San Jose Attorney - Almaden Times Articles

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 & Horowtiz, 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.

Spouses Can Possibly Change The Character Of Their Property

THIS WEEK'S QUESTION:

I thought when we got married that I would change title on my house to joint names with my new husband. And I did just that. Now I am not so sure that I did the right thing. Can we agree to change it back to my own name or must I go through a divorce to get it back in my name? I really do not want to go through a divorce just to do this.

/s/Sarah S.

Almaden Valley

Dear Sarah-

It may be possible, Sarah, but it depends on a lot of circumstances. This is one area where it really makes sense to see your own attorney for advice.

You often hear about "prenuptial agreements" or "prenups" for short. They are also called "antenuptial" agreements. That type of agreement is one signed before spouses get married to each other. The agreements are often made between prospective spouses in contemplation of marriage and are typically to be effective only on marriage.

Generally speaking, spouses may also sign agreements after they get married. These agreements are typically called "marital agreements".

Not to confuse you more, but there is another important term and that is marital settlement agreements. These agreements are made during marriage, but they are made in contemplation of marital dissolution, legal separation, or nullity, rather than an intact marriage.

Now, back to marital agreements during an intact marriage and not in contemplation of divorce.

Marital agreements can be signed during an intact marriage without going through a divorce, now called dissolution of marriage. The classic definition of a marital agreement is an interspousal agreement executed during an intact marriage, that affects marital rights and obligations.

Sometimes you hear the word "transmutation agreement". That term is a legal term essentially meaning a change in character of property or certain rights. The California Family Code governs transmutation agreements.

§850 of the California Family Code states that married couples may transmute or change community property to separate property, separate property of either spouse to community property, or separate property of one spouse to separate property of the other spouse.

If a married couple is thinking about an agreement changing the character of their property, they need to remember that they must follow the general rules governing fiduciary relationships. California Family Code §721 is entitled "Transactions With Each Other and Third parties; Fiduciary Relationship of Husband and Wife."

§721 states that in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each souse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners.

Marital agreements during an intact marriage enable spouses to structure their marital relationship not only during marriage but on dissolution and on death, in ways different from those otherwise provided by law. But the validity of various provisions depends on all of the facts and circumstances, including the topics covered.

For example, I don't think I would try to waive or give up basic child support by signing a marital agreement that states no child support or that provides for a bad custody or visitation plan that is against the children's best interests. Also, I would not try to insert any other provision that is against public policy. It just will not work.

On the other hand, if a marital agreement is fair and all the rules are followed, it may change or transmute a community interest in separate property to a separate interest. For example a marital agreement may provide that a residence owned by one spouse before marriage will remain entirely the separate property of that spouse despite the use of community funds for the pay down of a loan during marriage or improvements to the property. This then may avoid the typical Moore/Marsden apportionment of separate and community interests.

If you are interested in some general reading in this area, log on to your favorite search engine and enter any of the California Family Code sections mention above. You may find them interesting for general information purposes.

However, a note of caution. You can see how this can get rather tricky quite quickly. So, the best thing you can do is to see your own attorney for advice. As you have seen many times in this column, there is no substitute for your own attorney who can take all of the key facts and circumstances into account and guide you in the right direction.

Good luck with the house issue, Sarah. I hope it all works out fine. With a little give and take, I'm sure it will.

/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.

Special Rules For Fraud In Divorce Cases

This week's question:

I went through a divorce case a few years ago and I just discovered that my wife had a secret account where she had been squirreling away money for years.  I had an attorney and she did a great job, but I was wondering whether there is anything I can do about this secret account.  In all the paperwork we had to do, it was never disclosed once.  I just learned that it had about $50,000 in it that was "saved" during our marriage.

/s/Matt M.
Almaden Valley

Dear Matt:

There just may be something you can do about that, Matt.

If you go back to your attorney, she may point out that there are many helpful provisions in the California Family Code to protect against fraud, perjury, and other cases of non-disclosure or misconduct.

For example, Family Code §2121 states that the provisions of the subject chapter are in addition to the basic six-month rule for mistake or excusable neglect.  (Numbers in parentheses that follow correspond to the California Family Code citation.)

If you can prove actual fraud, where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding, you may bring an action or motion based on fraud within one year after the date on which you either discovered, or should have discovered, the fraud. (§2122(a)).

If you can prove perjury in the filing or preparation of the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement of the other party, you have one year after the date on which you either discovered the perjury or should have discovered the perjury. (§2122(b)).

In the case of duress, for example, you were forced into an agreement improperly, you can file an action or motion based upon the duress within two years after the date of the entry of the judgment.  (§2122(c)).

You also have two years from the entry of the judgment to file an action or a motion based on mental incapacity.  (§2122(d)).

You have one year from the date of entry of the judgment to file an action or a motion as to a stipulated or uncontested judgment or that part of a judgment stipulated to by the parties if based on mistake of fact or mistake of law.  (§2122(e)).

