What Issues Can Successfully Be Litigated After You Lose A Family Law Appeal in California?

In some divorce cases, the animosity level is high and the parties want to continue their battle in court to the appellate level and then back to the trial court after the initial appeal is decided.  This is usually not a good idea for most  parties because it is costly and wastes time.  The party who lost on appeal is likely to lose again when making an attempt to re-litigate issues that were already decided on appeal because the court will be bound by the law of the case, res judicata, and a doctrine called “collateral estoppel.”

Only community property which is left unadjudicated by a decree of divorce or dissolution is subject to future litigation.  (In re Marriage of Snyder (1979) 95 Cal.App.3d 636, 638.)  "According to that aspect of the doctrine of res judicata known as collateral estoppel, a party is collaterally estopped from relitigating an issue necessarily determined in a prior adjudication if (1) the issue decided in the previous litigation is identical with that presented in the action in question; (2) there was a final judgment on the merits in the first action; and (3) the party against whom the plea is asserted was a party . . . to the prior action.  The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy."  (In re Marriage of Buckley (1982) 133 Cal.App.3d 927, 935.)

In addition, pursuant to the doctrine of the law of the case, " 'the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case."  (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1518.)  "The doctrine applies only if the issue was actually presented to and determined by the appellate court.  [Citation.]"  (People v. Yokely (2010) 183 Cal.App.4th 1264, 1273 (Yokely).)  Any principle or rule of law necessary to the appellate decision becomes the law of the case and "must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal."  (Tally v. Ganahl (1907) 151 Cal. 418, 421.)  "[T]he law-of-the-case doctrine governs only the principles of law laid down by an appellate court, as applicable to a retrial of fact . . . ."  (People v. Boyer (2006) 38 Cal.4th 412, 442.)  "[S]ufficiency of the evidence is a question of law to which the doctrine of law of the case applies."  (In re Marriage of Steinberg (1977) 66 Cal.App.3d 815, 821).)

However, "during subsequent proceedings in the same case, an appellate court's binding legal determination 'controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based.  [Citations.]'  [Citation.]"  (People v. Barragan (2004) 32 Cal.4th 236, 246-247.)  "Where, on remand, 'there is a substantial difference in the evidence to which the [announced] principle of law is applied, . . . the [doctrine] may not be invoked.'  [Citation.]"  (Ibid.)  "The doctrine is one of procedure that prevents parties from seeking reconsideration of an issue already decided absent some significant change in circumstances."  (Yokely, supra, 183 Cal.App.4th at p. 1273.)

But a final judgment that was procured by fraud or perjury can be set aside in a Family Law case.  "Section 2120 et seq. authorizes a dissolution judgment to be vacated, irrespective of res judicata concerns, where the judgment was procured by fraud or perjury.  In such cases, the interest in assuring finality of judgments is outweighed by other considerations."  (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1152.)

Moreover, the doctrine of the law of the case can be disregarded to avoid an unjust decision, but for the " 'unjust decision' exception to apply, 'there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice.' "  (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309.)

Thus, before deciding resurrect issues that were already resolved by a final judgment in the trial court and again on appeal, it is important to determine whether there are sufficient facts to show that the final judgment was procured by fraud, whether the prior decision was unjust, or whether the issues are substantially different as that upon which the appellate ruling was based.  If none of these exceptions apply, you may find yourself wasting more of your time and money because the court is likely to find that  these issues were resolved on the merits in the initial trial court and the subsequent appeal.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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When Can a Divorce Settlement Be Set Aside as Invalid in California?

Recently, in an unusual case, according to news reports, a Los Angeles County Superior Court Judge ruled that a divorce settlement that had been signed between an actor and his second wife is not valid because the actor was coerced into signing it after his second ex-wife threatened to leak private details from his life to the news media, thereby jeopardizing his film career.  Although this is an unusual case, there are four reasons why a divorce settlement can be set aside.

