Sua Sponte Modification of a Court Order

Does a court have the ability to change an order after it is made?  In re Marriage of Spector addressed the court’s sua sponte ability to reconsider an order.

SPOUSAL SUPPORT PROCEEDINGS

The wife filed a request for an order for spousal support. The court ordered spousal support. After the husband received the order, his attorney sent an email to the opposing counsel and judge stating that an error had been made in the order. The judge reviewed the order. Although she did not find a mathematical error, she stated there were other things that concerned her and lowered spousal support accordingly. The wife appealed the family court’s order to modify spousal support stating that a family court cannot modify spousal support retroactively without a motion being filed.

APPEAL OF THE ORDER TO MODIFY SPOUSAL SUPPORT RETROACTIVELY

The wife argued on appeal that spousal support cannot be modified retroactively without one party or the court filing a request for order. The appellate court held, however, that when the trial court finds an error, the court should inform the parties and allow them to respond with a brief and hold a hearing. Once it does that, it has the inherent authority to change its order. Any attempt by the legislature to limit that power would be a violation of the separation of powers clause.

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 child 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.

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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.
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Annulments in California

Recently, the court in In re Marriage of Turfe denied the husband’s request for annulment. He argued that his wife fraudulently entered into the marriage.

FACTUAL BACKGROUND OF THE ANNULMENT PROCEEDINGS

The husband and wife were married and agreed to be bound by the mahr agreement in accordance with Islamic law. The husband argued that the mahr agreement was a type of pre-marital agreement that only granted the wife a copy of the Quran at the time of divorce. The wife argued, that the mahr agreement was an agreement that at a minimum granted the wife a copy of the Quran in the event of a divorce.

FAMILY LAW TRIAL PROCEEDINGS

During trial, the husband argued that the wife did not intend to be bound by the mahr agreement before they got married; therefore, she defrauded him by entering into marriage without keeping the terms of the agreement. Each party’s experts testified about the importance of the mahr agreement, but the experts differed on the interpretation of the mahr agreement and what the wife would receive in the event of a divorce. The trial court found that the parties did not discuss their separate interpretations of the mahr agreement before the marriage making it a disagreement of its meaning rather than fraud. The different interpretation of the mahr agreement by the wife did not give rise to an annulment. The husband appealed.

APPEAL OF THE DENIAL FOR AN ANNULMENT

The appellate court upheld the order stating that an annulment based on fraud must go to the very essence of the marriage relationship and must be something that the state deems vital to the marriage relationship. In order to find fraud, the state requires proof upon clear and convincing evidence to support an annulment. Misunderstandings of agreements without more cannot rise to the level of fraud.

DO YOU NEED HELP WITH ISSUES RELATED TO AN ANNULMENT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as annulment or any other divorce matter such as legal separation, annulment, custody, child support, spousal 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.Annulments are rarely granted 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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Business Depreciation and Child Support

The definition of income was at issue in In re Marriage of Rodriguez. The case involved the depreciation of assets for a self-employed business owner.

FACTUAL BACKGROUND OF THE CHILD SUPPORT

The father in this case owned his own business. For tax purposes, he deducted $536 a month for business depreciation of his motor vehicles.

FAMILY LAW TRIAL PROCEEDINGS

The father argued that the depreciation of motor vehicles was a valid business deduction that should be excluded from his income for the purposes of child support. The trial court disagreed and included an additional $536 as the father’s income and ordered child support based on his increased income.

APPEAL OF THE CHILD SUPPORT ORDER

The appellate court agreed with the family law judge. It reasoned that although depreciation is a valid business deduction for tax purposes, section 4059 of the Family Law Code only permits deductions from actual expenditures such as taxes, union dues, and health plan premiums. The Court concluded that the deduction for business expenses is only allowed when it is directly associated with the day-to-day conduct of a business. As a fictional loss for business purposes, depreciation is not deductible and is available as income for child support.

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 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.
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Domestic Partnership Dissolution

In re Marriage of G.C. and R.W. focuses on the issue of entering into a domestic partnership in another state and having it recognized and dissolved in California.

FACTUAL BACKGROUND OF THE DISSOLUTION OF THE DOMESTIC PARTNERSHIP

The parties in this case entered into a domestic partnership in 2004 in New Jersey. They also married in Connecticut in 2009. In 2011, they moved to California. C.W. filed for dissolution in 2012.

FAMILY LAW TRIAL PROCEEDINGS

R.W. argued in court that the family law judge should find that the parties entered into a domestic partnership in 2004, and that all subsequent orders should be based upon the date of union as of 2004 rather than in 2009. C.R. argued that the date of union should be the actual date of the marriage, and all subsequent orders should be based on the date of union as of 2009. The trial court held that the 2004 domestic partnership in New Jersey would not be recognized in California. R.W. appealed.

