Wednesday, December 16, 2009

BEWARE GOING PRO PER [representing yourself] IN A DIVORCE OR FAMILY LAW CASE; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET.

DONALD F. CONVISER, Certified Family Law Specialist, representing people in divorce and family law cases in the courts of Los Angeles and Ventura county for over 35 years, owner of WARNER CENTER LAW OFFICES, located in Woodland Hills in the west San Fernando Valley, offering a free confidential consultation to address your particular divorce or family law situation, writes about pitfalls of going pro per [unrepresented by counsel] in a divorce or family law case.

In Marriage of DELLARIA and BLICKMAN (2009) 172 Cal.App.4th 176, the court of appeal held that the settlement that the parties had negotiated and fully performed was unenforceable.

In DELLARIA and BLICKMAN, after the Petition for Dissolution of Marriage was filed, the parties [at that time, both in Pro-Per, i.e., unrepresented by counsel] orally negotiated a property settlement, where the wife received the family home, the husband received two other pieces of real property, the wife received a car, the husband received two other cars, and each party received his and her own retirement plans. They signed and exchanged deeds and ownership documents to complete the settlement.

Husband thereafter realized that wife had gotten the better deal, and the case went to trial. Wife's attorney asked that Judgment should be entered on the parties' fully performed agreement dividing their community property, claimed that all of the property transfers were valid transmutations, and asked that the trial court impose monetary sanctions on husband for going to trial notwithstanding the parties' prior settlement.

The trial court found that the parties had entered into a valid and enforceable oral agreement to divide the major assets of the marital estate, and that they had fully performed their oral contract, and adjudicated the parties' Community Property rights in accordance with their oral settlement agreement, even though it resulted in an uneven distribution of community property.

Furthermore, the trial court imposed $175,000 in FAMILY CODE Section 271 Monetary Sanctions on the husband for his rejection of wife's 'reasonable settment offer' [she had offered to accept Child Support at its present level and to be responsible for her own attorney's fees if husband would not contest the parties' fully performed oral settlement agreement].

FAMILY CODE Section 271 provides that notwithstanding any other provision of the Family Code, the court may base an award of fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

Husband appealed. The appellate court held the parties' oral agreement void and unenforceable, and reversed the trial court's property division and sanctions orders, applying the following rationale:

To the extent the Trial Court's decision reflects an interpretation of a statute, it presents a question of law that the Appellate Court reviews de novo.

FAMILY CODE Section 2550 provides that except upon the written agreement of the parties, or on oral stipulation of the parties in open court ..., in a proceeding for dissolution of marriage or legal separation, the court SHALL, either in its judgment of dissolution or legal separation, or at a later time if it expressly reserves jurisdiction to make such a property division, DIVIDE THE COMMUNITY ESTATE OF THE PARTIES EQUALLY.

In Marriage of CREAM (1993) 13 Cal.App.4th 81, 91, the appellate court held that if such an agreement [written or stipulated to in open court] is entered into, the court must accept the parties' agreement regarding the disposition of their property.

In Marriage of QUAY (2003) 18 Cal.App.4th 961, 966, the appellate court held that once a petition has been filed, the community property needs to be divided either by the parties or by the court. If the court divides the community property, it must do so equally. If the parties want to agree upon another disposition, they must do so either in writing or in open court.

In Marriage of MARICLE (1990) 220 Cal.App.3d 55, 58, the appellate court reversed a judgment based on a fully executed oral agreement, in a case whose facts were substantially similar the the DELARIA & BLICKMAN facts

The most significant difference in facts between the two cases was that in MARICLE, both parties were represented by counsel at the time the parties independently entered into their settlement agreement and performed its terms, whereas in DELLARIA & BLICKMAN, both parties were in Pro Per, i.e., unrepresented by counsel at time of their negotiation, entry into, and performance of their oral agreement.

In MARICLE, the appellate court held that there is no need to show fraud, oppression, or undue influence to set aside such a judgment, and stated that, full execution notwithstanding, the purpose of the statute is to ensure that the rights of a party are not dependent on faulty recollection or false testimony.

In MARICLE, the appellate court addressed oral settlement agreements of represented parties entered without their attorneys' knowledge, stating: "Where a party is represented by an attorney of record, the court should not accept a stipulation or agreement made without the knowledge and consent of the attorney."

As noted above, DELLARIA and BLICKMAN were in Pro Per when they entered and performed their settlement agreement, but the writer has included this reference to MIRACLE as an admonition to represented parties that the parties' attorneys should not be left out of the loop.

The DELLARIA & BLICKMAN appellate court stated that requiring the parties' settlement agreement to be committed to writing or recited in court, as mandated by FAMILY CODE Section 2550, prevents the risk of the court enforcing an agreement that was never made. [That was the danger encountered by that court - the parties' trial testimony regarding their alleged 'agreement' was conflicting]. Courts accepting stipulations or reviewing written agreements can be satisfied that such an agreement has been made.

Given that the appellate court in DELLARIA & BLICKMAN set aside the Judgment [finding the parties' fully performed oral settlement agreement to be void and unenforceable], the appellate court set aside the trial court's sanctions order against husband, which had faulted and penalized husband for taking the case to trial in the face of what the trial court had wrongly deemed to be a valid settlement.

Parties to Divorce or Family Law proceedings are best served by employing competent counsel to represent, advise and guide them in their dealings regarding their cases. People representing themselves in Pro Per face pitfalls resulting from their lack of education, training and experience, and can find themselves economically worse off than they would have been had they hired counsel in the first place.

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