It has been said that in life nothing is certain other than death and taxes. In the family law trade, a third certainty can be added–paying spousal support after a long marriage.
In the recent case of In re Marriage of Schmir, 11/16/05, Div 7, B175397 the court delineated the proper way to terminate support after a long-term marriage.
Judy and Maurice Schmir married in 1964; separated in 1987 and received a Judgment of Dissolution of Marriage in 1989. Maurice was ordered to pay Judy $5,800.00 per month in spousal support. In January 2003, Maurice filed a modification with the court to terminate his spousal support obligation. The hearing on the order to show cause filing occurred on October 2003 (although the court had reduced Maurice’s spousal support payments on a “interim basis” to $2,000.00 per month effective June 2003). At the hearing on October 2003, the court terminated Maurice’s spousal support obligation effective November 1, 2003.
Judy appealed from the trial court’s decision and the court not only reversed the termination of support, but delineated a detailed and specific new support order.
Although Judy had appealed the trial court’s order on several grounds, the appellate court denied all of them, with the exception of the trial court’s failure to afford Judy reasonable advance notice she needed to obtain gainful employment because her spousal support was ending in less than a month.
As the court stated:
“We find no error in the termination order itself. However, under the circumstances presented in this case we conclude the trial court abused its discretion in terminating Judy’s support without affording her a reasonable advance notice and opportunity to secure employment”.
The appellate court gave an excellent primer as to the changing social function of spousal support in the family law context.
The public policy of California regarding spousal support in a divorce following a long-term marriage has progressed from one which “entitled some women to lifelong alimony as a condition of the martial contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting”, citing (In re Marriage of Pendleton & Fireman (2000) 24,Cal.4th 39, 53). As the court stated:
“Along with this change in attitude toward spousal support came the judicial recognition that before spousal support can be terminated or reduced, the supporting spouse… must be given fair notice of the expectation of some sufficiency and a reasonable opportunity to achieve such goals”.
The appellate court then discussed two cases, In re Marriage of Richmond (1980) 105 Cal.App.3d 352 and In re Marriage of Gavron (1988) 203 Cal.App.3d 705 that have provided the method for implementation of this view of spousal support.
In Richmond, the trial court ordered the husband to pay spousal support until a date certain at which time it would terminate forever, unless the supported spouse filed an order to show cause prior to said date to extend spousal support. In upholding that type of order, the appellate court in that case found that the supported spouse should bear the burden of coming forth with evidence since that party had better access to the relevant evidence. Thus this procedure, of shifting the burden of showing need prior to a termination date to the supported spouse, became known as a “Richmond Order”.
The Gavron case involved a modification of a support order after a 25-year marriage. Although the trial court granted the requested modification, the appellate court reversed explaining that the supported spouse needed to be affirmatively advised of the need to take steps to become self-supporting or possibly face termination. Thus, this admonishment became known as a “Gavron warning” notifying recipients of active spousal support, that they are expected to become self-supporting. This Gavron warning was codified by Family Code Section 4330, which was mandatory in all support obligations until 1999, when it became a discretionary warning. In Schmir, Maurice had argued to the appellate court that the current situation was distinguishable from Gavron because Judy was, in a sense, under-employed and not needing to obtain employment. The appellate court made short shrift of that distinction. The court stated:
“… We see no logical reason to distinguish between spouses who need to ‘become employable’ and spouses who are already employable. Equity and fairness requires spouses in both classes receive a reasonable notice and opportunity to find employment. How much advance warning is reasonable obviously depends on the circumstances of each case… It is not possible to set a minimum or maximum warning time….
In the present case, however, three weeks notice was clearly too short and even 10 months is problematic”.
In reversing the trial court, the appellate court modified the decision and laid out its own spousal support plan. First, the appellate court reversed the June 2003 order reducing the spousal support from $5,800.00 per month to $2,000.00 per month. The appellate court then modified by striking certain provisions of the court’s order and replaced it with the following:
“Judy’s support continue at the rate of $5,800.00 per month from June 2003 to such time as Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment or attains the age of 65 years, whichever occurs first. If Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment prior to obtaining the age of 65 her support shall be reduced to zero. At the request of Maurice, the trial court shall conduct a hearing to determine whether Judy is making a good faith effort to earn at least $2,500.00 per month. Such hearing, however, shall occur no more frequently than every three months.”
As such, Gavron, Richmond, and now Schmir, present a very discernible road map to terminate spousal support after a long-term marriage. Every award of spousal support should include the descretionary Gavron-type warning. Further, because the trial court may be reluctant to terminate the spousal support after long-term marriage a “Richmond” type order, shifting of the burden to the supported spouse who is in control of the evidence for additional need, may be more agreeable to a trial court.
