Donald F. Conviser, Certified Family Specialist owner of Warner Center Law Offices in Woodland Hills, in the San Fernando Valley, serving people in family law and divorce cases in the Courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation at 818-880-8990, provides a simplified version of his blog posted last night, this version written for the lay person.
If the other party in a case (i.e., a divorce, family law, or even a civil or criminal case) seeks information or documents from you (whether you are a party to the case or a person whose confidential records or information is sought for the case) which would disclose confidential information - such as a trade secret, the public disclosure of which could devastate your business [such as the formulation of Coca Cola, or the techniques and/or processes used to fabricate a product, etc.], or your social security number or computer passwords, you should immediately contact and set an appointment with a competent lawyer to review the subpoena or discovery requests and determine what protection is needed and why, and to have that lawyer endeavor to meet and confer with the seeking party's attorney in an effort to either come to agreement [a Stipulation and Order filed with the Court] that the confidential matters do not have to be disclosed, or that they will be disclosed for only the specific restricted use in and for the case, and not used by or disclosed by the recipient to any other person or business, and providing for specific penalities enforceable by the Court for disclosure or use beyond the permitted process.
If such an agreement cannot be promptly reached and submitted in the form of a STIPULATION AND ORDER for PROTECTIVE ORDER signed by the propounding attorney and his client, you and your attorney [and if you are not a party to the case, then all the other attorneys and parties], your attorney MUST PROMPTLY file and serve a Motion for Protective Order seeking the Court's intervention and protection. By promptly filing and serving that Motion, your time to respond to and/or produce under the seeking party's discovery is put on hold pending the Court's determination on that Motion. I would suggest that you attend the hearing on the Motion, as well, so that if the Judicial Officer has any questions, they can be quickly answered before the Order is made.
Please read my yesterday's blog in connection with this blog. I trust that this blog should clarify matters where "technicalities" addressed in my former blog may have made that blog difficult to follow.
When time permits, I will prepare a new blog addressing some specific provisions that I have put into Stipulated Protective Orders in Divorce or Family Law Cases in the Courts of Los Angeles or Ventura County.
Sunday, May 17, 2009
Saturday, May 16, 2009
PROTECTING TRADE SECRETS AND CONFIDENTIAL MATTER FROM DISCLOSURE IN A DIVORCE OR FAMILY LAW CASE
Donald F. Conviser, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, serving divorce and family law clients for over 35 years in the Courts of Los Angeles and Ventura County, offering a free confidential consultation at (818) 880-8990 regarding your divorce or family law case, writes today about protecting trade secrets sought by the adverse counsel in family law discovery.
I apologize for the gap in my blogs, but my heavy litigation schedule over the last couple of weeks mandated priority for my clients and cases, leaving time only to sleep or write blogs, and I opted for sleep to best serve my clients.
The provisions of the Civil Discovery Act are set forth at California Code of Civil Procedure section 2016.010, et seq. [et sequitur - meaning "and the following provisions"]. Code of Civil Procedure section [CCP§] 2017.010 provides that unless otherwise limited by order of the court in accordance with this title [emphasis added], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence [emphasis again added]. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.
That definition is far from exhaustive: discovery can be propounded as to any matter claimed by a party which "may tend to lead to the discovery of admissible evidence", even if the matter itself isn't admissible.
Discovery in divorce and family law cases can be sought in the form of Depositions [oral depositions before a court reporter, audiotaped and/or videotaped as well if so addressed in the Deposition Notice -CCP§ 2025.010, et seq.], Interrogatories [CCP§2030.010, et seq. - written questions that the responding party must answer in writing under penalty of perjury], Requests for Admissions [CCP§2033.010, et seq. - written requests that a party admit the truth of matters and/or admit the genuineness of documents], Requests for Physical or Mental Examination [CCP§2032.010, et seq. - requiring that a party submit to such examination], and Requests for production and inspection of documents, tangible things, land, and other property [CCP§2031.010, et seq. - which I will hereafter refer to as an "Inspection Demand" demanding such production and inspection].
However, on appropriate and timely Motion filed and served after endeavoring to meet and confer with the party seeking discovery, CCP§2017.020 provides that the court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The Court may make this determination pursuant to a motion for protective order by a party or other affected person, which motion must be accompanied by a meet and confer declaration under CCP§2016.040 stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.
Diligence is required in endeavoring to meet and confer, and the Motion for Protective Order must be "promptly" filed and served, as is required under CCP§2025.420(a) [regarding a Deposition], CCP§2030.090 [regarding Interrogatories], CCP§2031.060 [regarding Inspection Demands], [there seems to be no specific codified Motion for Protective Order against a Demand for Physical or Mental Examination], and CCP§2033.080 [regarding Requests for Admission].
If discovery is propounded seeking disclosure of confidential information or documents, such as trade secrets, the party from whom that disclosure is sought (or his/her attorney if represented) should immediately contact adverse counsel and meet and confer in an effort to come to agreement that the confidential information or documents shall not need to be disclosed or produced, or to come to agreement that the disclosure shall be restricted to the attorney receiving those documents and that the information and documents shall not be used for any purpose other than to address matters in the litigation, and shall be disclosed to nobody else and used for no other purpose.
