San Jose Attorney - Almaden Times Articles

You May Ask For A Different Judge, But Do You Want To?

This week's question: I have a case that I am handling myself, so I can't ask my attorney this question. There is one judge at the courthouse that I know about and I do not want him to hear my case. Under any circumstances. Is there any way that my case can be assigned to a different judge?

/s/ Brian B.

Almaden Valley Dear Brian- I will assume that your legal case is pending in state court at some level and not in Federal Court, since my experience is primarily in state court. Each system has different rules that must be followed. First of all, if you can show (i.e., prove) that the judge is biased or prejudiced against you, it is possible to have the case assigned to a different judge. This must be done quite early in the process, however. And it is probably easier said than done to prove that the judge is biased or prejudiced against you. This would be called a "challenge for cause."

Secondly, there is another way to have your case assigned to a different judge. This is called a "peremptory challenge" under California Code of Civil Procedure Section 170.6. According to a recent case: "Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the time of the motion are imposed by this statue, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6 must be granted."

In other words, "[b]y enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice; proof of actual prejudice is not required." In practice, a party or an attorney for a party is first sworn to tell the truth and then states under oath or in a written declaration that he or she believes that he or she cannot get a fair trial before Judge [name]. If this is done timely, a different judge is then assigned to hear the case. This may cause some delay in the proceedings, but that's the way it is.

There are a few important things to keep in mind. The peremptory challenge must be done quite early in the case and within a very few days after the case is first assigned to that judge. You cannot wait until the case is half over during a trial in front of that judge and then try to exercise the peremptory challenge under CCP §170.6. It doesn't work that way.

Another important thing to keep in mind is that you have only one such peremptory challenge in any one case. So, you may succeed in your §170.6 challenge before that particular judge only to be assigned to a judge whom you perceive as worse. That's just tough. You made your decision. So I think it's safe to say that you exercise your CCP §170.6 with great caution.

You can read about this topic online by going to your favorite search engine and entering California Code of Civil Procedure Section 170.6. It should be up on your screen in less than a half a second. As always, you will want to discuss this topic with your own attorney to see how peremptory challenges may apply or may not apply to your situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Agreements Need To Be Free And Voluntary Acts, Not Forced

This week's question: Several months ago, my wife had me sign a marital settlement agreement and now I am not so sure that I did the right thing. I really believe she forced me to sign it even before I was allowed to see my own attorney. Are there any rules that apply in this situation?

/s/George G.

Almaden Valley Dear George- You bet there are rules that apply in your situation and in other situations like it. In short, agreements must be free and voluntary acts and not the product of duress and undue influence. A 2006 case is a good example to read when it comes to duress and undue influence. The case is entitled In re Marriage of Balcof, and it arose in Orange County. In the Balcof case, Ralph and Kathleen were married in 1988. They had two children, daughter Kelsey born in 1990 and son Andrew born in 1992. In October, 1999, Ralph and Kathleen signed a writing concerning Ralph's separate property $2,000,000 residence in Laguna Beach and a 20% portion of the stock in Ralph's separate property corporation. The October, 1999, writing was at issue in the case. Ralph contended that Kathleen forced him to sign the document under duress and undue influence. Kathleen contended that it was a valid agreement and transmuted or changed the character of some of Ralph's separate property into Kathleen's property.

Facts recited by the Court of Appeal in the Court decision were interesting. A short time before their marriage, Ralph and Kathleen had signed a prenuptial agreement that confirmed Ralph's separate property holdings of several million dollars. Kathleen's assets were "minimal." The prenuptial agreement evidently was not an issue in this case. Marital disharmony erupted and differences arose, shall we say. In October, 1999, the parties were together at an inn, at which time Kathleen had Ralph write and sign this "agreement": "I, Ralph Balcof Deed over all Interest in our house at 770 Pelican Dr.-Laguna Beach-also 20% interest (stock) in Bolcof Plastic Materials. This will be legal by Dec. 1, 1999. P.S. I will pay $1000 a day penalty if this is not done by Dec. 1." Both Kathleen and Ralph then signed the "agreement".

