You are on page 1of 40

Newsletter Editor

Debra S. Frank, cfls

N E W S L E T T E R
Association of Certified Family Law Specialists SPRING 2010, NO. 1

Family Court Reform Bids


Take Center Stage While
Budget Cuts Erode Family Law
Department Resources
Leslie Ellen Shear, cfls, cals
ACFLS President  •  Los Angeles County
lescfls @ earthlink.net  •  www.custodymatters.com  •  californiafamilylawappeals.com

erence to the more comprehensive scheme, and a legislatively-


As family law specialists, we have lost confidence in the mandated audit of the use of appointees by the Sacramento
ability of our state’s courts to offer fair procedures, follow and Marin County family courts is underway. All of this is
the law, and produce wise outcomes to the majority of taking place against the backdrop of the Governor’s proposed
the members of the public who come to our family courts. budget cuts and dramatic reductions in trial court funding.
We have come to view the family law courtroom with The final report of the Elkins Family Law Task Force adopts
trepidation on behalf of our clients. many of the proposals and much of the analysis offered by
ACFLS Comments to the Draft Recommendations ACFLS in our Comments to the Task Force’s draft recommen­
of the Elkins Family Law Task Force (Fall 2009, dations. ACFLS has urged the Legislature to avoid piecemeal
see acfls.org/Elk) changes and use the Elkins report as the blueprint for broader
and more effective family law reform. Without adequate family

M
omentum for family law reform, both comprehensive court funding, bench officers with greater family law experi­
and piecemeal, is growing in California. In April the ence and expertise, and utilization of more robust professional
California Judicial Council adopted the recommen­da­ court-connected consensual dispute resolution options, ACFLS
tions of the Elkins Family Law Task Force (www​.courtinfo​.ca​ has concluded that the family courts cannot meet the needs
.gov/jc/tflists/elkins-work.htm) as the blueprint for an overhaul of the families they serve.
of California’s family law courts. Meanwhile, the Legislature ACFLS Legislative Coordinator Lynette Berg Robe, ACFLS
has been considering a variety of targeted changes without ref­ Continued on page 8 (Shear)

Editor’s Desk���������������������� 2 Explaining the Recent Revisions to With this issue we


WHAT ’S INSIDE

Debra S. Frank, cfls Family Code Section 2337 (Pt. 3 of 3)� 14


President’s Message������������� 3 James M. Crawford, Jr., j.d. are introducing
Leslie Ellen Shear, cfls, cals R. Ann Fallon, cfls two new columns
Michael J. Low, j.d.
Report of Legislative
­Coordinator������������������������� 4 Many Gems at the 18th Annual Dawn Gray, cfls, will
Lynette Berg Robe, cfls ACFLS Spring Seminar ���������������������� 18 review new FL cases —
Vivian L. Holley, cfls, mft Hot Off The Press!�� 16
Private Judges Practicing
Law: Is it Ethical?��������������� 10 18th Annual ACFLS Spring Seminar ��20
ACFLS CLE on DVD Order Form����������32 Laura Dewey, cfls, will
Michelene Insalaco, cfls
Garrett C. Dailey, cfls Book Review ������������������������������������36 offer summaries of the
The Gathering Storm: Leslie Ellen Shear, cfls, cals hottest topics on the
What a Jittery Economy Reflections on the Human Side acfls listserv —
Really Means to of Family Law Practice: Threads of Interest:
Law Firms��������������������������� 12 My Perfect Divorce����������������������������37 Topics and Quotes
Robert Weinberg, j.d. Heidi Tuffias, cfls from Your Listserv��30
From the Editor’s Desk
Debra S. Frank, cfls
ACFLS Newsletter Editor (2009-2010)
NEWSLETTER
SPRING 2010, NO. 1 Los Angeles County

Association of Certified dfrank @ debrafranklaw.com


Family Law Specialists

President ing present legislation, and testifying


Leslie Ellen Shear, cfls, cals and appearing at committee meetings
President-Elect to address the issues, and urges our
Diane E. Wasznicky, cfls members to get involved with advocacy.
Newsletter Editor She has also provided us with her
Dawn Gray, cfls President’s Column and her book
Newsletter Editor-Elect review of “Some Other Time: A Novel”
Debra S. Frank, cfls by ACFLS's own Diana Richmond.
Printing Lynette Berg Robe (affectionately
Execuprint/Chatsworth, California known as our doyenne, coined by
Graphics and Typography former President Peter Walzer), our
Graeme Magruder/Kalligraphics incoming Legislative Coordinator, in her
article, provides us with her legislative
The ACFLS Newsletter is a ­publication of the
­Association of Certified Family Law Specialists.
report, insights and analysis regarding
pending legislation. Follow the links
Send your submissions in 
from her article and you can review

T
WordPerfect or Word by email to: 
Dawn Gray, cfls, Newsletter Editor
2036 Nevada City Highway, Suite 195 
his has been a time of tremen­ the ACFLS comments to legislation.
Grass Valley, CA 95945  dous flux for family law, with the Lynette has spent innumerable hours
Phone: 530-477-5574 • Fax: 530-477-5578 
Email: dawn_gray@earthlink.net budget crisis and work furloughs, letter-­writing, reviewing legislation and
All contributions become the intellectual property of
employee layoffs and court closures on testifying on behalf of ACFLS, and it’s
ACFLS, and may be distributed by ACFLS in any fashion the one hand and the Elkins Family Law great to have her on our Board.
it chooses, including print, internet and electronic
media. Authors retain the right to independently Task Force’s Recommendations, which In March, ACFLS held its highly
­republish or distribute their own contributions. clearly require substantial sums to be regarded Spring Seminar on Titles,
This newsletter is designed to provide ­accurate spent on family court reform, on the Transfers and Transmutations, in Indian
and authori­tative information in regard to the subject
matter covered and is distributed with the under­standing other hand, and a legislature addressing Wells. The article by Vivian Holley
that ACFLS is not engaged in rendering legal, accounting
or other professional advice. If legal advice or other
certain changes without a thoughtful titled “Many Gems at the 18th Annual
expert assistance is required, the ­services of a analysis of a comprehensive scheme to ACFLS Spring Seminar” describes the
­competent professional person should be sought.
institute changes as recommended by fun, camaraderie, and great learning
the Elkins Task Force. experience we had with some of our
ACFLS Mission Statement ACFLS members have been pro­ greatest judges and legal scholars. A
It is the mission of ACFLS to promote
and preserve the Family Law Specialty.  actively involved with these issues. great example, on the topic of Advanced
To that end, the Association will seek to: Leslie Shear, our new President, in her Attorneys’ Fees, Hon. Kenneth Black
1. Advance the knowledge of Family Law ­Specialists; lead article in this Newsletter, discusses (Ret.) covered at least 60 cases in his
2. Monitor legislation and proposals affecting the
field of family law;
these turbulent times, the financial 60-minute presentation on “Maximiz­
3. Promote and encourage ethical practice among
crises that are threatening the courts ing Your Results in Making or Oppos­
members of the bar and their clients; and and our practices against the back­ ing Family Law Fee Requests,” in the
4. Promote the specialty to the public and the drop of the acceptance by the Judicial ACFLS Pre-conference Institute on
­family law bar.
Council of the recommendations of Attorneys’ Fees. Now who wouldn’t
the Elkins Family Law Task Force to think that, in itself, wasn’t a great time!!
ACFLS Executive Director
For circulation, membership, administrative and
overhaul family law courts, and the We miss him on our trial court bench
event registration requests, contact: Legislative targeted changes without in Los Angeles. The event in its entirety
Lynn Pfeifer, ACFLS Executive Director  consideration of a comprehensive was moderated by Garrett Dailey.
15 Corrillo Drive, San Rafael, CA 94903-3902 
(415) 499-1610 • Fax: (415) 479-1347
scheme. She describes the efforts made As you will see in this Newsletter,
Email: acfls@comcast.net by our proactive Board in authoring our we have started a new column by Dawn
Comments on the Elkins Task Force Gray, who is the incoming Newsletter
© 2010 Association of Certified Family Law Specialists recommendations, writing letters to the editor. She will provide us with her
legislature on behalf of ACFLS regard­ Continued on page 29 (Frank)

SPRING 2010, NO. 1 PAGE 2 ACFLS NEWSLETTER


President’s Message
Leslie Ellen Shear, cfls, cals
ACFLS President
Los Angeles County
custodymatters @ earthlink.net

The DVD/CLE sets from this year’s tunate consequence of this practice
Spring Seminar (as well as past Spring is that many of our colleagues take an
Seminars and many other CLE pro­ anything-goes attitude to family court
grams) are available for the bargain price – proposing orders that courts have no
of $38 per CLE hour. We’ve included an jurisdiction to make, or that no one with
order form in this issue at page 32. All of family law expertise would make.
these programs are targeted to the same This is no way to run a court system
high level as our Spring Seminar. – as the Elkins Family Law Task Force
recognized. Lack of bench officer experi­
Spring Seminar 2011 Set for ence and expertise clogs courtrooms,
April 15–17 in Indian Wells increases fees and compounds the
Mark your calendars now for next year’s problems created by inadequate trial
Spring Seminar. We’ve booked the same court funding. We would not want a bril­
resort for April 15–17, 2011. The Indian liant brain surgeon doing heart surgery,
Wells Hyatt Regency Grand Champions but we pretend that legal expertise is

I
begin this President’s Message Resort and Spa was an extraordinary general. It is an unsustainable model and
with highlights about ACFLS's venue in every respect – from confer­ it wastes precious taxpayer and litigant
accomplishments as we approach ence facilities, to accommodations. Not dollars (and litigant time). We simply
the halfway mark in this 30th Anni­ only does it have outstanding recrea­ cannot charge the litigants with edu­
versary year, and end with a rant about tional facilities for grownups, but also cating the bench, and we can’t expect
universal family law case management offers a day camp, water slide and lots bench officers with heavy case load to
as it is being carried out in Los Angeles. of other family friendly programs. Many have much time to become autodidacts.
Along the way, I’ll invite you to con­ of you brought children and grandchil­ Dissatisfaction with family courts
tribute to the ACFLS brain trust (via dren. The half-day CLE programming is fueling a lot of activity in Sacra­
listserv, blog, email, briefbank or CLE leaves lots of time for recreation. mento and the search for quick fixes
programs) and reflect on the pressing Putting on a program like this in­ that won’t impact the budget. One
questions of family law reform in an volves a zillion moving parts. It would of the unfortunate consequences of
era of diminished resources. not have happened without the energy, term limits is a legislature with little
The year moves quickly – I’ve intellect, persistence and commitment institutional memory, no understand­
chaired two of the five 2010 board of co-chairs Karen Freitas and Patricia ing of the policies underlying existing
meetings and monthly ExComm meet­ Rigdon – with the support of the Spring statutory schemes, and naïve views
ings. Before I know it, we’ll be partying Seminar committee and staff. of what would really constitute family
in San Francisco, and I’ll be turning law reform. Without experience and
over the gavel to President-Elect Diane Achieving Meaningful expertise, legislators are vulnerable to
Wasznicky. Diane has been shadowing Family Law Reform the sad stories of disappointed litigants,
almost everything I do as president. Each year the Spring Seminar reminds but lack the tools to view these stories
us that each and every family law issue in context or understand what remedies
Record Spring Seminar Turnout – is extraordinarily complex and requires would really work.
DVD on CLE Now Available much thought and expertise. The Legislative coordinator Lynette Robe
This year we had a record Spring disconnect between the complexity (assisted by Michelene Insalaco and
Seminar turnout of almost 250 family of the facts, law and policies each case Diane Wasznicky) has done a stellar
lawyers and bench officers as we con­ presents, and California’s practice of job reporting to the ACFLS ExComm
sidered Advanced Attorneys Fees, and not viewing family court bench assign­ and Board about the various bills and
Titles, Transfers and Transmutations. ments as requiring experience and then working with Sacramento to share
Please take a minute to shoot me an expertise frustrates all of us and leads ACFLS’s expertise. Check out her report
email with your suggestions for next to unwise outcomes. It certainly helps in this issue of the newsletter.
year’s topics and speakers. my appellate practice. Another unfor­ Continued on page 27 (Shear)

ACFLS NEWSLETTER PAGE 3 SPRING 2010, NO. 1


REPORT OF Lynette Berg Robe, cfls

LEGISLATIVE
ACFLS Legislative Coordinator
Los Angeles County

COORDINATOR
portia1000 @aol.com

Family Law legislation grid on the State Bar website (included


with this article), are available in all versions and with legis­
lative analysis, where applicable, on www.leginfo.ca.gov.
Also, the letters written on behalf of ACFLS are posted on
the website at www.acfls.org/leg.
AB 2475:
This year’s AB 2475 is a prime example of the gut and amend
process. The amended bill prompted a flurry of letters in oppo­
sition, and the final version ended up being drastically changed
after the author amended the bill three times in one week.
ACFLS submitted letters in opposition to each version.
As originally introduced by Assemblymember Jim Beall
on February 19, 2010, this was clearly a “spot” bill. It made an
innocuous change to Welfare and Institutions Code §16500,
changing only a word or two. This usually indicates a place­
holder, a bill introduced to meet the February deadline, with
Lynette Berg Robe has been practicing family law for the intention to gut and amend it later when the real legisla­
24 years. She is an officer of the Family Law Executive tion is ready. In the past, this was an opportunity to get a bill
Committee of Los Angeles County Bar Association passed without much attention, but now, with the availability
and served as Legislation Co-chair for over 10 years. of the legislation process online, it is much easier to track
Lynette served on FLEXCOM from 2006–2009 and was this kind of maneuver. Although AB 612 from last year, also
editor of the State Bar Family Law News 2007–2008. Assemblymember Jim Beall’s bill, is a two-year bill, AB 2475
She also serves on the State Board of AFCC. appears to be the replacement bill for this year, as it is aimed
at the same target, custody evaluations and mental health

I
t has fallen to me to assume the reins as Legislative Coor­ ­professionals working with the court system.
dinator from the ever-capable Diane Wasznicky, who is On April 8, 2010, AB 2475 was gutted and amended to be a
the President-Elect for ACFLS. Diane served as Legislative completely different bill. Welfare and Institutions Code §16500
Coordinator with distinction, and I will do my best to continue was gone, and instead a new addition to the Civil Code, §43.94
to hold the bar high. was inserted. The April 8, 2010, version would have over­
For those who follow California legislation, to quote T.S. turned Howard v. Drapkin (1990) 222 Cal.App.3d 843, a case
Eliot from The Wasteland, “April is the cruelest month.” The which established quasi-judicial immunity for child custody
bills are introduced in February, with the bulk of the hearings evaluators and other court-related experts. That version would
in April, so April is when we must scurry to get letters into have excluded child custody evaluators, all mediators and
either the Assembly or Senate Judiciary committees, which anyone involved in “alternate dispute resolution,” marriage and
are the crucial forums. Once a bill gets through the Judiciary family therapists, and any court-appointed expert from being
committees, it is far more difficult to defeat them on the floor protected by quasi-judicial immunity. Because it would have
of the Assembly or the Senate. been an addition to the Civil Code, it was not limited to family
April is also when bills are amended, and sometimes totally law, but would have applied in all civil cases. Facing an imme­
new bills get introduced by “gutting and amending” bills intro­ diate uproar all across the family law community and statewide
duced in February. This means that whatever the old bill was mediation groups, that version was dropped, and on April 22,
about, it is completely gutted of its contents, and an entirely 2010, there was another gut and amend.
new bill is pasted in place of the old one. There can be a bill The April 22, 2010 version amended the proposed Civil
about highway repair that is suddenly transformed into a Code addition 43.94 to apply only to family law proceedings,
family law bill, for example. raising due process and equal protection concerns because
All of the bills discussed in this article and on the 2010 family law experts, mediators, etc., were being treated differ­