The agreement of counsel should be done by way of STIPULATION AND ORDER, signed by both parties and their counsel and submitted to the Court for its ORDER pursuant to that STIPULATION. Because of the brevity of this article, I am not including all the details that should be set forth in that STIPULATION AND ORDER, but I am letting my readers know that the meet and confer effort needs to be commenced immediately upon the receipt of the discovery, and that the STIPULATION AND ORDER needs to be artfully drafted to restrict the use of the disclosed material and information to the attorney, with some punitive provisions in the event that it is disclosed and/or used beyond the restricted use. I may address in a future blog some provisions that I have included in STIPULATIONS for Protective Orders, but even then, I will not be disclosing those provisions as "legal advice" to my readers, but instead, I will disclose those provisions to demonstrate the thought processes that I go through when I am negotiating provisions to protect my clients against unauthorized disclosure.
In summary, this article addresses the breadth of discovery allowable in California, as well as the requirements of diligent meet-and-confer and prompt filing and service of a Motion for Protective Order to oppose discovery seeking disclosure of confidential information and/or trade secrets, and it briefly addresses the process of endeavoring to reach agreement to restrict use of trade secrets sought to be disclosed in discovery, and such agreement MUST be done in the form of a Stipulation and Order to provide protection, as well as consequences and remedies for unauthorized disclosure by the receiving attorney or party.
I'm looking forward to writing about provisions which might be used in a Stipulation and Order for Protective Order, which I hope to have time to do this coming week. Call me at 818/880-8990 if you have any question or issue concerning your need for protection of trade secrets or other confidential information in a Divorce or Family Law matter.
I apologize for the gap in my blogs, but my heavy litigation schedule over the last couple of weeks mandated priority for my clients and cases, leaving time only to sleep or write blogs, and I opted for sleep to best serve my clients.
The provisions of the Civil Discovery Act are set forth at California Code of Civil Procedure section 2016.010, et seq. [et sequitur - meaning "and the following provisions"]. Code of Civil Procedure section [CCP§] 2017.010 provides that unless otherwise limited by order of the court in accordance with this title [emphasis added], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence [emphasis again added]. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.
That definition is far from exhaustive: discovery can be propounded as to any matter claimed by a party which "may tend to lead to the discovery of admissible evidence", even if the matter itself isn't admissible.
Discovery in divorce and family law cases can be sought in the form of Depositions [oral depositions before a court reporter, audiotaped and/or videotaped as well if so addressed in the Deposition Notice -CCP§ 2025.010, et seq.], Interrogatories [CCP§2030.010, et seq. - written questions that the responding party must answer in writing under penalty of perjury], Requests for Admissions [CCP§2033.010, et seq. - written requests that a party admit the truth of matters and/or admit the genuineness of documents], Requests for Physical or Mental Examination [CCP§2032.010, et seq. - requiring that a party submit to such examination], and Requests for production and inspection of documents, tangible things, land, and other property [CCP§2031.010, et seq. - which I will hereafter refer to as an "Inspection Demand" demanding such production and inspection].
However, on appropriate and timely Motion filed and served after endeavoring to meet and confer with the party seeking discovery, CCP§2017.020 provides that the court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The Court may make this determination pursuant to a motion for protective order by a party or other affected person, which motion must be accompanied by a meet and confer declaration under CCP§2016.040 stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.
Diligence is required in endeavoring to meet and confer, and the Motion for Protective Order must be "promptly" filed and served, as is required under CCP§2025.420(a) [regarding a Deposition], CCP§2030.090 [regarding Interrogatories], CCP§2031.060 [regarding Inspection Demands], [there seems to be no specific codified Motion for Protective Order against a Demand for Physical or Mental Examination], and CCP§2033.080 [regarding Requests for Admission].
If discovery is propounded seeking disclosure of confidential information or documents, such as trade secrets, the party from whom that disclosure is sought (or his/her attorney if represented) should immediately contact adverse counsel and meet and confer in an effort to come to agreement that the confidential information or documents shall not need to be disclosed or produced, or to come to agreement that the disclosure shall be restricted to the attorney receiving those documents and that the information and documents shall not be used for any purpose other than to address matters in the litigation, and shall be disclosed to nobody else and used for no other purpose.
The agreement of counsel should be done by way of STIPULATION AND ORDER, signed by both parties and their counsel and submitted to the Court for its ORDER pursuant to that STIPULATION. Because of the brevity of this article, I am not including all the details that should be set forth in that STIPULATION AND ORDER, but I am letting my readers know that the meet and confer effort needs to be commenced immediately upon the receipt of the discovery, and that the STIPULATION AND ORDER needs to be artfully drafted to restrict the use of the disclosed material and information to the attorney, with some punitive provisions in the event that it is disclosed and/or used beyond the restricted use. I may address in a future blog some provisions that I have included in STIPULATIONS for Protective Orders, but even then, I will not be disclosing those provisions as "legal advice" to my readers, but instead, I will disclose those provisions to demonstrate the thought processes that I go through when I am negotiating provisions to protect my clients against unauthorized disclosure.
In summary, this article addresses the breadth of discovery allowable in California, as well as the requirements of diligent meet-and-confer and prompt filing and service of a Motion for Protective Order to oppose discovery seeking disclosure of confidential information and/or trade secrets, and it briefly addresses the process of endeavoring to reach agreement to restrict use of trade secrets sought to be disclosed in discovery, and such agreement MUST be done in the form of a Stipulation and Order to provide protection, as well as consequences and remedies for unauthorized disclosure by the receiving attorney or party.