However, the Court of Appeal found that the agreement was not a free and voluntary act of Ralph since Kathleen had repeatedly threatened Ralph with divorce and the obstruction of his relationship with their children if he did not prepare and sign the writing. Also, Kathleen repeatedly harangued and berated Ralph during the marriage in an effort to force him to modify the parties' prenuptial agreement to provide more security for her. Kathleen also, according to the Court of Appeal, physically struck Ralph on several occasions, and screamed at Ralph for at least 45 minutes immediately preceding his writing and signing the October 1999 document, which screaming included threats of divorce and obstructing Ralph's relationship with the minor children if he did not make and sign the "agreement". It was also noted that Kathleen dictated word-for-word what Ralph wrote in the document.

Ralph testified that he did not understand the legal effect of what he was forced to write down and of course he did not have the opportunity to consult with his attorney before the episode in the hotel room. The Court of Appeal cited Family Code §721, subdivision (b) to the effect that husbands and wives "are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. . . If one spouse secures an advantage from an interspousal transaction, a statutory presumption arises under §721 that the advantaged spouse exercised undue influence and the transaction will be set aside."

The trial court's finding was upheld by the Court of Appeal when it held that Kathleen exerted undue influence and duress on Ralph in order to obtain the October 1999 writing in direct response to her on-the-spot demands and latest tirade. You can read the In re Marriage of Balcof case for yourself by going online to your favorite search engine. Enter the name of the case or the citation, 141 Cal.App.4th 1509, 47 Cal.Rptr.3rd 183. I personally like the California Court of Appeal web site because it's free of incessant advertising. As always, you will want to read the case in consultation with your own attorney to see how the case may or may not apply to you in your particular situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

There Is An Inexpensive Way To Divide Up The Pots And Pans

This week's question: It looks like my husband and I are going to part ways soon. We do not have a lot of property but what we do have is very important to both of us. And we do not have a lot of money to hire attorneys to represent us. Do you know of an inexpensive way for us to divide up our household goods?

/s/Jessica J., Almaden Valley

Dear Jessica- Sorry to hear about your marital situation, Jessica, but there is an inexpensive way to divide up your household goods. Of course, the cheapest way to divide up everything is to reach an agreement with the other side. Very often people can do this when they simply use their heads. Think about the cost of arguing, going to court, and related proceedings. It doesn't make any sense to spend hundreds of dollars arguing about a $5.00 garbage can or an old sofa worth $50 at the flea market.

Let us assume that you have both gone the last mile and have been reasonable in your discussions and still have not reached an agreement. If you have a case pending in Family Court in San Jose, chances are that at some point in the proceeding you will have a Settlement Officer Conference with a good settlement professional. This is usually an experienced attorney serving as a pro-tem (temporary) judge for the day. At your Settlement Conference, you would be strongly encouraged to reach an agreement on the household goods.

Part of that agreement may be to have the right to inspect, photograph, and inventory the items in the other party's possession. An appraisal report may later be done as well. Each of you may want to have one neutral witness present during the inspection. If there is any request to do so, you may be required to have a private security person to supervise the inspection at joint expense. After the inspection, if you come to an agreement, fine. If not, the next step is often binding personal property arbitration in Family Court.

You could reach an agreement with the help of a private arbitrator or with the assistance of the Family Court, following the rules for binding personal property arbitration. An informal meeting would be set up with the Arbitrator and you would both attend with your documentary evidence and all other pertinent information. At the personal property arbitration, the experienced Arbitrator would not represent either side. All matters are confidential as to outsiders. The primary issues would be the valuation, characterization, or disposition of all community property items in dispute. The Arbitrator's role is to help the parties reach an agreement through effective communication. If that is not successful, then the Arbitrator would make a decision about the various issues in dispute.

After the arbitration, a report is filed with the court by the Arbitrator. The report would support the issuance of a binding Court judgment. In this process, each party would agree to exercise good faith, fully disclose in advance all relevant facts and supporting documentation to the other party. If they wish, either party could consult with professionals prior to the arbitration, such as attorneys, appraisers, certified public accountants, and/or other professionals. Generally, the arbitration sessions are from one to one and one-half hours long. The sessions are usually held on Friday mornings and are scheduled through the Calendar section at Family Court.