SPRING 2010, NO. 1 PAGE 4 ACFLS NEWSLETTER


ently from those in other civil cases. The bill excluded court
employees and only applied to “private persons appointed by DCSS-22:
the courts for their expertise.” It continued to include as being This “trailer bill” proposed a quantum change to Department
excluded from quasi-judicial immunity mediators, conciliators, of Child Support Services procedures for Title IV-D cases. It
guardians ad litem, therapists, marriage and family therapists, is called a “trailer bill” because it appeared as an attachment
receivers, and all who engage in alternative methods of dispute to a “Budget Bill.” Instead of the usual battle at the Judiciary
resolution who function apart from the courts pursuant to Committees, the opposition to this bill had to appear at the
private agreement. Again, this bill was roundly opposed by hearings of the budget committees for the Assembly and
family law organizations all over the state. Senate. ACFLS opposed this bill as did numerous other Family
Late on Wednesday, April 26, 2010, yet a third version Law organizations, and it was defeated as an attachment to
went into circulation, although the official amendment did a budget bill. It is being redirected to the regular legislative
not appear on the website until the 27th. Letters in opposition process, so it will likely reappear in another reincarnation.
had to be received by the end of the next day by Assembly The bill would have amended Family Code §17400. Instead
Judiciary Committee staff because the hearing was scheduled of the current system, where the litigants see a family law
for Tuesday, May 4, 2010. Still, ACFLS and other organiza­ commissioner for a hearing if they are not able to resolve their
tions managed to get letters in opposing the bill. Although case, the bill would have substituted three levels of adminis­
mediators were removed from this version, it was still not trative process. It would have eliminated many judicial officers
clear whether or not a mediator might be excluded from quasi- and child support attorneys in the name of cost savings,
judicial immunity. It also included a section that would toll the sacrificing due process to budgetary concerns.
statute of limitations for children until they reach adulthood, One of the glaring problems was that Level 1 would be
so they would be able to sue in a civil action a custody evalu­ conducted by a “Conference Officer” who is an employee of
ator, therapist, minor’s counsel, etc., years after the fact. It the Local Child Support Agency, and has a bachelor’s degree or
also established a Bureau of State Audits to review compliance the “equivalent.” So, the Level 1 hearing would be conducted
of family courts and public employees with state-mandated by a person who is not an attorney and not a judicial officer, yet
family laws and procedures and to make recommendations to has to ensure that the mandates of the Code of Civil Procedure
the Legislature, Governor, and Judicial Council. It was unclear are complied with. Further, the hearing would be held at the
what the training of the auditors in family law matters would local child support agency, which employs the hearing officers,
be, among other problems. The collective efforts of the family not in a neutral courtroom operated by the Judicial branch,
law community helped to forge a compromise at the hearing. creating an unacceptable conflict of interest.
On May 4, 2010, FLEXCOM, ACFLS and AFCC all had If the parties do not appear for the hearing before the
representatives at the Assembly Judiciary hearing on the third Level 1 Conference Officer or do not agree to an order, the
version of AB 2475. Both proponents and opponents were Conference Officer makes a child support order. That becomes
well-represented, and it was important to have a presence the final order unless one of the parties requests a Level 2
there in addition to writing letters. When Assemblymember proceeding. At Level 2, the hearing is conducted by an attor­
Beall presented his statement on the bill, a discussion began ney who works for DCSS who must have at least three years
about his and the proponents’ acceptance of a compromise of experience. So, an attorney with three years of experience
that had been referenced in the legislative analysis. So, the would conduct a hearing that currently is conducted by a judi­
scenario ended up similarly to AB 612 last year, with the cial officer. A judge needs to take testimony, establish a record,
version (in this case 3 versions!) of the bill all gutted and only evaluate evidence, and determine credibility of witnesses
a small paragraph remaining. Judiciary Committee Chair Mike before making a decision, all of which requires experience.
Feuer and the staff were able to achieve another compromise, After service of the interim order from either Level 1 or
as with last year’s AB 612. (That bill dealt with the issue of Level 2, at Level 3, there is a court hearing before a family law
parental alienation syndrome and sought to eliminate any commissioner or judge. These hearings can be in person or by
child custody report that contained the word “alienation.” telephone or other “electronic means.” This means that the
Although a compro­mise was reached, that bill has never judicial officer may not have the ability to see the party, assess
passed and remains in limbo.). the party’s demeanor other than by the voice over the phone.
The final version of AB 2475 calls for the creation of a It is not clear if other witnesses would also appear telephoni­
statute that directs the Judicial Council to establish a uniform, cally or electronically.
statewide procedure for handling and responding to complaints The determination of child support is not a simple matter
regarding family law experts employed or appointed by the court, just because it is calculated using a computer program. There
including mediators, evaluators, investigators, special masters, are statutes and a complex and nuanced body of case law that
and minor’s counsel, as specified. In terms of the Elkins Task governs the determination of child support. Child support
Force recommendations, it is consistent, because Elkins calls determinations are inextricably interlinked with issues of
for uniform state-wide rules and procedures. At this writing, parentage, child custody, visitation, spousal support, attorneys’
the details are hazy, and we are hoping to suggest more spe­ fees and other family court financial matters. When a person
cifics about this “complaint procedure.” It appears that most is self-employed or is an independent contractor, his or her
of the work will be done by the Judicial Council rather than income becomes much more complicated to determine.
through the legislative process. Continued on page 6 (Robe)

ACFLS NEWSLETTER PAGE 5 SPRING 2010, NO. 1


it to a hearing before the Senate Judiciary Committee. Facing
Robe opposition, the author canceled the hearing. Even without
Continued from page 5
the statute, it may be that a judicial officer could still order
ACFLS opposed the bill for its removal of due process. It the vocational examination under Evidence Code §730.
is short-sighted to justify the loss of those rights by uncertain
financial savings. In fact, it could be that federal funding would AB 2767:
be lost by employing this system. While we know we are faced ACFLS supported this “Omnibus” bill authored by the Assem­
with statewide budgetary problems, we hope the bill comes bly Judiciary Committee. An Omnibus bill is a kind of “house­
back with many improvements. cleaning” bill, including small changes to a number of statutes.
In this case, the portion of AB 2767 affecting family law adds
SB 1188: a small amendment to Family Code §7643. Section 7643(b) is
Senator Roderick Wright is the sponsor of this bill, which we a new addition to the Family code, passed as AB 1679 in 2008
thought was redundant, as it seeks to protect the parental and operative January 1, 2009. That bill was sponsored by
rights of disabled parents, which had already been magnifi­ FLEXCOM, the State Bar Family law Executive Committee.
cently covered in In re Marriage of Carney (1979) 24 Cal.3d Because of the confidentiality attached to parentage cases, no
725. When we wrote the letter, we had asked the author to one could access a parentage file except a party or attorney of
amend the bill to state, “It is the intent of the Legislature to record. FLEXCOM felt that legislation was needed to allow a
codify the full reasoning and the full holdings of the Supreme new attorney or an agent of the attorney or party, such as an
Court set forth in In re Marriage of Carney (1979) 24 Cal.3d attorney service, to inspect the file. The analysis of the bill in
725.” Our letter was conditioned as “Support if Amended,” 2008 made it clear that the intent was for an attorney service
meaning to add the reference to Carney. The bill emerged or non-attorney employee to be able to obtain documents from
from the Senate Judiciary committee without that change, the court file. Unfortunately, the new statute did not specifi­
but the author has assured us that he intends to make that cally use the word “copy.” Court clerks interpreted the new
additional change before the bill arrives in the Assembly provision to mean that they could allow access and inspection
­Judiciary committee. of the file upon written authorization of a party for an agent to
access the file, but they refused to allow copying of the files.
SB 1292: This was particularly problematic for legal aid service providers
On its face, SB 1292 seemed like an innocuous bill, just a as they assist their clients usually without becoming attorneys
simple “clean up” bill to clarify that the court has the authority of record. This causes delays until the client is able to go to the
to order a vocational examination for a parent in order to deter­ court and obtain the copies. This noncontroversial bill adds
mine earning capacity for child support, just as with spousal the word “copying” to the statute, thus solving the problem.
support as set forth in Family Code §4331. ACFLS wrote a
letter in support as this would have been a rational, helpful Other Bills:
statute. This bill would have added a new section 4001(b) with We continue to watch a number of other bills that may be
various subsections parallel to those in §4331. This legislation amended or gutted and amended before June. One bill, AB
has been floating around for several years, first proposed by 2020, as introduced, sought to address the holding in Kevin Q
the Conference of Delegates. The Family Code already pro­ v. Lauren W. (2009) 174 Cal.App.4th 1557, where a presump­
vides that both parents are mutually responsible to support tive father under Family Code 7611(d) lost out to a biological
their children. (Fam. Code §4058(b).) Family Code §4058(b) father because the biological father executed a voluntary
provides that the court has the discretion to impute an earning declara­tion of paternity when the child was born. Under
capacity to a parent in lieu of that parent’s income consistent Family Code section 7573, the “pop dec” had the full force
with the best interests of the children. A recent case involv­ and effect of a judgment. The bill was amended to take out
ing child support orders, In re Marriage of Bardzik (2008) that section, but it may be amended again. We also will con­
165 Cal.App.4th 1291, set forth the evolution of California’s tinue to track several two-year bills, held over from last year,
imputation of income rule back to 1869. Adding 4001(b) which ACFLS previously opposed, namely, AB 612, ­mentioned
would simply provide a tool to obtain a more accurate picture earlier, AB 1050, AB 372, AB 375 and AB 1261. These bills
of a parent’s abilities and opportunities to work and earn an all stalled last year because they were opposed by a com­
income. Unfortunately, remnants of opposition from prior bined force of family law organizations, so we will continue
years stymied this bill. Although paternalistic, the opponents to monitor them for activity this year during the remainder
of the bill, including Chair Senator Ellen Corbett, felt that a of the legislative season.
vocational evaluation could be used to disfavor “stay-at home”
parents and would promote litigation in child support cases. Follow-up on Last Year’s Bills:
Since the law already provides that both parents are to support AB 1877 – Amendments to Family Code Section
the children and to allow for imputation of income, these 3111 and New Judicial Council Form FL-328
arguments are puzzling. It would seem that the vocational
examination would provide objective information rather than Turning to prior legislation, a bill that passed in 2008 went
speculations offered on either side, which would end with a into effect on January 1, 2010. This bill, AB 1877, authored by
fairer child support order. For now, this bill has not even made Assemblymember Anthony Adams, amended Family Code

SPRING 2010, NO. 1 PAGE 6 ACFLS NEWSLETTER


Section 3111, the statute
Notice Regarding Confidentiality of Child Custody
that sets forth the param­ FL-328 Evaluation Report
eters for a child custody
evaluation. This statute
1 Case name:
required the creation and
adoption of a form by the 2 Case number:
Judicial Council which is
to be affixed to every child If directed by the court, the child custody evaluator must file a written, confidential report of his or her evaluation. At
custody evaluation report. least 10 days before any hearing regarding custody of the child, the report must be filed with the clerk of the court and
The form advises of the served on the parties or their attorneys and counsel appointed for the child.
confidentiality of the report
Important Notice: This form must be attached as the first page of the child custody report. The child custody
and set forth warnings for
evaluation report MUST NOT become part of the public court file. It is confidential and private.
potential sanctions for an
“unwarranted disclosure”
THE ENCLOSED CHILD CUSTODY EVALUATION REPORT IS CONFIDENTIAL
of the report. It also added
a new subsection (i) to Cali­
fornia Rule of Court 5.220, Unwarranted Disclosure of the Report
which provides for the You must not make an unwarranted disclosure of the contents of the child custody evaluation report. A disclosure is
unwarranted if it is done either recklessly or maliciously and is not in the best interest of the child.
new form.
The form adopted by • Monetary Sanctions: If the court determines that an unwarranted disclosure of a written confidential report
the Judicial Council is man­ has been made, the court may order a fine against the disclosing party in an amount that is large enough to prevent
that person from disclosing information in the future.
datory form FL-328, which
appears (reduced in size) at • Attorney Fees and Costs: The sanction may also include reasonable attorney fees, costs incurred, or both,
the right. As of January 1, unless the court finds that the disclosing party acted with substantial justification or that other circumstances make
2010, it is mandatory that the imposition of the sanction unjust.
this form be affixed as the
first page of any written Potential Consequences for the Unwarranted Disclosure of the Report
By law, the court can impose a penalty for the unwarranted disclosure of the child custody evaluation report. The
child custody report. It sets
penalty for the unwarranted disclosure of the child custody report can include monetary sanctions (a fine) and attorney
forth on the form that the fees and costs.
child custody evaluation
report must not become Access to the Report
part of the public court file This report may not be made available to anyone other than the following (Fam. Code, §§ 3025.5, 3111):
and must be maintained a. The parties and their attorneys (including attorneys from whom the parties seek legal representation) and attorneys
as confidential. The form appointed to represent the child
warns that the court may b. Court professionals who would receive it directly from the court to do their job, including:
order a monetary fine as a • Family court judicial officers • Juvenile court judicial officers • Law enforcement officers
sanction for the “unwar­ • Family court employees • Juvenile probation officers • Probate court judicial officers
ranted disclosure” of the • Family law facilitators • Child protective services workers • Guardianship investigators
report. The fine is to be c. Others, but only by court order
in such an amount that is
large enough to prevent Information About Child Custody Evaluations
the person from disclosing For more information, visit the California Courts Online Self-Help Center: www.courtinfo.ca.gov/selfhelp. See also
Family Code sections 3110–3118 and 3025.5 and rules 5.220 and 5.225 of the California Rules of Court.
such similar information
in the future. The sanction
may also include reason­
able attorney fees and costs Judicial Council of California, www.courtinfo.ca.gov
Notice Regarding Confidentiality FL-328, Page 1 of 1
New January 1, 2010, Mandatory Form
unless the court finds that Family Code, § 3111; of Child Custody Evaluation Report
Cal. Rules of Court, rule 5.220
the disclosing party acted
with “substantial justifica­
tion” or that other circumstances make the imposition of a sionals who may have access to the report include family law,
fine “unjust.” An “unwarranted disclosure” is when the report juvenile court, and probate court judicial officers, family court
is shown to someone either “recklessly” or “maliciously” and employees, family law facilitators, juvenile court probation
that such disclosure is “not in the best interest of the child.” officers, child protective services workers, law enforcement
The form lists the people who are allowed to have access to officers, and guardianship investigators.
the report. It states that the report is not to be made available The form resolves a dispute as to whether or not an attorney
to anyone other than the parties and their attorneys (including may disclose the report to his client. Some attorneys argued
attorneys from whom the parties seek legal representation) that the report belongs to the client and the client has a right
and attorneys appointed to represent the child. Court profes­ Continued on page 8 (Robe)