APPEAL OF THE ORDER

The appellate court agreed with the trial court. Although California recognizes same sex domestic partnerships filed in other states, it will only recognize those partnerships if they are substantially equivalent to California law. New Jersey’s domestic partnership did not create rights to alimony, the division of marital property, or estate succession. In addition, C.R. testified that the only reason that they entered into a domestic partnership was to preserve their right to act in cases of medical emergency and to gain employer-provided benefits. Therefore, it would not be recognized in California.

DO YOU NEED HELP WITH ISSUES RELATED TO A DOMESTIC PARTNERSHIP?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution of a domestic partnership or issue related to it such as legal separation, annulment, custody, child support, spousal 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.
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UCCJEA and Attorney Fee Awards

N.S. v. D.M. is a custody dispute that entangles two states and two counties and involves the complicated provisions of the Uniform Child Custody and Enforcement Act (UCCJEA).

FACTUAL BACKGROUND OF THE CUSTODY PROCEEDINGS

This is a paternity case. The parents were both living in California when the initial paternity case was filed. An order for joint physical and legal custody was issued and the children resided primarily with the mother in California. The parents reconciled and the family moved to Illinois. Several months later, the parents separated and the mom returned to California. The father initiated a modification of custody in Illinois. The mother hired an attorney in Illinois and filed a motion in California.

FAMILY LAW TRIAL PROCEEDINGS

The judges in the two actions held a conference call and decided the California maintained exclusive jurisdiction under the UCCJEA. The Illinois court denied the father’s petitions and Santa Clara County assumed jurisdiction. The case was then transferred to San Diego county. The mother filed a motion for attorney fees and costs in California for the fees associated with the litigation in Illinois and Santa Clara. The California trial court denied her motion for fees and costs. Mother appealed.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the trial court on its decision to deny fees based on Family Code section 3452. Section 3452 is part of the UCCJEA and allows an award of attorney fees based upon a prevailing party theory. However, the appellate court limited an award of attorney fees under section 3452 solely to enforcement actions. When the father filed the action in Illinois, his motion implicated the jurisdiction provisions and not the enforcement provisions of the UCCJEA. Therefore, mother was not entitled to a recovery of costs under that theory.

DO YOU NEED HELP WITH ISSUES RELATED TO INTERSTATE CUSTODY ISSUES?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as interstate custody or any other divorce matter such as legal separation, annulment, custody, child support, spousal 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 Attorney Fees, UCCJEA, Uniform Child Custody Jurisdiction Act | Leave a comment

Family Code 217 Testimony

In re Marriage of Swain involved an ex-husband’s request to terminate spousal support.

FACTUAL BACKGROUND OF THE REQUEST TO TERMINATE SPOUSAL SUPPORT.

The parties had been married for 11 years before filing for divorce. They entered into a stipulated judgment which ordered the ex-husband to pay spousal support to his ex-wife in the amount of $2,500 per month. In 2016, the ex-husband filed a request for an order to terminate alimony. In addition to the fact that he had retired from his job, his ex-wife was receiving half of his pension.

FAMILY LAW PROCEEDINGS

In the proceedings, the ex-wife only filed an Income and Expense Declaration. Otherwise she did not respond to the paperwork, and she did not appear at the hearing. The trial court lowered spousal support based on the information presented at trial and the Income and Expense Declaration filed by the ex-wife. The ex-husband appealed stating that the Income and Expense Declaration filed by the ex-wife should not have been used in lieu of her testimony, because the ex-husband was entitled to cross examine his ex-wife as a witness.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the ex-husband. It stated that the enactment of Family Code section 217 required that testimony in family law hearings should be live unless good cause exists or the parties stipulate otherwise.

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.
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Waived Military Pay and Spousal Support

Military disability pay, retirement pay, and spousal support were the topics discussed in In re Marriage of Cassinelli.

FACTUAL BACKGROUND OF THE SPOUSAL SUPPORT ORDER

The parties were married for more than 20 years and were divorced in 1986. There was a judgment that awarded the wife half of the community interest of the husband’s military retirement. Twenty years later, the husband suffered an illness which was the result of being exposed to Agent Orange, and he qualified for veterans disability pay and combat-related special compensation. In order to obtain disability pay, he had to waive his retirement pay which wiped out any interest his wife would have in the retirement. The wife filed a motion for non-modifiable spousal support.

FAMILY LAW PROCEEDINGS

The trial court awarded the wife the same amount in spousal support as she had received in retirement pay. The husband appealed the order.

