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.

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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 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.

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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 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.
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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.
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Deviations From Child Support

YR v. AF involved child support for a minor child. The father in this case was a director who earned more than $2,000,000 per year.

FACTUAL BACKGROUND LEADING UP TO THE REQUEST FOR CHILD SUPPORT

The parents of the minor child were never married. The mother requested an order for child support from the father who earned more than $190,000 per month which did not include some of his business expenses.

THE ORDER FOR CHILD SUPPORT

During trial, the father argued that he was an extraordinarily high income earner and for that reason, child support should deviate from the amount identified in the guideline formula. The mother presented evidence in respect to the needs of the minor child. Based upon the father’s income after some business expenses were added back into his income, the amount of guideline child support would be $25,000 per month. The family law judge only awarded $8,500 per month in child support and stated that based upon the expenses identified by the mother the amount would be sufficient for child support. The mother appealed arguing that the court erroneously focused on factors irrelevant to a downward deviation from guideline child support.

APPEAL OF THE ORDER THAT DEVIATED FROM GUIDELINE CHILD SUPPORT

The court of appeals reversed sending the case back to the family court for re-evaluation. It stated that although the family law judge can deviate from guideline child support, when it does so, it must state the amount that the guideline child support order would be, the reasons why the court will not order the guideline amount, and the reasons why the deviated order is in the best interest of the minor child. If the family court fails to identify those factors, the award is in error.

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 | Tagged | Leave a comment

Paternity: Holding a Child Out as Your Own

Jason P. v. Danielle S. is an unusual parentage dispute that arose between a boyfriend and girlfriend after the boyfriend donated his sperm to impregnate his on-again, off-again girlfriend.

FACTUAL BACKGROUND OF THE PARENTAGE LEGAL ACTION

The parents in this case had an erratic relationship. During the relationship the mother wanted to have a child. The father was not convinced that he wanted a child. Knowing this fact, the mother obtained sperm from an anonymous donor. The father, wanting to support the mother, provided his sperm for the in vitro fertilization. The mother conceived, and a boy was born. When the boy was around two, the father filed an action for parentage.

TRIAL COURT’S FINDING OF PARENTAGE

In this case the only way the father could be considered a presumed father under the law was if he held himself out as the natural father of the minor child. The fact that he provided sperm to the mother and was in fact the biological father was not enough for a finding of fatherhood. By law when in vitro fertilization is performed by a doctor, the father has no parentage rights. In order to qualify as a presumed father, the father had to hold the minor child as his own. The significance of this case is that the father did not hold the child out as his son right away to everyone, he did not pay for prenatal care, and he did not have significant contact with the minor child until his son was older. In addition, the mother also encouraged the relationship between the father and his son when the parties were getting along. The family court found that the father qualified as a presumed father.

APPEAL OF THE FINDING OF PARENTAGE

The appellate court agreed with the trial court. It held that it is not necessary for a person seeking presumed parent status to have entered into the familial relationship from the time of conception or birth. The critical question is whether the presumed parent is an individual who has demonstrated a commitment to the child and the child’s welfare regardless of biology. The family court’s finding that the father had regularly spent time with the minor child, had a room in his apartment prepared for his son, and had his son at his home were all sufficient contacts to a finding of presumed parentage. The appellate court also found that the mother’s encouragement of the relationship between the sperm donor and her son, supported the finding of presumed parentage.

DO YOU NEED HELP WITH ISSUES RELATED TO PARENTAGE?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as paternity 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 Paternity | Tagged | Leave a comment

Bonus Income, Goodwill, and A Book of Business

The main issue of In re Marriage of Finby was the characterization of property. It involved bonus income, a book of business, and the goodwill of a financial advisor.

FACTUAL BACKGROUND OF THE DIVORCE PROCEEDINGS

The parties were married for more than 15 years. The wife was a financial advisor who developed a list of clients referred to as her “book of business”. Her client’s investments totaled almost $2 million dollars. Just before the divorce was filed, the wife changed jobs. The new company offered her a bonus in excess of $2.8 million dollars to work for them. The bonus was to be paid right away in a lump sum. If the wife worked for ten years, she would earn it all. If the wife did not continue to work for the company, she would have to pay the money back to the company.

DISSOLUTION PROCEEDINGS

During the divorce proceedings, the husband argued that the bonus income was community property even though it was earned over a ten year period. The family law judge disagreed with the husband and stated that only the amount of the $2.8 million dollars that was earned during the marriage was community property.  The remaining amount was not earned yet, because the wife had not worked at the company for ten years.

APPEAL OF THE FAMILY COURT ORDER

The husband appealed. The court of appeals agreed with the husband. It stated that when a financial planner has a book of business and receives compensation for moving to a new job with the book of business, the new company is paying for the book of business. According to the appellate court, the book of business is why the financial planner was hired. The book of business was developed during the marriage.  Therefore, it is a community asset that should be equally divided as it is earned.

DO YOU NEED HELP WITH ISSUES RELATED TO 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 property division or any other divorce matter such as legal separation, annulment, custody, spousal support, or spousal 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

Parentage in Orange County

Although In re Donovan is a dependency action in juvenile court and not a paternity case, the legal standards can be applied to parentage cases.

FACTUAL BACKGROUND OF THE PARENTAGE STATUS

The mother, Shannon, was married to Donovan when the minor child, DJ, was conceived and born. DJ’s biological father, David, was told of DJ’s existence, but he did not seek visitation until DJ was a year old. At that point, David took a paternity test which provided proof that he was DJ’s biological father. During this time Shannon and Donovan were having marital difficulties and Shannon moved in with David for a few weeks. While living with David, Shannon called the police to David’s home, because he locked her out of his home. A juvenile proceeding was initiated when marijuana plants were found in the home. In the juvenile proceedings David requested status as a presumed father.

PATERNITY TRIAL

The juvenile court found that both David and Donovan qualified to be the minor child’s presumed fathers and ordered visitation for David. The court stated that DJ would suffer detriment later in life when he learned that Donovan was not his biological father. Having David involved in his life prevented a possibility of future detriment. Both Shannon and Donovan appealed the order.

APPEAL OF THE PARENTAGE ORDER

DJ was four years old when the appellate case was heard. The appellate court stated that detriment to a child occurs when an established parent-child relationship is disrupted. Future possible detriment to a child is not enough to qualify for presumed parentage. It stated that application of this statute should occur in rare circumstances where a child truly has more than two parents and the finding of more than two parents is necessary to protect the child of being separated from a parent. In the appellate court’s eyes, biology is stronger when the child is younger. When the child is older, the social bonds are more important than the biological bonds. For those reasons, under Family Code section 3041 David did not qualify as a presumed parent even though he is the biological father.

DO YOU NEED HELP WITH ISSUES RELATED TO PATERNITY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as parentage 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 Paternity | Leave a comment