California Divorce Blawg

AAML Evidence Bootcamp

As part of its continuing legal education slate the American Academy of Matrimonial Lawyers will be presenting its Evidence Bootcamp Webinar on December 7, 2011 at 12:00 PM Eastern; 11:00 AM Central; 10:00 AM Mountain; 9:00 AM Pacific. This 90 minute program will provide great training for associates, and will also be the perfect refresher course for seasoned professionals.

The panel includes Anita Ventrelli, Schiller DuCanto & Fleck LLP, Chicago, Illinois and John F. Nichols, Sr., Nichols Law, Houston, Texas. The program moderator is John Harding, Harding & Associates, Pleasanton, California.

More information, including registration, CLICK HERE.

Please visit hardinglaw.com for more information of Harding & Associates Family Law

Show Me The Money! Or Else Explain Where It Went!

A couple has a bunch of money during the marriage.  They split up and one spouse takes over management and control of all that money.  By the time they get to their divorce trial the managing spouse claims all the money is gone because of proper expenditures and stock market losses.  Is it the non-managing spouse's have the burden of proving the money is, or should, still be there?  Or should the managing spouse have the burden of accounting for the missing assets?  According to a recent case out of Orange County the burden is on the managing spouse.

Here are the facts:  Elaine and Alan Margulis separated after a 33-year marriage and, for 12‑postseparation years, continued to handle their joint finances as before:  Husband had complete control of substantial community investment accounts and paid all the bills; wife trusted him to manage their finances for their mutual benefit.  Just before trial, however, husband disclosed for the first time that the once-brimming investment accounts were virtually empty.  Without any corroborating evidence, he attributed the dissipation of account values to proper expenditures and stock market losses.  Wife argued that the court should charge husband with the missing funds unless he proved he did not misappropriate the money.  Her only evidence of missing funds was a financial statement husband prepared three years after separation and nine years before trial. 

The Appellate Court opined that once a nonmanaging spouse makes a prima facie showing of the existence and value of community assets in the other spouse’s control postseparation, the burden of proof shifts to the managing spouse to prove the proper disposition or lesser value of those assets.  Failing such proof, the court should charge the managing spouse with the assets according to the prima facie showing. 

Read the court opinion by clicking on this link:Download Margulis.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

An Example of the Community Property Presumption Trumping Title

Edward and Sandra Fossum bought a house.  They refinanced the property several times.  However, Sandra had bad credit, so before each refinance Sandra would quiclaim the property to Edward so that he could get a loan in his name only at a better interest rate.  Each time she did so because Edward promised to  transfer it into both of their names after the loans went through.  Guess what?  After the final refi the marriage broke down, and Edward refused to put the property in both names.

At trial Edward's argument was that the property was titled in his name only, and thus should have been confirmed to him as his separate property.  He loses.

Spouses have the right to enter into property-related transactions with each other.  (§ 721, subd. (a).)  However, spouses occupy a confidential and fiduciary relationship with each other.  (§ 721, subd. (b).)  The nature of this relationship “imposes a duty of the highest good faith and fair dealing” on each spouse as to any interspousal transaction.  (Ibid.)  “If one spouse secures an advantage from the transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside.”  (In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 628–629 (Mathews); In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293–294 (Haines).)  Generally speaking, if an interspousal transaction results in one spouse obtaining an advantage over the other, a rebuttable presumption of undue influence will attach to the transaction.  (Bonds, supra, 24 Cal.4th at pp. 27–28; In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 996.)

            “‘When a presumption of undue influence applies to a transaction, the spouse who was advantaged by the transaction must establish that the disadvantaged spouse's action “‘“was freely and voluntarily made, with a full knowledge of all the facts, and with a complete understanding of the effect of’” the transaction.’  [Citation.]”  (In re Marriage of Lund (2009) 174 Cal.App.4th 40, 55.)  The advantaged spouse must show, by a preponderance of evidence, that his or her advantage was not gained in violation of the fiduciary relationship.  (Haines, supra, 33 Cal.App.4th at p. 296.)  “‘The question “whether the spouse gaining an advantage has overcome the presumption of undue influence is a question for the trier of fact, whose decision will not be reversed on appeal if supported by substantial evidence.”’  [Citation.]”  (Lund, at p. 55.)

