Attorneys Cannot be Awarded 271 Sanctions

Webb v. Webb addresses the issue of sanctions requested by non-parties in a dissolution.

FACTUAL BACKGROUND FOR THE REQUEST FOR SANCTIONS

Wife and husband were getting a divorce when wife’s two separate attorneys recorded a family law attorney real property lien (FLARPL) against the community real property. Later, both attorneys withdrew from the case.

FAMILY COURT’S AWARD OF SANCTIONS

Throughout the litigation, the husband filed numerous ex parte motions to remove the liens from the property. The family court denied all the motions. The husband also filed a conservatorship in probate court saying that the wife could not manage her finances which was also denied. At the end of the dissolution proceedings, the attorney’s who had represented wife filed motions for 271 sanctions which the trial court granted. The husband appealed the order stating that non-parties could not be awarded 271 sanctions.

APPEAL OF THE SANCTIONS ORDER

The court of appeal agreed with the husband. The Second Appellate District Court stated that 271 sanctions are necessary to foster settlement between the parties by shifting fees between the parties to the litigation. It reasoned, that because 271 sanctions could not be awarded against an attorney under section 271, sanctions may not be awarded to a party’s attorney when the attorney is the one who is requesting the sanctions for her sole benefit. Therefore, only a party may move for sanctions.

In addition, in a motion for 271 sanctions, the moving party must show the sanctions were related to section 271’s purpose of promoting settlement. The Appellate Court held that the numerous filings by the husband in this case were not shown to have hindered the parties’ attempts to settle the litigation.

DO YOU NEED HELP WITH ISSUES RELATED TO SANCTIONS?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as sanctions or any other divorce matter such as legal separation, annulment, custody, spousal support, child support or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

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Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Attorney Fees in Orange County | Leave a comment

Waivers in Spousal Support in Prenuptial Agreements Made Before 1985

During the last forty years, the concept of spousal support and whether or not it can be waived in a prenuptial agreement has undergone significant changes. If parties agreed to a waiver of spousal support in a prenuptial agreement as far back as 1985, the court will invalidate that portion of the agreement. This is exactly what happened in In re Marriage of Melissa.

FACTUAL BACKGROUND FOR THE WAIVER OF SPOUSAL SUPPORT

Just before the parties married, they signed a prenuptial agreement that waived spousal support. The parties were married 24 years before the wife filed for divorce. They had a son together who was an adult at the time of the dissolution.

WAIVER OF SPOUSAL SUPPORT AND ITS ENFORCEMENT

The husband argued that current law allowing waivers of spousal support should be applicable, because there is no public policy that voids agreements to waive spousal support. The trial court voided the waiver of spousal support, stating that all legal authority at the time that the contract was entered into, was very clear that waivers of spousal support were void as against public policy. The husband appealed.

APPEAL OF THE SPOUSAL SUPPORT WAIVER

The appellate court agreed with the family court. It stated that waivers to spousal support agreed to before 1985 are unenforceable in prenuptial agreements. It reasoned that it would be unfair to allow the application of both current law and old law to this situation. Current law requires a seven day waiting period before signature on a prenup that waived spousal support and attorney representation. Old law held that spousal support could not be waived. In this situation, if the court allowed it to be waived, it would be waived without the benefit of a lawyer which is currently required.

DO YOU NEED HELP WITH ISSUES RELATED TO SPOUSAL SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as spousal support or any other divorce matter such as legal separation, annulment, custody, child support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com
Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Spousal Support, Waiver | Leave a comment

Does an Agreement for Spousal Support for Bonus Income Include All Income Above Base Salary?

In re Marriage of Minkin involved an agreement and order for the payor of spousal support to pay his wife a regular monthly payment as well as additional spousal support based upon a percentage of his bonus income. The court needed to define of “bonus income” in this case. The issue was whether or not a deferred compensation plan and other income should be considered bonus income which requires that a percentage of it be paid as spousal support to the wife or is the payment of additional spousal support only limited to income which is paid as a bonus.