Finally, even if a party is successful in terminating support, support cannot be abruptly terminated and as such a prospective termination with some future date may be the way to go.
To read more please visit our web site at: http://la-family-law.com
Showing posts with label west la child custody. Show all posts
Showing posts with label west la child custody. Show all posts
Monday, January 25, 2010
What is Meant by “Joint Legal Custody”
To the inexperienced practitioner, legal custody is an afterthought. These attorneys will assist their clients in fine-tuning the physical custody provisions of their judgment or order, but pay little attention to the details of the legal custody order — sole or joint; decision-making to require agreement or not?
The recent United States Supreme Court case of Elk Grove USD v. Newdow (6/14/2004) 04 DJDAR 7022, illustrates the significance of the legal custody portion of a custody decree. In Elk Grove, the parties had a California custody decree which provided for joint legal custody. However, the decree also provided that if a dispute arose, the mother retained the final decision-making ability.
As has been well-publicized, the father wanted to file a lawsuit challenging the requirement of his daughter’s school district that the Pledge of Allegiance be recited, on the ground that the phrase “under God” was in essence the State mandating a particular form of religious practice. The mother refused to participate in or agree to the lawsuit.
The Elk Grove plurality deemed this difference between the parties a dispute over a legal custodial issue. Accordingly, in its plurality decision, the United States Supreme Court held that because the mother, pursuant to court order, held the ultimate decision-making authority in the event of a dispute, the father was legally incapable of deciding to file a lawsuit regarding this issue and lacked standing. That plurality opinion stated:
We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court. [04 DJDAR at 7025]
Thus, the Supreme Court was able to avoid the church/state issues presented by this case and left a discussion of same to the concurring opinions.
What are the implications of Elk Grove for the family law practitioner? Clearly, an award of “joint legal custody,” absent more, is now inadequate to preserve a parent’s right to participate in decisions which that parent believes are important to the best interests of the child.
This concept was previously suggested in the case of In re Marriage of Neal (1979) 92 Cal.App.3d 834, which observed that an award of joint legal custody was “ephemeral and essentially meaningless,” when one party has been awarded sole physical custody, but both parents have been awarded joint legal custody.
Elk Grove has given much added weight to the suggestion of the Neal Court. It is now incumbent upon any parent who is seeking meaningful joint legal custody to insist that the parameters of joint legal custody be articulated by the trial court..
Joint legal custody itself is defined in Family Code § 3003, which provides:
Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.
To give meaning and “teeth” to an award of joint legal custody, counsel should look to and invoke Family Code § 3083, which states:
In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
In essence and in substance, Family Code § 3083 provides that if no one specifies the particulars of what joint legal custody will mean, there is a “default”. The default status is that either parent may make the decisions with reference to the health, education or welfare of the minor child. Hence, either parent could consent to cosmetic surgery for the minor child, acquire a driver’s license for the minor child, change a child’s major in school, change the child’s name, or litigate whether the child should recite the pledge of allegiance in school referencing the word “God” Given the randomness of people’s action, the result of such unilateral activity can be rather chaotic.
But merely citing the court to Family Code § 3083 is not sufficient. Counsel and client should be in a position to articulate the circumstances and areas in which joint consent should be required. These circumstances include, but are by no means limited to:
* Major medical decisions (excluding emergencies).
* Change of school.
* Change of academic pursuits within school (i.e., change of major, etc.).
* Beginning a course of psychotherapy.
* Cosmetic surgery.
* Enrollment in extracurricular sports activities (contact football, hockey, judo, etc.).
* Signing of report cards.
* Acquisition of passports.
* Signing contracts on behalf of the child (for theatrical services, etc.).
* Signing for the driver’s license of the child.
* Being nominated as a guardian ad litem to litigate causes of action on behalf of the minor child (as in Elk Grove).
The above list is by all means not complete. Practitioners should discuss the parameters of legal custody well prior to the date of the custody hearing, and not discussed literally on the “courthouse steps”.
In addition, counsel should apprise the client that, along with the many benefits of joint legal custody, come certain statutory liabilities which may accrue to a parent who shares joint legal custody, although that parent does not share physical custody.
By way of only one example, Civil Code § 1714.1 provides that a parent in “custody and control” of a minor is liable up to $25,000.00 in damages resulting from acts of the minor which cause death, physical injury, property damage. Similarly, Education Code § 48904 provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $10,000.00. And, Penal Code § 490.5(b) provides that a parent having “control or custody” of a minor can be jointly and severally liable with the minor for shoplifting or theft of books from a library.