Other issues are usually not discussed, such as child and spousal support, real estate, and/or other issues. Having assisted clients in this process over the years, I can say that the program is an excellent one. It helps people come to an agreement or fair decision about their household goods at the lowest possible cost.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Personal Injury Damages May Be Assigned To The Injured Spouse

This week's question: I was seriously injured in an automobile accident several months ago. And if that was not bad enough, now my wife and I are having marital problems. What I am wondering is this: if we should separate, will my settlement money be given to me 100% or will I need to share 50% of it with my wife because the settlement may be considered community property?

/s/Will W., Almaden Valley

Dear Will- You have emailed in a great question, Will. It is too bad about your marital situation and your accident too, but maybe you and your wife can work out the marital issues. If you cannot work things out, I can see why you are concerned about your accident settlement money. Since you said that your accident occurred while you were married and living together, chances are that the settlement money will be considered or classified initially as community property, but the money may be "assigned" to you as the injured spouse.

Let me explain this a little further. The California Family Code in §2603 defines community estate personal injury damages. It provides as follows: (a) "Community estate personal injury damages" as used in this section means all money or other property received or to be received by a person in satisfaction of a judgment for damages for the person's personal injuries or pursuant to an agreement for the settlement or compromise of a claim for the damages, if the cause of action for the damages arose during the marriage but is not separate property as described in §781, unless the money or other property has been commingled with other assets of the community estate." §781 of the California Family Code is entitled "Cases Where Damages for Personal Injury Are Separate Property". This pertains to other situations, including situations where the parties have been separated or their marriage has been dissolved. In many of those types of situations, personal injury damages could well be the separate property of the injured spouse and awarded to him or her as long as the funds are not "commingled" or mixed in with community property.

So, you can see that we start out with the basic principle that yes, the settlement money may well be community property if the money was received or grounds for the suit arose during marriage prior to any separation of the parties. But then §2603 of the Family Code goes on to state that: (b) Community estate personal injury damages shall be assigned to the party who suffered the injuries unless the court, after taking into account the economic conditions and needs of each party, the time that has elapsed since the recovery of the damages or the accrual of the cause of action, and all other facts of the case, determines that the interests of justice require another disposition. In such a case, the community estate personal injury damages shall be assigned to the respective parties in such proportions as the court determines to be just, except that at least one-half of the damages shall be assigned to the party who suffered the injuries."

In plain language, this means to me that since you were the injured spouse, Will, ordinarily the settlement money will be "assigned" or given to you 100%. But there are other factors that the court may take into account with the provision that at least 50% of the settlement money will be awarded to you as the injured spouse. There are often other issues as well that your attorney needs to take into account, since each case is different. So, I would definitely have a consultation with my own attorney to see how some of these basic rules apply (or do not apply) to my specific situation. Best wishes in your working all of this out.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Minors Can Become Emancipated Under Certain Circumstances

This week's question: I am 16 years old and a student at Leland High School. I have been reading your column for a couple of years now. I have a question that relates to my becoming independent from my parents. We just do not get along and I want to be on my own for good. Can I do that without their consent?

/s/Justin J., Almaden Valley

Dear Justin: You have emailed in a very interesting question, Justin. And it's not a simple one to answer. First of all, you want to make sure you are heading in the right direction when you think about parting ways from your parents. If I were you, I would talk it over first in some detail with a family counselor, such as a Licensed Marriage and Family Therapist. There are several good therapists right here in the Almaden Valley and quite often they are able to help families with interpersonal disputes. If counseling doesn't solve the issues, then you may look into emancipation as a legal remedy.

Emancipation of a minor is a legal status that results in the termination of some of the rights and obligations that are present in the parent-child relationship. If a child has become emancipated, he or she becomes of full age and capacity and possesses full social and civil rights. Many issues surrounding a minor's emancipation before the court have disappeared with the change of the age of majority from 21 to 18 in 1972.

There are several ways to become emancipated from one's parents. The California Family Code provides for several ways in Family Code §7002. It states: A person under the age of 18 years is an emancipated minor if any of the following conditions is satisfied: (a) The person has entered into a valid marriage, whether or not the marriage has been dissolved. (b) The person is on active duty with the armed forces of the United States. (c) The person has received a declaration of emancipation pursuant to §7122 of the California Family Code.