FACTUAL BACKGROUND FOR MODIFICATION OF SPOUSAL SUPPORT

At the time of separation, the husband worked as an executive earning $300,000 a year with a potential bonus of 20 percent of his salary. The bonus was based upon his and the company’s performance. The parties agreed that the wife would receive spousal support including 41 percent of her husband’s annual bonus income. Shortly after the parties divorced, the now ex-husband obtained a new job. His new job provided him with a senior management incentive plan, deferred compensation plan, change of control agreement, and a relocation plan. He paid his ex-wife 41 percent of the senior management incentive plan but did not pay her a percentage of any of the other compensation. The ex-wife filed a motion to determine spousal support based upon the fact that her ex-husband did not pay a percentage for all the income he earned in excess of his base salary.

FAMILY COURT PROCEEDINGS FOR SPOUSAL SUPPORT

The family trial court ruled in favor of the ex-husband and held that an annual bonus is a discretionary payment based upon performance. Any additional payments above an annual salary that are not tied to performance are not considered bonus income. Therefore, the ex-wife was not entitled to any additional spousal support.

APPEAL OF THE SPOUSAL SUPPORT ORDER

The appellate court affirmed the trial court’s orders. It held that an agreement for spousal support based upon bonus income does not include all income over and above the base salary. The only income that is considered bonus income is income that is discretionary and based upon performance. Therefore, the ex-wife had received what was due her under the agreement and order.

DO YOU NEED HELP WITH ISSUES RELATED TO SPOUSAL SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as spousal support or any other divorce matter such as legal separation, annulment, custody, child support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Income | Tagged | Leave a comment

Who Gets The Growth After a Retirement Account is Divided?

At issue in Janes v. Janes is whether or not a wife is entitled to the gains and losses associated with a “divided” retirement account.

FACTUAL BACKGROUND OF THE DIVISION OF THE RETIREMENT ACCOUNT

In 2010 the parties signed a martial settlement agreement dividing their 401(k). The wife was awarded $113,392 as her share of the 401(k). Several years later, the account was formally divided; however, the wife did not receive any gains or losses from her portion of the 401(k). She filed a motion to enforce the terms of the judgment.

RETIREMENT ACCOUNT PROCEEDINGS TO DIVIDE THE 401(k)

During the family court hearing to enforce the judgment, the husband argued that because the marital settlement agreement only identified a specific amount, the wife was entitled to that specific amount and was precluded from receiving any additional amount based upon growth. The wife argued that even though the marital settlement agreement identified a specific amount, it awarded her that specific amount and she was entitled to receive any growth from her separate property. The trial court awarded the wife the initial amount plus any growth thereof. The husband appealed arguing that the family court lacked jurisdiction to modify the marital settlement agreement the parties signed when it awarded the wife growth from the 401(k).

APPEAL OF THE ORDER FOR THE DIVISION OF THE RETIREMENT ACCOUNT

The appellate court affirmed the order. It stated that when a final order of the court is made dividing community property it becomes the separate property of the person who was awarded that asset. As such, a person’s separate property is entitled to any gains or losses from his or her separate property. Therefore, the wife is not only entitled to the amount specified in the marital settlement agreement, she is also entitled to any growth thereof. When the court confirmed the gains to the wife, it was not altering the judgment, the family court was affirming it.

DO YOU NEED HELP WITH ISSUES RELATED TO DIVISION OF PROPERTY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as property division or any other divorce matter such as legal separation, annulment, custody, spousal support and/or child support, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Property, Retirement Benefits | Leave a comment

Post Judgment Vocational Exams

In re Marriage of Stupp v. Schilders involved a post-judgment request for a vocational examination for the ex-wife.

FACTUAL BACKGROUND OF THE REQUEST FOR ORDER FOR A VOCATIONAL EXAM

By the time the ex-wife filed this appeal, the parties were already divorced. A stipulated judgment had been entered settling support issues. The ex-wife appealed the spousal support orders agreed to in the stipulated judgment. In response, the ex-husband filed a request for the wife to submit to an exam.

TRIAL PROCEEDINGS FOR THE REQUEST FOR A VOCATIONAL EXAM

The family court ordered the ex-wife to submit to a vocational exam. The ex-wife appealed the order for her to submit to a vocational exam.