 A divorce settlement, like other negotiated agreements, can be found to be invalid due to duress, fraud, mistake of fact or law, or undue influence. When a divorce settlement is found to be invalid in court, the financial terms of the divorce have to re-determined.

marital settlement induced by duress

In California, as found in In Re Marriage of Gonzalez (1976)  57 Cal. App. 3d 736, a contract can be found to be invalid due to duress if the contract was “obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract. .”

marital settlement induced by fraud

The elements of fraud in California are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12
Cal.4th 631, 638.)   Family Law Section 2120 et seq. authorizes a dissolution judgment to be vacated where the judgment was procured by fraud or perjury.  In such cases, the interest in assuring finality of judgments is outweighed by other considerations."  (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1152.)

mistake of fact or law

Family Code Section 2122, subdivision (e), provides: “As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties,” a motion to set aside the judgment may be based on “mistake, either mutual or unilateral, whether mistake of law or mistake of fact.” “[T]he failure of a spouse to disclose the existence or the value of a community asset . . . constitutes a basis for setting aside a judgment on the grounds of mistake under section 2122.” (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 144, fn. omitted; accord, In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1345.)

marital settlement induced by undue influence

In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 996, explains that “when any interspousal transaction advantages one spouse to the disadvantage of the other, the presumption arises that such transaction was the result of undue influence.” A mere benefit is not enough;   the advantage must operate “to the disadvantage” of the other spouse.

These are the grounds that are commonly used to set aside a divorce settlement.  Of course, if you are interested in setting aside a settlement agreement, you must take  action in a timely manner. This is a complicated area of law where an experienced Family Law attorney can help you .

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

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In re Marriage of Siegel (2015): Due Process Violation for Lack of Proper Notice

Irwin J. Siegel (Irwin) and Linda S. Siegel (Linda), now in their early 80’s, divorced in 1987.  In 2013, Linda wanted to check to make certain that Irwin was complying with their marital termination agreement, which merged into a judgment, and required Irwin to establish a life insurance trust for Linda, subject to certain terms.  Linda filed a Request for Order to Disclose Insurance Information, asking for a court order requiring Irwin to provide "proof" that the insurance policy was in existence. Irwin filed a Responsive Declaration consenting to disclose information about his existing life insurance for Linda's benefit, attached some documents, but did not appear at the hearing.

At the hearing, the family court judge construed the Request for Order To Disclose Insurance Information as a motion to enforce the marital termination agreement and issued an order after the hearing which, among other things, required Irwin to establish a $126,916.00 trust with Linda as the beneficiary. Irwin appealed, asserting that he was denied due process because the trial court's orders exceeded the relief requested by Linda in the Request for Orders and he had inadequate notice of the relief and that the family court impermissibly modified a judgment that was nonmodifiable on its terms.

On appeal, Irwin argued that he was denied due process because the court held a hearing and made orders on issues about which he had no notice.  Irwin challenged the family court's authority to issue orders beyond the scope of the notice. This raised a question of law which the court reviews de novo. (Herbst v. Swan (2002) 102 Cal. App. 4^th 813, 816[citations omitted].

" 'It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. (U.S. Const., [Amend.] XIV . . . .)' (In re Marriage of Lippel (1990) 51 Cal. 3d. 1160, 1166 [(Lippel)].) . . . [A] dissolution court cannot grant unrequested relief against a party who appears without affording that party notice and an opportunity to respond. [Citations.] Due process requires affording a litigant a reasonable opportunity, by continuance or otherwise, to respond to evidence or argument that is new, surprising, and relevant. [Citations.]" (In re Marriage of O'Connell (1992) 8 Cal.App. 4^th    565, 574.)

Here, the written Request for Orders sought "proof . . . that this [insurance] policy is or ever was in existence," and an order that the court "will insist on that proof." Irwin filed a response which indicated his written consent to this order. The transcript of the {Slip Opn. Page 10} brief hearing, is summarized above, speaks for itself. The Family Law court, on its own volition, chose to treat the Request for Orders as more than an Order to Disclose Insurance Information, and awarded relief far in excess of what was sought.