It is possible to file a petition in Court for a declaration of emancipation. A hearing on the petition would be set by the Court and notice of the hearing would be ordered by the Court. At the Court hearing, the minor would generally bear the burden of proof as to the right of a Court order called Declaration of Emancipation of Minor. If one or both parents object to the minor's petition in Court and, assuming that the parents have not abandoned the minor, it may be an uphill fight for the minor to become emancipated by the Court petition method.

The effects of an emancipated minor are many. Some of those effects are spelled out in Family Code §7050, and are too numerous to list in this brief article. However, readers can learn more about emancipation by going online with their favorite search engine and entering California Family Code Section 7000-7143. As always, you will want to review these laws with your own attorney to see how they may or may not apply to your specific situation. Also, the State Bar of California has published some very helpful information in a pamphlet entitled "Kids and the Law". It was published in 2007 with a grant funded by the California Bar Foundation. Page 6 of that pamphlet has some very helpful information on emancipation. You may obtain a copy at: kids@calbar.ca.gov.

/s/ Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

How To Find Out Former Spouse's Current Income Economically

This week's question:

I went through a bitter divorce a few years ago. My ex-husband was ordered to pay me monthly spousal support and child support for my three children, who are now 16, 14, and 13. I have physical custody of them and my ex-husband has visitation rights. The time share is about 80-20. My problem is that I do not know how much he makes now. His compensation might be much greater now or it may be about the same. How can I find out what his compensation is at present without spending another small fortune in legal fees?

/s/Jill J.

Almaden Valley

Dear Jill-

You have emailed in a very good question, Jill. I would hazard a guess that you are not alone in this predicament. The cost of living here in the Almaden Valley is significant and I'm sure your expenses have increased dramatically over the years.

What you might want to look into is filling out a relatively simple court form called "Request for Production of an Income and Expense Declaration After Judgment." If there is a pending support order, this form once completed and delivered to the ex-spouse should result in some information produced for you.

The form is "served" properly on the ex-spouse, and it states that the party is required to complete and return a current Income and Expense Declaration within 30 days after the date the request is delivered to the other party.

The form also states that the responding party needs to attach copies of his or her most recent state and federal income tax returns, whether individual or joint. The Income and Expense Declaration form requires the person supply extensive information about his or her finances, including copies of the previous two months' pay stubs, income for the previous 12 months, as well as an estimated value of all accounts and other assets.

When the information and documentation is provided to the party who made the request, he or she can then determine whether to ask for a modification of child, spousal, or family support.

Each party to the family law case may use this procedure once a year after judgment even though no legal matter is pending. If the procedure is used properly, one can receive a lot of useful information about the other party's current financial situation at a very reasonable cost. An attorney may assist you or you may do the work without legal counsel.

So, what if the other party ignores the Request for Production of an Income and Expense Declaration? The California Family Code provides that the party may then serve the other party's employer with a "Request for Income and Benefit Information From Employer".

The form that is submitted to the employer is sent either because there was no response by the employee within 35 days or the response was incomplete as to the wage information. It also calls for the present employment status of the employee, gross salary for the previous month, previous 12 months, including commissions, bonuses, and overtime. The form also provides for a breakdown of state and federal income tax withheld, Social Security and Medicare Tax as well as other deductions.

The employer is also asked to provide information about the employee's health, life, and vision insurance as well as use of company assets, such as vehicle, housing, health clubs and other information. The form also provides for the employer to attach the last three most recent pay stubs.

You can learn more about this procedure by going to your favorite online search engine and entering California Family Code

§§ 3664-3667. As always, you will want to read this information in consultation with your attorney to see how this may apply or not apply to your specific situation.

Best wishes, Jill. I hope you find the information you need and that the entire matter is resolved.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Sanctions May Be Imposed For A Frivolous Appeal

This week's question:

My ex-husband is failing to pay past-due child support and his share of health care expenses for the children not covered by medical insurance. I obtained a court order for him to pay these items and now he is threatening to appeal just to stall things some more. This is really frustrating!! Do I have any recourse against him? Can he be ordered to pay my attorney's fees?

/s/Dottie D.

Almaden Valley

Dear Dottie:

You just might have some recourse, Dottie, if certain facts can be proven. No case is easy, but there are possible remedies you might want to explore.

