If your ex continuously files frivolous motions to modify child support or spousal support orders you can file a motion that requests monetary sanctions.
Sanctions under Code of Civil Procedure section 128.7 (section 128.7) may be appropriate if you can establish that the most recent motion has no merit and it was filed for an improper purpose. Section 128.7 states that attorneys and parties certify that every pleading and motion “is not being presented primarily for an improper purpose, such as to harass,” and that the allegations in the motion “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (§ 128.7, subd. (b)(1) & (3).) The primary purpose of section 128.7 is to deter filing abuses. (Musaelian v. Adams (2009) 45 Cal.4th 512, 519.) Essentially, “the statute imposes a continuing obligation on a party and counsel to insure that claims are factually and legally sound.” (Rubenstein v. Doe No. 1 (2016) 245 Cal.App.4th 1037, 1052.)
Section 128.7 “requires only that the conduct be objectively unreasonable.” (In re
Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.) Sanctions are warranted
when a pleading or motion is filed “not to assert any arguably legitimate legal right but to
frustrate and impede” the other party. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1422 (Hopkins.)
A support order is modifiable upon a material change of circumstances since the last order. But where there is no substantial evidence of a material change of circumstances, an order modifying a support order will be overturned for abuse of discretion. (See, In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) In other words, a material change in circumstances is a proper purpose for filing a request for modification of support obligations, but where there is no material change in circumstances, sanctions may be appropriate if the motion was filed for an improper purpose, especially if there has been a succession of motions based upon the same facts that have been repeatedly rejected by the court.
If you believe that a request for sanctions is appropriate, the motion requesting sanctions must be filed separately from other motions or requests and it must describe the specific conduct alleged to violate subdivision (b). In other words, it must point out why the prior motion requesting a modification was not based on any new facts or changed material circumstance from the previous motion that had been rejected.
But if the other party withdraws the offending motion or appropriately corrects it, sanctions are not warranted.
If the court finds that sanctions are appropriate under section 128.7, the court may order your ex to pay your reasonable expenses, such as filing fees, and attorney's fees incurred in presenting or opposing the motion. Even if you are not represented by an attorney in court, if you have been hiring an attorney to prepare your court papers, you can request to be reimbursed. Absent exceptional circumstances, a law firm is held jointly responsible for violations committed by its partners, associates, and employees under section 128.7.
This is an area where an experienced Family Law attorney can be of great assistance to you. Good luck.
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.
Sunday, June 19, 2016
Wednesday, March 23, 2016
When Earning Capacity Changes a Court May Grant a Modification of Spousal Support in California
"Alimony is like buying hay for a dead horse."- Groucho Marx
Life happens. Circumstances change. Courts are aware of this and the law contemplates that even after an order for spousal support is made if the circumstances change sufficiently, the court may need to modify or terminate the order. This article addresses the law on what constitutes a change in “earning capacity” when a party seeks a modification of a spousal support order.
Family Code section 3651, subdivision (a), provides, in relevant part, that “a support order may be modified or terminated at any time as the court determines to be necessary.” It is well established that “ ‘[m]odification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.]’ [Citation.]” (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1475 (Khera).) Therefore, “ ‘[a] motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order. [Citation.] Otherwise, dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants “ ‘are entitled to attempt, with some degree of certainty, to reorder their finances and life style [sic] in reliance upon the finality of the decree.’ ” [Citation.]
Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order. [Citation.]’ [Citation.]” (Khera, supra, 206 Cal.App.4th at p. 1479.)
A material change of circumstances “ means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. It includes all factors affecting need and ability to pay.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) The moving party has the burden of showing a material change of circumstances since the last order was made.
“[F]or purposes of determining support, ‘earning capacity’ represents the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.” (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.)
Family Code section 4320 states in pertinent part: "In ordering spousal support under this part, the court shall consider all of the following circumstances: "(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
"(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. "
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.”
Many spousal support orders contain a Gavron warning. The court in In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron) states: “ ‘[T]he Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self supporting.’ [Citations.]” (Id. at p. 711.)
Here are some examples from previous cases regarding how courts have resolved whether the moving party met the burden of establishing that earning capacity has changed to modify the spousal support order:
(1) . Passage of time when this is not addressed in the settlement agreement. “Although the passage of time may be related to a change in circumstances, it is not alone a sufficient basis for modification. [Citation.]”(In re Marriage of Gavron (1988) 203 Cal.App.3d 709, 710.) (See, e.g., In re Marriage of Jones (1990) 222 Cal.App.3d 505, 509 [marital settlement agreement provided for specific support payments for identified time periods].)
(2) The moving party must support the request for modification with evidence, not speculation. An allegation of changed earning capacity must be supported by evidence, not speculation. “ ‘[S]peculation or conjecture alone is not substantial evidence.’ [Citation.]” (In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 25, fn. 21.)
(3) When the court orders a spouse to be retrained and the party fails to make a reasonable effort to get training this may be sufficient to establish a changed circumstance. In In re Marriage of Shaughnessy (2006) 139 Cal.App. 4th 1225, the trial court issued a spousal support order that specified that the wife “needs to be retrained and obtain computer skills,” based on the court’s findings that she did not possess marketable skills and had been employed as a florist during the marriage. (Id. at p. 1232.) The trial court granted the husband’s motion for a downward modification of spousal support because the evidence showed a change of circumstances justifying modification. Specifically, the court found that the wife “had done little, if anything, to obtain retraining to increase her income, and that she had not otherwise been diligent in attempting to become self-supporting.” (Id. at p. 1240.)
(4) Evidence by a vocational expert may provide sufficient evidence of changed earning capacity.