APPEAL OF THE ORDER FOR A VOCATIONAL EXAM

The court of appeal reversed the order for the vocational exam. It stated that Family Code 4331(b) requires a finding of good cause to require the ex-wife to submit to a vocational exam after a judgment has been entered. At the time that the ex-husband requested the vocational exam, there was no motion pending for spousal support only an appeal of the spousal support order. The fact that the ex-wife was appealing an order for spousal support was not considered good cause, because the family court could affirm an order for spousal support making any motions irrelevant. In addition, section 3662 of the Family Code only allows post-judgment discovery methods if motions are pending.

DO YOU NEED HELP WITH ISSUES RELATED IMPUTED INCOME FOR THE OPPOSING PARTY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as imputation of income for child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Child Support, Spousal Support | Tagged | Leave a comment

Self Defense and Restraining Orders

Domestic violence was at issue in In re Marriage of Grissom. The court was tasked with deciding whether or not self-defense can be used to prevent the issuance of a restraining order.

FACTUAL BACKGROUND FOR THE DENIAL OF THE RESTRAINING ORDER

The wife filed for a divorce and at the same time filed a request for a domestic violence restraining order against her husband. In her moving papers, she claimed that she suffered physical injuries as the result of her husband abusing her. Her husband filed responding papers and stated that his wife was the person who initiated the physical violence any time they argued and that any injuries she suffered were as a result of him defending himself.

COURT PROCEEDINGS FOR THE RESTRAINING ORDER

In court the husband denied hitting his wife but said that his wife was the one who hit him. He further stated that during many arguments she would take his lap top, phone, or other device and destroy them. He said that he would defend himself by pulling away. During one particular incident, the wife fell and injured herself. The family court denied the restraining order and the wife appealed.

APPEAL OF THE DENIAL OF THE RESTRAINING ORDER

The appellate court reviews evidence in a light most favorable to the ruling. For that reason, it accepts the facts the family court determined were true to make its decision. The wife argued that as long as her husband caused injury, then it was an abuse of discretion for the family court to consider circumstances that led to the injury. In other words, as long as she was injured, it was irrelevant if she started the altercation. In this case, the appellate court stated that an act of self-defense does not carry culpability. A person can use reasonable force to protect him or her self. The purpose of a restraining order is to restrain a culpable person who inflicts injury. When a person is defending him or her self, there is no culpability as long as it is reasonable force. The appellate court upheld the denial of the restraining order.

DO YOU NEED HELP WITH ISSUES RELATED TO RESTRAINING ORDER?

If you need legal advice and are looking for a family law lawyer in Orange County to address the issuance of a restraining order or any divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off the Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in domestic violence abuse, Protective Orders, Restraining Order | Leave a comment

Sanctions and Attorney Fees

The court has power to award sanctions when one spouse breaches his or her fiduciary duty as determined in In re Marriage of Fossum.

FACTUAL BACKGROUND OF THE REQUEST FOR SANCTIONS

The parties had been married for eight years. Just before they separated, the wife borrowed $24,000 from a community property credit card and put the funds into her personal bank account without telling her husband. In addition, she never provided a detailed accounting of how the money was spent to her husband.

TRIAL PROCEEDINGS IN RESPECT TO SANCTIONS

During trial, the husband argued that the wife breached her fiduciary duty by withdrawing the money without his consent. Although the trial court found that the wife breached her fiduciary duty, the judge did not award the husband his attorney fees for her breach. The husband appealed the order.

APPEAL OF THE DENIAL OF THE SANCTIONS ORDER

The court of appeals held that under statutory rules, the family court was required to award the prevailing party attorney fees and court costs. Family Code section 1101(g) requires a court to award attorney fees and costs once a breach has been determined.

DO YOU NEED HELP WITH ISSUES RELATED TO SANCTIONS?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Attorney Fees, Sanctions | Leave a comment

Changing Jobs Does not Always Mean a Lower Child Support Order

In re: Marriage of Padilla is a seminal case involving a parent’s right to change jobs after a divorce and a corresponding decrease in child support.

FACTUAL BACKGROUND OF THE REQUEST FOR ORDER FOR MODIFICATION OF CHILD SUPPORT

The parties were divorced and had a child support order. The mother requested an increase in child support after the guidelines for child support were modified. The father agreed to the increase until he decided to quit his job and start a new business venture. When he started his business venture, he requested that the court decrease his child support obligation.