            Here, the trial court found Edward failed to rebut the presumption of undue influence.  Edward contends that the trial court erred by failing to adhere to the rule that the “form of title” in the third quitclaim deed must control over Sandra’s claim of the existence of an oral agreement contradicting that instrument.

            Under the “form of title” presumption, the description in a deed as to how title is held presumptively reflects the actual ownership status of the property.  (In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, 184–185 (Brooks); Haines, supra, 33 Cal.App.4th at p. 292.)  This common law presumption is codified in Evidence Code section 662, which states, “‘“The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.”’”  The presumption is based the promotion of a public policy that favors the stability of titles to property.  (Brooks, at p. 185.)  Accordingly, absent a showing to the contrary, the status declared by the instrument through which a party acquired title will control.  (Ibid.; see generally Hogoboom & King, Cal. Practice Guide:  Family Law (The Rutter Group 2010) ¶ 8:32, p. 8-9.)  As the court in Brooks observed, “[t]he presumption can be overcome only by evidence of an agreement or understanding between the parties that the title reflected in the Deed is not what the parties intended.”  (Brooks, at p. 189.)[1]

            The problem with Edward’s argument is that it essentially ignores the rule that the form of title presumption simply does not apply in cases in which it conflicts with the presumption that one spouse has exerted undue influence over the other.  (Brooks, supra, 169 Cal.App.4th at p. 190, fn. 8; Haines, supra, 33 Cal.App.4th at pp. 301–302.)  That is the factual scenario addressed in the trial court, and the record we review.  Although Edward contends there is insufficient evidence that he exerted any undue evidence over Sandra, the trial court found otherwise.  We resolve the action in light of that factual finding.

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[1] Significantly, when it applies, the form of title presumption may not be “rebutted by evidence that title was taken in a particular manner merely to obtain a loan.”  (Brooks, supra, 169 Cal.App.4th at p. 190; cf. In re Marriage of Kahan (1985) 174 Cal.App.3d 63, 69 [when title was taken by spouses as joint tenants to obtain loan, property was presumptively held in joint tenancy].)

There is a second interesting issue in this case.  Prior to commencing the dissolution Sandra took a $24,000 advance against a credit card -- purportedy to support herself during the divorce.  She did not report the advance to Edward.  The trial court found that she had thus violated her fiduciary duty to him.  Edward argued that in light of that finding he should have received an award of attorney's fees (which the trial court did not award). The trial court ruled that it had discretion to deny attorney's fees, and on that basis did not award fees to Edward.

On this issue the Court of Appeal agreed with Edward.

Once a breach is shown, the trial court lacks discretion to deny an aggrieved spouse’s request for attorney fees.  (See In re Marriage of Brewer & Frederici (2001) 93 Cal.App.4th 1334, 1344 [a spouse’s statutory fiduciary duty of care arises “without reference to any wrongdoing”].)  Accordingly, the trial court lacked discretion to deny Edward’s fee request.  (Ibid.)[1]  The trial court erred when it denied any award to Edward for attorney fees attributable to Sandra’s violation of section 721.[2]  The matter must be remanded to permit the trial court to determine the amount of attorney’s fee to which Edward is entitled, under section 1101, subdivision (g), due to Sandra’s violation of section 721.

Please click here for the original opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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[1] “This conclusion receives additional support from subdivision (h) of Family Code section 1101, which provides that when the pertinent breach of fiduciary duty falls within the ambit of Civil Code section 3294, the ‘[r]emedies . . . shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.’  (Italics added.)  The clear import of the language in subdivision (h) is that an award of attorney fees is discretionary, over and above the mandatory award of the entire asset at issue.  Accordingly, had the Legislature intended to consign an award of attorney fees to the family court's discretion under subdivision (g), it could have done so in plain terms.  [Citation.]”  (Hokanson, supra, 68 Cal.App.4th at p. 993.)