ACFLS NEWSLETTER PAGE 7 SPRING 2010, NO. 1


Robe Shear
Continued from page 7 Continued from page 1

to a copy. Others argued that it violated the ­confidentiality President-Elect (and Family Law Reform Committee chair)
rules to provide a copy to the client. While there may be cases Diane Wasznicky and the Executive Committee have been
where it would be advisable for a particular client not to have busy writing letters on behalf of ACFLS to the legislature,
a copy of the report, if the attorney fears the client will misuse working with Assembly and Senate Judiciary Committee
the report or will violate the rules of confidentiality, it appears members, appearing at committee hearings and participating
that withholding the report from the client will have to be in stake-holder meetings. ACFLS members who subscribe
subject to an agreement between the attorney and the client. to our listserv have received copies of the letters sent on the
The form does make it clear, however, that if anyone violates organization’s behalf. Copies of those letters are also posted
the confidentiality rules by making a reckless or malicious use at www.acfls.org/leg. The Executive Committee approved
of the written report, he or she may be subject to monetary the positions taken in those letters. Lynette’s full Legislative
sanctions. It remains to be seen if this will be a sufficient Report begins on page 4 in this issue.
deterrent to a client bent on disseminating the report to The bills have run the gamut from a proposal to strip the
embarrass the other party or other ends. One ­possible flaw litigation privilege protecting against civil damages immunity
is that a provision was added that the sanction may not from family court-appointed neutrals (including child custody
“impose an unreasonable financial burden” on the party evaluators, mediators, expert witnesses, judges pro tem and
who is being sanctioned. private judges) to removal of all Title 4 child support deter­
Another form was created by the Judicial Council, FL-329, minations from the courts to a Department of Child Support
which provides information about a child custody evaluation ­Services hearing officer. Several of these bills have gone
to a litigant. This form also emphasizes the confidentiality of through multiple incarnations.
the evaluation report. The most significant bill is AB 2475, which began as a bill
allowing lawsuits against family court–appointed neutrals and
New DV-Form, DV-109. morphed into a bill authorizing a Judicial Council–designed
An important new form has been devised for Domestic review panel. ACFLS urged the Legislature to drop AB 2475
Violence restraining orders. The new form DV-109 is a simple and address the issue of family law reform in a more com­
Notice of Hearing form. It is separated from the form that prehensive way as proposed by the Elkins Family Law Task
grants the temporary restraining order, whereas they used Force. The bill is now stuck in the Appropriations Committee
to be combined in one form. The Notice of Hearing form sets ­“suspense” file after the estimate for implementation came in
forth the protected person, the name of the restrained person, at $1 million.
the date, time and place of the hearing on the restraining As a result of the advocacy of ACFLS and other groups, the
order and states whether or not the Temporary Restraining bill’s sponsor dropped the civil liability approach, and replaced
Order that is attached was granted, denied, or partly granted it with a statewide administrative review process – with the
and partly denied. It also has a section explaining why the crucial details to be filled in by the Judicial Council. Video of
temporary restraining order was denied, if it was denied. the testimony offered in connection with this bill, including
the testimony of Lynette Berg Robe, Diane Wasznicky and
AB 459 – Amendments to Family Code Michelene Insalaco is posted on the California Channel (www​
Sections 2103, 2104, 2106, and 2107. .calchannel.com/channel/viewvideo/1338 – fast forward to
Finally, one of the only Family Law bills from last year signed position 50:51).
into law affecting general practice is AB 459. This bill was SB 1188 would codify those portions of In re Marriage
affirmative legislation initiated and sponsored by the State Bar of Carney (1979) 24 Cal.3d 725, relating to the relevance of
Family Law Executive Committee (FLEXCOM) and carried parental disabilities in custody cases. The bill was proposed
by Assemblyman Bonnie Lowenthal. It amends Family Code in reaction to a San Diego case, and the author was unfamil­
sections 2103, 2104, 2106 and 2107 to remedy the problem iar with the Carney decision. In response to ACFLS’s concern
where both parties have appeared in the action, but one of the that any legislation would be construed as somehow modify­
parties has not complied by serving either a preliminary or a ing the existing law as embodied in Carney, the bill’s sponsor
final declaration of disclosure. In addition to motions to compel has promised an amendment expressly stating that the intent
or to restrict presentation of evidence, this adds another option of the statute is to codify the Carney holding.
in 2107 (b)(3), allowing the complying party to make a motion DCSS-22 would have diverted Title IV child support cases
to waive the noncomplying party’s service of the preliminary to an administrative hearing process within the Department
or final declaration of disclosure in order to have judgment of Child Support Services – with the first tier of hearings to be
entered. This prevents the noncomplying party from holding conducted by a DCSS hearing officer with a B.A. or undefined
up the judgment because of the failure to serve either the pre­ equivalent experience. Because this major change to child
liminary or the final declaration. Further, only the complying support procedures had been attached to a budget bill, it did
party may move to set aside the judgment unless the noncom­ not go through the normal hearing process. ACFLS and other
plying party asserts fraud or perjury in the preliminary or final bar groups were successful in killing this proposal. Expect to
declaration of disclosure served by the complying party. ■ see it appear as a regular bill in a future term.

SPRING 2010, NO. 1 PAGE 8 ACFLS NEWSLETTER


ACFLS supported SB 1292, which would authorize family out-of-state instance where similar language was upheld as not
law courts to order a vocational examination in spousal sup­ violating the federal mandate, which has led the bill’s author
port cases as they do in child support cases. While family to consider restoring the VDP provisions in some form.
courts may have the power to order such assessments under Much of the impetus for the “quick fix” approaches being
Evidence Code §730, the bill would clarify an uncertain area considered by the legislature this term, and in earlier terms,
of the law. Unfortunately, the bill has met with opposition has come from two advocacy groups whose members feel
from groups saying it would disadvantage women who want aggrieved by family court decisions – the Center for Judicial
to continue as “stay home” moms. Excellence (www.centerforjudicialexcellence.org/), Cali­
ACFLS has also supported a provision in AB 2767, an omni­ fornia Coalition of Families and Children (www​.ccfconline​
bus judiciary bill that would permit access to confidential .net/), and the California Protective Parents Association
parentage files with the written consent of one of the parties. (www​.protectiveparents.com/). ACFLS shares the concerns
It has been difficult for counsel, particularly limited scope voiced by these groups, but points reformers to a ­different set
counsel, to obtain copies of these files for use in assisting of ­remedies, outlined in our Fall 2009 report to the Elkins
litigants. Family Law Task Force.
Assembly Bill 2020, proposed by the Academy of Califor­ There is widespread consensus that even before the drastic
nia Adoption Lawyers (ACAL), keeps changing. ACFLS has budget cuts that are straining the courts (and all government
taken no position thus far. Earlier versions of this bill com­ services), our family courts were struggling and often failing
bined cleanup of minor language in various parentage statutes to meet the standards we should be able to expect from them.
with a revision to the Voluntary Declaration of Parentage In 2009 ACFLS joined the California Association of Family
(VDP) also known as the Parentage Opportunity Program and Conciliation Courts in declaring the failure to adequately
(POP) statutes. fund our family courts constitutes a public health crisis.
The proposed amendment to Fam. Code §7570 et seq. Other family law bars quickly adopted the same resolution.
would prevent a VDP from automatically trumping a ­presumed But instead of the funding that is necessary for family courts
parent claim under Fam. Code §7540-7541 or Fam. Code that work, California’s family courts are experiencing drastic
§7611-7612. Instead, the court would apply the Fam. Code budget cuts, further compromising their ability to provide
§7612 balancing test to resolve the competing claims. fair procedures and wise outcomes.
This amendment would prevent the unfortunate result A 2006 Judicial Council study (www.courtinfo.ca​.gov/
in Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, which reference/4_37pubtrust.htm) found that neither the public
permitted the mother to use a VDP from a purported bio-dad nor the bar have confidence in our family courts. The report
(who had neither met nor supported the child) to defeat a observed that,
pending Fam. Code §7611(d) parentage bid from the man Family and juvenile cases are associated with lower
who had been raising the child as his own since birth. The levels of approval of the courts among both attorneys
VDP was not signed until the 7611(d) dad obtained tempo­ and the public. Joint action by the Judicial Council and
rary shared custody orders in his parentage action. See the the State Bar is needed to address as a matter of priority
more recent decision in H.S. v. Superior Court (2010) 183 the reasons for the perceived unfairness in family and
Cal.App.4th 1502 (I represented the successful petitioners), juvenile proceedings.
which harmonizes the VDP statutes with the presumptive The study’s authors recommended increased funding and
parentage statutes by considering the purposes and policies increased procedural fairness, but budgets are being cut and
of each scheme, rather than holding that the VDP statute bench officer family law experience and expertise are uneven
­preempts presumed-parent claims. The Court held that a around the state. The report observes,
mere putative biological father could not acquire standing by 4. There is equal or greater urgency to improving
execution of a VDP where the child has a presumed father. ­procedural fairness in family and juvenile cases, to
The H.S. Court also held that a VDP signed by a married improve confidence in the process for both litigants
woman is void. and their attorneys.
The proposed amendment would allow some putative bio- 5. Court resources need to be reallocated to improve
dads to acquire standing from the execution of a VDP, where the way family and juvenile cases are handled.
he would otherwise be precluded from seeking to challenge The Supreme Court’s Public Confidence study was fol­
a presumed father claim. The proponents might want to lowed by the Supreme Court’s decision in Elkins v. Super. Ct.
consider including language stating that execution of a VDP (Elkins) (2007) 41 Cal.4th 1337 – underscoring the procedural
does not create standing in a person who would otherwise be fairness gap between family court and civil litigation. In Elkins,
barred by the standing statutes from challenging a presumed the Chief Justice announced his intention to convene the
parent’s status. Once the bill is amended yet again, ACFLS Elkins Family Law Task Force. The opinion in Elkins cites the
will take a look and may take a position. ACFLS amicus brief, including the concern about “… a larger
Each state must comply with federal requirements to schism in the ever-widening two-tiered justice system – that
offer a VDP program in order to continue to receive Title for litigants who can afford to opt out of the public court
IV funding. The VDP provision was dropped in response to system and retain private judges who do not impose unreason­
concerns by the Department of Child Support Services that able and arbitrary deadlines and that for those who cannot
it might threaten federal funding. However, ACAL located an afford to do so.” ■

ACFLS NEWSLETTER PAGE 9 SPRING 2010, NO. 1


 Private Judges Practicing Law:
Is it Ethical?
Michelene Insalaco, cfls Garrett C. Dailey, cfls
ACFLS Director North-Elect Alameda County
San Francisco County garrett@atybriefcase.com
mi@ sucherman-insalaco.com

Michelene ­Insalaco Garrett Dailey is a Certi-


is a partner at the fied Family Law Specialist
law firm Sucherman- emphasizing appeals and
Insalaco LLP in consultations. His office
San Francisco and is in Oakland, ­California.
a Certified Family He was previously a
Law Specialist. Lecturer at U.C. Davis
Her work focuses School of Law, Golden
on complex cases, Gate ­University Graduate
appellate work and School of Taxation and the
representing minors. University of Edinburgh.
Ms. Insalaco is Mr. Dailey is a Fellow in
­currently a member both the American and
of the Executive International Academies
Committee of the of Matrimonial Lawyers.
Family Law Section He was named the 2006
of the State Bar (FlexCom) and the Board of Directors Family Law Person of the Year by the American Academy of
of the Association of Certified Family Law ­Specialists Matrimonial Lawyers, Southern California Chapter. He was the
­(Director North-Elect). She is also the Vice-Chair Elect recipient of the Association of Certified Family Law Specialist’s
of the Family Law Section of the Bar Association of Hall of Fame Award in 1995, the Brandeis Award from the Los
San Francisco. Ms. Insalaco is a presenter of family law Angeles County Bar Association in 2003 and is listed in The Best
continu­ing legal education programs and she has received Lawyers of America. He has been selected numerous times as
numerous awards for pro bono work in family law includ- one of Northern California’s Top 100 Lawyers by SuperLawyer
ing BASF’s James P. Preovolos Award and an Angel Award Magazine. Mr. Dailey is co-author of Attorney’s BriefCase
from California Lawyer Magazine. treatises on California Family Law, Evidence, and Children and
the Law. He is also co-author of Lawgic Marital Settlement and
Pre/Post Marital Agreements and the author of SupporTax.

as a private judge in another case of article is whether, despite containing


1. Introduction yours, Case #2. One day when a crisis no explicit prohibition on the practice of
Imagine a scenario where in Case in Case #1 arises, Attorney B is not law by private judges, California’s Code
#1 you are litigating against Attorney A, available and so calls in his partner, your of Judicial Ethics does bar that practice,
and are then retained in Case #2 where judge in Case #2. Suddenly, your judge and if it does not, whether it should be
Attorney A is sitting as the private judge. is your opposing counsel. amended to do so.
Should you seek to disqualify the judge How about if in either of the above
in Case #2? Or, should you proceed situations things escalate to the point 2. Background of
with the two cases, likely finding your­ where in Case #1 sanctions are war­ Private Judging
self arguing zealously against Attorney ranted against Attorney A. Do you seek California has led the nation in
A one day, only to appear before her as those sanctions? What repercussions private judging since the 1980s, when
your judge the next? would that have for you and your client such appointments increased due to
Or imagine yourself handling a in Case #2, where the person who’d be delays of up to five years in getting to
highly-contested Case #1 against Attor­ sanctioned is your judge? trial, and States such as Texas, Florida,
ney B. His partner, Attorney A, is sitting The question presented in this New York and Massachusetts quickly

SPRING 2010, NO. 1 PAGE 10 ACFLS NEWSLETTER


followed.1 The Supreme Court has B. Ethical Rules ­Governing
explained: “California has created a full- 3. Overview of the Law Private Judges.
fledged system of private judges, collo­ A. The Appointment of The first formal standards of judi­
quially ‘rent-a-judge,’ which permits the a Private Judge. cial conduct were published by the
parties to agree to a temporary judge. . . . In California, private judges are ­American Bar Association in 1924 as the
Such an agreement allows the parties to appointed pursuant to article VI, section Model Canons of Judicial Ethics. Each
bypass urban courts’ crowded calendars, 21 of the California Constitution which state has adopted its own version of the
obtain a trial on a certain, prearranged provides that “on stipulation of the Canons. Over time, there have been
date convenient to parties and wit­ parties litigant the court may order a several substantive revisions of the ABA
nesses, and avoid the cost of trailing on cause to be tried by a temporary judge Canons with most states then following
a master calendar while waiting for a who is a member of the State Bar, sworn suit as to those revisions. The California
courtroom.” 2 and empowered to act until final deter­ standards, originally adopted in 1949,
As family law departments become mination of the cause.” are currently as set forth in the Code of
more impacted by budget cuts, we are Rule 2.831(b) of the Rules of Court 3 Judicial Ethics adopted by our Supreme
facing more and more delay in getting requires that private judges subscribe Court in 1996. This Code can be found
matters to hearing or trial. In addition, to an Oath of Office to confirm that at the California Courts website at www​
despite efforts such as California Stan­ they are aware of and will comply .courtinfo.ca.gov.
dards of Judicial Administration, section with applicable provisions of Canon 6 With respect to when and if a judge
5.30 (e), designed to improve the train­ of the Code of Judicial Ethics and the may practice law, the original ABA
ing of Family Law Judicial Officers, the California Rules of Court. To permit Canons provided as follows (emphasis
fact remains that many sitting in those the State Bar to discipline members added):
assignments have no previous family who violate applicable portions of the 31. Private Law Practice. In many
law legal experience. Code of Judicial Ethics, Rule 1‑710 of cases the practice of law by one
Further, it continues to be the prac­ the Rules of Professional Conduct pro­ holding judicial position is forbid­
tice that trial court judges are rotated vides that members serving as a private den. In superior courts of general
from one assignment to another every judges “shall comply” with all applicable jurisdiction, it should never be per­
two to three years, leaving no continuity ­portions of the canons. mitted. In inferior courts in some
in the judicial officer handling a family When appointing a private judge, states, it is permitted because the
law case that may endure for years. litigants generally agree that most or county or municipality is not able
These and other circumstances all laws and procedural rules shall to pay adequate living compensa­
are leading family law attorneys to still apply to the case, and appellate tion for a competent judge. In such
recommend to their clients that they rights are preserved.4 Some appoint­ cases one who practices law is in a
consider the option of a privately-com­ ment orders alter the regular proce­ position of great delicacy and must
pensated judge. Privately-compensated dural rules, for instance by permitting be scrupulously careful to avoid
judges, or private judges, generally ex parte communications with the pri­ conduct in his practice whereby
fall into two categories: retired judi­ vate judge or providing that no motions he utilizes or seems to utilize his
cial officers, and practicing attorneys may be filed without the private judge’s judicial position to further his
who have decided to expand their authorization. However, in most cases professional success. He should not
practices into private judging. Retired litigants are not altering due process practice in the court in which he is a
judges seldom resume practicing law rights but instead are simply ­inserting judge, even when presided over by
(which for purposes of this article is a private judge in the place of the another judge, or appear therein for
defined as representing a party in a public judge. himself in any ­controversy. . . .
litigated case, as opposed to working The Rules of Court were recently This demonstrates that since at
as a mediator or in a collaborative amended to require that in all proceed­ least 1924, exactly when a judge
case). However, especially in Northern ings before a private judge all original may practice law has been a sensi­
California where there is a shortage of papers must be filed with the court tive issue, governed by the general
experienced, retired family law judicial clerk, and all hearings that would be concept that steps should be taken
officers working as private judges, it is open if held in court must be open. to avoid any conflict of interest in
very common for practicing attorneys (Rules 2.400(b) and 2.833(a).) Further, this area.
to begin taking assignments as judge motions to seal records in cases before Today’s ABA Canons (which may be
pro tem. private judges must be heard by the trial found at www.abanet.org) and most
In those cases, these attorneys either court judge rather than the appointed states’ versions are organized such that
opt to make a jump and cease the prac­ private judge. (Rule 2.834(a).) These there are a set of Canons that apply to
tice of law entirely, or for a period of rules reinforce the idea that cases being all sitting, public judges, and then a
time or permanently they continue to heard by private judges are not subject separate area where it is clarified how
practice law while also sitting as a judge. to special privacy rights and are to be those rules apply to others who perform
It is those latter situations that are the treated as other cases pending in the judicial functions. In the ABA Canons
focus of this article. Superior Courts. Continued on page 22