The Court of Appeal agreed with Irwin that the trial court erred by issuing an order that far exceeded the relief requested by Linda, and reversed.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed

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How to Get An Estimate of the Amount of Child Support that Will Be Ordered

California has a calculator at its website that will estimate the amount of child support that can be ordered. Before going there, you should gather all of your financial information together. You will need to estimate the amount of time the children will spend with you as a percentage. For example, the estimate might be fifty percent. You will use your tax records, pay stubs, health insurance records, any business expenses if you are self-employed, as well as mortgage and property tax records, required union dues, retirement contributions, etc., to fill in the information on the forms. Once you have gathered all of your financial records together, plug the numbers from your records into the calculator that can be found here.

Go to Calculator


WARNING: This calculator provides an estimate of the amount of child support that a court will order to be paid. It is based on California Child Support Guidelines. But the Court Commissioner or Family Law Judge will have the final authority to determine the amount of a child support order. This estimate should not be construed as a guarantee of how much child support will be ordered in your particular case. There could be additional factors that are not being considered in your calculation that will impact the actual amount of child support ordered in your case.

If you have any questions about the child support guidelines, you should talk with your lawyer or contact a family law facilitator where your case has been filed.

Also, as many cusotdial parents have found out the hard way, a court order is not the same thing as a timely payment.  You may need to take the order to your local agency in charge of enforcing child support orders to receive payments.  These agencies can try to collect child suppor by garnishing wages, obtaining tax refund checks, withholding licenses, such as professional licenses and drivers licenses, etc.


copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

For more information, we recommend these books from NOLO press that have helped others understand the process of collecting child support.  Good luck.

A Will Can Be Reformed After Death Under the Right Circumstances.

No, this case does not address a vampire coming back to life after death and revising his will. Instead, the court addresses the question of who takes under a handwritten will when the will does not specify what happens if the spouse dies first. Here, the will only specified that if the couple died together, the property would go to charity and if the spouse lived, all but one dollar would go to her. The California Supreme Court finds that a will can be reformed after the testator’s death if  (1) a mistake is made and (2) clear, unambiguous evidence of the testator’s intent is found.

Irving Duke prepared a holographic will when he was in his 70's providing that, upon his death, his wife who was then in her 50's, would inherit his estate and that if he and his wife died at the same time, specific charities would inherit his estate. But his handwritten will did not contain a provision addressing the disposition of his estate if, as actually occurred, he lived longer than his wife. The specified charities contend that at the time the testator wrote his will, he specifically intended to provide in his will that the charities would inherit his estate in the event his wife was not alive when he died. But the lower courts excluded extrinsic evidence of the testator's intent, finding that the will was unambiguous and failed to provide for the circumstance in which his wife predeceased him. Therefore, the lower courts ruled that Duke died intestate, and entered a judgment in favor of the heirs who claimed their intestate share of the will.

The California Supreme Court granted review in Estate of Duke (2015) - Cal.4th _, Case. No. S199435. July 27, 2015, to reconsider the historical rule that extrinsic evidence is inadmissible to reform an unambiguous will. The Supreme Court ruled that the categorical bar on reformation of wills is not justified, and held that an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator's intent at the time the will was drafted and also establishes the testator's actual specific intent at the time the will was drafted.

The Supreme Court further concluded that the charities' theory that the testator actually intended at the time he drafted his will to provide that his estate would pass to the charities in the event his wife was not alive to inherit the estate is sufficiently particularized, with respect to the existence of such a mistake and the testator's intent, that the remedy of reformation is available so long as clear and convincing evidence on both points is demonstrated. Therefore, the case was remanded to the probate court for consideration of whether clear and convincing evidence establishes that such a mistake occurred at the time the will was written by Irving Duke, whether Duke intended his estate to pass to the charities in the event his wife was not alive to inherit the estate when he died.

This case reminds everyone of the importance of making a will and addressing each possible contingency that can occur and what you want to happen in the event that it does or does not occur. Although the probate court will try to accommodate Duke’s wishes if they are found to be unambiguously clear, it is better to do this yourself so that the court can’t misinterpret what you want.  This will also help to avoid a litigation battle among potential beneficiaries of the will. If you made a will that leaves your estate to your spouse when you married, you probably need a new will after you divorce. Also, if one spouse dies, you likely need a new will.  Although you can draft a holographic will if you are reading this in California, this case demonstrates the danger that can occur if the will you draft is found to not be adequate to address all potential circumstances.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.