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Recent California Divorce Cases

The California Family Code is over 8,000 pages and growing. Twice every year there are new codes released. It is up to your attorney to stay updated on the changes. Here is some of the latest California divorce case law that has had a direct impact on child custody, divorce law, and other family law matters:

Altafulla v. Ervin (2015)

Defendant and appellant John Ervin challenged a restraining order issued against him under the Domestic Violence Prevention Act. He also argued the trial court erred in failing to issue an order restraining his former domestic partner, plaintiff-respondent Carolina Altafulla. The trial court's orders arose out of Ervin's discovery that Altafulla had been unfaithful. In response to the discovery of Altafulla's unfaithfulness, Ervin sent emails to Altafulla's employer and their mutual friends. Furthermore, he attempted to traumatize Altafulla's children with graphic descriptions of his claims of Altafulla's infidelity. Among other things, Ervin argued on appeal to the Court of Appeal that the trial court record was not sufficient to support a DVPA restraining order. After review, the Court disagreed: Ervin's email campaign and emotional abuse of Altafulla's daughters amounted to conduct that was alarming, annoying and harassing, served no legitimate purpose, would cause a reasonable person substantial emotional distress, and actually did cause substantial emotional distress. As such, Ervin's conduct constituted harassment within the meaning of the DVPA and was therefore sufficient to support issuance of a restraining order.

In re Marriage of Evilsizor & Sweeney (2015)

Evilsizor and Sweeney married in 2010. Sweeney claimed that her son from a previous marriage had access to her cell phones, which were not password protected. The couple’s daughter was born in 2012. Sweeney became concerned that he might not be the child’s biological father after he read a message on his stepson’s phone, indicating that Evilsizor had received fertility treatments without his knowledge. He downloaded the contents of Evilsizor’s phones and confronted her. He went, uninvited, to the home of Evilsizor’s parents and disclosed private, sensitive information about Evilsizor. The parties separated; dissolution proceedings were initiated. Evilsizor sought to increase Sweeney’s support payments on the ground that her income had decreased because her father had fired her from her job with his company. Sweeney alleged that Evilsizor had colluded with her parents to make it appear she had been fired. Sweeney attached text messages supporting his opposition. Evilsizor sought a restraining order under the Domestic Violence Prevention Act to stop Sweeney from further disseminating the downloaded information. Finding that Sweeney’s actions amounted to abuse under the DVPA, the trial court prohibited Sweeney from distributing the information without court permission. The court of appeal affirmed, holding that the order did not violate Sweeney’s constitutional rights to free speech.

Marriage of Davis (2015)

Parties are not separated for the purpose of cutting off community property rights until they have moved into separate residences.  This Appellate Court ruling is going to be a hardship for middle class and low-income families who cannot afford the cost of moving out and for couples wishing to maintain one residence for the benefit of their children. 

In re Balas and Morales (2011)
DOMA violates same-sex, married debtors' EP rights under 5th Amend. DP clause either under heightened scrutiny or rational basis review-there is no valid governmental for DOMA.

Adoption of B.C. (2011)
FC 9102 applies to any action to set aside an adoption order on any grounds, including extrinsic fraud; FC 9102 does not violate DP, even where mother claimed order void for lack of notice and consent.

Avalos v. Perez (2011)
Trial court erred in renewing DRO for two years rather than the five years required by FC 6345 (a).

Cassel v. Super. Ct. (Wasserman, et al.) (2011)
Unless expressly waived, atty-client communications are confidential-neither discoverable nor admissible in civil action insofar as they were "for the purpose of, in the course of, or pursuant to, a mediation."

Ceja v. Rudolph Sletten Inc. (2011)
CCP 377.69 requires that alleged putative spouse "believed in good faith" the marriage was valid; Court disagrees with objective test of Vryonis.

Marriage of Davenport (2011)
Lack of civility by party's attorney is an appropriate basis for sanctions.

U.S. v. Doss (2011)
D's appealing to his wife to exercise her marital privilege not to testify against him, without more, was insufficient to establish "corrupt" as opposed to innocent persuasion and witness tampering charge reversed.

F.T. v. L.J. (2011)
When deciding move-away request, court must assume that parent is moving and consider all relevant factors, not just effect on noncustodial parent's relationship with child.

Marriage of Cadwell-Faso v. Faso (2011)
The seven-day waiting period mandated by FC 1615(c)(2) does not apply to parties who are represented by counsel at the outset.

Marriage of Cantarella (2011)
Marriage valid even if parties failed to register certificate.

Marriage of Duris & Urbany (2011)
Sanctions may not be summarily imposed; due process demands more.

Marriage of Fernandez-Abin & Sanchez (2011)
Restraining Order (RO) reversed when CA court did not follow reqs. of FC 3424 when it included Cs w/in RO, and disregarded jurisdiction of Tijuana fam. court in making c/s and visitation rulings in RO order.

Marriage of Fong (2011)
Only "complying party" is entitled to award of sanctions pursuant to FC 2017 (c).

Marriage of Fossum (2011)
Failure to keep promise to add spouse's name to title is breach of fiduciary duty rendering quit claim deed void.


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