A vocational expert’s evaluation of the party’s earning capacity can provide sufficient evidence of an earning capacity change. (See, e.g., In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 212 [vocational examination report].) These are only a few examples. But I hope these have helped you to t;hink about the evidence you will need to provide the court to establish a change in “earning capacity.”
In most cases, discovery will need to be conducted and in many cases a vocational expert may be needed to support an order for modification of spousal support or to contest the opposing party’s request for such an order. This is an area where an experienced Family Law attorney can be of great assistance to you. Good luck.
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.
Disclosure: If you click on the Amazon link below, and buy today, we may receive a small commission of about 3 percent that will not increase your cost of the item purchased. This will be used to keep more Family Law Help CA coming your way. Thank you.
Life happens. Circumstances change. Courts are aware of this and the law contemplates that even after an order for spousal support is made if the circumstances change sufficiently, the court may need to modify or terminate the order. This article addresses the law on what constitutes a change in “earning capacity” when a party seeks a modification of a spousal support order.
Family Code section 3651, subdivision (a), provides, in relevant part, that “a support order may be modified or terminated at any time as the court determines to be necessary.” It is well established that “ ‘[m]odification of spousal support, even if the prior amount is established by agreement, requires a material change of circumstances since the last order. [Citations.]’ [Citation.]” (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1475 (Khera).) Therefore, “ ‘[a] motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order. [Citation.] Otherwise, dissolution cases would have no finality and unhappy former spouses could bring repeated actions for modification with no burden of showing a justification to change the order. Litigants “ ‘are entitled to attempt, with some degree of certainty, to reorder their finances and life style [sic] in reliance upon the finality of the decree.’ ” [Citation.]
Absent a change of circumstances, a motion for modification is nothing more than an impermissible collateral attack on a prior final order. [Citation.]’ [Citation.]” (Khera, supra, 206 Cal.App.4th at p. 1479.)
A material change of circumstances “ means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. It includes all factors affecting need and ability to pay.” (In re Marriage of West (2007) 152 Cal.App.4th 240, 246.) The moving party has the burden of showing a material change of circumstances since the last order was made.
“[F]or purposes of determining support, ‘earning capacity’ represents the income the spouse is reasonably capable of earning based upon the spouse’s age, health, education, marketable skills, employment history, and the availability of employment opportunities.” (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234.)
Family Code section 4320 states in pertinent part: "In ordering spousal support under this part, the court shall consider all of the following circumstances: "(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
"(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. "
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.”
Many spousal support orders contain a Gavron warning. The court in In re Marriage of Gavron (1988) 203 Cal.App.3d 705 (Gavron) states: “ ‘[T]he Legislature intended that all supported spouses who were able to do so should seek employment. It also appears the Legislature expected that courts would issue orders encouraging these spouses to seek employment and to work toward becoming self supporting.’ [Citations.]” (Id. at p. 711.)
Here are some examples from previous cases regarding how courts have resolved whether the moving party met the burden of establishing that earning capacity has changed to modify the spousal support order:
(1) . Passage of time when this is not addressed in the settlement agreement. “Although the passage of time may be related to a change in circumstances, it is not alone a sufficient basis for modification. [Citation.]”(In re Marriage of Gavron (1988) 203 Cal.App.3d 709, 710.) (See, e.g., In re Marriage of Jones (1990) 222 Cal.App.3d 505, 509 [marital settlement agreement provided for specific support payments for identified time periods].)
(2) The moving party must support the request for modification with evidence, not speculation. An allegation of changed earning capacity must be supported by evidence, not speculation. “ ‘[S]peculation or conjecture alone is not substantial evidence.’ [Citation.]” (In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 25, fn. 21.)
(3) When the court orders a spouse to be retrained and the party fails to make a reasonable effort to get training this may be sufficient to establish a changed circumstance. In In re Marriage of Shaughnessy (2006) 139 Cal.App. 4th 1225, the trial court issued a spousal support order that specified that the wife “needs to be retrained and obtain computer skills,” based on the court’s findings that she did not possess marketable skills and had been employed as a florist during the marriage. (Id. at p. 1232.) The trial court granted the husband’s motion for a downward modification of spousal support because the evidence showed a change of circumstances justifying modification. Specifically, the court found that the wife “had done little, if anything, to obtain retraining to increase her income, and that she had not otherwise been diligent in attempting to become self-supporting.” (Id. at p. 1240.)
(4) Evidence by a vocational expert may provide sufficient evidence of changed earning capacity.
A vocational expert’s evaluation of the party’s earning capacity can provide sufficient evidence of an earning capacity change. (See, e.g., In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 212 [vocational examination report].) These are only a few examples. But I hope these have helped you to t;hink about the evidence you will need to provide the court to establish a change in “earning capacity.”
In most cases, discovery will need to be conducted and in many cases a vocational expert may be needed to support an order for modification of spousal support or to contest the opposing party’s request for such an order. This is an area where an experienced Family Law attorney can be of great assistance to you. Good luck.
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.
Disclosure: If you click on the Amazon link below, and buy today, we may receive a small commission of about 3 percent that will not increase your cost of the item purchased. This will be used to keep more Family Law Help CA coming your way. Thank you.
Thursday, November 26, 2015
In re Marriage of Smith: Trial Court Did Not Err in Awarding Monetary Sanctions for Over Zealous Advocacy
In re Marriage of Smith (2015), 242 Cal. 4th 529, affirmed a trial court’s award of monetary sanctions under Family Code sections 2030 and 271. The trial court ordered appellant Kierstin A. Smith (Kierstin) to pay $124,352 to claimant and respondent Cindy Smith (Cindy), and $151,967, subject to a specified offset, to respondent Mark Lee Smith (Mark).