 

[2] We are aware that, although both parties sought attorney fees in this action, Edward never specifically requested an award of attorney fees for Sandra’s violation of section 721.  Following trial, in October 2007, the court ordered the parties to submit their respective closing arguments, and agreed to set up a conference call to determine if either party wanted additional time for his or her closing argument.  The court also ordered that “the issue on attorney fees [would] be bifurcated after that.”  In his closing argument, filed December 10, 2007, Edward noted the court had reserved the issue of attorney fees for a later date.  Notwithstanding this reservation, the trial court proceeded to address the question of attorney fees in its tentative decision in March 2008, and invited the parties to file objections.  On April 9, 2008 Edward filed written objections to the trial court’s tentative decision.  He noted he had objections to the court’s ruling as to attorney fees, but did “not brief the issue . . . as [the court] intended to have a hearing over this issue.”  Edward requested that a hearing be conducted so that he could “expand upon [his] objection.”  The court apparently conducted a further hearing on the parties’ objections in July 2008, after which it issued a final ruling rejecting Edward’s assertions.  The record does not contain a transcript of the July 2008 hearing.  Neither the final ruling nor the judgment address the court’s resolution of the issue of Edward’s entitlement to attorney fees under section 1101, subdivision (g).

The Difference Between the Superior Court and the Court of Appeals

When you "go to court" on a California family law case, you go to Superior Court.  Superior Court is the trial court where one judge decides your case.  The Superior Court is your local court.  When you want a judge to issues orders for child custody, child support, property division, etc., it is the Superior Court judge who makes those decisions.

If you are dissatisfied with the Superior court judge's decision you have the opportunity to challenge that decision through the filing of an appeal.  Appeals in California family law go first to the Court of Appeal.  Courts of Appeal are regional courts.  They are organized into Districts.  For example, District 1's area is San Francisco, and the North and East Bay area.  District 4 is Orange County.  District 2 is Los Angeles.

The rules of appellate law are tricky.  Just because you lose at the Superior Court does not mean you have an automatic right of appeal.  Also, the Court of Appeals does not hold a new trial on your case.  It only review the Superior Court proceedings to see if there was an error by the judge.

The case of Marriage of Wesley & Kashanian comes out of Orange County.  At the Superior Court level the trial judge awarded primary physical custody of the child to dad.  Mom was unhappy with this result.  Representing herself, she filed an appeal.  The appeal was denied because mom failed to demonstration any error by the Superior Court judge, and because she failed to provided the Court of Appeal with all of the evidence and transcripts from the Superior court trial.

In an opinion that is available online (but that is not considered an official published opinion, and therefore cannot be relied upon as law) the Court of Appeal does a nice job of explaining what a Court of Appeal can and can't do; and what the Court of Appeal requires to review a case.  Here is the core of the Court of Appeal opinion:

Kashanian’s core argument on appeal is that the trial court’s decision should be reversed because it failed to adequately investigate “the validity of . . .  allegations raised in the court,” and because the court “has not been well informed and has made a hasty decision.”  She apparently believes that if the court had acted properly, it would have recognized she is the better custodial parent for her son.  However, in the absence of a complete record of the trial court proceedings, including the entirety of the evidence presented to it, we simply cannot conclude the court failed to properly investigate allegations or made a “hasty” or ill-informed decision. 

 “One of the essential rules of appellate law is that ‘[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.  [Citations.]’  (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133].)  It is the duty of the appellant to present an adequate record to the court from which prejudicial error is shown.  (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1533.)”  (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.) 

