P.14, 2013 CFLR 12352, 2012
F063805 (Gomes) 2013 DJDAR 825, 212 FA 1569 (rehg den 1/15/13, pet rev f
Cal.App.4th 1276, 151 Cal.Rptr.3d 714, 1/23/13)
CFLP §§C.15.2, G.176, 2013 CFLR 12380,
2013 FA 1577 M.L., In re (11/9/12) 4 Civ E054939 (Div 2,
Miller) 2012 WL 5458874, 2012 DJDAR
Kern County Department of Child Support 15403, 210 Cal.App.4th 1457, 148
Services v. Camacho (9/11/12, ord pub Cal.Rptr.3d 911, 2013 CFLR 12327, 2012 FA
10/2/12) 5 Civ F062883 (Kane) 2012 WL 1565 (depub req den 1/23/13) (no pet f)
3992358, 2012 DJDAR 13718, 209
Cal.App.4th 1028, 147 Cal.Rptr.3d 354, Marcelo B., In re (9/24/12) 2 Civ B238619 (Div
CFLP §C.69.5.5, 2012 CFLR 12237, 2012 FA 6, Yegan) 2012 DJDAR 13368, 209
1559 (no pet f) Cal.App.4th 635, 146 Cal.Rptr.3d 908, 2012
CFLR 12243 (no pet f)
L.M. v. M.G. (8/2/12) 4 Civ D060409 (Div 1,
Irion) 2012 WL 3125123, 2012 DJDAR Maricela H., In re (rev gr 1/3/13) S206953, 210
10745, 208 Cal.App.4th 133, 145 Adv. Cal.App.4th 615, 148 Cal.Rptr.3d 618,
Cal.Rptr.3d 97, CFLP §E.0.0.13.6.10, 2012 2012 CFLR 12299 (not yet argued)
CFLR 12214, 2012 FA 1550 (no pet f) Marquis, H., In re (1/7/13) 4 Civ D061553 (Div
Larbie v. Larbie (7/31/12) 5 Cir 11-50859 1 , M c C o n ne l l ) 2 0 1 3 D J D A R 2 0 2 , 2 1 2
(Haynes) 2012 WL 3089773, 690 F.3d 295, Cal.App.4th 718, 151 Cal.Rptr.3d 284, 2013
CFLP §H.5.9.0.4.25, 2012 CFLR 12221, 2012 CFLR 12367 (rehg den 1/22/13, pets rev f
FA 1551 (cert pet f 9/7/12, USSCT 12-304; 1/19/13 & 1/20/13)
motion to consolidate case with Chafin v. Melissa, In re Marriage of (12/3/12, mod and
Chafin f 9/7/12)
ord pub 1/2/13) 4 Civ G045899 (consol. w/
Larievy v. Commissioner (8/28/12) USTC G046261) (Div 3, O’Leary) 2012 WL
10939-11 (Gerber) 2012 WL 3705163, T.C. 6761688, 2013 DJDAR 95, 212 Cal.App.4th
Memo. 2012-247, 104 T.C.M. 241, CFLP 598, 151 Cal.Rptr.3d 608, CFLP §U.110.6,
§N.106.4.3, 2012 CFLR 12220, 2012 FA 1554 2013 CFLR 12377, 2013 FA 1571 (rehg den
1/2/13, pet rev f 2/4/13)
Left, In re Marriage of (8/23/12) 2 Civ B230768
(Div 2, Chavez) 2012 WL 3610521, 2012 Michael A., In re (9/24/12) 3 Civ C069365
DJDAR 11764, 208 Cal.App.4th 1137, 146 (Hull) 2012 WL 3651055, 2012 DJDAR
Cal.Rptr.3d 181, CFLP §§F.44.4, F.81.5, 2012 13378, 209 Cal.App.4th 661, 147
CFLR 12 209, 201 2 FA 155 3 ( rehg den Cal.Rptr.3d 169, CFLP §G.170.10, 2012
9/11/12, rev den 11/14/12) CFLR 12241 (depub den 1/16/13) (no pet f)

