Step 1. Steal the husband. Step 2. Try to kill the wife. Step 3. Try to steal the wife's money.

Oh the crazy things people do... Let's work through this in slow and orderly fashion.

1. Charlene and James get married.

2. Charlene and James break up.

3. Charlene files for divorce.

4. James starts dating Pamela (perhaps this started before the divorce was filed?).

5. James and Pamela try to kill Charlene

6. James and Pamela go to jail.

7. Pamela sues James for the $224,177.61 she loaned him for his bail and other expenses (like the hit man perhaps?)

8. James does not defend himself in the lawsuit and lets Pamela win (can you say “conspiracy?”)

9. The divorce action is still pending, and the family law judge allows Charlene to pull money out of certain of the community property accounts that she and James had.

10. Charlene has trouble getting her money because Pamela had put a writ of attachment on the account to try and collect the money that James owed her from their lawsuit.

Note: For those of you who don't know, a writ of attachment would have allowed Pamela to take all of the money in the account and apply it against the $224,177.61 that James owed her in their lawsuit. Do you see what has happened here? James is working with Pamela to get all of the community property money via collections on the $224 lawsuit. Charlene gets nothing, and then Pamela and James live large after they both get out of prison.

Now back to our story:

Charlene asked the judge to bar Pamela from recovering any money by the writ of attachment. Pamela responded by saying no problem judge, just make Charlene post a California Code of Civil Procedure Section 529 bond (another way of saying “make Charlene by an insurance policy”) for one and half times the value of the judgment (or $336,266.41).  That way, if James does not have any money to pay her, Pamela will actually receive a bonus from Charlene for trying to kill her.

The family court judge determined that Pamela was attempting to use her civil judgment and ensuing writs and abstracts of judgment as an end run around the court's exclusive jurisdiction over community property. In addition, the fact that Pamela had not attempted to reach James's separate property, even while admitting that her purpose was to collect on his separate debt, indicated to the court that Pamela was "using the civil judgment as a means of harassing [Charlene]."

As a technical matter the case turns on whether CCP 529 is subordinate to the Family Code, or takes priority over it?

This is why we have courts, and this is why I think judges are smart people. The outcome of this case: Pamela loses! The Appellate Court holds that the family law statues prevail over the competing section from the Code of Civil Procedure.

The Family Law Rules . . . supersede contrary statutes because the rules were adopted pursuant to and are consistent with specific constitutional and statutory authorizations having this effect. [Citations.]" (In re Marriage of McKim (1972) 6 Cal.3d 673, 678, fn. 4, citing In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, fn. 3 [the words "Notwithstanding any other provision of law" make Family Law Act rules " 'sui generis' and controlling over both statutory and decisional law"]; see also Marriage of Fink (1976) 54 Cal.App.3d 357, 365 [aim of flexibility in family court procedure underlies former Civil Code section 4001]; In re Marriage of Lusk (1978) 86 Cal.App.3d 228, 232-233 [following Fink].)

It is true that a civil statute is applicable in family court proceedings if it does not conflict with statutes and rules adopted under the Family Law Act. However, the Judicial Council was not completely silent regarding the rules for injunctive relief in family law proceedings. Rule 5.106 allows the court to grant such relief against any interested person "to protect the rights of either or both parties to the proceeding under the Family Code." Rule 5.118, which must be followed to obtain an injunction under rule 5.106, prescribes the elements of an application for such an order. Those elements do not include the posting of an undertaking; on the contrary, the court "may grant or deny the relief solely on the basis of the application and responses and any accompanying memorandum of points and authorities." We believe that both the broad jurisdiction conferred on the family court judge and the specific guidelines for issuing injunctive relief in dissolution proceedings defeat appellant's claim that a bond was required before Charlene could obtain such relief.

  Want to read the actual opinion?  Click here to Download Guasch

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Comments

[Claude T. Jansen]

Interesting case indeed, but James and Pamela almost pulled it through. I guess in maybe 3 out of 10 cases they will succeed.