On appeal, appellant contended the trial court erred by combining cost shifting pursuant to section 2030 with sanctions pursuant to section 271, making no explicit differentiation between sums awarded pursuant to each statute. She further contends that the trial court abused its discretion in making an award under either statute.
Although the marriage of Mark and Kierstin dissolved in 2002, they remained engaged in litigation regarding child custody and support, which expanded to involve Cindy, who is Mark's current wife. In December 2008, Mark applied for post-judgment modification of child support, attorney fees, and sanctions. In January 2010, Mark's January sought a change in child custody. In August 2012, Kierstin's applied for a modification of child support. A trial of the substantive issues was concluded on June 27, 2013.
The trial court findings of fact included the observations that "[Kierstin] and her counsels' zealous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith. The trial court found that the underlying case was not complicated but was made complicated by the overzealous litigation on [Kierstin's] counsels' part and [Kierstin's] complete abandonment of the litigation process." The trial court described the proceedings as a "morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially."
The trial court further found Kierstin to have "no concern about the level of her attorney fees because her father [Robert Hemborg] was committed to paying those fees and costs whatever the amount." The trial court noted that "Robert Hemborg testified at trial that [Kierstin] was due to inherit six (6) million dollars upon his death," and found that the amounts given to Kierstin for her fees and costs were "a loan against [Kierstin's] inheritance"; though Kierstin had reimbursed her father a "trivial" amount.
The trial court found Kierstin's attorneys had already been paid $322,653.39, and they were owed another $19,975.50, as of July 3, 2013. In comparison, as of that date, Mark had paid $123,257.65 to his attorneys and owed another $103,559.30. As of June 20, 2013, Cindy had paid $54,009.06 to her attorneys and owed another $122,660.34.
Section 2030 requires that the trial court "ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a)(1).)
In determining the necessity of making such an award, the trial court must determine what award would be "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) The factors to be considered in determining the relative circumstances of the parties include, to the extent relevant, those used for determining spousal support, enumerated in section 4320, including the catchall "[a]ny other factors the court determines are just and equitable." (§§ 4320, subd. (n); 2032, subd. (b).) Payment of an award under section 2030 may be ordered "from any type of property, whether community or separate, principal or income." (§ 2032, subd. (c).)
The trial court properly considered the funds Kierstin’s father paid to Kierstin’s attorneys on her behalf in determining the parties’ relative circumstances. In analogous family law contexts, courts have held that “where a party receives recurring gifts of money, the trial court has discretion to consider that money as income . . . .” (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 722-723 (Alter).) Alter specifically involved the question of whether gifts should be considered income for purposes of determining child support payments. (Alter, supra, 171 Cal.App.4th at p. 723.) Even if characterized as a loan, an advance against a party’s share of an expected inheritance is properly treated as a gift. (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1313-1314 [discussing authority regarding advancements on inheritance].)
Although Kirsten argued that any gifts made by her father for her own attorney’s fees would not mean she would have continuing access to his funds to pay the other parties’ fees, the appellate court rejected this argument finding that “[i]t is irrelevant that there is no legal obligation on the part of the donor to continue making the gifts . . . ." (Alter, supra, 171 Cal.App.4th at pp. 736-737.) Thus, the appellate court found that the trial court acted within its discretion by rejecting Kierstin's plea of poverty for purposes of apportioning the overall cost of the litigation equitably between the parties. Mark and Cindy were awarded their costs on appeal.
Because the court had decided the issue regarding Section 2-030 sanctions adverse to appellant, the appellate court declined to review the section 271 sanctions issue.
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.
Disclosure; If you click on the Amazon link below you will be directed to the Amazon website. We have not received anything from the author or publisher of these books in exchange for our recommendation but we might receive a small commission if you click the link and make a purchase. Thank you.
On appeal, appellant contended the trial court erred by combining cost shifting pursuant to section 2030 with sanctions pursuant to section 271, making no explicit differentiation between sums awarded pursuant to each statute. She further contends that the trial court abused its discretion in making an award under either statute.
Facts
Although the marriage of Mark and Kierstin dissolved in 2002, they remained engaged in litigation regarding child custody and support, which expanded to involve Cindy, who is Mark's current wife. In December 2008, Mark applied for post-judgment modification of child support, attorney fees, and sanctions. In January 2010, Mark's January sought a change in child custody. In August 2012, Kierstin's applied for a modification of child support. A trial of the substantive issues was concluded on June 27, 2013.
The trial court findings of fact included the observations that "[Kierstin] and her counsels' zealous advocacy crossed the line and became unreasonable, unduly burdensome and at times an exercise in bad faith. The trial court found that the underlying case was not complicated but was made complicated by the overzealous litigation on [Kierstin's] counsels' part and [Kierstin's] complete abandonment of the litigation process." The trial court described the proceedings as a "morass of litigation, the primary purpose of which was to ruin [Cindy and Mark] financially."
The trial court further found Kierstin to have "no concern about the level of her attorney fees because her father [Robert Hemborg] was committed to paying those fees and costs whatever the amount." The trial court noted that "Robert Hemborg testified at trial that [Kierstin] was due to inherit six (6) million dollars upon his death," and found that the amounts given to Kierstin for her fees and costs were "a loan against [Kierstin's] inheritance"; though Kierstin had reimbursed her father a "trivial" amount.