In a recent case decided by the Court of Appeal of the State of California, First Appellate District, Division One, the Court held that sanctions (like a fine) of $15,000 would be assessed against a party for filing a frivolous appeal. The case was filed May 29, 2008.

The Court also held that the innocent party would be granted their attorney's fees in defending the frivolous appeal. Finally, the Court of Appeal held that the offending attorneys would be ordered to deposit $6,000 with the Clerk of the Court to cover the cost of the frivolous appeal. See why I said you may have possible remedies to explore?

The case is entitled In re the Marriage of Monica Gong and Terry Kwong and it arose in San Mateo County Superior Court. In that case, Monica and Terry had been married for 21 years. Irreconcilable marital differences arose and legal proceedings were filed.

Monica and Terry eventually signed a marital settlement agreement. Terry promised in writing to support his children and pay for half their college expenses. Terry almost immediately reneged on the marital settlement agreement. After Terry failed to pay child support and related obligations for a number of years, Monica obtained a court order for the payment of various items.

After a court hearing in which Monica prevailed to the tune of about $280,000 for child support and about $25,000 for college expenses, Terry thereafter filed a motion with the trial court, saying that he had satisfied all of his obligations and that he had even paid $30,000 more than he owed. The basis of his claim evidently was based on an interpretation of the words "current" and "now" in a previous court order.

Monica clearly won that hearing since Terry's legal argument didn't make any sense at all to the trial judge. But then Terry filed an appeal of the trial judge's decision. After the Court of Appeal reviewed Terry's arguments and the record on appeal, it held that the appeal would be dismissed as frivolous, and it awarded sanctions to Monica in the amount of $15,000 in addition to her attorney's fees for the appeal.

The Court of Appeal also ordered that sanctions in the amount of $6,000 should be paid by Terry's attorneys to the clerk of the Court of Appeal to defray the costs of processing the frivolous appeal that should not have been filed in the first place. And finally, the Court of Appeal remanded the case to the trial court for the purposes of awarding Monica reasonable attorney's fees incurred in defending the appeal and seeking sanctions.

The Court of Appeal stated in part that an appeal is "frivolous" only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit.

You can read the case for yourself by going to your favorite search engine online and entering Marriage of Gong and Kwong. It worked for me with Google in about a half a second. As always, you will want to read this case in consultation with your own attorney. Only he or she can help guide you in this area and help explain how the case may or may apply to your particular situation.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Seeing Your Own Children May Carry Restrictions

This week's question:

My husband has a serious drinking and drug problem. We are thinking about parting ways but I am concerned about the children. They are 14, 12, and 9. He says since he is their father he will be able to see them any time he wants with absolutely no restrictions. Is he right?

/s/ Amanda A.

Almaden Valley

Dear Amanda-

If your husband has a serious drinking and drug problem as you say he does, the court could well impose some restrictions when he has the children.

Possible restrictions might include supervised or semi-supervised visitation, when a responsible adult would also be in attendance during the visit. Other restrictions might include very short visits, infrequent visits and not overnight. Random drug and alcohol testing might also be done. There are ways to deal with this problem.

The State of California has adopted California Family Code §3041.5 entitled "When Court May Order Testing for Alcohol or Illegal Use of Controlled Substances in Custody, Visitation, or Guardianship Proceedings".

This is a rather long Family Code provision dealing with the serious problem of drug and alcohol abuse in our culture today. It may apply to any custody, visitation, or guardianship proceeding brought in the State of California.

The Court may order any person who is seeking custody or visitation with a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.

A conviction during the past five years for the illegal use or possession of a controlled substance would presumably be considered by the court.

Also, the Court has the authority under the provision to order random testing. This testing must be the "least intrusive" method of testing for the illegal use of controlled substances or the habitual or continual abuse of alcohol by either or both parents, the legal custodian, person seeking guardianship or person seeking visitation in a guardianship proceeding.

If drug or alcohol testing is ordered by the Court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.

If the testing is done and if the test is a positive test, the tested person has a right to a hearing in court to challenge the positive test result.

A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors.

The results of the testing shall be confidential, shall be maintained as a sealed record in the court file, and may not be released to any person except the Court, the parties, their attorneys, the Judicial Council (until completion of its authorized study of the testing process) and any person to whom the court expressly grants access by written order made with prior notice to all parties.