FAMILY COURT’S IMPUTATION OF INCOME

The trial court disagreed with dad’s request. Although it could not prohibit the father from quitting his job and starting a new business venture, it could impute income to the father and order child support based upon the imputed income. The family court found that the father changed jobs in order to start a new business venture and not because he wanted to shirk his responsibilities as a parent. It also found that he was capable of earning more money and imputed income based upon his previous job. The father appealed the order.

APPEAL OF THE REINSTATEMENT ORDER

The court of appeals upheld the order. It stated that it is not necessary to prove bad faith any time a parent reduces his or her income. The parent’s motivation for reducing income is irrelevant for the purposes of child support. The only requirements are that the parent has the ability and opportunity to adequately and reasonably provide for the child. The court does not have the ability to require someone to work at a particular job, but it can impute income to that person consistent with the job the person can do.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Child Support, Modification | Leave a comment

Commissioners Sitting as Judges

The appellate court in In re: Marriage of Djulus voided an entire dissolution proceeding including the divorce judgment which resulted in the parties returning to court to litigate the entire case.

DIVORCE PROCEEDINGS

The parties presented their divorce case to a commissioner rather than a judge. Whenever a commissioner acts as a temporary judge in a divorce proceeding, the commissioner must inform the parties at the outset of the hearing that he or she is a commissioner. Before the dissolution proceedings start, if either party does not agree to allow the commissioner to hear the case, that party can request the commissioner to reassign the case to a judge. If the parties continue to litigate the dissolution after they have received notice that a commissioner is acting as a judge, they have waived their right to have a judge preside over their divorce. In this case the commissioner did not notify the parties at the outset of the hearing that she was a commissioner. It was not until the second hearing in the case that she notified the parties that she was a commissioner. The husband objected to the commissioner sitting as a judge in his case and refused to sign a consent form allowing the commissioner to hear the case. The commissioner heard the remainder of the case. After a judgment was entered, the husband filed an appeal claiming any orders made by the commissioner were void.

APPEAL OF THE COMMISSIONER’S RULING

The Fourth Appellate District Court agreed with the husband and held that the commissioner’s failure to notify the parties at the beginning of the first hearing nullified any orders made at that hearing. In addition, once the commissioner knew that the husband refused to consent to her acting as a temporary judge at the second hearing, she should have reassigned the case to another judge. The failure to reassign the case resulted in the entire divorce being void.

DO YOU NEED HELP WITH A DIVORCE?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com
Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Uncategorized | Tagged , | Leave a comment

Adjudication of Omitted Assets

In re Marriage of Huntley allowed a former wife to adjudicate the division of community assets after a default judgment had been entered against her.

FACTUAL BACKGROUND OF THE POST DEFAULT JUDGMENT ADJUDICATION OF COMMUNITY ASSETS

The husband in this case filed for divorce. The wife did not respond and a default was entered against her. After the divorce was final, the now ex-wife signed a quit-claim deed giving the family residence to her ex-husband. Two years later the ex-wife filed a motion to divide the remaining community property.

DENIAL OF THE ADJUDICATION OF THE REMAINING COMMUNITY PROPERTY

The ex-husband argued in the family court that the parties had already divided all of the community property as was evidenced by the fact that the ex-wife signed the quitclaim deed. The ex-wife argued that the court had continuing jurisdiction to adjudicate any community property that was not properly divided in the court. The family court dismissed the request to divide community assets and stated that in order for the ex-wife to have community property adjudicated, the ex-wife would have to set aside the default judgment entered against her. The ex-wife appealed the order.

APPEAL OF THE DENIAL TO ADJUDICATE THE REMAINING COMMUNITY PROPERTY

The Third Appellate District Court agreed with the ex-wife.  It stated that when community assets are not divided in a divorce, the family court has continuing jurisdiction to divide the community property. The court has the authority to divide any omitted asset. The fact that some community property had already been divided was not persuasive to the court. Any division of property needs to be in writing or on the record in court. Although the ex-husband argued that an oral agreement had been made to divide the community property, the appellate court stated that any agreements dividing community property must be on the record in court or in a written document. Otherwise the court will not have proof that the community asset was divided.

DO YOU NEED HELP WITH ISSUES RELATED TO COMMUNITY PROPERTY DIVISION?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as division of property any other divorce matter such as legal separation, annulment, custody, spousal support or child support, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Uncategorized | Tagged , , | Leave a comment