I'm looking forward to writing about provisions which might be used in a Stipulation and Order for Protective Order, which I hope to have time to do this coming week. Call me at 818/880-8990 if you have any question or issue concerning your need for protection of trade secrets or other confidential information in a Divorce or Family Law matter.
Tuesday, May 5, 2009
DISCOVERY AFTER JUDGMENT
Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, serving clients for over 35 years in the Courts of Los Angeles and Ventura counties, a San Fernando Valley law Family Law and Divorce Lawyer offering a free confidential consultation regarding your family law or divorce issues by calling him at 818-880-8990, writes today about DISCOVERY AFTER JUDGMENT.
How can you find out whether or not your former spouse's economic situation has changed to justify your seeking a modification of prior Child Support or Spousal Support orders?
California Family Code Sections 3664 and 3665 were designed by the legislature to provide an expeditious method to make that discovery in cases where the judgment ordered payment of child support or spousal support.
Those sections allow a party to serve a request for production of an income and expense declaration after judgment [including the adverse party's last-filed State and Federal Income Tax Returns], Form FL-396, once a year, following Judgent, via Certified Mail, return receipt requested. If no response is received within 35 days of service, or if the income and expense declaration received is incomplete, the requesting party may then serve a request for income and benefit information from employer, Form FL-397, upon the adverse party's employer via Certified Mail, return receipt requested.
The above provisions may be enforced by contempt of court proceedings, forfeiture to the aggrieved party of $500, plus all damages that the agrieved party may sustain as a result of the failure to comply, and/or the Court may issue a warrant for the arrest of the person who failed to comply.
Additionally, Family Code Section 3666 provides that upon the subsequent filing of a motion for modification or termination of support, if the Court finds that the income and expense declaration submitted by the responding party was incomplete, inaccurate, or missing the prior year's federal and state income tax returns, or that the income and expense declaration was not submitted in good faith, the Court may impose monetary sanctions against the responding party in the form of payment of all costs of the motion, including the filing fee and the costs of the depositions and subpoenas necessary to obtain complete and accurate information.
No other discovery is permitted after Judgment unless authorized by a judge or performed following the filing and service of a post-judgment Motion or OSC where that discovery is reasonably calculated to lead to the discovery of admissible evidence in that proceeding. Otherwise, that other discovery would deemed to be an unauthorized "fishing expedition".
As a Los Angeles divorce lawyer and family law attorney, I have found it to be a good practice to file a request for production of income and expense declaration after judgment on an annual basis following entry of judgment, because support modifications cannot be made retroactively to a date prior to the filing of the motion or Order to Show Cause seeking such modification.
How can you find out whether or not your former spouse's economic situation has changed to justify your seeking a modification of prior Child Support or Spousal Support orders?
California Family Code Sections 3664 and 3665 were designed by the legislature to provide an expeditious method to make that discovery in cases where the judgment ordered payment of child support or spousal support.
Those sections allow a party to serve a request for production of an income and expense declaration after judgment [including the adverse party's last-filed State and Federal Income Tax Returns], Form FL-396, once a year, following Judgent, via Certified Mail, return receipt requested. If no response is received within 35 days of service, or if the income and expense declaration received is incomplete, the requesting party may then serve a request for income and benefit information from employer, Form FL-397, upon the adverse party's employer via Certified Mail, return receipt requested.
The above provisions may be enforced by contempt of court proceedings, forfeiture to the aggrieved party of $500, plus all damages that the agrieved party may sustain as a result of the failure to comply, and/or the Court may issue a warrant for the arrest of the person who failed to comply.
Additionally, Family Code Section 3666 provides that upon the subsequent filing of a motion for modification or termination of support, if the Court finds that the income and expense declaration submitted by the responding party was incomplete, inaccurate, or missing the prior year's federal and state income tax returns, or that the income and expense declaration was not submitted in good faith, the Court may impose monetary sanctions against the responding party in the form of payment of all costs of the motion, including the filing fee and the costs of the depositions and subpoenas necessary to obtain complete and accurate information.
No other discovery is permitted after Judgment unless authorized by a judge or performed following the filing and service of a post-judgment Motion or OSC where that discovery is reasonably calculated to lead to the discovery of admissible evidence in that proceeding. Otherwise, that other discovery would deemed to be an unauthorized "fishing expedition".
As a Los Angeles divorce lawyer and family law attorney, I have found it to be a good practice to file a request for production of income and expense declaration after judgment on an annual basis following entry of judgment, because support modifications cannot be made retroactively to a date prior to the filing of the motion or Order to Show Cause seeking such modification.
Sunday, May 3, 2009
GETTING INFORMATION NEEDED FOR IMPUTATION OF INCOME
Donald F. Conviser, a Woodland Hills Divorce Lawyer with over 35 years of experience representing divorce and family law clients in the Courts of Los Angeles and Ventura Counties, a Certified Family Law Specialist, owner of Warner Center Law Offices in the San Fernando Valley, follows his May 2, 2009 blog about imputing earning capacity with this blog addressing how to obtain information needed for the Court to impute income to an unemployed or underemployed spouse.
In my May 2, 2009 imputation blog, I addressed the LaBass & Munsie and Mosley cases and the 2-pronged test that exists for imputation of earning capacity/income: 1) Ability to earn and 2) Opportunity to earn.
Competent evidence needs to be presented to the Court to satisfy both prongs in order to prevail on an imputation of earning capacity issue.