The presentation of a proper record – reflecting not only what occurred in the trial court, but also what evidence was before it at the time its decision was rendered – is critical, because in reviewing the decision on appeal, we are confined to considering only the evidence presented in the trial court, and cannot consider additional information presented to us for the first time on appeal.  “[T]he general rule [is] that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’  (In re James V.  (1979) 90 Cal.App.3d 300, 304.)  This rule reflects an ‘essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law. . . .’ (Tupman v. Haberkern (1929) 208 Cal. 256, 262-263.)  The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal.”  (In re Zeth S. (2003) 31 Cal.4th 396, 405.)[1]

And because we are required to presume the court ruled correctly when it made its custody determination, Kashanian is obligated to prove something beyond her personal belief that the decision was unwise, or that evidence exists which would support a different ruling, in order to justify a reversal.  Instead, she was obligated to establish that the court’s decision was either contrary to existing law or entirely unsupported by any evidence presented to the court.  But by failing to include any citations to legal authority in her brief, she has made no attempt to do the former, and by failing to provide us with any record of the evidence actually considered by the trial court, she has failed to do the latter.

Cleanly written, this opinion can be very helpful to family law participants, and family law attorneys, as we try to understand the complicated distinctions between trial courts and appellate courts.  Click here to read the original appellate court opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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                [1]             In light of this rule, we cannot consider the letters – essentially character references for Kashanian – attached to her brief.  Each of the letters is dated after the custody hearing which is the subject of this appeal, and thus it is clear none were in evidence before the trial court.  

More on facebook and divorce

Before the advent and spread of social media web sites like Facebook, a lawyer investigating a divorce case would probably use the traditional methods: private investigation and subpoenas.

Now, though, a lawyer starts his or her investigation online, with a check on Facebook for any incriminating evidence, according to an article from CNN.

More and more, divorce attorneys are adapting to the dynamic world of social media, and learning how to track their clients and their cases online. In divorce cases, photos, profile information, comments and status updates can all provide information and evidence that lawyers can use to build their cases.

According to a survey of lawyers by the American Academy of Matrimonial Lawyers, more than 80 percent of attorneys saw a rise in the cases that took advantage of social media for evidence.

Photos of people hugging and kissing can reveal an affair or infidelity, which is just the sort of information that a divorce lawyer can use while building a case. Lawyers have also said that social media leads to more opportunities for unfaithful spouses to cheat, because it is easier to reconnect with old flames. And often in these modern times, where there are relationships and get-togethers, there are photos. And often those photos make it online.

CNN spoke with Ken Altshuler, a divorce lawyer in Maine, who uses such tactics in his own divorce cases. In one such instance, a female client recently came to Altshuler asking for help divorcing her husband, who she claimed was an alcoholic who had started to drink again. The husband denied the allegation, and there was no way for either side to resolve it, creating a stalemate of her word against his.

That is, of course, until a friend of the female client discovered a photo on Facebook that showed the husband drinking a beer at a party. Altshuler showed the photos to the judge in the divorce case, and the wife won.

“Facebook is a great source of evidence,” said Altshuler. “It’s absolutely solid evidence because he’s the author of it. How do you deny that you put that on?”

Facebook is currently the online hub where most lawyer activity occurs surrounding divorce cases. And as Facebook reduces the severity of default privacy settings, the opportunities to collect evidence rise. Facebook, though, has acknowledged recently that privacy settings should be more easily managed, so perhaps this will lead to a decrease in the harvest of helpful images for divorce lawyers.

“It’s becoming all but impossible to protect your information unless you spend hours and hours figuring it out,” said divorce attorney Lee Rosen, who himself admitted to using Facebook in a recent case. Rosen had seen a suspicious Facebook status message on a husband’s profile. The husband had been accused of cheating, and the message was from a female co-worker. That lead took Rosen where he needed his investigation to go. He said that about 25 percent of his cases use social media.

Giovanni Masucci is a digital investigator who works for a social media search service. He said that about half of cases using social media expose some kind of cheating.

“For example, someone may be cheating, but they are married,” Masucci said. “If their status on the web page says single, that’s a major red flag.”