The trial court found Kierstin's attorneys had already been paid $322,653.39, and they were owed another $19,975.50, as of July 3, 2013. In comparison, as of that date, Mark had paid $123,257.65 to his attorneys and owed another $103,559.30. As of June 20, 2013, Cindy had paid $54,009.06 to her attorneys and owed another $122,660.34.
Family Code Section 2030
Section 2030 requires that the trial court "ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." (§ 2030, subd. (a)(1).)
In determining the necessity of making such an award, the trial court must determine what award would be "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) The factors to be considered in determining the relative circumstances of the parties include, to the extent relevant, those used for determining spousal support, enumerated in section 4320, including the catchall "[a]ny other factors the court determines are just and equitable." (§§ 4320, subd. (n); 2032, subd. (b).) Payment of an award under section 2030 may be ordered "from any type of property, whether community or separate, principal or income." (§ 2032, subd. (c).)
The trial court properly considered the funds Kierstin’s father paid to Kierstin’s attorneys on her behalf in determining the parties’ relative circumstances. In analogous family law contexts, courts have held that “where a party receives recurring gifts of money, the trial court has discretion to consider that money as income . . . .” (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 722-723 (Alter).) Alter specifically involved the question of whether gifts should be considered income for purposes of determining child support payments. (Alter, supra, 171 Cal.App.4th at p. 723.) Even if characterized as a loan, an advance against a party’s share of an expected inheritance is properly treated as a gift. (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1313-1314 [discussing authority regarding advancements on inheritance].)
Although Kirsten argued that any gifts made by her father for her own attorney’s fees would not mean she would have continuing access to his funds to pay the other parties’ fees, the appellate court rejected this argument finding that “[i]t is irrelevant that there is no legal obligation on the part of the donor to continue making the gifts . . . ." (Alter, supra, 171 Cal.App.4th at pp. 736-737.) Thus, the appellate court found that the trial court acted within its discretion by rejecting Kierstin's plea of poverty for purposes of apportioning the overall cost of the litigation equitably between the parties. Mark and Cindy were awarded their costs on appeal.
Family Code section 271
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.
Disclosure; If you click on the Amazon link below you will be directed to the Amazon website. We have not received anything from the author or publisher of these books in exchange for our recommendation but we might receive a small commission if you click the link and make a purchase. Thank you.
Sunday, October 18, 2015
In re Marriage of Lafkas: Was Private Property Transmuted Into Community Property?
In In re Marriage of Lafkas (2015) 237 Cal.App.4th 921, the appellate court was asked to determine whether the husband’s private property had been transmuted [changed] into community property during the marriage when a new partnership agreement was formed that included the wife's name in the new partnership agreement.
The husband (John) owned one-third of a real estate partnership for several years prior to marrying his wife (Jean). During the parties' marriage, the partnership modified the partnership agreement. The modified agreement stated the names of each partner, including husband and wife as owners of a one-third interest. Jean and John filed for dissolution within a year of signing the new partnership agreement. On appeal, John contends the partnership interest is his separate property because the documents do not contain an express declaration transmuting the character of the property interest as required under Family Code section 852. Jean asserts that the partnership interest is community property under the joint title presumption of section 2581, which provides that property acquired during marriage in joint form is presumed to be community property.
The trial court ruled that modification to the partnership agreement transmuted the private property into community property. The trial court pointed to language in the partnership agreement referring to the the parties as “Husband and Wife.” Using this the trial court found that under Section 852, subdivision (a), a transmutation occurred. The court also found that John did not intend to change the character of his separate property. John was ordered to pay $195,500 in attorney’s fees to Jean. John appealed.
A married person may transmute the character of property from separate to community or from community to separate by agreement or transfer, with or without consideration. (§ 850.) However, the transmutation must meet statutory requirements to be valid. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293 [39 Cal.Rptr.2d 673].) "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." (§ 852, subd. (a).) The express declaration must unambiguously indicate a change in character or ownership of property. Though no particular terminology is required [citation], the writing must reflect a transmutation on its face, and must eliminate the need to consider other evidence in divining this intent. [Citation.]" (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1106-1107 [32 Cal.Rptr.3d 471, 116 P.3d 1152].) "The express declaration must unambiguously indicate a change in character or ownership of property. [Citation.] A party does not `slip into a transmutation by accident.' [Citation.]" (In re Marriage of Starkman, supra, at p. 664.)
Here, the appellate court held that the partnership agreement signed by both John and Jean did not meet that requirement. A valid transmutation requires more than simply naming one or both spouses as the owner in a title document. The court states the language used must show that the adversely affected party understood that he or she changed the character of the property. That language was not present in the subsequent partnership agreement.
Thus, for a transmutation to occur, the express language must indicate a clear understanding in writing that the character or ownership of specific property has been changed. The appellate court reversed the partnership’s community property characterization. It also reversed the fees order. The appellate court held that when the provisions of sections 2581 and 852 conflict, the transmutation requirements of section 852 must be met before the joint title presumption of section 2581 applies.
Additionally, the case was remanded for the trial court to consider whether loans used to acquire the Riverside property were made in reliance upon community assets.
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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The husband (John) owned one-third of a real estate partnership for several years prior to marrying his wife (Jean). During the parties' marriage, the partnership modified the partnership agreement. The modified agreement stated the names of each partner, including husband and wife as owners of a one-third interest. Jean and John filed for dissolution within a year of signing the new partnership agreement. On appeal, John contends the partnership interest is his separate property because the documents do not contain an express declaration transmuting the character of the property interest as required under Family Code section 852. Jean asserts that the partnership interest is community property under the joint title presumption of section 2581, which provides that property acquired during marriage in joint form is presumed to be community property.
