The Year in Review

During the past year, significant new cases were decided and legislation enacted that affect family law. Except as indicated otherwise, all legislation discussed is operative January 1, 2006. All cases are final.

Cases. Both the Supreme Court and the appellate courts issued important decisions during the past year. Some of the key rulings from late 2004 and during 2005 include the following:

"Part performance" of an oral bargain to transmute community property is an inadequate substitute for an "express declaration" under Fam C §852, and therefore no transmutation occurs (Marriage of Benson (2005) 36 C4th 1096, 32 CR3d 471); similarly, transfer of separate property to a revocable trust with boilerplate language that all property transferred is community, is insufficient to create a transmutation from separate to community property (Marriage of Starkman (2005) 129 CA4th 659, 28 CR3d 639);

Annulment on the ground of fraud cannot be based on a party's financial misrepresentations alone (Marriage of Meagher and Maleki (2005) 131 CA4th 1, 31 CR3d 663);

Statutory interest on child support accrues from the date each unpaid child support payment was originally due (Marriage of Hubner (2004) 124 CA4th 1082, 22 CR3d 549);

Public policy precludes a child support payor from recovering child support paid to a child's mother on the basis of unjust enrichment on learning he was not the child's biological father (McBride v Boughton (2004) 123 CA4th 379, 20 CR3d 115);

It is improper to impute income for child support purposes to a parent who has been terminated from employment for misconduct without first providing the parent with an opportunity to present proof of ability or opportunity to work (Marriage of Eggers (2005) 131 CA4th 695, 32 CR3d 292);

In a proceeding to divide an omitted community asset (see Fam C §2556), settlement proceeds from a legal malpractice claim are the injured party's separate property when the cause of action for malpractice arose after the parties' separation (Marriage of Klug (2005) 130 CA4th 1389, 31 CR3d 327);

An antialienation provision in a public university's pension plan precluded distribution of a wife's community interest to her heirs, when she died after filing a dissolution petition but before entry of a dissolution judgment (Regents of University of California v Benford (2005) 128 CA4th 867, 27 CR3d 441);

A sanctions award (see Fam C §3027.1) for knowingly making false allegations of child abuse or neglect during a custody proceeding does not require that the falsity of the accusation be established during the underlying custody hearing (Marriage of Dupre (2005) 127 CA4th 1517, 26 CR3d 328); and

In a trio of cases concerning same-sex parenting, the Supreme Court held:

A lesbian mother met the "presumed parent" criteria of Fam C §7611(d) by receiving children born to her partner into her home and openly holding them out as her natural children; and thus was their "second mother" under the UPA (Elisa B. v Superior Court (2005) 37 C4th 108, 33 CR3d 46);

A lesbian birth mother was estopped from challenging the validity of a judgment of parentage to which she had stipulated (Kristine H. v Lisa R. (2005) 37 C4th 156, 33 CR3d 81); and

Both a woman who provided ova to impregnate her lesbian domestic partner and the partner who bore the child are parents of the child (K.M. v E.G. (2005) 37 C4th 130, 33 CR3d 61).

Legislation. Both state and federal legislation was enacted in 2005 that affects family law. Some of the important new legislative developments include the following:

A general prohibition on ex parte communications between attorneys and mediators or evaluators absent a stipulation to the contrary. Fam C §§216, 1818; SB 1088 (Stats 2005, ch 489);

A court now has discretion to issue a restraining order of up to 5 years for personal conduct, stay-away, and residence exclusions after a noticed hearing. Fam C §§6345, 6361; AB 99 (Stats 2005, ch 125);

If a Pen C §136.2 criminal protective order has been issued, the visitation order must make reference to, and acknowledge the precedence of enforcement of, any appropriate criminal protective order. Fam C §3100(c); AB 118 (Stats 2005, ch 465);

Laws providing for determining parentage of a child conceived and born after the death of a decedent using that person's genetic material have been altered to add the requirement that the document in which the decedent specifies his or her consent be dated; and delete the requirement that the specification, revocation or amendment be signed by a competent witness. The bill further removes the restriction of "spouse or registered domestic partner" from those eligible to utilize the decedent's genetic material, as well as providing that a person who receives property of the descendent be personally liable to any person who has a superior right to that property, but limits the time to impose liability to the later of 3 years after distribution or discovery of fraud. Prob C §§249.5, 249.6, 249.8; AB 204 (Stats 2005, ch 285);

Authority of the court to issue temporary spousal and child support and attorney fees and costs in dissolution and legal separation actions prior to ruling on a motion to change venue was expanded to include actions under the Uniform Parentage Act and further expanded to child custody and visitation orders prior to hearing venue change matter. CCP §396b; AB 1742 (Stats 2005, ch 706);

Parents on active duty in United States military or National Guard service and deployed out of state are afforded special accommodation regarding modification of child support orders. Fam C §§3047, 3651, 3653, 17440, 17560; SB 1082 (Stats 2005, ch 154, operative August 30, 2005);

Amends CCP §1218 to permit district and city attorneys to pursue contempt actions against individuals who violate DVPA orders and to provide that any attorney fees and costs collected from a person found guilty of contempt will be used to support domestic violence shelter providers per Pen C §13823.15; SB 720 (Stats 2005, ch 631);

Statute providing for substance abuse testing in a custody or visitation proceeding has been extended to guardianship proceedings under the Probate Code. Fam C §3041.5; Prob C §2341; AB 541 (Stats 2005, ch 302)

New statutes have been added to the Family Code (mirroring similar language added to CCP, Pen C, and Welf & I C) providing that, absent good cause, any party subject to a protective restraining order be prohibited from taking any action to obtain the address or location of a protected party or that party's family members, caretakers, or guardian. Fam C §§6252.5, 6322.7; AB 978 (Stats 2005, ch 472);

When an employee's or consumer's records are subpoenaed by an employee or consumer, and the employee or consumer is the only subject of the subpoenaed records, notice to the employee or consumer is no longer required. CCP §§1985.3, 1985.6; AB 496 (Stats 2005, ch 300);

Various additions to Pen C §136.2 concern issuance of protective orders on the court's own motion, relinquishment of firearms by defendants charged with domestic violence crimes, priority of multiple protective orders, and a requirement that protective orders be referenced in custody and visitation orders. AB 1288 (Stats 2005, ch 702);

Legislation modifies the conditions under disqualification of a judge (CCP §170.1) that may be sought; and defines "participating in discussions," indicating that if a judge responds negatively to or declines to discuss an unsolicited request to serve as a neutral, the response does not constitute participation in a discussion, explicitly rejecting the reasoning of Hartford Casualty Ins. v Superior Court (2004) 125 CA4th 250, 22 CR3d 507. AB 1322 (Stats 2005, ch 332; operative September 22, 2005);

A revised federal bankruptcy law, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), became operative October 17, 2005. A key purpose of the Act was to deter discharging of consumer credit card debt; but some provisions affect family law clients:

A "means test" will be applied to a Chapter 7 petitioner; a debtor will be presumed ineligible for Chapter 7 (and would be required to use Chapter 13 instead) under certain conditions (Bankruptcy Code §707);

Domestic Support Obligations (DSO) have priority over everything except administration expenses. Bankruptcy Code §507(a)(1). Nonsupport-related obligations arising out of a matrimonial case are not dischargeable for any reason (Bankruptcy Code §1328(a)); and