There is also a one-year deadline to file an action based on failure to comply with the disclosure requirements set out in the Family Code.  The one-year rule starts to run after the date on which the complaining party either discovered or should have discovered, the failure to comply (§2122(f)).

It should be remembered that you generally cannot set aside a judgment because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate (§2123).

A good question is whether one fraudulent provision will set aside the whole judgment or whether just that fraudulent provision will be stricken or otherwise resolved.  That question is answered by §2125 that states as follows:

"When ruling on an action or motion to set aside a judgment, the court shall set aside only those provisions materially affected by the circumstances leading to the court's decision to grant relief. However, the court has discretion to set aside the entire judgment, if necessary for equitable considerations."

Another favorable section for the innocent spouse is §2124 that provides that the negligence of an attorney shall not be imputed to a client to bar an order setting aside a judgment, unless the court finds that the client knew, or should have known, of the attorney's negligence and unreasonably failed to protect himself or herself.

And it should be noted that many of the rules above apply not only to marital dissolution (divorce) cases, but also to legal separation and nullity cases.

So, you can see, Matt, that there may be some hope for you in recovering your share of that secret bank account.  Along with your share that money, you may have a good case for breach of fiduciary duty and the attorney's fees you incur because of the extra work.

/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 <mailto: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.

Yes, A Victim Of Domestic Violence May Sue For Civil Damages In Addition To Restraining Orders

This week's question:

My husband can be a real jerk.  We are now separated in an effort to try to work things out.  Most of the time he is ok, but sometimes he becomes very violent and even strikes and hits me.  I have heard about getting a restraining order against him, but maybe the only thing he will wake up to is a civil suit for damages.  Is this possible?  Can I get more justice than just a restraining order?

/s/Victoria V.

Almaden Valley

Dear Victoria:

I may have some good news for you, Victoria.  Yes, you may be able to file a suit for money damages against your husband for the domestic violence occurring during your marriage.

California Civil Code §1708.6 is entitled "Domestic Violence-Damages."  It provides that (a) a person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:

(1) The infliction of injury upon the plaintiff resulting from abuse, as defined in the Penal Code;

(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in the Penal Code.

That law goes on to state that (b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages (i.e., pain and suffering), special damages (such as medical bills and loss of wages), and punitive damages under the Civil Code.

And Civil Code §1708.6 goes on to provide that the court may also grant to a prevailing plaintiff equitable relief, such as injunction (like a restraining order), court costs, and any other relief that the court deems proper, including reasonable attorney's fees.

Also, the rights and remedies are in addition to any other rights and remedies provided by law, presumably such as a suit for infliction of emotional distress, assault and battery, and similar causes of action.

This topic was discussed at length in a recent case decided by the Court of Appeal of the State of California, Second Appellate District, Division Two, in Los Angeles.  The case is entitled Michelle Pugliese v. Dante Pugliese.  It was decided January 23, 2007.

In the Pugliese case, Michelle, who had been married to Dante for 13 years, filed suit and alleged that for several years, Dante "shoved, pushed, kicked, hit, slapped, shook, choked and sexually abused her." 

She also alleged that Dante "pulled her hair, pinched and twisted her flesh, threatened to kill her, threatened her with bodily harm, confined her in the family car while driving erratically and drunkenly and infected her with sexually transmitted diseases."  (Nice guy, huh.)

The Court of Appeal had no difficulty in concluding that Michele had established a proper claim for domestic violence.  The Court of Appeal also had no difficulty in holding that the plain language of Code of Civil Procedure §340.15 entitles Michele to seek damages (i.e. money) for acts of domestic abuse occurring prior to April, 2001, when the physical acts of domestic violence stopped.

The California Court in the Pugliese case relied on an Illinois case in reaching its conclusions concerning a "continuing tort" approach.  A "continuing tort" theory allows domestic violence victims to recover damages (i.e., money) for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the "last act of domestic violence."

The Court of Appeal also stated in part that "Domestic violence is the physical, sexual, psychological, and/or emotional abuse of a victim by his or her intimate partner, with the goal of asserting and maintaining power and control over the victim."

Also, "Most domestic violence victims are subjected to 'an ongoing strategy of intimidation, isolation, and control that extends to all areas of a woman's life, including sexuality, material necessities, relations with family, children, friends, and work.'"

You can read the Michele Pugliese v. Dante Pugliese case for yourself by heading for www.google.com <http://www.google.com>. In the search box enter Pugliese v. Pugliese and hit "go".  It should be on your screen in a second, without the annoying advertising that often accompanies web searches.

So, Victoria, this may come as good news for you and others who are in your situation.  If you have in mind to pursue this further, you may want to see your own attorney for a consultation and take it from there.  I hope it all works out for you.  Domestic violence is all too common in our society.

/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 <mailto: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.