Discovery can be used to obtain evidence primarily on the Ability to earn prong, and if creatively done, to obtain evidence on the Opportunity to earn prong as well, comprising Inspection Demands [Demands to Produce Documents for Inspection and Copying], Special Interrogatories and/or Requests for Admission, and a follow-up Deposition where appropriate.
If you have propounded over 35 Special Interrogatories 0r 35 Requests for Admission of truth of facts in the past, or if your Special Interrogatories or Requests will take the total number of Special Interrogatories or Requests over 35, you need to justify the reasons why you need to propound interrogatories or Requests over the 35 point, pursuant to the specific requirements set forth in Code of Civil Procedure Section 2030.050 and 2033.050, whereas there is no such limit or requirement on Inspection Demands.
A competent and aggressive divorce lawyer could prepare appropriate discovery to ferret out such things as resumes, job applications, unemployment applications and benefits, claimed conditions affecting ability to work, distance or salary or limitations of job searches, education, training, experience, employment qualifications, fields that the person is qualified to work in, jobs the person is qualified to work in, skills to offer prospective employers, prior employment criteria, acceptable and unacceptable fields of employment and/or jobs, prior employment history, efforts to enhance employability, efforts to secure employment and responses to such efforts, job offers and rejections, as well as inquiring as to jobs available within a certain geographic area for which that person is qualified and salaries offered for those jobs, requiring the person to make a diligent inquiry to other people and entities pursuant to Code of Civil Procedure Section 2030.220(c).
In addition, a creative Family Law Attorney could propound a set of 35 Requests for Admission of truth of facts designed either to produce admissions usable in a Declaration to prove issues, or to obtain responses other than unqualified admissions, along with a set of General Form Interrogatories, including the valuable Form Interrogatory 17.1 [which requires the responding party to provide all facts and identify all witnesses and documents who/which support that party's responses to requests for admissions other than unqualified admissions], to prepare the Attorney to perform follow-up discovery, whether to depose the party or to subpoena documents or 3rd parties to testify at deposition.
The unemployed party can be examined by a Vocational Training Consultant pursuant to Family Code Section 4331, either by stipulation or by an Order granted on a Motion to require the party to submit to such an examination.
The Vocational Training Consultant will typically produce a report addressing the party's ability to work (i.e., skills, education, training, and work history, etc.) as well the party's opportunity work, via jobs which the Consultant has located through a survey of the available job market, and the Consultant may prepare a Declaration to be used in connection with the support (or support modification) hearing and/or testify at that hearing.
On a shoestring, as done in the LaBass & Munsie case, classified ads may be submitted to the Court (appropriately authenticated) to show that "offers to bargain exist", in an effort to satisfy the Opportunity to work prong of the test.
As a Los Angeles family law attorney with substantial experience dealing with imputation of income / earning capacity cases, I designed this blog to give my readers insight into how a competent Divorce Attorney can obtain evidence to satisfy both prongs of the impution of earning capacity test.
Saturday, May 2, 2009
WHAT HAPPENS TO CHILD SUPPORT ENFORCEMENT WHEN CUSTODY CHANGES?
Donald F. Conviser, CFLS, of Warner Center Law Offices in Woodland Hills, serving Divorce and Family Law clients in Los Angeles and Ventura County for over 35 years, offering a fee confidential consultation with people with Family Law or Divorce questions or issues (818) 880-8990, herein addresses proposed arguments that might be effective to diminish the consequences of a JACKSON or TRAINOTTI claim. Those two cases held in effect that where custody of a child changes, the former custodial parent's claim for child support arrearages that accrued after the change of custody may, in an exercise of the Court's equitable discretion, be deemed discharged via the new custodial parent having supported the child at his/her home.
I propose that the Court should consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages, as hereinafter addressed.
Marriage of JACKSON (1975) 51 Cal.App.3d 363 is a case addressing, among other things, a writ of execution levied by Gail on Thomas's bank account for child support arrearages due to Gail (the initial custodial parent) for a period of time after the parties' minor daughter had, with Gail's consent, commenced residence with Thomas. Thomas moved for an order recalling and quashing the writ of execution, and the trial court denied his motion, declaring that his motion was an improper attempt to retroactively modify child support. On Thomas's appeal, the appellate court held the trial court's ruling to be based on erroneous reasoning that it had no discretion to grant the motion, and remanded the case with instructions for the trial court to reconsider the matter, stating:
"While it is true that an order for child support may not be retroactively modified and that accrued arrearages are treated like a judgment for money, it must be remembered that such orders are an exercise of the court's equitable power and are designed to compel satisfaction of the child support obligation apart from the marriage status. The obligation is to the child and not to the mother. ... while a court may not retroactively modify accrued payments, it could deny enforcement of such a judgment on equitable grounds. Hence, contrary to the trial court's reasoning, quashing the writ of execution is separate and distinct from retroactive modification of the original order. ... the trial court has, under (such) circumstances, the right to recall the execution and allow the enforcement of the judgment, only to the extent of the husband's equitable obligation to pay. ... the trial court now has discretion to determine in each case whether execution is an appropriate remedy for enforcing its order. ... Once the writ of execution has issued, however, the judgment debtor must show why the writ should be quashed. One reason which the court could consider in exercising its equitable discretion would, of course, be that the debtor has satisfied the obligation."
