Posts Tagged ‘California Supreme Court’

In 2009, there were several cases that were decided by the California Supreme Court, the appellate courts and the Ninth Circuit Court of Appeals that issued important decisions during the past year that affect family law. Some of those are listed here.

A trial court that failed to consider the factors in Family Code sections 2030 and 2032 erroneously issued an attorney fee order in a custody matter, and made an error of law in issuing a second order in the same proceeding that reduced appellate costs that already were owed to a pro se litigant (In re Alan S.(2009) 172 CA4th 238, 91 CR3d 241);

A nonparent seeking to obtain custody of a child lacks standing to initiate or be joined in a custody proceeding under the Uniform Parentage Act (Scott v. Superior Court (2009) 171 CA4th 540, 89 CR3d 843);

A California court that initially awarded sole legal and physical custody of a 5 month old child to his father acquired exclusive and continuing custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and did not lose jurisdiction despite the child’s and parents’ residence in Pakistan and the parents’ various actions and litigation in Pakistan and California over a 6 year period (Marriage of Nurie (2009) 176 CA4th 478, 98 CR3d 200);

In a dispute between two parents having joint legal custody over where their child would attend school, the court is not required to apply a “strict scrutiny” constitutional analysis (Enrique M. v Angelina V. (2009) 174 CA4th 1148, 94 CR3d 883;

A custody order issued as part of a domestic violence proceeding is not a “final judicial custody determination,” and therefore a parent who seeks modification of that order need not show “changed circumstances,” but rather what is in the child’s best interest based on all the circumstances (Keith R. V. Superior Court (2009) 174 CA4th 1047, 96 CR3d 298);

Although it is improper to impute income formerly earned to a supporting party absent evidence demonstrating the party could still earn it, evidence of present earning capacity in present employment creates no basis to ignore those earnings (Marraige of Berger (2009) 170 CA4th 1070, 88 CR3d 766);

A disabled support obligor who provides proof of eligibility for or receipt of Social Security Disability Income payments is exempt from levy under Family Code sections 17450-17460 (Marriage of Hopkins (2009) 173 CA4th 281, 92 CR3d 570);

A post-separation agreement regarding the distribution of community property is void and unenforceable unless it is in writing or made by oral stipulation in open court (Marriage of Dellaria & Blickman-Dellaria (2009) 172 CA4th 196, 90 CR3d 802);

“Disturbing the Peace,” as used in Family Code section 6320, may include accessing, reading, and publicly disclosing a person’s confidential e-mails; allegations of physical violence are not required to support an application for a restraining order under the Domestic Violence Prevention Act (Marriage of Nadkarni (2009) 173 CA4th 1483, 93 CR3d 723);

A trial court may not reduce spousal support on the ground that the supported spouse has become eligible to access, without penalty, his or her share of retirement accounts that were awarded to that spouse in a marital dissolution (Marriage of Dietz (2009) 176 CA4th 387, 97 CR3d 616).

There are many more cases that were decided and I will add them at a later date.

For those of you who have struggled through the court system in California during a divorce or custody matter, now is your chance to let the Court know how you feel about the recommendations that the Elkins Task Force has put out in a 78 page draft.  You can review the Elkins draft by clicking here, Elkins.

If you are not familiar with what Elkins is, in 2005 Mr. Elkins represented himself in Contra Costa Superior Court in a Family Law matter.  Prior to the trial, he attempted to introduce 36 exhibits to establish his case.  The Court allowed only 2 of these exhibits and frustrated that he could not present his case to the court, Mr. Elkins rested his case.   Of course, Mr. Elkins did not get what he was asking the Court to do in the separation o f assets in his dissolution.  Mr. Elkins filed a writ and in 2007 the Supreme Court found that the Contra Costa local rule conflicted with the existing statutory law and held that marital dissolution trials should “proceed under the same general rules of procedure that govern other civil trials.”

The Supreme Court recognized that the courts were underresourced and that the number of self-represented litigants were creating unique challenges to the Court’s ability to provide access to justice.  The Court recommended that the Judicial Council of California establish a task force to study and propose measures trial courts could use to establish fairness and efficiency in marital dissolution proceedings.  This is how the Elkins Task Force was appointed.


Anderson Cooper 360: Blog Archive – California high court upholds same-sex marriage ban « – Blogs from

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Guess they split the baby on this decision.  Allowing the same-sex marriages already performed to remain but upholding the ban on same-sex marriages that voters approved.  I personally don’t agree with this decision, not that it makes a difference what I agree with, but I am of the mindset that if you want to get married, and personally, I DO NOT, then you should be able to and have the same rights and responsibilities as everyone else.  Our world is changing and we need to change with it, whether we agree or like the changes that are happening.  I welcome your comments, as always on this subject and any others discussed by me.

The saga continues.  The California Supreme Court has ruled on the sanctions of $64,500 ordered by the Santa Clara County Trial Court.  Not only were these sanctions upheld, but the Wife, Kathey Fyke is ordered to pay Husband, Richard S. Falcone the total amount of $833,025.72 in fees, costs and sanctions under Family Code Section 271, 1101(g), 2102, 2103, 2104, 2105, 721 and 2032, Local Rules of Court 4D, 5L, 5N and 6E(4), and as in In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, these fees are to be paid from Wife’s portion of the remaining funds from the sale of the parties’ Saratoga property that are being held in a special trust account at Wells Fargo Bank.

Wow, need we say more?!  I am sure that Wife will appeal this ruling as she has appealed every other ruling in this case.  However, she should be careful with this route, as it is the one that got her these sanctions in the first place.  This should be a lesson to all in family law, the Court’s are not happy with excessive and unwarranted motions and appeals.  I will keep you posted on this one.

In Re Marriage of Brooks & Robinson (169 Cal.App.4th 176)

Property acquired during marriage in the name of one spouse is presumed separate property and the burden is on the grantee to overcome the presumption by clear and convincing evidence of the agreement or an understanding to the contrary.

To overcome the form of title presumption, the evidence of a contrary agreement or understanding must be “clear and convincing.” (Evid. Code, § 662; cf. In re Marriage of Weaver, supra, 224 Cal.App.3d at p. 486.) This standard requires evidence that is “‘”‘so clear as to leave no substantial doubt’ [and] ‘sufficiently strong to command the unhesitating assent of every reasonable mind.'”‘” (In re Marriage of Weaver, supra, at p. 487.)

This case is not final as the California Supreme Court is reviewing.  I will keep you updated as soon as the information is available.