Fact Summary
John formed a real property investment partnership with two friends in 1972. Each partner received a one-third interest. The partnership later purchased a property in Monrovia which was sufficient to meet all the property’s expenses. John was listed as an unmarried man on the statement of partnership. John married Jean in 1990. In 1995, the partnership bought a property in Riverside in a tax deferred exchange. The Riverside property’s cost exceeded the funds realized from the Monrovia sale. The partners applied for a loan to finance the balance of the purchase price. John believed Jean was required to participate in the transaction. Jean was added to the partnership as a joint holder of a one-third interest with John. The agreement was then recorded with the state. Ten months later John and Jean separated. John believed he owned one-third of the Partnership before and after the modification. John never intended to change its character.Trial Court’s Ruling
The trial court ruled that modification to the partnership agreement transmuted the private property into community property. The trial court pointed to language in the partnership agreement referring to the the parties as “Husband and Wife.” Using this the trial court found that under Section 852, subdivision (a), a transmutation occurred. The court also found that John did not intend to change the character of his separate property. John was ordered to pay $195,500 in attorney’s fees to Jean. John appealed.
Appellate Court Decision
A married person may transmute the character of property from separate to community or from community to separate by agreement or transfer, with or without consideration. (§ 850.) However, the transmutation must meet statutory requirements to be valid. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293 [39 Cal.Rptr.2d 673].) "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." (§ 852, subd. (a).) The express declaration must unambiguously indicate a change in character or ownership of property. Though no particular terminology is required [citation], the writing must reflect a transmutation on its face, and must eliminate the need to consider other evidence in divining this intent. [Citation.]" (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1106-1107 [32 Cal.Rptr.3d 471, 116 P.3d 1152].) "The express declaration must unambiguously indicate a change in character or ownership of property. [Citation.] A party does not `slip into a transmutation by accident.' [Citation.]" (In re Marriage of Starkman, supra, at p. 664.)
Here, the appellate court held that the partnership agreement signed by both John and Jean did not meet that requirement. A valid transmutation requires more than simply naming one or both spouses as the owner in a title document. The court states the language used must show that the adversely affected party understood that he or she changed the character of the property. That language was not present in the subsequent partnership agreement.
Thus, for a transmutation to occur, the express language must indicate a clear understanding in writing that the character or ownership of specific property has been changed. The appellate court reversed the partnership’s community property characterization. It also reversed the fees order. The appellate court held that when the provisions of sections 2581 and 852 conflict, the transmutation requirements of section 852 must be met before the joint title presumption of section 2581 applies.
Additionally, the case was remanded for the trial court to consider whether loans used to acquire the Riverside property were made in reliance upon community assets.
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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Thursday, October 8, 2015
California Spousal Support - Also Known as Alimony, Will You Need to Pay It?
When a couple legally separates or divorces in California, the court has authority to order one spouse or domestic partner to pay the other support money each month for a specified period of time or an unlimited amount of time, depending on the facts of the case. This is called “spousal support” for married couples, “partner support” in domestic partnerships, and it is sometimes referred to as “alimony.”
In order to receive spousal or partner support, one party has to file a case for dissolution and request the court to make an order for “temporary spousal support” or a “temporary partner support order.” When support is ordered after the divorce or legal separation becomes final, as part of the final divorce or separation judgment, this is called permanent (or long-term) spousal or partner support.
Generally, in a marriage of less than 10 years the spousal support award can be for half the duration of the marriage. But with a long-term marriage of greater than ten years, the spousal support award can be indefinite.
The factors a court must consider when reviewing a request for spousal support are found in Family Code section 4320. Family Code 4320, subdivision (a), provides, “The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
But Family Code section 4321, provides, “In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:
(a) The party has separate property, or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the party proper support.
(b) The custody of the children has been awarded to the other party, who is supporting them.
Family Code section 4322, provides that "where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party."
Thus, there are a variety of circumstances that affect the court's decision to award spousal support but primary among those considerations is the length of the marriage or domestic partnership. The law says that, in general, a “reasonable period of time” for spousal support order may be one-half the length of the marriage/partnership. But the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.
But an important exception occurs when a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more). In that circumstance, a judge may not set an end date to the spousal or partner support.
The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. A recent court decision, In re Marriage of Davis, decided on July 20, 2015, states that one party must move away from the marital home for a couple to legally separate in California.
Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.
Furthermore, when deciding spousal or partner support, the judge must take into account any documented evidence of a history of domestic violence between the parties. When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported. But the judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. There is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner. This means that, in general, the court won’t do this unless the party seeking support shows exceptional circumstances which merit a spousal support award.
For further information on this topic, speak to an experienced Family Law attorney, or if you cannot afford an attorney speak to the Family Law Facilitator at your local court, and go to a local law library to obtain additional information or use a book that explains Family Law to help you. Good luck.
In order to receive spousal or partner support, one party has to file a case for dissolution and request the court to make an order for “temporary spousal support” or a “temporary partner support order.” When support is ordered after the divorce or legal separation becomes final, as part of the final divorce or separation judgment, this is called permanent (or long-term) spousal or partner support.
Generally, in a marriage of less than 10 years the spousal support award can be for half the duration of the marriage. But with a long-term marriage of greater than ten years, the spousal support award can be indefinite.
The factors a court must consider when reviewing a request for spousal support are found in Family Code section 4320. Family Code 4320, subdivision (a), provides, “The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to
acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property,
of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
But Family Code section 4321, provides, “In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:
(a) The party has separate property, or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the party proper support.
(b) The custody of the children has been awarded to the other party, who is supporting them.
Family Code section 4322, provides that "where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party's proper support, no support shall be ordered or continued against the other party."