Please click here for the original article from totaldivorce.com.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Text Messages Can Spell Divorce

Text messaging has exploded as a communications tool.  I would venture a guess that it is catching up on e-mail?  Today Law.com featured an article by National Law Journal reporter Tresa Baldes detailing how text messages are coming into play in divorce cases:

Divorce lawyers have found a new smoking gun to wave around in court: text messages.

Infidelity, bad parenting or threats -- you name the issue in marital disputes, family law attorneys say, and the evidence can be found in text messages sent over hand-held gadgets.

The unfaithful, in particular, are paying a high price for their salacious messages. "In the sixties, we had private investigators bursting into hotel rooms to catch cheating spouses," said Paul Talbert of New York's Chemtob Moss Forman & Talbert. "Now it's simply as easy as taking a BlackBerry or phone off the dresser."

Talbert is both relying on texts to prove marital troubles and defending those who get busted over their careless words. For example, he recently represented a woman whose suspicious husband picked up her BlackBerry while she was in the shower and discovered messages that showed that she was having an affair with a co-worker.

The result? "Well, it produced a quick settlement," said Talbert, who offered some advice for the soon-to-be divorced. "Change your password if you're going through a divorce ... and don't use your new girlfriend as your password."

Text messages also proved embarrassing for Nevada Gov. Jim Gibbons, whose estranged wife has alleged in court documents that Gibbons had extramarital affairs with two women, including one to whom he allegedly sent 860 text messages on a state cell phone. Gibbons publicly apologized for sending the texts -- which he claimed were business-related -- and reimbursed the state $130. His divorce is not final yet.

Text messages came up in the high-profile divorce trial of multimillionaire George David and Swedish countess Marie Douglas-David, but this time the texts weren't about infidelity. Instead, the wife's lawyer accused the husband in court of sending his wife a text message on her birthday because he didn't want "to speak with her." Douglas-David wants $100 million, plus $130,000 a month in alimony, from David, who says she's entitled to just $43 million under a postnuptial agreement.

Text messages are playing into custody battles, too. Lenorae Atter of Jacksonville, Fla.'s Wood, Atter & Wolf is handling a case in which text messages are being used to show that the children are having a hard time living with their mother. The kids, she said, are sending texts to their father about problems with their mother.

Atter has also used text messages to help women obtain restraining orders against abusive husbands, who send threatening messages to their wives. She said that, while e-mails are pretty standard evidence now in family law matters, "text messages are slowly but surely coming into the fold."

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Tell-All PCs and Phones Transforming Divorce

The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.

Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”

Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.

“Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”  Click here for the whole story.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Case Law Development: Divorce Courts may not Prohibit Oral Testimony

The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual

circumstances.”  The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules. 

The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes."  Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.

The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources.  However, on balance, that did not justify the violation of basic trial procedures.

That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.” 

Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

Elkins v. Superior Court (California Supreme Court August 6, 2007)  Please click here for the entire Law Professor Blog article.

Opinion online.

FasTrak to the courthouse

As the number of San Francisco bay area cash-free bridge commuters rises, so do the ranks of divorce lawyers and other civil attorneys who have subpoenaed, and received, personal driving records from the agency that oversees the regional e-toll system.  Click here for more.

Undue Influence and Duress as Elements of Pre-Nuptial Agreement Enforcement

A couple had executed a premarital agreement giving Husband all his business property.  Eleven years later Husband executed a document transferring to Wife as her separate property 20% of the stock in his business and the family home.  The couple separated a few months later and Husband soon thereafter filed for divorce.  The trial court found that this document was unenforceable due to undue influence and duress, as Husband had provided evidence that he had signed the transfer document after Wife had screamed at him, struck him, and threatened to divorce him and alienate him from their children if he did not provide her with this security.  The transfer of the property was set aside by the court on the grounds that the transfer was the product of wife's undue influence over husband, and while he was under duress.  Click here to read the opinion.