If there is any breach of the confidentiality of the test results, the person or entity is subject to punishment by civil sanctions of up to $2,500.00.

The results of the testing may not be used for any purpose, including any criminal, civil, or administrative proceeding, except to assist the Court in determining, for purposes of the proceeding, the best interest of the child or children and the content of the order or judgment determining custody or visitation.

The Court may order either party, or both parties, to pay the costs of the drug or alcohol testing ordered by the Court.

It is to be noted that this provision in the law shall remain in effect only until January 1, 2009, but I personally would not be surprised if a new similar provision would be passed into law before that date.

Want to read the provision for yourself? It's quite easy by going to your favorite search engine and in the search box enter "California Family Code Section 3041.5". After you enter "go" the full provision should be on your screen in about a tenth of a second. It worked for me quite well with Google.

As always, you will want to consider the application of this particular law with your own attorney for a complete understanding of how the rules may apply or not apply in your particular situation. There are usually many factors involved in custody and visitation cases.

At least, Amanda, I think it's safe to say that there may be some restrictions on your husband's visitations with the children in the event of a separation, assuming that he has the serious drinking and drug problems as you described.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Child And Spousal Support May Be Based On Average Income

This week's question:

My husband and I are not getting along that well. We are thinking about parting ways. We have three children, 15, 13, and 10. Here is my problem: his income is very sporadic since he is in sales for a major Silicon Valley firm. It seems like it is feast or famine. How can the court set child support and spousal support under these circumstances?

/s/Anna A.

Almaden Valley

Dear Anna-

In a marital dissolution or separation proceeding, the court will look at each party's total financial situation. One of the key documents that you are required to complete and file with the court is called an Income and Expense Declaration. All of your finances need to be shown on that document.

Of course, your situation is not unique if one spouse's income fluctuates from month to month. This happens often in the real world, and yet child support and spousal support are still resolved.

An interesting case was decided about three years ago, entitled In re Marriage of Riddle. In that case from Orange County, Susan and Tracy Riddle obtained a divorce. Tracy worked as a commissioned financial adviser for a major investment firm. Susan was, by her own description, a stay-at-home mom with no income.

There were four components to Tracy's income, including (1) the forgiveness of debt on an advance received by his employer during the marriage; (2) the forgiveness of the interest on the debt; (3) a monthly draw of $2,340; and (4) the variable part, the fluctuating amount of commission income Tracy earned for a given month.

The trial court set temporary child support at $3,619 per month plus 16% of any income in excess of $21,950 in a month. It also set temporary spousal support at $4,338 per month plus 20% of any income in excess of $21,950 per month. This was based on Tracy's gross monthly earnings of $21,950.

Tracy filed an appeal of the trial court's orders. The Court of Appeal for the Fourth District agreed with Tracy and held that the time samples had to be fair and representative to determine Tracy's fluctuating income. So, in summary, support cannot be based on unfair or non-representative average income.

The Court of Appeal discussed California Family Code §4060 that provides as follows:

§4060. Computing Monthly Net Disposable Income. The monthly

net disposable income shall be computed by dividing the annual

net disposable income by 12. If the monthly net disposable

income figure does not accurately reflect the actual or

prospective earnings of the parties at the time the

determination of support is made, the court may adjust the

amount appropriately.

In this particular case, the Court of Appeal found that the trial court did not adjust the amount appropriately, especially in view of California Family Code §4064, that provides as follows:

§4064. Adjustment of Child Support Order Where Income of Parent Seasonal or Fluctuating. The court may adjust the child

support order as appropriate to accommodate seasonal or

fluctuating income of either parent.

The Riddle case also stands for the proposition that the court must arrive at a "stable number" in order to make a support order, even if income does fluctuate from month to month. And the "stable number" is necessary to have a reasonable predictor of what each spouse or parent will earn in the immediate future.

The time period on which income is calculated must be long enough to be representative, as distinct from extraordinary. It would probably be error for the Court to take so small a sliver of time to figure income that the determination essentially becomes arbitrary.