Further, Family Code section 4323, subdivision (a)(1) provides, "Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a non-marital partner."
Thus, there are a variety of circumstances that affect the court's decision to award spousal support but primary among those considerations is the length of the marriage or domestic partnership. The law says that, in general, a “reasonable period of time” for spousal support order may be one-half the length of the marriage/partnership. But the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.
But an important exception occurs when a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more). In that circumstance, a judge may not set an end date to the spousal or partner support.
The length of the marriage or domestic partnership is generally from the date of the marriage to the date of the separation. Because the date of separation can have very important consequences when it comes to deciding spousal or partner support, the parties in a divorce or separation case may not be able to agree on a date of separation, and the judge may have to decide what that date will be. A recent court decision, In re Marriage of Davis, decided on July 20, 2015, states that one party must move away from the marital home for a couple to legally separate in California.
Also, the judge can take into account the periods of separation during the marriage/partnership in deciding if the marriage/partnership is of long duration.
Furthermore, when deciding spousal or partner support, the judge must take into account any documented evidence of a history of domestic violence between the parties. When the spouse or partner that would pay the support is the abusive person, the judge will consider any emotional distress resulting from the violence suffered by the spouse or partner to be supported. But the judge will also consider any history of violence at the hands of the spouse or partner to be supported against the person that would pay the support. There is a rebuttable presumption against giving spousal or partner support to an abusive spouse or partner who has a criminal conviction for domestic violence against the other spouse or partner. This means that, in general, the court won’t do this unless the party seeking support shows exceptional circumstances which merit a spousal support award.
For further information on this topic, speak to an experienced Family Law attorney, or if you cannot afford an attorney speak to the Family Law Facilitator at your local court, and go to a local law library to obtain additional information or use a book that explains Family Law to help you. Good luck.
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.
Dislcaimer: if you click the links below you will be directed to the Amazon website. The following books have been found helpful to some people. who cannot afford to retain a Family Law lawyer or who want to better understand the divorce process. Good luck.
Saturday, October 3, 2015
What Happens After California Divorce Papers Are Served?
You’ve just received your divorce papers and with a bunch of emotions swirling around, you may not be thinking clearly right now. But did you know that the receipt of these papers requires that you may not take certain actions?
Here is the list of temporary court restraining orders that are contained in the Summons when your divorce papers are personally served on you in California:
(1) You may not remove a minor child [a child under 18 years old] of both parties from the state. This only applies to children who are presently residing in California. It does not require any parent who has already moved out of state with a minor child to return to California.
(2) You may not apply for a passport or a replacement passport for a minor child of both parties without the permission of the other party (parent) or a court order.
(3) You may not cash, borrow against, cancel, transfer, dispose of, or change the beneficiary of any insurance or other coverage, including life, health, auto, and disability insurance that is held for the benefit of the parties and their minor children.
(4) You may not transfer, encumber [borrow against], hypothecate [pledge money for a specific purpose], conceal, or in any way dispose, of any property, real [real estate] or personal [all other property], whether community, quasi-community, or separate without the prior consent of the other party or a court order, except in the ordinary course of business or for the necessities of life.
(5) You may not create a nonprobate transfer, or modify a nonprobate transfer, in a manner that affects the disposition of property subject to the transfer without the prior consent of the other party or a court order. Before a revocation of a nonprobate transfer can take effect, or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.
(6) You must notify the other party at least five business days in advance of any extraordinary expenses before paying these expenses, but this does not apply to the payment of attorneys’ fees or court fees, nor does it apply to the necessities of life, such as food, shelter, clothing, etc.
Additionally, you have 30 days to file a response to the papers requesting a dissolution or the court can enter a default judgment against you.
If you’ve recently been served with a Summons for a Family Law dissolution, it is highly suggested that you retain an experienced Family Law attorney as quickly as possible. If you cannot afford to retain a private attorney, look into low-cost legal services that are provided by some law firms or seek out private attorneys who will consult with you on the case, and even prepare some forms for you as needed, which is called unbundled legal services.
At very least, obtain a good book that explains how to prepare your own case and seek assistance from the Family Law Facilitator at your local court house, as well as the local law library. Although librarians who are not licensed lawyers, cannot give you legal advice, they can point you to all the information you need to prepare your case.
Additionally, if you have young children, watch some of the videos on You Tube by the children of parents getting divorced. These children continually ask their parents to keep them out of the disagreements and try to remain friends and maintain civility throughout the process. This will open your eyes and serve as a reminder to always remain cool even when you want to explode.
Best wishes,
Here is the list of temporary court restraining orders that are contained in the Summons when your divorce papers are personally served on you in California:
(1) You may not remove a minor child [a child under 18 years old] of both parties from the state. This only applies to children who are presently residing in California. It does not require any parent who has already moved out of state with a minor child to return to California.
(2) You may not apply for a passport or a replacement passport for a minor child of both parties without the permission of the other party (parent) or a court order.
(3) You may not cash, borrow against, cancel, transfer, dispose of, or change the beneficiary of any insurance or other coverage, including life, health, auto, and disability insurance that is held for the benefit of the parties and their minor children.
(4) You may not transfer, encumber [borrow against], hypothecate [pledge money for a specific purpose], conceal, or in any way dispose, of any property, real [real estate] or personal [all other property], whether community, quasi-community, or separate without the prior consent of the other party or a court order, except in the ordinary course of business or for the necessities of life.
(5) You may not create a nonprobate transfer, or modify a nonprobate transfer, in a manner that affects the disposition of property subject to the transfer without the prior consent of the other party or a court order. Before a revocation of a nonprobate transfer can take effect, or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.