The JACKSON Court concluded that the trial court could have been well within its discretion in recalling and quashing the writ of execution or permitting only partial enforcement on the basis that Thomas had directly discharged his obligation or on the basis of equitable considerations.
In Marriage of Trainotti (1989) 213 Cal.App.3d 1072, Roberta was awarded custody of the parties' minor son, but three years later, the parties agreed that Michael would assume custody of their son, and he did so. Subsequently, the parties submitted the issue of child support arrearage allegedly due Roberta for the period during which Michael had custody of their son. The trial court concluded that it had no jurisdiction to offset or discharge the accrued child support liability during the period the parties' child was residing with Michael. Michael appealed.
The appellate court found that the trial court's ruling was based on its restrictive reading of the modification retroactivity statute [which allows modification only retroactive to the date of filing of the OSC to modify]. It addressed the JACKSON case as a nearly identical case, summarized its holding noted above, and addressed a subsequent OKUM case in which the appellate court held that a trial court possesses the discretion to permit only partial enforcement or to quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child.
The TRAINOTTI court held that the applicable statute provides the trial court with discretion to determine the appropriate remedy for enforcing the order regardless of the procedural context in which the issue was raised. It stated that the trial court should have considered whether the debtor had satisfied or otherwise discharged the obligation imposed by the original order [citing JACKSON], and that such consideration does not violate the prohibition against retroactive modification of the support award. It held that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son, with the approval of Roberta, a home and support that was equal to or in excess of the court-ordered amount.
As noted above, I propose that the Court consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages in such a case.
Child support is based on the parties' respective incomes and ther respective custodial timeshares. In TRAINOTTI's holding that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son a home and support equal to or in excess of the court-ordered amount, the Court, and perhaps Robert's attorney, ignored the possiblity that, by virtue of the parties' respective incomes and custodial timeshares, some guideline child support [albeit in an amount lower than the former order] might still have been payable by Michael to Roberta for the period after Michael received his son's physical custody.
In that event, shouldn't the Court have calculated a new, reduced amount of child support that would have been due from Michael to Roberta and enforced Michael's child support obligation to that extent, instead of just comparing the amount of Michael's child support obligation to [the value of] his furnishing a home and support to his son? Or would that be considered an impermissible retroactive modification of child support? I would think that the court, in that event, would have discretion to partially enforce the child support arrearage in an exercise of its equitable powers, instead of turning the arrearage switch "off" upon hearing that de facto custody had changed.
What if the parties had 50/50 custody, and thereafter the father received full custody of their child pursuant to agreement with the mother exercising some visitation [for example, 20%]. In that event, the father's initial obligation had been to provide 50% of the childrens' living expenses during the 50% of the time when the children were living with him, and payment of a certain amount to the mother as child support.
After custody changed to father, he gets only 30% more custody. A guideline calculation of child support would be appropriate under those circumstances, based on the parties' respective incomes and custodial timeshare, to determine how much support the father would still owe to the mother, so that instead of fully discharging the father's obligation for child support arrearages to the mother in toto, the Court would discharge only part of that obligation.
What if father had historical unclean hands in the matter? What if the mother were mentally impaired and the father had manipulated her into not dealing with the attorney her family had hired to represent her in the divorce and had taken advantage of her by "negotiating" an unfair Marital Settlement Agreement with the mentally impaired mother, who had no clue what her rights were? What if the father had cheated the mentally impaired mother out of fair child and spousal support by understating his income and overstating her income? What if the father had been ordered to pay for health insurance for the mentally-impaired mother for two years, but failed to pay? What if the reason for the change of custody was something that the father had unfairly done to the mother, rendering her emotionally distressed?
Would the court look beyond just child custody and child support in order to fashion an equitable remedy? JACKSON does address equitable considerations. Is "unclean hands" limited to a tunnel view by the court of the immediate issues, or can the court look at the whole picture of historical bad faith unconscionable conduct?
In Keith G. v. Suzanne H (1998) 62 Cal.App. 853, the appellate Court stated: "Under California law, the trial court has discretion to determine the appropriate means of enforcing a judgment for child support. In exercising that discretion, the trial court can, and should take the equities of the situation into account." That opinion included a cite: "These are some of the dirtiest hands we have seen. He who seeks equity must do equity." The appellate court stated: "After weighing the equities, the trial court wisely fashioned a commonsense remedy that does not harm B. and does not reward father for his recalcitrance. The overall policy of the law is fairness."
The Family Law court sits in equity, and should exercise its discretion to arrive at a fair decision after weighing all the equitable considerations.
I propose that the Court should consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages, as hereinafter addressed.