ACFLS NEWSLETTER PAGE 11 SPRING 2010, NO. 1


The Gathering Storm:
What a Jittery Economy
Really Means to Law Firms
Robert Weinberg, j.d.
Los Angeles County
raw@ rweinberglaw.com

a wave of consolidation in the legal ing payment terms going into any
profession as firms large and small alike engagement and hence enables the
disappeared into the arms of their com­ law firm to remind the client company,
petitors in hopes that, by joining forces, should it be late in making a payment,
they might find economies of scale. that it agreed to the practice before
Even among the survivors, however, work commenced.
many failed to understand that no What happens when a client is late
matter what their size, law firms need paying an invoice? In recent years some
to turn a profit. firms have made it standard practice
The solution, however, is simple: that the lawyer handling a given case
Law firms should take a lesson from make a personal telephone call to the
their business clients and understand client. This is poor practice, since it puts
that there is a difference between cash the lawyer in adverse position relative to
and profit and that accrual bookkeep­ the client, and since in any case it is the
ing, coupled with a disciplined effort rare lawyer who is comfortable, much
to manage accounts receivable, is an less effective, at making such calls.
important key to success. Worse, the lawyer who makes such calls
Los Angeles attorney Robert Law firms need to know that their risks giving the client control over the
Weinberg specializes in debtor- billable hours exceed their overhead, firm’s cash flow. How? The discomfort
creditor matters and consults with but they also need to turn their invoices in the lawyer’s voice can sound like
business and professional firms on into cash. This means taking another begging, inviting the client to set the
AR management. He may be lesson from their business clients and terms of payment and, worse, to wonder
reached at (818) 705-3254 or managing their accounts receivable whether the lawyer is a strong advocate.
at raw@rweinberglaw.com. with a professionalized discipline. The better idea is to give the job to
To that end, law firms must: an accounts receivable clerk trained in
This article is a revision of one that 1. Make their policies regarding making collection calls, following up
appeared in the February 2008 edition fees a part of every engagement letter, with confirming letters to the client,
of The Practical Lawyer, Volume 54 and and keeping proper records.
Number 1. 2. Establish back-office followup The collection call should go to the

T
here are hidden dangers for law procedures to ensure that every clerk’s accounts-payable counterpart in
firms in the gathering downturn in problem invoice is handled in an effi­ the client’s office following something
the economy. Indeed, in any eco­ cient, professional and above all timely like this scenario:
nomic contraction, law firms are among manner. “Hello, this is Kim Smith calling from
the first business enterprises to run into The first of these requires only that ABC Law Firm. Our invoice to your
financial trouble, and in the coming the firm insert language into every company went into the mail on January
months, if the economy goes south, engagement letter stating that it expects 15, and as you know, our policy is that
some may fail. payment within, say, 20 business days all invoices are due and payable within
We have seen this before, and the of the date of an invoice. The firm’s 20 days.
grim irony is that many law firms did standard invoice should carry the same “If you were not aware of this policy,
not learn their lesson the last time they message – “Terms: Net 20 days.” it is stated in our engagement letter
had the chance. The early 1990s saw This puts the client on notice regard­ with your company and appears at the

SPRING 2010, NO. 1 PAGE 12 ACFLS NEWSLETTER


bottom of the invoice. Is there any of many years’ standing who never pays account numbers, credit references, and
reason we have not received payment on time. Such clients may be important contact information for prior counsel, if
on this invoice?” enough to make it counterproductive to any. When the client is a corporation,
Commonly, the response will be that insist on rapid payment. But the more it may be advisable to obtain personal
the invoice is in process; only rarely will often a firm accommodates a special information and even personal guaran­
the client express unhappiness with the client by departing from a disciplined, tees from the principals, since the law
firm’s services, and when this happens, professionalized approach to its collec­ firm may have no recourse to corporate
the law firm should of course take the tions policies, the less control it has over assets in the event of a bankruptcy.
incentive to do something about it. its financial health. Hence every firm Lawyers can avoid such problems
Whatever the response, the firm’s should handle exceptions case by case, entirely, of course, by securing retain­
accounts receivable clerk should ask taking care to give special consideration ers from new clients at the beginning
for a specific date by which the firm only to the truly special client. of an engagement, to be replenished
may expect payment, make note of the These are hardball tactics, to be sure, as the engagement continues. But few
response, and follow up with a letter and they will not fit the culture of every do, and when the time comes to seek
or e-mail confirming the conversation, law firm, much less the needs of the payment, many are reluctant to pursue
including the expected payment date solo practitioner. Whatever their tactics, their clients for payment, sometimes
and the client’s reason for delaying however, lawyers ought not to be because they fear embarrassing the
payment, and reiterating the firm’s embarrassed to ask for payment for their client, sometimes because they think
payment policy. services in accordance with the terms of that as professionals, they ought to be
Should no payment arrive by the their engagement letter – or fear that if above money. They also fear that aggres­
agreed-upon date, the clerk should they do insist on payment, they will lose sive collection procedures may lead
make a second call reminding the client the client. After all, it is the client who the client to threaten to terminate the
of the earlier call and reiterating the law decides to do business with a particular relationship and even allege malpractice
firm’s payment policy and the client’s lawyer, and the client who terminates in hopes that the lawyer will settle for a
commitment to make payment by the an engagement must find legal help else­ lesser fee.
agreed-upon date. where, losing time and in all probability The result is that, under pressure
This time, however, the clerk should money in the process. It may not always to keep billable hours at 2,000 or more
add: “We are giving you the courtesy of be clear to the lawyer why a given client annually, many lawyers work into the
an additional 48 hours. If we have not chooses to seek his or her help. But night and on weekends in hopes that
received payment by the end of business clients stick with their lawyers to get they can make up for those hours that
two days from now, we will have no the matter at issue settled so that they do not result in payment. But the lawyer
choice but to terminate the relationship can move on without further disruption. who bills 2,000 hours a year and col­
and seek collection of any fees overdue.” They know very well that it is unwise to lects on all but 50 does far better than
This should be followed by another change horses in midstream. the lawyer who bills more and collects
e-mail or letter confirming the conversa­ In any case, lawyers have other less – and is a far more valuable com­
tion, the deadline, etc. Should payment means of hedging trouble, in particular modity to his or her firm, too.
still not arrive, the firm should send by collecting financial information on Put another way, it is not the bill­
a substitution of attorney form to the new clients. For individual clients, this able hour that is king. It is the invoice
client or, in matters not involving litiga­ should include Social Security numbers marked “paid.” And it lies within
tion, a letter of termination. or federal tax identification numbers the power of every lawyer to get the
There is, of course, the special client for clients who own businesses, bank job done. ■

S AV E T H E D AT E !
19th Annual ACFLS Spring Seminar
April 15-17, 2011
Hyatt Grand Champions Resort and Spa
Indian Wells, CA
ACFLS NEWSLETTER PAGE 13 SPRING 2010, NO. 1
Explaining the Recent Revisions
to Family Code Section 2337
Part Three of Three Parts
James M. Crawford, Jr., j.d. R. Ann Fallon, cfls Michael J. Low, j.d.
The Woodlands, TX Whiting, Fallon, Ross & Abel, LLP Youngman, Ericsson & Low, LLP
jcrawford @ erisasite.com Contra Costa County Contra Costa County
af @ disso.com mlow @ youngman.com

Jim Crawford (jcrawford@ERISA​ Ann Fallon is a partner at Whiting, Michael J. Low practices with
site.com) is an employee benefits/ Fallon, Ross & Abel, LLP in Walnut Youngman, Ericsson & Low,
ERISA attorney who, for more than Creek, California, a Certified Family LLP, a boutique tax, estate
two decades, has been serving as a Law Specialist and a Fellow of the and ­business law firm in
consultant and expert witness for American Academy of Matrimonial Walnut Creek, California.
California family law practitioners Lawyers. Since 1988, she has focused His practice emphasizes
regarding the characterization, her practice on family law retirement civil and criminal tax
apportionment and division of and other employee benefit issues and is controversies, probate
retirement plans and other forms a frequent writer and speaker on those litigation, and tax
of deferred compensation. He is subjects. Ann received a 2008 Honored and estate planning.
a nationally recognized QDRO Fellow award from the ­Northern
expert and has been a frequent ­California Chapter of the AAML and
speaker for ACFLS on the subject. the Spirit of CEB award for 2007.
She is one of the four drafters of the
2008 ­revisions to Family Code §2337.

In practical terms, though, reserving jurisdiction is mean­


Security Until Final Division ingless if the undivided asset was depleted and the aggrieved
A frequent reason for seeking a severance (bifurcation) and party was left without an effective remedy at the time of the
judgment terminating status only is to obtain the dissolution eventual final determination. It can also be dangerous.1 Ideally
at a juncture that the parties’ respective interests in various then, at the time of a status only judgment, all significant
assets cannot be determined. Family Code section 2337, sub­ assets will be divided or will be of a nature that neither party
division (f), specifically provides that a “judgment granting a can intentionally or inadvertently deprive the other of the
dissolution of the status of the marriage shall expressly reserve other party’s share of the asset. Examples of relatively safe
jurisdiction for later determination of all other pending issues.” assets for deferred division would be a parcel of unimproved

SPRING 2010, NO. 1 PAGE 14 ACFLS NEWSLETTER


real property with a recorded lis pendens or an insured local p­ ersonal jurisdiction over the asset holder (e.g. the foreign
bank account subject to a blocked account order. non-qualified deferred compensation plan administrator or
Pre-2007 section 2337 was predicated upon the assump­ foreign bank), rendering enforcement theoretically possible
tion that – in most cases – should the other party die prior to but economically impractical.
entry of final judgment, an aggrieved party would have an
adequate remedy by proceeding against an undivided asset, Additional Orders
in rem, and/or by proceeding against the other party’s probate To address these types of risks, section 2337, subdivision (c)(9),
estate.2 This was fine if the asset was reachable, the probate provides that the court “may order a specific security interest
estate was solvent, and the costs of enforcement were not designed to reduce or eliminate the likelihood that any such
prohibitive. post-mortem enforcement proceeding(s) would be ineffective
In individual cases, the court had the power to impose or unduly burdensome to the surviving party.” The statute spe­
upon either party “[a]ny other condition the court determines cifically authorizes undertakings,4 security interest QDROs,5
is just and equitable” to protect either party’s interest in and funded irrevocable trust arrangements.6
undivided asset. Experience has shown, though, that these Undertakings are described and governed by the general
assumptions can sometimes leave an aggrieved party without Bond and Undertaking Law,7 which applies to most under­
a remedy, even in cases where the other party has indisputably takings required by various California statutes. An appellant
willfully violated the court’s order. posting a bond on appeal is a common example of this type
* Practice Tip: Every practitioner with clients who have of security arrangement.
interests in qualified plans must read three landmark United A security interest QDRO is a qualified domestic relations
States Supreme Court decisions that have frequent applica­ order that is used to assign a contingent interest in a partici­
tion: Boggs v. Boggs (1997) 520 U.S. 833; Egelhoff v. Egelhoff pant’s ERISA plan benefits to an alternate payee in order to
ex rel. Breiner (2001) 532 U.S. 141; and Kennedy v. Plan secure the participant’s obligations to his or her former spouse.
Administrator for DuPont Savings & Investment Plan (2009) In simple terms, if the participant fails to perform the obliga­
129 S.Ct. 865. tion, the alternate payee will receive the specified benefits
The 2007 revisions to section 2337 preserve the broad under the ERISA plan.
authority of the court to tailor orders to the particular situa­ A funded irrevocable trust is a trust arrangement, with a
tion. Moreover, they also address specific instances where a present corpus, created under the general common law and
reservation of jurisdiction or remedy against a probate estate California Probate Code provisions 8 governing trusts.
may be inadequate and provide specific remedies to address Furthermore, a court is empowered to order “other
such situations. Most or all of the specific remedies were avail­ arrangements as may be reasonably necessary and feasible.” 9
able to the court prior to the revisions, though the revised Nothing in the statute prohibits a court from crafting a
statute now highlights or requires them. unique security arrangement if the circumstances warrant
it. Ideally, though, the “other arrangement” will be borrowed
Potential Problems with Undivided Assets from existing security interest practices so that a there will
Section 2337 now sets forth two situations where additional be a body of law to provide some amount of predictability to
orders likely will be appropriate: (1) where there would be a the transaction. Various examples of “other arrangements”
“substantial burden of enforcement” placed upon an aggrieved include:
party or (2) where the status only judgment would “eliminate – Life insurance owned by the creditor spouse; 10
the ability of the surviving party to enforce his or her com­ – Life insurance held by the trustee of an irrevocable trust
munity property rights if the other party died before the divi­ of which the creditor spouse is a beneficiary; 11
sion and distribution or compliance with any court ordered – Life insurance with a collateral assignment, which is an
payment of any community property interest therein.” 3 assignment filed with and accepted by the insurer; 12
The statute does not exhaustively list potentially problem­ – A third-party guarantee; 13
atic situations, but examples are numerous. – A letter of credit; 14
– Burdensome Costs of Enforcement: Where the costs of – Real property deeds of trust (in California) 15 or common
enforcement are likely to be prohibitive or, even if not prohibi­ law mortgages (in mortgage states);
tive, particularly burdensome and not recoverable from the – Security agreement and UCC financing statement
non-complying party; filings; 16
– Insolvency: Where the obligation is unsecured and the – Other certificated property lien filings, such as on auto­
debtor or the debtor’s estate is or may (to a sufficient probably mobile and certain marine vessels and aircraft;
under the circumstances) become insolvent; – Common law pledge agreements, where a trusted third
– Federal Preemption: Where proceeding against the asset party holds the pledged property;
or the subsequent asset holders may be preempted by federal – Possessory security interests in other property of the
law (e.g. certain ERISA plan benefits); or debtor spouse; and
* Practice Tip: Extra vigilance in recognizing federal – Obtaining an order of a federal or sister-state court having
­preemption issues is required in domestic partnership and jurisdiction over the asset holder in cases where California
same-sex marriage dissolutions. courts lack personal jurisdiction.
– No Personal Jurisdiction: Where California courts lack Continued on page 25

ACFLS NEWSLETTER PAGE 15 SPRING 2010, NO. 1


H ot Off The Press!
Dawn Gray, cfls
ACFLS Newsletter Editor (2010-2011)
Grass Valley, Nevada County
dawn_gray @ earthlink.net

teen months later, on February 15, 2008, which was the exact
date on which support was to reduce to zero, W filed an OSC
requesting modification of the stepdown. She claimed an
inability to be self-supporting and also based her modification
request on the loss of child support. After the matter came
to hearing, the trial court granted W’s modification request,
announcing her decision prior to any argument. When H’s
attorney pointed out that “there had been no preliminary
finding of change of circumstances,” “(t)he trial judge replied
that ‘the child no longer lives with her’ was the change in
circumstances justifying modification of the spousal support
order. When Richard’s counsel asserted that the change was
‘over two years ago,’ the trial judge acknowledged the passage
of time, then changed the subject.” The court ordered H to
pay W $1,625 per month retroactive to February 15, 2008.
H appealed, and the Fourth District reversed.
The result on appeal: The panel held in a case of first
impression that although the phrase “in effect” in Family Code
Dawn Gray is a past President of ACFLS. Section 4326 does not require child support to be presently
She is a solo practitioner whose practice is devoted payable, there is a limit on the time after cessation of child
to contract research and writing on family law issues. support that the support recipient can request a spousal
support modification on that basis alone.