(6) You must notify the other party at least five business days in advance of any extraordinary expenses before paying these expenses, but this does not apply to the payment of attorneys’ fees or court fees, nor does it apply to the necessities of life, such as food, shelter, clothing, etc.
Additionally, you have 30 days to file a response to the papers requesting a dissolution or the court can enter a default judgment against you.
If you’ve recently been served with a Summons for a Family Law dissolution, it is highly suggested that you retain an experienced Family Law attorney as quickly as possible. If you cannot afford to retain a private attorney, look into low-cost legal services that are provided by some law firms or seek out private attorneys who will consult with you on the case, and even prepare some forms for you as needed, which is called unbundled legal services.
At very least, obtain a good book that explains how to prepare your own case and seek assistance from the Family Law Facilitator at your local court house, as well as the local law library. Although librarians who are not licensed lawyers, cannot give you legal advice, they can point you to all the information you need to prepare your case.
Additionally, if you have young children, watch some of the videos on You Tube by the children of parents getting divorced. These children continually ask their parents to keep them out of the disagreements and try to remain friends and maintain civility throughout the process. This will open your eyes and serve as a reminder to always remain cool even when you want to explode.
Best wishes,
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.
The book below is one of many self-help books available at Amazon that provides help and information to someone preparing a Family Law Case. If you click the link below and shop today we will receive a small commission of about 3-4 percent that will not increase the amount you pay. This money will be used to help us bring more Family Law Help Ca your way. Thank you for supporting our site.
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.
The book below is one of many self-help books available at Amazon that provides help and information to someone preparing a Family Law Case. If you click the link below and shop today we will receive a small commission of about 3-4 percent that will not increase the amount you pay. This money will be used to help us bring more Family Law Help Ca your way. Thank you for supporting our site.
Wednesday, September 30, 2015
In re Marriage of Oliverez - Trial Court Erred In Reconsidering Another Court’s Order 3 Years Later
In re Marriage of Oliverez (2015) __, Cal.App.__, Case No. H040955, involves a dissolution action between Appellant Donna Oliverez (Donna) and Respondent Mark Oliverez (Mark). Mark contended that they had reached a marital settlement agreement, but Donna disputed this and contended it was merely a proposed settlement agreement (hereafter "the Agreement"). Mark filed a motion to enforce judgment pursuant to Code of Civil Procedure section 664.6. The trial court denied the motion, finding the Agreement unenforceable. Thereafter, the case was reassigned to a different trial court judge. After a trial on the merits, the court reconsidered and vacated the first trial judge's finding that the Agreement was unenforceable. Donna appealed.
A trial court's discretion to reconsider another judge's prior ruling is necessarily narrow and usually only appropriate when the prior judge is unavailable. (Curtin v. Koskey (1991) 231 Cal.App.3d 873, 876-878 (Curtin).)
Code of Civil Procedure section 1008 governs parties' motions for reconsideration and their renewal of prior motions. It expressly specifies and limits the court's jurisdiction to reconsider a prior ruling or to entertain a renewed motion when such relief is sought by a party. A motion for reconsideration by a party must be filed within "10 days after service upon the party of written notice of the entry of the order" and the motion may be granted only "upon new or different facts, circumstances, or law," which matters must be shown by affidavit as part of the motion. (§ 1008, subd. (a).) Section 1008 governs parties' motions for reconsideration or their renewal of a prior motion "whether the order deciding the previous matter or motion is interim or final." (§ 1008, subd. (e).)
In Le Francois, the California Supreme Court considered whether, notwithstanding the provisions of section 1008, a trial court may "reconsider interim orders it has already made in the absence of new facts or new law [.]" (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1101 (La Francois).) In that case, the defendants brought a renewed motion for summary judgment based on the same grounds as their first motion. Vacating the prior ruling of the first trial judge, a second trial judge granted the renewed motion for summary judgment. (Id. at p. 1097.) The Supreme Court reversed on the ground that the defendants did not meet the statutory requirements for a motion for reconsideration. (Id. at p. 1109.) However, the court interpreted section 1008 "as imposing a limitation on the parties' ability to file repetitive motions, but not on the court's authority to reconsider its prior interim rulings on its own motion." (Id. at p. 1105, fn. omitted.) Thus, if the statutory requirements under section 1008 are not met, "any action to reconsider a prior interim order must formally begin with the court on its own motion." (Id. at p. 1108.) Here, the trial court, in its "Tentative Ruling on Court Trial," and later by formal notice, stated that it would reconsider the prior order on the Agreement on its own motion. Thus, although the trial court did not consider any new facts or new law, under Le Francois, it had the inherent authority to reconsider a prior interim order. (Ibid.)
However, Le Francois did not resolve the question of whether one trial judge may reverse the ruling of another trial judge. In Le Francois, the Supreme Court noted that the "Court of Appeal held that because the motion was transferred [to another judge] without objection, plaintiffs could not challenge the propriety of that transfer on appeal." (Le Francois, supra, 35 Cal.4th at p. 1097, fn. 2 (italics added).) The question of "when and under what circumstances one judge may revisit a ruling of another judge" was thus not on review, and the Supreme Court specifically left open that question. (Ibid.)
Generally, one trial court judge may not reconsider and overrule an interim ruling of another trial judge. (Curtin, supra, 231 Cal.App.3d 873; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 (Ziller); Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 493.) "This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. 'If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.' [Citation.]" (In re Alberto (2002) 102 Cal.App.4th 421, 427.) "For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court." (Ibid.)