While these imputed liability sections speak to liability based upon presumably physical custody an argument could be made extending same to a joint legal parent. If both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor should same cause an accident.
As Elk Grove suggests, “legal custody” may have a broad, wide ranging impact.
To read more and visit our web site click here. http://la-family-law.com
The recent United States Supreme Court case of Elk Grove USD v. Newdow (6/14/2004) 04 DJDAR 7022, illustrates the significance of the legal custody portion of a custody decree. In Elk Grove, the parties had a California custody decree which provided for joint legal custody. However, the decree also provided that if a dispute arose, the mother retained the final decision-making ability.
As has been well-publicized, the father wanted to file a lawsuit challenging the requirement of his daughter’s school district that the Pledge of Allegiance be recited, on the ground that the phrase “under God” was in essence the State mandating a particular form of religious practice. The mother refused to participate in or agree to the lawsuit.
The Elk Grove plurality deemed this difference between the parties a dispute over a legal custodial issue. Accordingly, in its plurality decision, the United States Supreme Court held that because the mother, pursuant to court order, held the ultimate decision-making authority in the event of a dispute, the father was legally incapable of deciding to file a lawsuit regarding this issue and lacked standing. That plurality opinion stated:
We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court. [04 DJDAR at 7025]
Thus, the Supreme Court was able to avoid the church/state issues presented by this case and left a discussion of same to the concurring opinions.
What are the implications of Elk Grove for the family law practitioner? Clearly, an award of “joint legal custody,” absent more, is now inadequate to preserve a parent’s right to participate in decisions which that parent believes are important to the best interests of the child.
This concept was previously suggested in the case of In re Marriage of Neal (1979) 92 Cal.App.3d 834, which observed that an award of joint legal custody was “ephemeral and essentially meaningless,” when one party has been awarded sole physical custody, but both parents have been awarded joint legal custody.
Elk Grove has given much added weight to the suggestion of the Neal Court. It is now incumbent upon any parent who is seeking meaningful joint legal custody to insist that the parameters of joint legal custody be articulated by the trial court..
Joint legal custody itself is defined in Family Code § 3003, which provides:
Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.
To give meaning and “teeth” to an award of joint legal custody, counsel should look to and invoke Family Code § 3083, which states:
In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
In essence and in substance, Family Code § 3083 provides that if no one specifies the particulars of what joint legal custody will mean, there is a “default”. The default status is that either parent may make the decisions with reference to the health, education or welfare of the minor child. Hence, either parent could consent to cosmetic surgery for the minor child, acquire a driver’s license for the minor child, change a child’s major in school, change the child’s name, or litigate whether the child should recite the pledge of allegiance in school referencing the word “God” Given the randomness of people’s action, the result of such unilateral activity can be rather chaotic.
But merely citing the court to Family Code § 3083 is not sufficient. Counsel and client should be in a position to articulate the circumstances and areas in which joint consent should be required. These circumstances include, but are by no means limited to:
* Major medical decisions (excluding emergencies).
* Change of school.
* Change of academic pursuits within school (i.e., change of major, etc.).
* Beginning a course of psychotherapy.
* Cosmetic surgery.
* Enrollment in extracurricular sports activities (contact football, hockey, judo, etc.).
* Signing of report cards.
* Acquisition of passports.
* Signing contracts on behalf of the child (for theatrical services, etc.).
* Signing for the driver’s license of the child.
* Being nominated as a guardian ad litem to litigate causes of action on behalf of the minor child (as in Elk Grove).
The above list is by all means not complete. Practitioners should discuss the parameters of legal custody well prior to the date of the custody hearing, and not discussed literally on the “courthouse steps”.
In addition, counsel should apprise the client that, along with the many benefits of joint legal custody, come certain statutory liabilities which may accrue to a parent who shares joint legal custody, although that parent does not share physical custody.
By way of only one example, Civil Code § 1714.1 provides that a parent in “custody and control” of a minor is liable up to $25,000.00 in damages resulting from acts of the minor which cause death, physical injury, property damage. Similarly, Education Code § 48904 provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $10,000.00. And, Penal Code § 490.5(b) provides that a parent having “control or custody” of a minor can be jointly and severally liable with the minor for shoplifting or theft of books from a library.
While these imputed liability sections speak to liability based upon presumably physical custody an argument could be made extending same to a joint legal parent. If both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor should same cause an accident.
As Elk Grove suggests, “legal custody” may have a broad, wide ranging impact.
To read more and visit our web site click here. http://la-family-law.com
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