Marriage of JACKSON (1975) 51 Cal.App.3d 363 is a case addressing, among other things, a writ of execution levied by Gail on Thomas's bank account for child support arrearages due to Gail (the initial custodial parent) for a period of time after the parties' minor daughter had, with Gail's consent, commenced residence with Thomas. Thomas moved for an order recalling and quashing the writ of execution, and the trial court denied his motion, declaring that his motion was an improper attempt to retroactively modify child support. On Thomas's appeal, the appellate court held the trial court's ruling to be based on erroneous reasoning that it had no discretion to grant the motion, and remanded the case with instructions for the trial court to reconsider the matter, stating:
"While it is true that an order for child support may not be retroactively modified and that accrued arrearages are treated like a judgment for money, it must be remembered that such orders are an exercise of the court's equitable power and are designed to compel satisfaction of the child support obligation apart from the marriage status. The obligation is to the child and not to the mother. ... while a court may not retroactively modify accrued payments, it could deny enforcement of such a judgment on equitable grounds. Hence, contrary to the trial court's reasoning, quashing the writ of execution is separate and distinct from retroactive modification of the original order. ... the trial court has, under (such) circumstances, the right to recall the execution and allow the enforcement of the judgment, only to the extent of the husband's equitable obligation to pay. ... the trial court now has discretion to determine in each case whether execution is an appropriate remedy for enforcing its order. ... Once the writ of execution has issued, however, the judgment debtor must show why the writ should be quashed. One reason which the court could consider in exercising its equitable discretion would, of course, be that the debtor has satisfied the obligation."
The JACKSON Court concluded that the trial court could have been well within its discretion in recalling and quashing the writ of execution or permitting only partial enforcement on the basis that Thomas had directly discharged his obligation or on the basis of equitable considerations.
In Marriage of Trainotti (1989) 213 Cal.App.3d 1072, Roberta was awarded custody of the parties' minor son, but three years later, the parties agreed that Michael would assume custody of their son, and he did so. Subsequently, the parties submitted the issue of child support arrearage allegedly due Roberta for the period during which Michael had custody of their son. The trial court concluded that it had no jurisdiction to offset or discharge the accrued child support liability during the period the parties' child was residing with Michael. Michael appealed.
The appellate court found that the trial court's ruling was based on its restrictive reading of the modification retroactivity statute [which allows modification only retroactive to the date of filing of the OSC to modify]. It addressed the JACKSON case as a nearly identical case, summarized its holding noted above, and addressed a subsequent OKUM case in which the appellate court held that a trial court possesses the discretion to permit only partial enforcement or to quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child.
The TRAINOTTI court held that the applicable statute provides the trial court with discretion to determine the appropriate remedy for enforcing the order regardless of the procedural context in which the issue was raised. It stated that the trial court should have considered whether the debtor had satisfied or otherwise discharged the obligation imposed by the original order [citing JACKSON], and that such consideration does not violate the prohibition against retroactive modification of the support award. It held that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son, with the approval of Roberta, a home and support that was equal to or in excess of the court-ordered amount.
As noted above, I propose that the Court consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages in such a case.
Child support is based on the parties' respective incomes and ther respective custodial timeshares. In TRAINOTTI's holding that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son a home and support equal to or in excess of the court-ordered amount, the Court, and perhaps Robert's attorney, ignored the possiblity that, by virtue of the parties' respective incomes and custodial timeshares, some guideline child support [albeit in an amount lower than the former order] might still have been payable by Michael to Roberta for the period after Michael received his son's physical custody.
In that event, shouldn't the Court have calculated a new, reduced amount of child support that would have been due from Michael to Roberta and enforced Michael's child support obligation to that extent, instead of just comparing the amount of Michael's child support obligation to [the value of] his furnishing a home and support to his son? Or would that be considered an impermissible retroactive modification of child support? I would think that the court, in that event, would have discretion to partially enforce the child support arrearage in an exercise of its equitable powers, instead of turning the arrearage switch "off" upon hearing that de facto custody had changed.
What if the parties had 50/50 custody, and thereafter the father received full custody of their child pursuant to agreement with the mother exercising some visitation [for example, 20%]. In that event, the father's initial obligation had been to provide 50% of the childrens' living expenses during the 50% of the time when the children were living with him, and payment of a certain amount to the mother as child support.
After custody changed to father, he gets only 30% more custody. A guideline calculation of child support would be appropriate under those circumstances, based on the parties' respective incomes and custodial timeshare, to determine how much support the father would still owe to the mother, so that instead of fully discharging the father's obligation for child support arrearages to the mother in toto, the Court would discharge only part of that obligation.
What if father had historical unclean hands in the matter? What if the mother were mentally impaired and the father had manipulated her into not dealing with the attorney her family had hired to represent her in the divorce and had taken advantage of her by "negotiating" an unfair Marital Settlement Agreement with the mentally impaired mother, who had no clue what her rights were? What if the father had cheated the mentally impaired mother out of fair child and spousal support by understating his income and overstating her income? What if the father had been ordered to pay for health insurance for the mentally-impaired mother for two years, but failed to pay? What if the reason for the change of custody was something that the father had unfairly done to the mother, rendering her emotionally distressed?
Would the court look beyond just child custody and child support in order to fashion an equitable remedy? JACKSON does address equitable considerations. Is "unclean hands" limited to a tunnel view by the court of the immediate issues, or can the court look at the whole picture of historical bad faith unconscionable conduct?
In Keith G. v. Suzanne H (1998) 62 Cal.App. 853, the appellate Court stated: "Under California law, the trial court has discretion to determine the appropriate means of enforcing a judgment for child support. In exercising that discretion, the trial court can, and should take the equities of the situation into account." That opinion included a cite: "These are some of the dirtiest hands we have seen. He who seeks equity must do equity." The appellate court stated: "After weighing the equities, the trial court wisely fashioned a commonsense remedy that does not harm B. and does not reward father for his recalcitrance. The overall policy of the law is fairness."
The Family Law court sits in equity, and should exercise its discretion to arrive at a fair decision after weighing all the equitable considerations.