2013 CFLR 12388


March 2013

Michael E., Jr., In re (1/16/13, ord pub 2/5/13) S.M., In re (9/5/12) 4 Civ D060733 (Div 1,
4 Civ D062596 (Div 1, Nares) 2013 WL McIntyre) 2012 WL 3827983, 209
428060, 2013 DJDAR 1679, __ Cal.App.4th Cal.App.4th 21, 146 Cal.Rptr.3d 659, CFLP
__, __ Cal.Rptr.3d __, 2013 CFLR ___, 2013 §§E.3.5, G.124.30, 2012 CFLR 12239, 2012
FA 1576 FA 1555 (no pet f)
Moody v. Commissioner (9/16/12) USTC San Diego, County of v. Mason (9/14/12) 4 Civ
9834-11 (Goeke) 2012 WL 4120312, T.C. D060412 (Div 1, Huffman) 2012 WL
Memo. 2012-268, 104 T.C.M. 320, CFLP 4040707, 2012 DJDAR 13006, 209
§N.116.1.1, 2012 CFLR 12240 Cal.App.4th 376, 147 Cal.Rptr.3d 135, CFLP
Nemecek & Cole v. Horn (7/23/12, ord pub §§E.0.0.15.8, E.0.0.16, 2012 CFLR 12242,
8/15/12) 2 Civ B233274 (Div 8, Bigelow) 2012 FA 1557 (rev den 11/28/12)
2012 WL 2990052, 2012 DJDAR 11353, 208
Sands & Associates v. Juknavorian (10/10/12,
Cal.App.4th 641, 145 Cal.Rptr.3d 641, CFLP
mod 10/30/12) 2 Civ B232686 (Div 1, Mall-
§§C.47.5, C.47.8.4.4.4, 2012 CFLR 12223,
2012 FA 1552 (depub req den 11/20/12) (no ano) 2012 WL 4808450, 2012 DJDAR 13972,
pet f) 209 Cal.App.4th 1269, 147 Cal.Rptr.3d 725,
CFLP §A.16.3.2.12.5, 2012 CFLR 12304,
Moore v. Bedard (Riverside County Dept. of 2012 FA 1560 (rehg den 10/30/12, rev den
Child Support Services) (1/25/13, ord pub 1/23/13)
2/15/13) 4 Civ E054800 (Div 2, Richli) 2013
WL 572532, 2013 DJDAR 2219, __ Schilling v. Commissioner (9/5/12) USTC
Cal.App.4th __, __ Cal.Rptr.3d __, CFLP 23399-08 (Swift) 2012 WL 3848477, T.C.
§C.13, 2013 CFLR ___, 2013 FA 1578 Memo. 2012-256, 104 T.C.M. 272, CFLP
§N.110.1.3.5, 2012 CFLR 12241, 2012 FA
Noe F., In re (1/30/13) 2 Civ B238278 (Div 1, 1556
Johnson) 2013 WL 373909, 2013 DJDAR
1350, 213 Cal.App.4th 358, __ Cal.Rptr.3d Schuller v. Commissioner (12/18/12) USTC
__, 2013 CFLR 12367 7577-11, 12954-11 (Kerrigan) 2012 WL
6599031, T.C. Memo. 2012-347, 104 T.C.M.
O’Neil v. Commissioner (12/4/12) USTC
28711-09 (Holmes) 2012 WL 6027114, T.C. 781, CFLP §§N.106.4.1, N.106.4.7,
Memo. 2012-339, 104 T.C.M. 724, 2013 N.207.0.4, 2013 CFLR 12354, 2013 FA 1572
CFLR 12334 Sino Century Development Ltd. v. Farley
Parker v. Harbert (12/19/12, ord pub 1/15/13) (12/3/12) 2 Civ B236912 (Div 3, Aldrich)
1 Civ A134060 (Div 5, Jones) 2012 WL 2012 WL 6001820, 2012 DJDAR 16277, 211
6913936, 2013 DJDAR 759, 212 Cal.App.4th Cal.App.4th 688, 149 Cal.Rptr.3d 866, 2013
1172, 151 Cal.Rptr.3d 642, CFLP CFLR 12 332 , 201 2 FA 15 67 ( rehg den
§§A.18.3.1,A.18.3.1.25, 2013 CFLR 12379, 12/27/12, pet rev f 1/9/13)
2013 FA 1576
Smith v. Smith (8/22/12) 3 Civ C066792
People v. (see under name of defendant or real (Hoch) 2012 WL 3598414, 2012 DJDAR
party in interest) 11744, 208 Cal.App.4th 1074, 146
Cal.Rptr.3d 135, CFLP §C.97.3.10, 2012
R.C., In re (10/30/12) 2 Civ B240227 (Div 5,
Turner) 2012 WL 5333419, 2012 DJDAR CFLR 12219, 2012 FA 1553 (no pet f)
15047, 210 Cal.App.4th 930, 148 State v. (see under name of defendant or real
Cal.Rptr.3d 835, 2012 CFLR 12299 (no pet f) party in interest)
R.H. v. Superior Court (San Diego County Turkanis and Price, In re Marriage of (1/30/13)
Health and Human Services Agency) 2 Civ B229482, B234011 (Div 8, Flier) 2013
(8/21/12; as mod and ord pub 9/14/12) 4 Civ WL 357512, 2013 DJDAR 1340, 213
D061609 (Div 1, Haller) 2012 WL 3573730, Cal.App.4th 332, __ Cal.Rptr.3d __, CFLP
2012 DJDAR 13001, 209 Cal.App.4th 364, §§A.65.2.3, A.65.2.10, 2013 CFLR 12365,
147 Cal.Rptr.3d 8, CFLP §G.125.2.10, 2012 2013 FA 1575 (rehg pet f 2/14)
CFLR 12243, 2012 FA 1558 (rev den
11/20/12) United States v. (see name of defendant)