In Riddle, the Court of Appeal found that the trial court erred when it selected only the last two months of income to determine Tracy's income for support purposes. This was arbitrary according to the Court of Appeal, since two months is too short for predicting the annual income of a commissioned salesperson who works in the financial markets. Particularly in this case, said the Court of Appeal, where Tracy's income for the previous 14 months, previous calendar year, and immediately preceding 12 months were all fairly consistent among each other, but inconsistent with the two month period utilized by the trial court.

You can read the Riddle case for yourself by going to your favorite search engine and entering: In re Marriage of Riddle. I did it with Google and it was on my screen in .29 seconds along with a few thousand related articles. As always, you will want to consider this case with your own attorney to see how it may apply or not apply to your situation.

Good luck, Anna. I'm sure you will find a solution to the fluctuating income problem.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Want To Get Married? Got To Have A Marriage License.

This week's question:

My father is very sick and in the hospital. I really don't know if he will make it or not. One of his last wishes is to marry is long-time girl friend whom he has known for many years, after my mother died. The problem is that he is too ill to get a marriage license. Is there any way he can be excused for not having a marriage license and go ahead and marry his sweetheart? He is just too sick to go anywhere.

/s/Kenny K.

Almaden Valley

Dear Kenny:

Very interesting question, Kenny, but I believe your father will need to get a marriage license to legally marry his sweetheart.

This question came up in a case here in Santa Clara county a few years ago. The case is entitled Estate of DePasse, and it was decided in March of 2002.

In the Estate of DePasse case, Jack and Derrel had lived together in Saratoga for some period of time. Derrel had accumulated a sizable estate but unfortunately became very seriously ill.

While Derrel was terminally ill and a patient in Stanford University Hospital, the couple decided to get married. Although aware that a marriage license was required, the couple did not obtain a marriage license because of Derrel's illness and imminent death.

At the time she was hospitalized, Derrel owned a sizable estate consisting of over $4.5 million dollars in liquid assets, 50 pieces of artwork worth $500,000 to $800,000, plus furniture, books, jewelry, household goods and other items of personal property. Most of the items were located in Jack's home in Saratoga.

One day before she died, Derrel DePasse and Jack Harris were married by the hospital chaplain in the Stanford University Medical Center. It was undisputed that they had no marriage license.

Two days before the marriage ceremony, Derrel executed a handwritten (holographic) will naming her brother as executor of her estate. She also stated that she wanted her artwork to go to one of three museums, either the American Museum of Folk Art in New York City, the National Museum of American Art in Washington, D.C., or the Philadelphia Art Institute. She also directed her brother to set up endowment funds for two museums for twentieth century American folk art.

The day after the marriage ceremony Derrel died at the age of 52. She left as survivors her brother John DePasse, her mother, Josephine DePasse, and her new husband of one day, Jack Harris.

Of course, there was a court contest between the family members. Jack maintained that he was the surviving spouse and therefore entitled to much of Derrel's property as the surviving spouse and because she gave him many gifts during their time together. The DePasse family argued that the marriage was invalid because the couple admittedly had obtained no marriage license, and therefore, Jack had no rights as a surviving spouse.

The Court of Appeal for the Sixth District here in San Jose affirmed the trial court and held that the issuance of a marriage license is a mandatory requirement for a valid marriage in California.

As stated by the Court of Appeal, the California Family Code provides for a mandatory process for a legal marriage, including Family Code §§306, 350, and 421. All of these provisions use the term "shall". Obtaining a marriage license is mandatory, not discretionary.

The Court of Appeal also held that the "putative spouse" doctrine did not help Jack. This is a doctrine that basically states that an innocent spouse may be treated as a "putative" or apparent spouse if a party has a reasonably objective good faith belief that the marriage is valid. However, this did not apply to Jack since he knew they were supposed to get a marriage license. In fact, Jack acknowledged that the hospital chaplain told Jack and Derrel that they would need a marriage license.

You can read the Estate of DePasse case and the California Family Code sections yourself by going online to your favorite search engine. The California Court of Appeal case citation is 97 Cal.App.4 118 Cal.Rptr.2d 143 and it was decided in 2002. For any interpretation of this case as it may apply to your own particular situation, of course you will need to see your own attorney for advice and guidance.

Best wishes with this difficult situation, Kenny. I hope it all works out well for you and your father.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.