THE COURT CAN IMPUTE EARNING CAPACITY TO EITHER PARENT
Donald F. Conviser, a Woodland Hills Certified Family Law Specialist, owner of Warner Center Law Office, with over 35 years' experience aggressively and effectively representing clients in Divorce and Family Law cases in the Courts of Los Angeles and Ventura county, offering a free confidential consultation at 818-880-8990, publishes another blog: THE COURT CAN IMPUTE EARNING CAPACITY TO EITHER PARENT, to address situations in which a Custodial or Noncustodial parent is not contributing, or not adequately contributing, to the support of his/her child as a result of unemployment or underemployment.
In computing child support obligations under the statewide uniform guidelines, the trial court has discretion to impute income to either parent based on that parent's "earning capacity." Family Code Section 4058(b).
It used to be the law that "earning capacity" was a 3-pronged test, composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience, and qualifications, (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment, and (3) an ability to work. Marriage of Regnery (1989) 214 Cal.App.3d 1367 required that those three prongs all be satisfied before the trial court may utilize a parent's earning capacity rather than actual income in computing child support.
The Philbin case [Regis's income fell one year through no fault of his own] tells us that the "willingness to work" prong of the 3-pronged test was addressed in a number of cases as: a deliberate attempt to avoid financial responsibilities by refusing to seek or accept gainful employment [Marriage of Pencovic], refusing to secure or take a job [Marriage of Weber, Marriage of Tomkins], a father deliberately not applying himself to his business [Marriage of Clark], a father intentionally depressing his income to an artificial low [Marriage of Elliott], or a father intentionally leaving his employment to go into another business [Marriage of Baron].
However, the "willingness to work" prong of the three prongs was eliminated in Marriage of Padilla (1995) 38 Cal.App4th 1212, which stated that Philbin's comments regarding bad faith were dicta [not citable authority - because those comments were not necessary to the court's judgment] because the Philbin court hadn't addressed the issue - instead it says that Phibin considered whether a child support order may be premised on a parent's former income level when through no fault of the parent, that income is no longer available. Padilla tells us that Philbin didn't hold, even as dicta, that bad faith is a condition precedent to the imputation of income. Padilla tells us that, simply stated, a parent cannot be held to an unavailable income level, BUT a parent may have income imputed when he/she fails to take advantage of an employment opportunity.
Padilla states: "Because childrens' interests are a top priority, and payment of appropriate support is a parent's primary obligation [Family Code section 4053(a)(d)], a child support obligation must be taken into account whenever an obligor wishes to pursue a different lifestyle or endeavor. Child support is an overhead which must be paid before any other expenses. A payor does not have the right to divest himself/herself of his/her earning ability at the expense of the minor children."
Fast forward to Marriage of LaBASS and MUNSIE (1997) 56 Cal.App.4th 1331: which shows us that income can be imputed to the Custodial parent, among other lessons that case teaches.
Catherine Munsie decided to work part time teaching at a local college while pursuing another postgraduate degree and using time that she could have been working at a full time job to spend with the parties' children. Barry LaBASS filed an Order to Show Cause to reduce his child support obligation, seeking to impute to Catherine the salary of a full-time teacher rather than her part-time earnings.
Barry submitted L.A. Times classified ads to show that full-time teaching employment was available. The trial court allowed those ads into evidence over a hearsay objection [that they weren't admissible to prove the truth of the matter asserted in them], holding that they were admissible for a non-hearsay purpose: to show that "offers to bargain" existed. An important lesson to attorneys - if you can't find a hearsay exception, look for non-hearsay purposes for what appears to be inadmissible hearsay.
The LaBASS court cited Padilla [a parent does not have the right to divest himself/herself of his/her earning ability at the expense of minor children]. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income - otherwise one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the fully employed parent [citing Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384], stating that while Catherine may choose to pursue her education and spend more time with her children, she may not use this choice to avoid her obligation to contribute financially to their support, unless the court finds that such decision is in the best interests of the minor children.
Marriage of Moseley (2008) 165 Cal.App.4th 1375 imputed income to another custodial mother. Dawn, the stay-at-home mother of the parties 5 children, was a licensed attorney, former law review editor at her law school, had started her legal career at Latham & Watkins, but stopped practicing law and let her license become inactive to devote her time to care for her 5 children, stating that doing so was consistent with the parties' faith as devout Mormons. Paul's income changed with a job change, and he filed an Order to Show Cause to modify his support obligation. In this article, I'll deal only with the imputation of income aspects of this case [which had other interesting aspects not relevant to this article].
Paul appealed the trial court's denial of his OSC. The appellate court reversed, agreeing with Paul that LaBASS and MUNSIE offers important guidance in this case, stating: "As that case makes clear, each parent should pay for the support of the children according to his or her abiltiy, insmuch as both parents are equally responsible for the support of their children", and repeated what I cited hereinabove from LaBASS [starting with "When a parent decides not to seek..."]."
The appellate court commented that it is difficult to disagree with the suggestion that Dawn is likely employable as an entry level attorney and that substantial salaries are generally available to entry level attorneys with Dawn's academic standing; it is even more difficult to disagree with the assertion that a licensed attorney with some amount of experience at a law firm the stature of Latham & Wakins would be unable to find employment as a paralegal.