2013 CFLR 12389


California Family Law Report

Valli , In r e M arr iag e of (re v g r 8/24/1 1) Wilson, Estate of (12/13/12) 1 Civ A133952
S193990, 195 Adv. Cal.App.4th 776, 124 (Div 2, Lambden) 2012 WL 6216869, 2012
Cal.Rptr.3d 726, CFLP §§J.9.15, J.80.3.0.3.4, DJDAR 16734, 211 Cal.App.4th 1284, 150
K.30, 2011 CFLR 11927, 2011 FA 1503 [prior Cal.Rptr.3d 699, CFLP §§U.139, U.185, 2013
history: 2011 CFLR 11837, 2011 FA 1489] CFLR 12 345 , 201 2 FA 15 68 ( rehg den
1/9/13, pet rev f 1/22/13)
(not yet argued)
Windsor, United States v. (cert gr 12/7/12)
Walker v. Walker (11/16/12) 7 Cir 11-3602 USSCT 12-307, 2012 WL 4009654, __ U.S.
(Wood) 2012 WL 5668330, 701 F.3d 1110, __, 133 S.Ct. 786 (Mem), CFLP §§U.194,
CFLP §H.5.9.0.4.3.5, 2013 CFLR 12330, U.197, 2013 CFLR 12332, 2012 FA 1568
2012 FA 1566 (rehg and rehg en banc den [prior history: 699 F.3d 169, 2012 CFLR
1/8/13) 12302, 2012 FA 1562] (to be argued 3/27/13)

2013 CFLR 12390


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LAKE TAHOE REGISTRATION: 7:30AM Locations/Breakfast at Lake Tahoe!
LAKE TAHOE PROGRAM: 8:00 - 11:30 AM (EACH DAY)

PLEASE SELECT LOCATION PRO GR AM F O CUS


F SAN DIEGO (LIVE PROGRAM)
Our distinguished All-Star Faculty continues in the CFLR Family
Saturday, February 16, 2013
Sheraton Carlsbad Resort & Spa Law Refresher Course (FLRC) tradition of providing current case
5480 Grand Pacific Drive • (760) 827-2400 law and statutory review, in-depth analysis of trends in family
F LOS ANGELES (LIVE PROGRAM) law, strategic planning, and best practice tips. The 2013 course
Friday, March 1, 2013 will review the top cases from 2012 and important new
Marina del Rey Marriott
4100 Admiralty Way • (310) 301-3000 legislation. It will also cover the renumbered and reorganized
F BURLINGAME (LIVE PROGRAM) California Rules of Court that directly impact the day-to-day
Friday, March 8, 2013 practice of family law. Likely hot topics for 2013 include the
San Francisco Airport Marriott Waterfront relationship between title presumptions and fiduciary duties
1800 Old Bayshore Highway • (650) 692-9100
and the putative spouse status test. This is a program you will
F SACRAMENTO (LIVE PROGRAM)
not want to miss!
Saturday, March 9, 2013
Sacramento Marriott Rancho Cordova
FLRC is sure to enhance your lawyering skills inside and outside
11211 Point East Drive • (916) 638-1100
F WALNUT CREEK (LIVE PROGRAM) of the courtroom. The program consists of one day (6 hours) of
Saturday, March 16, 2013 live presentation, plus 5 hours of on-demand video lectures.
Walnut Creek Marriott These lectures can be accessed at any time and any place at
2355 N. Main Street • (925) 934-2000 your convenience. With the addition of on-demand video, FLRC
F COSTA MESA (LIVE PROGRAM)
is still the ONLY family law series that satisfies ALL your MCLE
Friday, March 22, 2013
Westin South Coast Plaza and BLS credit requirements for one low price (when attended
686 Anton Blvd. • (714) 540-2500 annually), including elimination of bias, substance abuse and
F LAKE TAHOE (VIDEO REPLAY PROGRAM) legal ethics.
Fri. - Sat., July 12-13, 2013
Hyatt Regency Lake Tahoe Resort, Spa and Casino 11 HOURS MCLE/SPECIALIZ ATION CREDIT
111 Country Club Drive, Incline Village • (775) 832-1234

TUITION PRICES AND DEADLINES Approval of specialization credit in Family Law has been granted
Visit www.CFLR.comTM for Tuition Prices and Deadlines. by the California Board of Legal Specialization, and approval of
MCLE credit for this activity has been granted by the State Bar of
To enroll or for more information, California in the amount of 11 hours, including 1.5 hours of legal
call 1-800-747-3161 (ext. 2) ethics and 1 hour of substance abuse. Tuition includes 6 hours at
the live program and 5 hours of video on-demand.