I
n this new column, I will analyze a new family law case Family Code Section 4326 provides that “(a) In a proceed­
or two in each Newsletter edition. You can also read ing in which a spousal support order exists or in which the
these analyses on the ACFLS Blog, at www.acfls​.org/ court has retained jurisdiction over a spousal support order,
famlawblog/. if a companion child support order is in effect, the termination
of child support pursuant to subdivision (a) of Section 3901
Marriage of Kacik (2009) constitutes a change of circumstances that may be the basis
79 Cal.App.4th 410, 101 Cal.Rptr.3d 745 for a request for modification of spousal support.” Holding
Holding: There is a time limit on a supported spouse’s that “(t)he key word in section 4326 is . . . is,” it said that “(t)he
ability to obtain a modification of spousal support based on the question of first impression is what the Legislature meant
cessation of child support under Family Code Section 4326. by the words ‘if a companion child support order is in effect,’
Summary of the facts: Laurie and Richard Kacik were and particu­larly what it meant by the phrase, ‘is in effect.’
married for 16 years and had one child, who was 11 years old Or, put another way: How much time can elapse before is
when they separated. They were divorced pursuant to a stipu­ becomes was ?”
lated judgment filed June 8, 2001. According to the opinion, It held that “the phrase ‘is in effect’ should not be nar­
“(e)ach was represented by counsel. The stipulated judgment rowly construed to deprive the family court of jurisdiction to
provided for $1,125 a month in child support from Richard to make an order under section 4326 just because the child has
Laurie, which was to last until Alexander reached the age of already reached the age of the majority, even though, under
18. Richard was also to pay Laurie $1,625 in spousal support section 3601, a child support order is, technically, no longer
for seven years, after which spousal support was to be reduced ‘in effect’ the day after a child reaches the age of majority. Thus
to zero on February 15, 2008, but the court was to retain a family law court is not deprived of jurisdiction to make an
jurisdiction over support until death, remarriage or further order under section 4326 simply because a child, for example,
order of the court.” turned 18 a few days before the supported spouse made a
The parties’ son reached age 18 in August of 2006. Seven­ request for modification under section 4326.”

SPRING 2010, NO. 1 PAGE 16 ACFLS NEWSLETTER


To reach this conclusion, it reasoned that its job was to “(a) reading of section 4326 that would allow an unlim­
determine “(w)hat did the Legislature mean – or intend – ited amount of time to bring a spousal support modifica­
when it wrote the words, ‘a companion child support order is tion request after a child support order literally went out
in effect’?” It said that neither prior cases nor the bill’s com­ ‘of effect’ (under section 3601) would read the words
mittee reports directly addressed this issue. It observed that ‘is in effect’ totally out of the statute. If the Legislature
Family Code §3601 “directly addresses when a child support had wanted a rule whereby any case in which there had
order is ‘in effect’ ’’ by stating that “(a) child support order is ever been a child support order in effect at any time to
‘in effect until the order is (1) terminated by the court, or (2) be a change of circumstance that could possibly justify
terminates by operation of law pursuant to Sections 3900, a modified spousal support order, it could easily have
3901, 4007, and 4013,’ that is, until the child reaches the age said so – indeed, all the Legislature needed to do was
of majority and support is terminated under section 3901.” change one word: is to was, as in ‘was in effect.’ It did
However, held the panel, not. The Legislature said: ‘ . . . is in effect,’ not ‘was in
“there’s a problem with a construction of section 4326 effect’ or ‘has been in effect at any time.’
that simply imports the literal language of 3601 into Back to the purpose of the statute: The idea was
section 4326. The problem is the word ‘termination,’ that a spousal support order (typically in a long-term
as in the phrase, ‘the termination of child support marriage) might be sub-par because a child support
pursuant to subdivision (a) of Section 3901 constitutes order essentially left insufficient money for a par spousal
a change of circumstances . . . .’ Construing the con­ support order. Hence the termination of the child
ditional words, ‘is in effect’ to exclude any time at all support order would leave the supported spouse with
after the formal ‘termination’ of the child support order the sub-par order, and no ground to correct it. That
reads the words ‘the termination’ to mean, in practi­ ­suggests that the modification should be brought within
cality, ‘the upcoming termination’ or ‘the prospective a reasonable amount of time after the termination of
termination.’ the child support order, and – given what we have said
To be sure, the two readings can be literally harmo­ above about the section 4320 factors that would go into
nized by treating the words ‘the termination’ as a fixed the modification calculus – allowing for enough time
point in time and space, regardless of whether one is for some ‘post-termination’ data to be collected.
looking forward toward an upcoming termination, or A rule requiring a reasonable relationship between
backward toward one that has already happened. Thus the event that the Legislature said could be a change
harmonized, one would read section 4326 to apply only of circumstance justifying a possible modification –
to modification requests made prior to the termination the termination of the child support order – and the
of support, that is, while the ‘companion child support request both (a) satisfies the purpose of the statute
order’ was still ‘in effect.’ while respecting the Legislature’s choice of words,
Even so, such a reading seems at odds with the basic ‘is in effect.’ For shorthand, we might call such a rule
purpose of the statute. The basic purpose of the statute a requirement of reasonable contemporaneousness.”
is to allow supported spouses no longer receiving child The panel then applied the rule to the facts of the case.
support to ‘make the case’ for a modification of spousal “(G)uided by what the Legislature has said about deadlines
support because of the termination of child support. in other contexts, particularly contexts where the burdened
Basically, a reading that precluded all modifications filed party is necessarily aware of some need to act at the time of
after formal termination would deprive trial judges of the event,” it held that
the data they would need to make an informed decision “(i)n light of the Legislature’s concern that a given
concerning the modification request. spousal support award might be the product of the
… law’s own (i.e., §4055’s) squeeze out effect because of
We therefore decline to construe the words ‘is a high level of child support, it seems hard to justify a
in effect’ in pari materia with section 3601 such that modification made after more time has expired than
section 4623 would automatically not apply the day might have been the case of a family law judgment
after a child reached his or her majority. Given the procured through mistake, fraud or perjury. After all,
purpose of the statute, it seems that Legislature wanted to the degree that a supported spouse in a stipulation,
to treat the termination as the change of circumstances or a judge making a spousal support order, recognized
warranting modification. It would defeat the purpose of that a given spousal support was sub-par (lower than
section 4326 to require the modification be filed before it otherwise would be absent the child support order),
the actual change even though the literal language of that information was known to the parties at the time
section 3601 would point in that direction, and we of the original order. They would have less excuse than
decline to do that.” a litigant who had a suspicion that his or her spouse had
It then directly tackled the issue, stating that “if a sup­ gained an unfair advantage through a fraud or perjury
ported spouse is not required to file a modification request to sit on their rights.
prior to the day the child support order expires, the question In the present case, however, the time period was
remains how long after may such a request be filed? Indefi­ 17 months, and the OSC was filed on the very day the
nitely?” In order to answer this question, it reasoned that Continued on page 26

ACFLS NEWSLETTER PAGE 17 SPRING 2010, NO. 1


Many Gems at the
18th Annual ACFLS Spring Seminar
Vivian L. Holley, cfls, mft
ACFLS Director at Large North
San Francisco County
vholley@ creative.net  •   www.vivianholley.com

Over the last 4 years the ACFLS Spring Seminar has


featured a single all encompassing topic with cutting edge
implications for all of our practices. We have studied with and
heard from the best legal and judicial minds about Business
Evaluations and Goodwill, the breath and depths of Spousal
Support, the treatment of the family home and other property
in an Upside Down Economy and now the probate/family law
crossover topic of Title and Transmutations. This was also
the first year ACFLS offered a Pre-Conference Institute on
Advanced Attorneys Fees. The ACFLS Spring Seminars have
earned their well deserved reputation as the ”best and highest
quality programs being offered in Family Law”. (Thank you,
Garrett Dailey!)
While it is not possible to summarize all we learned in this
newsletter article, ACFLS has a DVD library and DVDs of the
last three Spring Seminar and Institute classes are available for
Vivian L. Holley is a family law attorney, mediator, and purchase. In them you will find far more than the gems I will
collaborative lawyer. She is a State Bar Certified Family Law be highlighting here.
Specialist and a Licensed Marriage and Child Therapist. On the topic of Advanced Attorneys’ Fees, Hon. Kenneth
She has counseled families since 1971, and since 1977 Black (Ret.) covered at least 60 cases in his 60-minute presen­
mediated over 1500 disputes involving families, businesses, tation on “Maximizing Your Results in Making or Opposing
real property, and community groups. She has had her Family Law Fee Requests.” He gave us 13 cases to use if you
own private law and mediation practice since 1978 and oppose the other side’s request for fees. He gave us eight
was a pioneer in introducing mediation as a better way of essential cases to know when requesting fees. Without notes
resolving family and relationship disputes. Ms. Holley has and from memory he divided the numerous other fee cases
trained other mediators and served on the board of several into such categories as: when do you measure the ability to
groups, including the Association of Certified Family Law pay and need; under which statute is it better to request fees;
Specialists since 1990. She was President of the Association and the interplay between FC Section 4320 and fee requests.
of Certified Family Law Specialists in 2000. If you are considering asking for fees or opposing a fee motion
under FC Section 271, Judge Black’s lengthy discussion of the

T
he Association of Certified Family Law Specialists held ins and outs of how to use this section is a must review. One
its 18th Annual Spring Seminar on “Titles, Transfers of his gems: a settlement offer can be so onerous that it can be
and Transmutations” at Indian Wells the last weekend the basis of a request for fees under FC 271.
in March, and it was a great success all around. To begin with, After Judge Black’s presentation, the panel consisting of
our locale at the Hyatt Resort in Indian Wells deserved all Judge Michael Naughton (Orange County), Judge Black, and
the rave reviews it received for comfort, helpful staff, price- Garrett Dailey, CFLS, analyzed in depth some “Practical Strat­
friendly beautiful rooms, and kid, adult, and family friendly egies for Attorneys’ Fees Issues,” including a thorough discus­
atmosphere with activities which included world class golf, sion of Borson motions and how to win one at the subsequent
tennis, Camp Hyatt, spa, and several swimming pools. After trial. In the last class of the Attorneys’ Fees Institute, Leslie
years of exploring venues for our Spring Seminars inside and Shear CFLS presented two new developments for attorneys’
outside the State from Mexico to Tahoe, from Napa to Santa fees while providing services to the many clients who cannot
Catalina, from Las Vegas to Laguna Hills, we have found a afford full scale litigation. She discussed “unbundling” along
venue that pleased everyone. with the new forms and statutes related to limiting the scope

SPRING 2010, NO. 1 PAGE 18 ACFLS NEWSLETTER


of service, and the new Civil Gideon Act which will provide ning attorneys provide an exception in their transmutation
family lawyers with opportunities to coordinate and mentor agreements for FC 2640 rights. Although the Holtemann case
new courthouse attorneys assigned to assist pro per litigants. does not allow for a “conditional” transmutation where the
Leslie also left us with a toolkit of cases and arguments to property remains separate for divorce purposes but commu­
make when one party appears to have no income but has nity property upon death, many agreements attempt to do this
family members fueling the custody litigation by providing and thus jeopardize the client’s plans. The panelists explored
unlimited funds for attorneys’ fees. what family law attorneys can do to try to limit the impact of
The next two days took us deep into the world of transmu­ Holtemann, and also what they can do with the client’s deeds
tations, titles, burdens of proof and presumptions. Throughout and living trusts just before filing the Petition of Dissolution
the presentations, a distinguished panel of judges including and later under the ATROs.
Judge Michael Naughton (Orange) and Judge Maren Nelson On Day Two we had a “Trial Practicum on Titles, Transfers
(Los Angeles) moderated by Garrett Dailey commented and and Transmutations” from Peter Walzer, CFLS, and Christo­
offered their opinions on the more controversial topics. pher Melcher, CFLS. Judges Naughton and Nelson were joined
In order to understand transmutations, Dawn Gray, CFLS by Judge Thomas Trent Lewis (Los Angeles) for comments and
and Steve Wagner, CFLS took us through the basic “Funda­ rulings. The speakers’ tips on trial preparation and briefing,
mentals of Transmutations.” To begin with, we were warned including simple ways to verify titles, were worth the price
trials about transmutations can be lengthy, very expensive, of admission. The judges favored bifurcation of the issue of
and risky. Even if you think you have won, the person claim­ tracing the validity of a deed. The strategies of bifurcation and
ing his/her separate property interest can still assert rights the timing of when you tip your hand about the burden of
under FC Section 2640 and under Moore- Marsden and even proof shifting to the other side were hotly debated. We learned
under some other equitable arguments. Besides understand­ that while you do not need consideration for a transmutation,
ing the basics of transmutations which are, having an express you better have some if you want to overcome the presump­
writing 1) valid as to form; 2) obtained free of fraud or undue tion of undue influence in a Post-Nuptial agreement. Another
influence; and 3) free of FC 2640 rights, it is important to have gem from Judge Naughton: if you plan to attack the Post-Nup,
done the math to make sure it is worth pursuing the argument your client had better give back any money or consideration
in the first place. This presentation also focused on the impor­ received under its terms!
tance of the Evidence Code and shifting the burdens of proof. The next program featured Eileen Preville, CFLS, who
It is essential to understand how to shift the burden of proof, presented a “Practicum of Settlements Tools Outside the Box.”
especially when claiming and then overcoming the presump­ She discussed the use of joint ownership post dissolution,
tion of undue influence. and the resurrection of “Duke” orders for the on-going co-
Steve Temko, CFLS, then continued on with the theme of ownership of the family residence. The judges favored short
“Title Presumptions and Burdens of Proof.” His presentation Duke orders, and were surprised that not many requests were
was brilliant and more than one appellate attorney attend­ being made yet as a way to get around the negative valuation of
ing went home knowing his appellate brief would need to be the residence. Eileen offered some business division solutions
updated to include the shifting burdens of proof. We learned which included corporate split-offs, stock redemptions, pre­
about the difference between the “burden of producing evi­ ferred stock buy-outs and corporate loans. All of these solutions
dence” and the “burden of proof”. We learned about all the came with the warning to employ corporate and tax counsel.
family law presumptions and the standards needed to over­ Those who stayed until the end were rewarded by numer­
come them – whether it was clear and convincing evidence ous tips for making winning arguments in the judges’ courts.
or the preponderance of evidence. We learned that you first Besides the issues of the burden of proof, the trumping of
need to prove the basic fact and then the presumption arises one presumption over another, and the timing of Motions in
and then the burden of proof is shifted. Whoever can shift the Limine, the judges weighed in on how they treat the valua­
burden of proof can win! If you can get a conclusive presump­ tion of a negative equity family residence or business. Watch
tion to apply to your case, you have hit a “home run.” For trial out for economic waste which the judges want to avoid. They
attorneys, another gem was that you can make a “Motion in will order the sale or make the parties “give it back to the
Limine” even 6 months before the trial to obtain a ruling on bank” instead. Their discussion on whether they can make
which party carries the burden of proof on certain issues. This the parties borrow funds to pay attorneys fees was priceless.
allows you to plan the discovery, the trial evidence, and witness In order to get fees, we must show the judges a source for the
testimony knowing your burden of proof long ahead of time. fees, and provide completed property declarations so they can
The last panel on Saturday dealt with the “Crossover of see the overall picture.
Probate and Family Law Issues”, with presentations from Hon. Thank you to the ACFLS Spring Seminar Committee,
Mitchell Beckloff (Orange County), Diana Richmond, CFLS chaired by Karen Freitas and Patricia Rigdon. The weather was
and Avery Cooper, CFLS and practicing probate attorney. This terrific, the resort was fun and the classes were stimulating
was one of the first and only programs aimed at both estate and challenging. Friday night’s cocktail party and Saturday’s
planning and family law attorneys to teach the do’s and don’ts dinner were great opportunities for socializing with other
of property transfers which commonly take place in deeds, colleagues and judicial officers throughout the state as well as
community property and transmutation agreements, living friends and family. What else can we ask for at our next Spring
trusts, and pre and post marital agreements. Few estate plan­ Seminar?! ■