APPEAL OF THE SPOUSAL SUPPORT ORDER

The appellate court held that in light of a recent United States Supreme Court decision, the family law court could not award an amount in spousal support that mirrored the amount that the spouse would have received in the retirement account. Instead, the court could only award spousal support based on the factors identified in Family Code section 4320.

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.

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Legal Interest on Judgments

The appellate court in In re Marriage of Dalgleish and Selvaggio discussed the interplay of judgments, legal interests on judgments, and equalization of payments.

FACTUAL BACKGROUND OF THE DISSOLUTION

The parties entered into a stipulated judgment which required them to jointly hire an appraiser to value their real property. After the appraiser was hired, the ex-husband was required to pay the ex-wife an equalization payment within 10 days of the appraisal that was based upon the appraisal of the home. The ex-husband failed to make the payment. The ex-wife filed a request for order to enforce the judgment including interest from the date the equalization payment was due.

FAMILY LAW TRIAL PROCEEDINGS

At the hearing, the ex-husband argued that the amount of the equalization payment was never determined, because the appraiser was not hired jointly. Although the family law judge did not agree with the ex-husband’s argument, the family law trial court held that the interest on the equalization payment would not begin to accrue until the date the order was made on the request for order. The ex-wife argued that the interest on the judgment should have started 10 days after the appraisal was completed which would have resulted in more than a million dollars in interest.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the ex-wife. It stated that section 685.020 requires a money judgment to accrue interest on the date of the entry of judgment. It further stated that a money judgment on which interest accrues begins the date of the entry of the judgment unless there is an express or implied agreement that states otherwise. In this case, the parties agreed that the judgment was due 10 days after the receipt of the joint appraisal. The appellate court stated that the judgment based on the request for order was not a new judgment. Instead it was an enforcement of the previous judgment. Therefore, interest should have begun to accrue 10 days after the appraisal.

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 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.
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Full Faith and Credit for Out of State Judgments

In re Marriage of Connolly involved the enforcement of a judgment for both child support and spousal support orders made in two different states.

FACTUAL BACKGROUND OF THE CHILD AND SPOUSAL SUPPORT ORDERS

The parties first obtained a judgment for divorce in California. The judgment included awards for both spousal support and child support. Both parents moved to Utah where the ex-wife filed a motion to determine support arrears. The Utah order identified the outstanding amount for support, but it did not include interest in the arrears. The ex-husband then moved to California, and the ex-wife filed a motion for the California court to determine the interest due on the outstanding support orders.

FAMILY LAW TRIAL PROCEEDINGS

The California family court determined the interest on the Utah support order, based on the fact that it appeared like the Utah support order did not include interest, and California requires interest on judgments at a rate of 10 percent per year. The ex-husband appealed the California order stating that California should have given full faith and credit to the Utah order.

APPEAL OF THE SUPPORT ORDER

The appellate court agreed with the ex-husband. It stated that because the Utah order was a final judgment, it was entitled to full faith and credit by California. The determination as to whether it was a final decision was based on res judicata. Res judicata is a doctrine that prevents the litigation of an issue that could have been raised in the prior hearing. Because interest could have been adjudicated in the Utah order, and was not, it cannot be litigated in the subsequent California order.

DO YOU NEED HELP WITH ISSUES RELATED TO 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 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.
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Business Owners Cannot Transfer Their Businesses in Order to Terminate Support

In re Marriage of Berman concerned the issue of spousal support and whether a person who is at retirement age can give his business to his new  business partner and spouse and stop paying spousal support.

FACTUAL BACKGROUND OF THE MODIFICATION OF SPOUSAL SUPPORT

The parties had been married more than 30 years before getting a divorce. There was an order for the ex-husband to pay his ex-wife spousal support. The ex-husband retired at the age of 65 and transferred his business to his second wife. He then filed for a termination of spousal support.

FAMILY LAW TRIAL PROCEEDINGS

The family court denied the husband’s request to terminate spousal support. It viewed the transfer of the business for no consideration as a bad faith attempt to divulge the husband of any of his assets. The court ordered spousal support based on the income that the business would have earned had the husband kept the business. The ex-husband appealed the order.

APPEAL OF THE DENIAL TO TERMINATE SPOUSAL SUPPORT

The appellate court upheld the family court’s order. It stated that if a court finds that a party paying support has structured ownership of a business to avoid his or her obligations, the court can ignore the form or ownership and determine the extent of the supporting party’s true interest in them.

DO YOU NEED HELP WITH ISSUES RELATED TO 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, 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.

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 Modification, Spousal Support | Leave a comment