The early imputation of income cases appeared to target Noncustodial Dads. LaBASS and MUNSIE and MOSLEY demonstrate that the law is not sexist, and not biased against the Noncustodial parent. Instead, an unemployed or underemployed parent may have income imputed to him/her if the other party demonstrates his ability to earn and opportunity to earn, and classified ads (and/or the testimony of a vocational consultant) are admissible to prove the opportunity to earn element.
In computing child support obligations under the statewide uniform guidelines, the trial court has discretion to impute income to either parent based on that parent's "earning capacity." Family Code Section 4058(b).
It used to be the law that "earning capacity" was a 3-pronged test, composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience, and qualifications, (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment, and (3) an ability to work. Marriage of Regnery (1989) 214 Cal.App.3d 1367 required that those three prongs all be satisfied before the trial court may utilize a parent's earning capacity rather than actual income in computing child support.
The Philbin case [Regis's income fell one year through no fault of his own] tells us that the "willingness to work" prong of the 3-pronged test was addressed in a number of cases as: a deliberate attempt to avoid financial responsibilities by refusing to seek or accept gainful employment [Marriage of Pencovic], refusing to secure or take a job [Marriage of Weber, Marriage of Tomkins], a father deliberately not applying himself to his business [Marriage of Clark], a father intentionally depressing his income to an artificial low [Marriage of Elliott], or a father intentionally leaving his employment to go into another business [Marriage of Baron].
However, the "willingness to work" prong of the three prongs was eliminated in Marriage of Padilla (1995) 38 Cal.App4th 1212, which stated that Philbin's comments regarding bad faith were dicta [not citable authority - because those comments were not necessary to the court's judgment] because the Philbin court hadn't addressed the issue - instead it says that Phibin considered whether a child support order may be premised on a parent's former income level when through no fault of the parent, that income is no longer available. Padilla tells us that Philbin didn't hold, even as dicta, that bad faith is a condition precedent to the imputation of income. Padilla tells us that, simply stated, a parent cannot be held to an unavailable income level, BUT a parent may have income imputed when he/she fails to take advantage of an employment opportunity.
Padilla states: "Because childrens' interests are a top priority, and payment of appropriate support is a parent's primary obligation [Family Code section 4053(a)(d)], a child support obligation must be taken into account whenever an obligor wishes to pursue a different lifestyle or endeavor. Child support is an overhead which must be paid before any other expenses. A payor does not have the right to divest himself/herself of his/her earning ability at the expense of the minor children."
Fast forward to Marriage of LaBASS and MUNSIE (1997) 56 Cal.App.4th 1331: which shows us that income can be imputed to the Custodial parent, among other lessons that case teaches.
Catherine Munsie decided to work part time teaching at a local college while pursuing another postgraduate degree and using time that she could have been working at a full time job to spend with the parties' children. Barry LaBASS filed an Order to Show Cause to reduce his child support obligation, seeking to impute to Catherine the salary of a full-time teacher rather than her part-time earnings.
Barry submitted L.A. Times classified ads to show that full-time teaching employment was available. The trial court allowed those ads into evidence over a hearsay objection [that they weren't admissible to prove the truth of the matter asserted in them], holding that they were admissible for a non-hearsay purpose: to show that "offers to bargain" existed. An important lesson to attorneys - if you can't find a hearsay exception, look for non-hearsay purposes for what appears to be inadmissible hearsay.
The LaBASS court cited Padilla [a parent does not have the right to divest himself/herself of his/her earning ability at the expense of minor children]. When a parent decides not to seek employment to the best of his or her ability, the court must retain discretion to impute income - otherwise one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the fully employed parent [citing Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384], stating that while Catherine may choose to pursue her education and spend more time with her children, she may not use this choice to avoid her obligation to contribute financially to their support, unless the court finds that such decision is in the best interests of the minor children.
Marriage of Moseley (2008) 165 Cal.App.4th 1375 imputed income to another custodial mother. Dawn, the stay-at-home mother of the parties 5 children, was a licensed attorney, former law review editor at her law school, had started her legal career at Latham & Watkins, but stopped practicing law and let her license become inactive to devote her time to care for her 5 children, stating that doing so was consistent with the parties' faith as devout Mormons. Paul's income changed with a job change, and he filed an Order to Show Cause to modify his support obligation. In this article, I'll deal only with the imputation of income aspects of this case [which had other interesting aspects not relevant to this article].
Paul appealed the trial court's denial of his OSC. The appellate court reversed, agreeing with Paul that LaBASS and MUNSIE offers important guidance in this case, stating: "As that case makes clear, each parent should pay for the support of the children according to his or her abiltiy, insmuch as both parents are equally responsible for the support of their children", and repeated what I cited hereinabove from LaBASS [starting with "When a parent decides not to seek..."]."
The appellate court commented that it is difficult to disagree with the suggestion that Dawn is likely employable as an entry level attorney and that substantial salaries are generally available to entry level attorneys with Dawn's academic standing; it is even more difficult to disagree with the assertion that a licensed attorney with some amount of experience at a law firm the stature of Latham & Wakins would be unable to find employment as a paralegal.
The early imputation of income cases appeared to target Noncustodial Dads. LaBASS and MUNSIE and MOSLEY demonstrate that the law is not sexist, and not biased against the Noncustodial parent. Instead, an unemployed or underemployed parent may have income imputed to him/her if the other party demonstrates his ability to earn and opportunity to earn, and classified ads (and/or the testimony of a vocational consultant) are admissible to prove the opportunity to earn element.
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