ACFLS NEWSLETTER PAGE 19 SPRING 2010, NO. 1


P
K
F
B

SPRING 2010, NO. 1


© 2010 ADimagination

© 2010 ADimagination

L
G
C

PAGE 20
© 2010 ADimagination
H

Q
M

ACFLS NEWSLETTER
© 2010 ADimagination © 2010 ADimagination
ACFLS 2010 Spring Seminar
B Eileen Preville, cfls.
C Record attendance.
D Camille Perona, cpa, Shane Ford, cfls, &
Sharon Bryan, cfls.
E Don Eisenberg, cfls, & Leslie Shear, cfls.
F The children of Michelene Insalaco, cfls,
enjoy ice cream at Friday’s buffet.
G Lulu Wong, cfls, & Peter Walzer, cfls.
H Debra Frank, cfls, Commissioner John

© 2010 ADimagination
Chemeleski & Lynette Berg Robe, cfls.
I Frances & Ed Quirk, cfls.
J Lynn Pfeifer, acfls Executive Director.
D E K Spring Seminar Co-chairs Patricia Rigdon,
cfls, & Karen Freitas, cfls.
L Diana Richmond, cfls, & Bonnie Riley, j.d.,
acfls Webmaster.
M Barbara Hammers, cfls.
N Shannon Fernandez, cfls, Judge Aviva
Bobb (Ret.), Olga Fabrick, cfls, & Judge Isabel
Cohen (Ret.).
O Steven Temko, cfls, & powerpoint!
P Maralee Nelder, cfls, Avery Cooper, cfls,
David Shebby, j.d., & Jeffery Jacobson, cfls.
Q Falcon & falconer.
R Perryne Anker & Judge Robert Schnider (Ret.).
S Judges Maren Nelson, Michael Naughton &
Thomas Trent Lewis with moderator Garrett
I J Dailey, cfls.
Uncredited Photos by Lulu Wong & Frieda Gordon

© 2010 ADimagination

© 2010 ADimagination
N O
© 2010 ADimagination

© 2010 ADimagination

R S

ACFLS NEWSLETTER PAGE 21 SPRING 2010, NO. 1


for each period of service or for each willingly. . . . The test for the appear­
Insalaco & Dailey case heard.” Thus, all types of private ance of impropriety is whether a person
Continued from page 11
judges are lumped together. Canon aware of the facts might reasonably
and in the majority of states, those who 4(G), which prohibits public judges from entertain a doubt that the judge would
perform judicial functions are placed practicing law, does not apply to such be able to act with integrity, impartiality,
into four distinct categories: temporary judges. One might assume and competence.”
1) Retired Judge Subject to Recall – from this that the Code permits all Finally, Canon 3(A)(5) applies to
a formerly-sitting judge who may be private judges to practice law without private judges and requires them to
called back to the bench at any time; exception. However, as discussed below, perform judicial duties without bias or
2) Continuing Part‑Time Judge – the Canons are to be read as a whole. prejudice and not engage in conduct
a judge who “serves repeatedly on a Private judges must be aware that that would reasonably be perceived as
part‑time basis by election or under although permitted to practice law, they biased or prejudiced.
a continuing appointment”; must comply with other provisions of Hence, private judges, like those
3) Periodic Part‑Time Judge – a the Code as illustrated by many Ethics sitting in the Superior Courts, are
judge “who serves or expects to serve Committee Opinions. required not only to avoid actual con­
repeatedly on a part‑time basis, but flicts but to avoid even the appearance
under a separate appointment for each 4. May Private Judges in of impropriety. When a private judge
limited period of service or for each California Ethically presiding over Case #1 involving
matter”; and, Also Practice Law? Attorney B is also Attorney B’s opposing
4) Pro Tempore Part‑Time Judge – A. Recusal Required When counsel in Case #2, many would agree
a judge who “serves or expects to serve Actual Conflict Exists. that at the very least an appearance of
once or only sporadically on a part‑time Although the California Code of Judi­ a conflict exists. Attorney B, invested
basis under a separate appointment for cial Ethics does not expressly prohibit a with the duty of vigorously advocating
each period of service.” private judge from entering into a case for his client’s interests, will typically
Under the ABA Canons, Retired or remaining in a case where counsel be asserting facts that conflict with the
Judges Subject to Recall may not practice for a party appearing before the judge is facts as stated by the private judge’s
law; Continuing and Periodic Part-Time or becomes his or her opposing counsel client; will be arguing for a result in the
Judges “shall not practice law in the in a litigated matter, private judges in case that is against the interests of the
court on which the judge serves or in California are required to comply with private judge’s client; will possibly be
any court subject to the appellate juris­ several provisions of the Code of Judicial seeking sanctions against the private
diction of the court on which the judge Ethics which arguably, when taken as a judge’s client; and may in some cases
serves”; and Pro Tempore Part-Time whole, would appear to preclude such seek sanctions against the private judge
Judges may practice law except in cases practice. herself. Such is the nature of litigation.
where he or she has been the judge. First, Canon 6 (which as noted The private judge, unless he has only
These distinctions and differing above sets out which other Canons a mediation or collaborative practice,
treatments for different types of judges apply to private judges) requires private cannot avoid becoming entangled in
impliedly assume that the more often judges to comply with Canon 1. Canon these types of situations.5
one sits as a judge, the more likeli­ 1 requires judges to uphold the integrity Canon 6(D)(3) requires a private
hood of conflicts, and hence the more and independence of the judiciary by judge to disqualify him or herself in any
restrictions that should be placed on establishing and maintaining high case where 1) the judge believes his or
that person’s ability to practice in the standards of conduct. her recusal would further the interests
geographical area where he or she sits as Next, Canon 2(A) applies to private of justice, 2) there is a substantial doubt
a judge. Typically a court of appeal will judges. This Canon requires judges to as to his or her capacity to be impartial;
have jurisdiction over a set of counties “act at all times in a manner that pro­ and 3) when “a person” aware of the
which provides for a buffer zone larger motes public confidence in the integrity facts “might” reasonably “entertain a
than simply prohibiting practice in the and impartiality of the judiciary.” The doubt” that the private judge would be
county where one might sit as a judge. Advisory Committee Commentary able to be impartial. This section adds:
In this area of judicial governance, to Canon 2(A) states further: “Public “Bias or prejudice toward an attorney
California’s Code of Judicial Ethics confidence in the judiciary is eroded in the proceeding may be grounds for
has parted ways with the ABA and the by irresponsible or improper conduct disqualification.” This reiterates and
majority of states. California’s Code by judges. A judge must avoid all impro- confirms that a conflict with an attorney
defines a “Temporary Judge” as “an priety and appearance of impropriety. is cause for recusal.6
active or inactive member of the bar A judge must expect to be the subject of In keeping with this general rule,
who, pursuant to article VI, section 21 constant public scrutiny. A judge must Canon 6(D)(5)(a) requires that a private
of the California Constitution, serves therefore accept restrictions on the judge must in all cases disclose infor­
or expects to serve as a judge once, spo- judge’s conduct that might be viewed as mation that is reasonably relevant to
radically, or regularly on a part‑time basis burdensome by other members of the the question of disqualification under
under a separate court appointment community and should do so freely and Canon 6D(3), including personal or

SPRING 2010, NO. 1 PAGE 22 ACFLS NEWSLETTER


professional relationships known to “shall not permit his or her partners or sional Conduct, Rule 3-1, “disclosure”
the [private judge] that he or she or his associates to practice law in the court means informing the client of the
or her law firm has had with a party, in which he or she is a judge.” (See 22 relevant circumstances and the actual
lawyer or law firm in the current pro­ NYCRR 100.6(B)(2)(3).) and reasonably foreseeable adverse
ceeding, even though the temporary In keeping with this general rule, as consequences. See Gilbert v. National
judge, referee or court‑appointed arbi­ noted above, Canon 6(D)(5)(a) requires Corp. for Housing Partnerships (1999) 71
trator concludes that there is no actual that a private judge must disclose not Cal.App.4th 1240, where an attorney
basis for disqualification.7 only information about his or her profes­ was found to be disqualified in a simul­
Finally, the Preamble provides that sional relationships with those involved taneous representation matter even
“The Canons should be read together in a case, she must also disclose those of when both clients did not believe that
as a whole, and each provision should his or her law firm. any ­conflict existed. The court stated,
be construed in context and consistent This casts the net of inherent-conflict “Clearly, as a threshold matter one must
with every other provision.” situations even wider. know of, understand and acknowledge
These rules, taken together, would C. An Actual Conflict for a Judge the presence of a conflict of interest
appear to preclude a private judge from Appears to Be Non-Waivable. before one can give informed consent
remaining in a case where he or she as a The Canons apply an objectively to its existence.” (Gilbert at p. 1255.)
practicing attorney has a matter against reasonable standard, such that the In the arena of private judges practic­
counsel for one of the litigants. Cer­ question is not whether there is actual ing law, it would be especially hard to
tainly a case where the judge is actively impropriety or bias in any given situa­ fully disclose not only the actual adverse
litigating against an attorney appearing tion, but whether a person aware of the consequences but also those that are
before him or her might cause a person facts might reasonably entertain a doubt reasonably foreseeable. For instance,
to entertain such a doubt. or perceive bias. This language would if the judge and counsel for the parties
B. Actual Conflicts Extend to Cases appear to completely preclude a valid are opposing counsel but in a case that
Involving Members of the Judge’s Firm. waiver of any known or possible conflict appears headed for settlement and
If one concludes that a private judge by the parties and counsel impacted, which has not involved litigation, would
may not serve in a case where counsel because the standards are created to the disclosure need to explain that
for one of the litigants is opposing ensure the public trust in the judiciary, anything could happen and litigation
counsel in another case, this rule must and the public could never make such could ensue, such as sanction requests
necessarily extend to situations where a waiver.8 and bad-faith tactics that could sour the
one of the judge’s partners or associates The idea of the non-waivability of judge’s good-will toward the attorney?
has a case against counsel for one of the Canons and perceived conflicts is In that event, why would a party ever
the parties. This is because a conflict supported by the Preamble to the Code, knowingly consent to the situation?
that applies to a lawyer necessarily which provides: Such consent would be inherently
extends to members of the lawyer’s Our legal system is based on the unreasonable. Further, if new events
firm: “[W]hen one member of a firm principle that an independent, arose in the middle of the case, arguably
is so engaged, each member thereof is fair, and competent judiciary will a new disclosure would be required,
an attorney or counsel so retained or interpret and apply the laws that and a new consent given, complicating
employed.” (Mayo v. Beber (1960) 177 govern us. The role of the judiciary matters further.
Cal.​App.2d 544, 549.) is central to American concepts of The reality is that few clients are
See People ex rel. Dept. of Corpora- justice and the rule of law. Intrinsic sophisticated enough to understand the
tions v. SpeeDee Oil Change Systems to this code are the precepts that significance of such a waiver and the
(1999) 20 Cal.4th 1135, where the Cali­ judges, individually and collectively, potential for conflict of interest if the
fornia Supreme Court held: must respect and honor the judicial contested case between the lawyers
When a conflict of interest requires office as a public trust and strive to goes sideways. While it is easy to
an attorney’s disqualification from enhance and maintain confidence assume that the parties’ lawyers have
a matter, the disqualification nor­ in our legal system. . . . Compliance fully advised them of these potential
mally extends vicariously to the [with the Code] is required to problems, such an assumption is unsup­
attorney’s entire law firm. . . . This preserve the integrity of the bench portable. What attorney can or would be
rule safeguards clients’ legitimate and to ensure the confidence of willing to predict the twists and turns
expectations that their attorneys the public. that a case may take?
will protect client confidences. Another bar to the idea of the parties D. The Code Would Appear to Pre­
(Id. at p. 1138, citations omitted.) waiving any conflict that may exist in clude the Practice of Law by Lawyers
This type of provision is more explic­ this arena is the idea that such a waiver Who Regularly Sit as a Private Judge.
itly stated in the rules governing judges must be informed and knowing. The The authority cited above arguably
in other states. For instance in New concepts at play here are complex and prohibits attorneys who work regularly
York it is required that a part‑time judge so a knowing waiver would be difficult as private judges from practicing law
shall not practice law in the county if not impossible to obtain. in the general area where they sit.
where his or her court is located and According to the Rules of Profes­ Continued on page 24

ACFLS NEWSLETTER PAGE 23 SPRING 2010, NO. 1


One judge recessed a Los Angeles jury However, when asked if there
Insalaco & Dailey trial for several days while he tended to should be a bright-line rule, opinions
Continued from page 23
a private case, forcing out‑of‑town attor­ varied. Three Northern California
There are at least two reasons for this neys to languish in hotels. private judges were adamant that the
conclusion. While Chief Justice George reported only ethical way to become a private
First, Canon 3(B)(1), which applies that “[t]he vast majority [of retired judge is all-at-once. These individuals
to private judges under Canon 6 and is judges] were conducting themselves in a very ­successfully made this transition
not waivable, requires a judge “to hear perfectly ethical manner, [] even a small without a negative impact on their
and decide all matters assigned to the percentage impugns the public’s percep­ income. One attorney pointed out that
judge.” This means that a judge, includ­ tion of the system.” 9 one can save a great deal on errors and
ing a private judge, once appointed, The same idea applies to the system omissions insurance when so doing,
must take all steps to enable him or her of private judges. While most have as the complete cessation of practic­
to remain in the case. Certainly it would integrity that would preclude an actual ing law typically enables an attorney
be unfair to litigants who have invested conflict and would act appropriately to obtain free lifetime tail insurance
time and money in familiarizing a were the appearance of impropriety ­coverage (and because of judicial
private judge with their case, and who arise, if even in a small percentage of ­immunity ongoing insurance is not
are in part paying for the ability to have the cases a litigant suffered due to the needed).10
one judge hear the entire case, for the judge’s dual role, arguably the practice The judges who take the most
judge to compromise his or her ability should be barred. ­conservative approach were especially
to remain as the judge. On the other hand, one can certainly careful to read and understand all of the
Were a judge to practice law in the argue that by requiring attorneys who ethical rules before taking on private
county where the case was pending, wish to offer their services as private judging cases. One attorney discussed
or to have partners who did so, either judges on a regular basis to completely how becoming a judge can be isolating,
party could easily and immediately force give up the practice of law would dra­ because she was required to end her
the judge to recuse herself by simply matically reduce the number of attor­ association with family law groups, stop
asso­ciating in as co-counsel an attor­ neys available for private judgeships. having dinners with attorney friends
ney who has a litigated case pending Family lawyers are uniquely qualified to who would appear before her, and
against the private judge or a member serve as judges in family law cases. This otherwise act in a way to ­minimize
of the judge’s firm. While, hopefully is especially true for family lawyers who future conflicts, as is required by the
such manipulation of the system is not have extensive trial experience. Hence, Canons. These attorneys voiced con­
commonplace, it is certainly foresee­ such attorneys should be encouraged to cerns about attorneys who may casu­
able. Litigants are entitled to counsel act as private judges and sit as pro tem ally begin taking private judging cases
of their choice and hence could not be judges in the courts. without full knowledge of the related
admonished or precluded from taking Some argue that the marketplace obligations. It was suggested that in the
such action. Private judges are therefore will weed out unethical judges, those future a licensing process with special
the ones who have to act to ensure the who allow themselves to remain in education may evolve.
integrity of the system. To do this, they inherently conflicting situations, or who Another attorney explained that he
arguably should not expose themselves directly or indirectly retaliate against an moved over time into a full-time private
to this situation and should cease prac­ attorney she is litigating against. Unfor­ judging practice by taking only media­
ticing law or associating with partners tunately, this same argument could be tion and collaborative cases during the
who practice law. made for disreputable attorneys. While transition period.
Another reason why attorneys who this is happening, too many litigants Other practicing private judges,
elect to work full-time or a substantial might be hurt. This is not a realistic both retired public judges and lawyers,
portion of their time should cease prac­ solution. believed a bright-line rule that pre­
ticing law is to make it more likely that Interviews with several preeminent cluded the practice of law would not be
the option of working as a private judge private judges around the State turned workable as it would unduly discour­
remains available. It has been the trend up mixed opinions. All of the private age attorneys from becoming private
in California to expand ethical duties for judges interviewed agreed that were judges. Most feel that an attorney needs
both attorneys and judges. For instance, they to find themselves in a situation time to build a private judging practice
in 2003 Chief Justice George issued a where an attorney was both appear­ and would have insufficient income
decree providing that retired judges who ing before them and their opposing if practicing law in the meantime was
work as private judges may not longer counsel in another case, there would be precluded.
sit in court as judge pro tems. In so an actual conflict and the judge would
ordering, the Justice explained that he need to step out of the case. These 5. Conclusion
was disturbed by cases in which retired judges also agreed that they would not The authors cannot avoid the conclu­
judges’ private work affected their work become a judge in a case where a party’s sion that to protect the system of private
in courts. Some part‑time judges were counsel was his or her opposing counsel judging, and to best protect the integrity
marketing themselves from the bench. in another litigated matter. of the judiciary, attorneys who regularly