However, there are narrow exceptions to this general rule. (See In re Alberto, supra, 102 Cal.App.4th at p. 430.) "[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion." (Ziller, supra, 206 Cal.App.3d at p. 1232.) Another exception is when the facts have changed or when the judge has considered further evidence and law. (People v. Riva (2003) 112 Cal.App.4th 981, 992-993 (Riva); Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 706.) Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. (Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1069 (Armstrong).) Mere disagreement, as here, with the prior trial judge's ruling, however, is not enough to overturn that ruling. (Riva, supra, at p. 992.)
No exception was established here. Additionally, the appellate court found that not only was the decision to overrule the prior ruling erroneous, but it also resulted in prejudice to Donna. The decision to overrule the first court’s decision came three years after the original ruling. As a consequence, both parties continued to litigate many of the issues that had been addressed in the Agreement over the course of three years, conducted a 15-day trial, and expended considerable time and resources. The parties did so in reliance on the original ruling that the terms of the Agreement were unenforceable. This reliance was reasonable. (Cf. Greene v. State Farm Fire & Casualty Co. (1990) 224 Cal.App.3d 1583, 1592.
Therefore, the appellate court held that under the circumstances of this case, once the court had determined that the Agreement was unenforceable, Donna had the right to believe the ruling was definitive. It follows that the reconsideration of the prior ruling on the Agreement resulted in unfairness to Donna and the case is reversed and remanded.
A trial court's discretion to reconsider another judge's prior ruling is necessarily narrow and usually only appropriate when the prior judge is unavailable. (Curtin v. Koskey (1991) 231 Cal.App.3d 873, 876-878 (Curtin).)
Code of Civil Procedure section 1008 governs parties' motions for reconsideration and their renewal of prior motions. It expressly specifies and limits the court's jurisdiction to reconsider a prior ruling or to entertain a renewed motion when such relief is sought by a party. A motion for reconsideration by a party must be filed within "10 days after service upon the party of written notice of the entry of the order" and the motion may be granted only "upon new or different facts, circumstances, or law," which matters must be shown by affidavit as part of the motion. (§ 1008, subd. (a).) Section 1008 governs parties' motions for reconsideration or their renewal of a prior motion "whether the order deciding the previous matter or motion is interim or final." (§ 1008, subd. (e).)
In Le Francois, the California Supreme Court considered whether, notwithstanding the provisions of section 1008, a trial court may "reconsider interim orders it has already made in the absence of new facts or new law [.]" (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1101 (La Francois).) In that case, the defendants brought a renewed motion for summary judgment based on the same grounds as their first motion. Vacating the prior ruling of the first trial judge, a second trial judge granted the renewed motion for summary judgment. (Id. at p. 1097.) The Supreme Court reversed on the ground that the defendants did not meet the statutory requirements for a motion for reconsideration. (Id. at p. 1109.) However, the court interpreted section 1008 "as imposing a limitation on the parties' ability to file repetitive motions, but not on the court's authority to reconsider its prior interim rulings on its own motion." (Id. at p. 1105, fn. omitted.) Thus, if the statutory requirements under section 1008 are not met, "any action to reconsider a prior interim order must formally begin with the court on its own motion." (Id. at p. 1108.) Here, the trial court, in its "Tentative Ruling on Court Trial," and later by formal notice, stated that it would reconsider the prior order on the Agreement on its own motion. Thus, although the trial court did not consider any new facts or new law, under Le Francois, it had the inherent authority to reconsider a prior interim order. (Ibid.)
However, Le Francois did not resolve the question of whether one trial judge may reverse the ruling of another trial judge. In Le Francois, the Supreme Court noted that the "Court of Appeal held that because the motion was transferred [to another judge] without objection, plaintiffs could not challenge the propriety of that transfer on appeal." (Le Francois, supra, 35 Cal.4th at p. 1097, fn. 2 (italics added).) The question of "when and under what circumstances one judge may revisit a ruling of another judge" was thus not on review, and the Supreme Court specifically left open that question. (Ibid.)
Generally, one trial court judge may not reconsider and overrule an interim ruling of another trial judge. (Curtin, supra, 231 Cal.App.3d 873; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 (Ziller); Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 493.) "This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. 'If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.' [Citation.]" (In re Alberto (2002) 102 Cal.App.4th 421, 427.) "For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court." (Ibid.)
However, there are narrow exceptions to this general rule. (See In re Alberto, supra, 102 Cal.App.4th at p. 430.) "[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion." (Ziller, supra, 206 Cal.App.3d at p. 1232.) Another exception is when the facts have changed or when the judge has considered further evidence and law. (People v. Riva (2003) 112 Cal.App.4th 981, 992-993 (Riva); Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 706.) Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. (Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1069 (Armstrong).) Mere disagreement, as here, with the prior trial judge's ruling, however, is not enough to overturn that ruling. (Riva, supra, at p. 992.)
No exception was established here. Additionally, the appellate court found that not only was the decision to overrule the prior ruling erroneous, but it also resulted in prejudice to Donna. The decision to overrule the first court’s decision came three years after the original ruling. As a consequence, both parties continued to litigate many of the issues that had been addressed in the Agreement over the course of three years, conducted a 15-day trial, and expended considerable time and resources. The parties did so in reliance on the original ruling that the terms of the Agreement were unenforceable. This reliance was reasonable. (Cf. Greene v. State Farm Fire & Casualty Co. (1990) 224 Cal.App.3d 1583, 1592.
Therefore, the appellate court held that under the circumstances of this case, once the court had determined that the Agreement was unenforceable, Donna had the right to believe the ruling was definitive. It follows that the reconsideration of the prior ruling on the Agreement resulted in unfairness to Donna and the case is reversed and remanded.
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