SPRING 2010, NO. 1 PAGE 24 ACFLS NEWSLETTER


sit as private judges should cease prac­ Endnotes:
ticing law, at least in the county where
Crawford, Fallon, Low
1 See “Rent-a-Judges Forced Out of Cali­ Continued from page 15
they sit. Although there is no logical fornia Courts” (4/24/2003) Martin Kasin­
reason why this preclusion should not dorf, USA Today. * Practice Tip: In crafting an appro­
apply to all attorneys, the authors recog­ 2 In re Marriage of Assemi (1994) 7 priate security interest, there is no
nize the burden that this would put on Cal.4th 896, 907-908, quoting Christian, reason that a spouse’s interest in prop­
the private judging system by excluding Private Judging, The Alternative Dispute Res- erty A cannot be secured by a security
otherwise well qualified individuals olution Practice Guide (1993) §40.3, p. 3.) interest in property B, if the nature of
from accepting the occasional private 3 Unless otherwise specified, all subse­ property B makes it easier and/or less
judging assignment. As the ABA recog­ quent references to Rules are to the Califor­ costly to do so.
nizes a distinction between those who nia Rules of Court. In summary, the additional security
regularly accept these assignments and 4 See detailed discussion in Moore, Calif. interest provisions have not significantly
those who do so “sporadically,” then Civil Practice Proc. 26:59. altered the broad powers that the court
the same distinction should exist here. 5 One might argue that it is Attorney has always had to ensure a status only
However, under no circumstances B who faces a larger conflict. He may be judgment does not impair a party’s
should a private judge be permitted to unable to be an effective advocate for his ability to ultimately obtain his or her
act as a judge in one case and opposing client in Case #2 for fear of repercussions share of an undivided asset. Rather, the
counsel to one of the attorneys before against his other client in Case #1, or for amendments serve to reinforce that
him or her in another. fear that in Case #1 the private judge will practitioners must evaluate the particu­
Although Canon 6 does not, standing decline to award requested attorney fees as lar risks of a status only judgment in
along, expressly provide these restric­ punishment for Attorney B’s behavior as the individual cases and seek such protec­
tions, read in totality, the Canons argu­ judge’s opposing counsel. While this may be tive orders as are warranted by the risks
true, it is the public trust in the judiciary that and costs in that case.
ably do. As written in an ABA opinion
is the focus of this article and the attorney’s
which analyzed whether a pro tem ethical obligations will need to be addressed
judge hearing criminal cases should at another time and in another place.
be permitted to appear as counsel in Endnotes:
6 Interestingly, Canon 6(D)(3)(d) provides
criminal cases in the same court: “One that a private judge is disqualified from 1 See Marriage of Padgett (2009) 172 Cal.
who assumes to act as a judge on one serving at all in family law proceedings App.4th 830.
day and advocate the next in the same if the lawyer holds himself or herself out 2 See current Family Code section 2337,
judicial system is confronted with inher­ to the public as representing exclusively subdivision (g).
ent difficulties that ought to be avoided one side or in fact represents one side 90 3 See Family Code section 2337, subdivi­
and deprecates the employment of such percent of the time (e.g. an attorney at a sion (c)(9).
a system.” firm marketing itself as “divorce for hus­
California is a bellwether for the band’s only” would not be permitted to sit 4 Family Code section 2337, subdivision
as a private judge in any family law case). (c)(9)(A).
laws that will develop in other states,
and so how Californians decide to This provision further stresses the fact that 5 Family Code section 2337, subdivision
handle this issue may have a wider the Code’s purpose is not only to ensure (c)(9)(B).
impartiality in any given case, but to pre­
impact around the country. We should serve the overall integrity of the bench and
6 Family Code section 2337, subdivision
act in the most conservative way to (c)(9)(C).
ensure the confidence of the public in the
avoid actual conflicts and the appear­ judicial branch of our government. 7 Code of Civil Procedure section
ance of conflicts. Judges, like attorneys, 995.010, et seq.
7 See discussion in Knight, Cal. Prac.
cannot be expected to be self-policing Guide: Alternative Dispute Resolution 8 Probate Code section 15000, et seq.
and should have clear rules to guide (TRG 2009) 7:302.
them. 9 Family Code section 2337, subdivision
8 It should be noted that Canon 6(D)(4) (c)(9)(D).
The authors would submit that the permits written waivers of the conflicts set
approach should be the one that errs 10 Compare with Family Code section
out in 6(D)(3)(a)-(d) which would otherwise
on the side of requiring higher ethical 4360.
require a private judge to disqualify him or
standards and best safeguards the herself. This could be construed to mean 11 Compare with Family Code section
independence of the judiciary and the that all conflicts related to private judges may 4360.
public trust in judges and courts. Hence be waived, although there is arguably a dis­ 12 See Treasury Regulation section 1.101-
we would advocate for modification of tinction between conflicts where the judge 1(b)(4).
the Code of Judicial Ethics to preclude is required to initiate a recusal as opposed
to those where the parties are permitted to 13 Civil Code section 2787, et seq.
the practice of law by attorneys who
regularly sit as private judges in the seek to set aside the agreement to appoint 14 California Uniform Commercial Code
the private judge under Rule 2.831 (f). section 5102, subd. (a)(10).
geographical area where they sit, and
would preclude private judges from 9 Rent-a-Judges Forced Out of California 15 See Civil Code section 2920, et seq.
maintaining partnerships with litigating Courts,” supra.
16 See California Uniform Commercial
attorneys. 10 See Knight, supra, at 6:86. ■ Code sections 9310 & 9501, et seq. ■

ACFLS NEWSLETTER PAGE 25 SPRING 2010, NO. 1


Pablo filed a dissolution action against Petra in 2006, and
Gray Petra responded with her own request for dissolution. She
Continued from page 17
later amended her response to seek a judgment of nullity, alleg­
spousal support order was set to step down to zero. The ing that the marriage was void for bigamy under Family Code
supported spouse did not bring her OSC for modifica­ §2201. She stated that she was not seeking putative spouse
tion in the immediate wake of the termination of the status for herself and argued that Pablo could not establish his
child support, but in view of the impending reduction own good faith belief in the validity of their marriage. At the
of spousal support. … Seventeen months belies any hearing on the issue, she testified that she did not know that
temporal relationship between the modification request Pablo was still married when she married him, and that she
and the end of child support. Rather, the temporal did not discover the true facts until 2006.
relation­ship was clearly the scheduled step down of Based on Petra’s testimony, the trial court held that the
negotiated support to zero. parties’ marriage was “either void or voidable” because “at all
… times, Mrs. Tejeda believe[d] that she was married to someone
Because of the unusual circumstance of constru­ who at the time of their marriage ceremony was single.” Thus,
ing a piece of legislation that has less than 18 months held the trial court, under Family Code §2551 it was required
before it sunsets, we address the Legislature directly: to “declare the party or parties to have the status of a putative
Section 4326 is scheduled to terminate on January 1, spouse,” making all of the real property W acquired during the
2011. If you decide to renew it, please consider saying marriage quasi-marital property. “The court found that since
exactly what you mean by ‘is in effect.’ One easy solu­ ‘either party (here, specifically Petra Tejeda) or both parties
tion: Specify a time frame around the termination date believed in good faith that the marriage was valid,’ the court
of child support: say, plus or minus six months, when was statutorily required to ‘declare the party or parties to have
a spousal support modification request based on the a status of putative spouse.’ Under ‘the mandatory language’
termina­tion of child support may be filed.” of section 2251, the court stated, it was ‘obligated to find
It reversed the order modifying W’s spousal support with that the property of the parties is quasi-marital . . . property.’”
instructions to the trial court “to enter a new order denying After the trial court certified the issue for immediate appeal,
the request for modification” without prejudice to W’s filing W appealed the judgment entered thereon.
another motion “based on any changed circumstance other The result on appeal: The Sixth District affirmed the
than the termination of child support in 2006 or the step- trial court, disagreeing with Petra that the “plain language” of
down that was accounted for by the parties back in 2001.” §2551 “is ambiguous to the extent it is susceptible to the inter­
My comment: For an appellate court to directly address pretation applied by the Trial court.” Rather, after reviewing
the Legislature in an opinion is unusual, to say the least. the history of §2551, it held that “(u)pon declaration of puta­
However, this court apparently felt that because the section tive spouse status, the court is required to divide the quasi-
it applied was scheduled to sunset soon, the Legislature could marital property as if it were community property. … Upon
take that opportunity to clarify its intent with regard to the a finding that the marriage is invalid, the statute requires the
time period after cessation of child support during which court to declare any party with the requisite good faith belief
such cessation would constitute a change of circumstances. to be a putative spouse.” Petra argued that the status of puta­
Meanwhile, it had to impose its own rule. As a reversal, the tive spouse required either innocence or a good faith belief in
case tells us that 17 months is too long, at least where that date the marriage’s validity. The court held that “(w)hat Petra fails
is tied directly to a scheduled stepdown in support. Whether to acknowledge, however, is that once either party is a putative
or not the holding would still apply if there was no scheduled spouse, the union is a putative marriage. … Thus, even where
stepdown is unclear; however, it is obviously a good idea to file only one party has the requisite good faith belief in the validity
the motion as soon after child support ends – or even before of the marriage, thereby qualifying as the sole putative spouse,
it ends if the motion will be heard after that date. It’s not as if the court’s declaration of his or her status operates as a declara­
that date is difficult to determine or the end of child support tion that the union itself is a putative marriage.”
is unexpected. This, held the panel, requires the court to divide quasi-
community property equally. It stated that “(n)othing in the
Marriage of Tejeda (2009) language of section 2251’s property division mandate suggests
179 Cal.App.4th 973, 102 Cal.Rptr.3d 361 that it is limited to cases where both parties are putative
Holding: The trial court has no discretion to refuse to spouses. To the contrary, read in combination with the preced­
divide quasi-marital property when it determines that a ing sentence – the grant of putative spouse status to ‘the party
­marriage is a putative marriage under Family Code §1551. or parties’ – it plainly compels division of the quasi-marital
Summary of the facts: Petra and Pablo Tejeda married property regardless of whether both parties have been
in 1973. Unbeknownst to Petra, at the time of their marriage declared putative spouses.”
Pablo was still married to Margarita Tejeda. He petitioned for Undaunted, Petra asked the court to construe §2551 as
dissolution from Margarita in 1975 and that marriage was only being applied at the request of, and to the benefit of, the
termi­nated in 1976. Starting in 1994, Petra began acquiring “innocent” spouse. However, after analyzing Sections 2254
real property, taking title in her name alone together with and 2555, the court concluded that “(b)ased on the plain
other relatives. Pablo’s name was on none of this property. language of the statute, read in context and with due regard

SPRING 2010, NO. 1 PAGE 26 ACFLS NEWSLETTER


for the purposes of the broader law of which it is a part, we Code statutes. If H was still married to W-1 when he married
conclude that the mandate of section 2251 must be applied, W-2, their marriage was “void and illegal from the beginning”
without regard to guilt or innocence, when the court makes under Family Code §2201(a). Thus, there was never any mar­
the predicate findings that (1) the marriage is void or voidable, riage. However, according to this court Family Code §2251(a)
and (2) at least one party to the union maintained a good faith requires the court to equally divide quasi-marital property
belief in the validity of the marriage.” It thus affirmed the trial acquired during a void marriage between the parties even if
court’s holding that it was required to equally divide all of the the party innocent of the true facts resulting in a bigamous
parties’ quasi-marital property. marriage does not want it to, simply because the marriage
My comment: This case seems to undermine the general was void. There was apparently nothing W could have done
fairness and equity that should govern interpretation of Family to avoid this result. ■

Shear how to restructure the board and the Is there a new case that changes your
Continued from page 3 organization. We’ll keep you posted. thinking or practice? How do you use
technology in your practice? All of these
The recommendations of the Elkins Be Part of the ACFLS Brain Trust: are great topics for the ACFLS blog.
Family Law Task Force represent our Listserv, Blog, Newsletter, Blog posts can be a paragraph or two
best hope for true family law reform in CLE Programs, Briefbank --- or article length. Email Bonnie for
California. ACFLS’s Family Law Reform The 500+ certified specialist members full blogging credentials and a lesson
Committee, chaired by President-Elect of ACFLS are an incredible brain trust. in WordPress – or send her your blog
Diane Wasznicky, had a large voice in The greatest value of this organization is to post. We need to hear more voices
shaping those recommendations. Now to create vehicles for sharing expertise on the blog site.
family law reform needs you. Your and experience. You’ll get the most out 4. Write an article for this newslet­ter.
assembly member and state senator of your membership by sharing what Dawn Gray (dawn­_ gray@earthlink​.net)
really need you to become a resource you’ve learned and by encouraging is returning as newsletter editor with
contributing to a better understanding others to do the same. With so much the next issue. We run everything from
of our family courts. Please take the talent out there, I’m struck by how opinion pieces and book reviews to full
time to get acquainted with the legisla­ few voices we hear on the listserv, the scholarly articles. Our newsletter goes
tors (and staff) serving your community. blog, in the newsletter or presenting at to every family law bench officer in the
Getting to know you will provide an ACFLS CLE programs. Each of you has state as well as our members and others
antidote to those who think of us as only something to teach us and each thing influential in family law reform efforts.
looking toward our own pocketbooks. we learn improves the experience of I’m sure you have some thoughts worth
Share the ACFLS Elkins comments, as parties to family court proceedings. sharing, and something to teach us.
well at the Task Force’s final report. Here’s how you can participate (and Debra Frank has given us four outstand­
build your practice by being more visible ing issues – and will return to edit the
Three Decades of ACFLS – on the statewide family law scene): newsletter in 2012.
December 4, 2010 Party; 1. Monitor the listserv, share break­ 5. Contribute a form, brief, memoran­
Organizational Restructuring Ahead ing news and respond to the queries dum of points and authorities or other
ACFLS will celebrate our 30th Anniver­ of your colleagues. If you aren’t on the practice tool to the briefbank. We are
sary on December 4, 2010. Join us in San listserv, email webmaster Bonnie Riley working to revitalize the members-
Francisco’s Union Square at the Westin (bonnielriley@comcast.net) to add you only briefbank. I’ll be seeding it with
St. Francis Hotel for a terrific party, a to the listserv. (Hot Tip: Use your email limited scope retainer agreements, a
look at 30 years of family law speciali­ program’s rules or preferences to auto­ model order appointing a child custody
za­tion and special honors for those matically direct all ACFLS listserv email evaluator, the writ petition from H.S. v.
who have made major contributions to to a dedicated email box so you can read Superior Court, several other appellate
Cali­fornia family law. Ron Granberg is the list while you are on hold or other­ briefs and some other practice materi­
chairing the planning committee and wise free, and keep your inbox orderly. als. Please look at your hard drive and
promises an event a few steps above 2. Read the blog (www.acfls​.org/­ mine the riches for the rest of us. We’ll
our annual holiday party. famlawblog/) and take the time to post a give credit for all contributions, so
The growth of this organization over comment. No special skill or credentials when you contribute to the briefbank
those 30 years has prompted us to look at are needed to comment – just click you also contribute to your statewide
our organization and consider whether on the Comment link after a blog post reputation. Direct your contributions
the board structure and bylaws fit our and tell us what you think. Unlike the to Tech Coordinator Barbara Hammers
current activities. Bylaws committee listserv, the blog is open to the general (Bhammers@hammersbaltazar.com)
chair Vivian Holley has begun a process public for reading and commentary. who, with Bonnie, will be curating the
to recommend some immediate bylaw 3. Do you have a hot tip for colleagues? briefbank.
revisions followed by a two-year look at Can you review a book or practice tool. Continued on page 28 (Shear)

ACFLS NEWSLETTER PAGE 27 SPRING 2010, NO. 1


appear on the continuance date before a party. Similarly, we thought notice
Shear the judge. to family law litigants indicating the
Continued from page 27
It took me 90 minutes to drive to stage of the case and the next steps
the courthouse, and another 90 to is extremely valuable.
My Rant About Los Angeles’s drive back. That time could have been But that’s where it stops. Parties
Ill‑Considered Experiment with used to do the next part of the OSC. to family law cases should have the
Family Law Case Management The appearance took less than five autonomy to move the case along at
Here in L.A., we now have a courtroom unpleasant minutes in which I decided the pace that best meets their needs.
where lawyers and self-repre­sented not to teach the clerk about the marital They certainly do not need to be
litigants must trek to the court­house presumptions and the decision in H.S. v. dragged away from jobs and family
and report to a clerk about the status of Superior Court (2010) 183 Cal.App.4th responsibilities for case management
the case. Court staff send out notices for 1502 or the folly of deporting people appearances, and they do not need their
mandatory appearances – and appear­ who have lived in the U.S. since age 8, attorney’s fees bills to increase because
ance by CourtCall is prohibited. There were educated here, are the parents of these appearances. The court should
is no judge in the case management of American children, and productive respect the rights of parties to deter­
courtroom. The clerk keeps each matter members of our society and economy. mine when they want court services.
on a very short leash. In other words, It was one of those days in which my This is especially true where the court
there is no place for the exercise of self-restraint won the struggle – after is short-staffed and should be employ­
reasoned discretion. There is no mech­ all, the poor clerk didn’t set up this ing the case management clerks in
anism by which a party or parties can unwise waste of time and money. getting orders, judgments and writs
designate the case as “inactive“ while I looked around and the courtroom processed, keeping files organized and
they negotiate, mediate or otherwise was filled with self-represented ­litigants. the myriad other tasks necessary for the
need the action on file but don’t have It is hard enough in this economy for court to function. The court has more
an immediate need for any issues to people to balance work and family than enough to do adjudicating those
be adjudicated. responsibilities. Some people aren’t matters presented for motions, OSCs
So, some weeks ago, I attended paid for time off, and most have limited and trials. It doesn’t need paternalistic
my first mandatory case manage­ ability to skip work. Dragging them to case management.
ment appearance at the Los Angeles court for this kind of status conference There is absolutely no benefit to the
Stanley Mosk Courthouse. It cost my isn’t helpful, isn’t even just harmless – state in meeting some arbitrary statisti­
client three hours of my time for me it does more harm than good. cal goals for closing files – and many
to make this trip downtown. My client It would be fine to send out forms family law cases don’t really close in
got no benefit. I got grilled by a clerk noting the status of the case, and offer­ the same sense that a civil case closes.
who wanted to know why the parent­ ing case management or the assistance There are a jillion variables that
age action has two respondents (the of the self-help center. It would be okay impact when a party or parties to a
statutorily presumed father, and the to send out a form asking for a report family law action would be wise to take
bio-dad who signed an invalid POP-Dec), on the status of the case. But dragging the next step. Some are mediating or
and the reasons for my timing (one of people to the courthouse willy nilly is negotiating. Some have very personal
the dads was in the hospital, the case a truly dreadful public policy call. considerations about timing. The job of
involves a history of DV and a moveaway I’m told that other counties have the court is not to manage the timetable
resulting from my client being deported tried (and dropped) similar experi­ for litigants, it is to adjudicate those
to an Asian country she has never seen ments. I hope L.A. sees the light soon. disputes that the parties present to the
(and whose language she does not It needs to use facilities and staff time court for resolution. The parties should
speak), management of a very delicate in ways that actually help the ­parties. control when, and whether, they have
visitation relationship with the child’s Racing them though the process may an issue that requires adjudication. To
father, and coordinating the immigra­ generate gratifying statistics but it does the extent that the court is now also in
tion and family law cases). I was ordered nothing to promote wise outcomes. the business of assisting the self-repre­
back for another date – the outer limits The court should devote its resources sented litigant, it should offer those
of the time frame that the clerk was to producing wise outcomes for those ­services, not force them on people.
permitted to continue the matter. I was who need an issue adjudicated. It can­ This policy is the next logical corol­
told that missing that status conference not accomplish that basic goal at the lary to no-fault divorce. In 1970 the state
would result in the next one being set moment – and that goal should get its decided that it does not have an interest
before the supervising family law judge. full attention. in deciding who can get divorced. That
I am midway through putting The last thing family law needs revolution was followed by the media­
together a complex OSC with exhibits is mandatory case management. We tion and self-ordering movement – rec­
and declarations. Much is happening in stressed in the ACFLS Comments to ognizing that the parties should control
the life of the family. I concluded that I the Elkins Family Law Task Force that the outcome in most cases. The third
should get that done, save my client the case management assistance should stage of this revolution includes party-
money for the next clerk hearing, and always be available at the request of centric case management. ■

SPRING 2010, NO. 1 PAGE 28 ACFLS NEWSLETTER


practicing attorney, as well as professor, excellence from herself and others,
Frank and Hon. Don King (Ret.) are co-chairing and even when we think we have done
Continued from page 2
the event. Contact Ron Granberg (ron@ all we can, she wants more, and we
review of new family law cases in her granberglaw.com) if you find archival do more. And of course Leslie is a role
column Hot Off The Press! In this material documenting our history, model in this regard. Despite her many
edition, Dawn discusses two cases: including photos and newsletters. commitments, she still, while doing
Irmo Kacik (2009) 179 Cal.App.4th 410, Also please remember to Save them all, manages to respond and share
101 Cal.Rptr.3d 745 and Irmo Tejeda the Date for the 19th Annual Spring her wealth of knowledge on the ACFLS
(2009) 179 Cal.App.4th 973, 102 Cal. Seminar. The dates have been con­ listserv and the LA County Bar listserv
Rptr.3d 361. Kacik tells us that a motion firmed for April 15-17, 2011, returning as well, and in many other legal arenas.
to modify spousal support based on dis­ to the Hyatt Grand Champions Resort Leslie, we are all looking forward to
continuation of child support must be and Spa, Indian Wells, California, a your term and the great energy you
brought reasonably contemporaneously. great location and a lot of fun mixed in bring to family law pursuits.
Tejada provides that if either party is a with great programs and speakers. Thank you, Dawn Gray, our incom­
putative spouse, quasi-marital property We continue to face major challenges ing and former Newsletter Editor, for
must be divided equally. in family law – with the crisis in the all of your assistance to me and your
Also look for another addition to courts and the need for a major overhaul careful research and analysis that you
our newsletter, a new column by Laura to the family law system. ACFLS will offer to all of us in your many ways,
Dewey, who practices in Santa Barbara. continue to monitor legislation, provide including on the listserv, in your presen­
Laura will summarize the hottest topics recommendations and proposals affect­ tations on the law at our seminars, with
on the ACFLS list serve during the pre­ ing the field of family law, provide edu­ articles in the Newsletter and in your
vious quarter, in conversational format, cational pursuits, manage its listserv, blogs. Your quick wit with your partner
with a clear statement of the various blog, website and newsletter. I urge all in crime/lectures, Steve Wagner, makes
opinions on different sides of the issue. of you to attend our Holiday Party and the presentations exciting and inter­
Thank you, Laura, for doing this great join ACFLS, if you have not, or tell your esting, especially when we hear the
work while you were trying to leave for CFLS friends about us. We are a strong “Wagnerisms.”
a long-awaited vacation. advocacy group, which will assist you by For their legislative efforts, I thank
This Newsletter also contains an additionally providing outstanding pro­ the Board and outgoing Legislative
article by Michelene Insalaco and grams on timely topics and authoring Chair, Diane Wasznicky, also Presi­
Garrett Dailey – Private Judges Practic­ amicus briefs of interest. dent Elect, for all of their efforts, and
ing Law: Is it Ethical? This discusses Since this is my last issue for now, welcome Lynette Berg Robe, from Los
conflicts of interests with private judges I want to thank everyone on our hard- Angeles, the new Legislative Chair. She
when those judges are attorneys who working Board for being such an inspira­ and Diane have worked together on the
continue to practice law. tion to me. Our Board of Directors are State Bar Family Law Executive Com­
Additionally, Robert Weinberg, a leaders in the family law community mittee. Lynette brings to the Board all of
debtor-creditor attorney in Los Angeles throughout the State. I especially want her experience with legislation, having
who regularly consults with business to thank all of you for your energy, served on the State Bar Family Law
and professional firms on accounts commitment, passion, and outstanding Executive Committee and as long-time
receivable management, provides us service to the improvement of the prac­ legislation chair for the Los Angeles
with an article titled, “The Gathering tice of family law. County Bar Association Executive Com­
Storm: What a Jittery Economy Really Thank you, Joe Bell, our outgoing mittee. Lynette has worked tirelessly
Means to Law Firms.” President. You were a great leader for providing letters to the legislators on
Our next article by James Crawford, our group, with strong organizational the outstanding family law bills and pro­
Anne Fallon and Michael Low is entitled and consensus-building skills. During vides her insights regarding the legisla­
“Explaining the Recent Revisions to Joe’s term, among other accomplish­ tion in her article in this newsletter.
Family Code Section 2337, Part Three.” ments, ACFLS filed an amicus brief on To all of the other Board Members
We have to thank them for constantly Proposition 8, instituted the family law I haven’t mentioned by name, I appre­
updating our knowledge base relative to blog, provided an expanded newsletter, ciate all that you do on the Board, i.e.,
pensions and retirement plans. and held another well-received Spring our great Spring Seminar committee,
Last but not least, Heidi Tuffias pro­ Seminar in April 2009 on the impact of our Directors throughout the State
vides us with another delightful article the financial crisis on family law matters. who provide regular programs in their
entitled “My Perfect Divorce.” Thank you, Leslie Shear, our tireless respective areas, our amicus commit­
We are gearing up for our 30- year current President, who inspires ACFLS tee, our historians, our bylaws com­
celebration of Family Law Specialization. members and all of us in the family law mittee, all of our elect committees, our
Join us for dinner and memories at the community to constantly improve our technology coordinator, and all of our
St. Francis Westin Hotel, Union Square, skills and knowledge base, and to be other officers and board members. It has
San Francisco on Dec. 4, 2010. Ron more passionate in our pursuits about been an honor to work with all of you
Granberg, former ACFLS President and family law matters. Leslie demands and serve as your Newsletter Editor. ■

ACFLS NEWSLETTER PAGE 29 SPRING 2010, NO. 1


Threads of Interest:
Topics and Quotes ACFLS
ListServ

from Your Listserv


Laura Dewey, cfls
Santa Barbara County
lgdcfls @west.net

1. Refinance issues/awarding mortgage with house/


house equity zero or negative equity. (Beginning date/
time: 1/8/2010, 1:41 p.m. Chain title: “Awarding mort-
gage with house?”)
Len Weiler’s query on this issue was: “Wife has worked
out the division of community property, so that she could
effectively keep the house without an actual equalizing
payment to husband, because of various credits and offsets.
This is based on using the net equity of the house (FMV
minus mortgage) as the value, and her plan is to simply keep
the existing mortgage (currently in both names). Assuming
husband would otherwise agree to the value calculation, he
will want her to refinance or assume the mortgage so that
his name is no longer associated with the debt. She will not
qualify for a refi or assumption at this time. Can the judge
assign the existing encumbrance to her as part of the real
property award, over husband’s objection? Is anyone aware
Ms. Dewey began practicing law in 1983 in the
of any case law on the subject?”
Coachella Valley. She was certified as a specialist in
Among the forty-plus comments on this one were:
family law in 1994 by the California State Bar Board of
I recently researched this very issue, and I couldn’t find any
Legal Specialization. In 1995, she relocated her practice
direct authority that the court must either require the in-
to Santa Barbara and continues to practice there.
spouse to refinance and remove the other’s name or order
Ms. Dewey has served on the Family Law Advisory
the house sold. I argued that absent being off of the loan H
Commission to the Board of Legal Specialization,
was still liable and thus the division was not equal and that
as well as the Board of Legal Specialization.
in the current economy his remaining on the loan was an
A former President of Santa Barbara Women Lawyers
incentive for the in-spouse to walk away if the house was
and former Trustee of the Santa Barbara County
under water, but I couldn’t find any direct authority to order
Bar Association, Ms. Dewey continues to serve
the refinance. Of course, the court can make it a condition
the legal community by serving on the Board of
of receiving the asset, but courts just don’t seem to do so.
CP CAL (Collaborative Practice California).
(Dawn Gray)
and …

O
ne of the many benefits of membership in ACFLS is I would never – I think – disagree with Dawn, but I think
access to the listserv, wherein one practitioner can the better course, especially when refinancing can be so
submit an idea for discussion and be rewarded by the difficult and extra especially if the reason the in-spouse
replies of experienced and knowledgeable practitioners from is having trouble re-financing is that the out-spouse has
all over California and beyond. not paid his support regularly enough for the lender to
This column is a new feature of the ACFLS Newsletter, consider it, would be for the court to reserve jurisdiction
for those practitioners too busy to keep up on a daily basis. to make further orders if the in-spouse ever fails to make
We found the following topics to be of particular interest. For the payments in a timely manner and make it clear that if
each topic, we have referenced the title of the chain, so that the in-spouse fails to pay for any reason other than the out-
you can go back through your emails to follow the entire dis­ spouse’s failure to comply with support orders, the house
cussion. (Also, you may access this information on our website will then be ordered sold.
at http://lists.ssu​.net/mailman/private/acfls-members/) The courts are instructed to divide the community

SPRING 2010, NO. 1 PAGE 30 ACFLS NEWSLETTER


estate in a manner that maximizes it. Forcing a sale get a judge to stop it as opposed to making it happen when
if a spouse cannot refinance does not comply with the there is a tie vote between parents.
mandate because it forces the parties to incur transactional  If one parent can make it happen, then logic says the
costs such as real estate commissions and moving costs. other parent can decide to do something on their own (get
Whether remaining liable on the loan will interfere with a tattoo or engage in some dangerous recreation). The logic
the out-spouse’s ability to qualify for a new mortgage is a is the same. To argue that therapy doesn’t interfere with
factual issue that can be argued and will differ in each case.  the other party’s parenting time may be chronologically
How would you all feel if instead of the family residence, accurate, but the purpose of therapy is to alter the child’s
it was the family business that was awarded to one spouse, behavior in some respect. (Possibly for the better, but who
which has a line of credit or other debt that the other knows?) Why does one parent get to orchestrate a change
spouse signed for during the marriage. Typically the busi­ unilaterally?
ness debt will be subtracted in valuing the business and Equally good arguments can be made for the therapeu­
the spouse who gets the business will be ordered to pay tic parent’s position. Another example of why a definition
it. Should the business be ordered sold if the spouse who of joint custody should be adopted. (Peter David Rubin)
wants it cannot refinance the line of credit to remove the and …
other spouse’s name? Why should the family residence be A parent can do so per FC 3084, but no competent thera­
treated any differently? (Mary Lynne Fisher) pist experienced with custody issues would undertake
Another frequent contributor posted: treatment or meet the child without first contacting both
Another wrinkle: if the 1st is purchase money, wouldn’t parents directly. The success of the therapy turns on having
forcing the re-finance be taking away a valuable right (anti- the support of both parents if at all possible. At minimum,
deficiency) that could have arguably been bargained for in the therapist should call Dad and invite his participation. If
the division? Along, of course, with the valuable prop 13 one parent is undermining the therapy, badmouthing the
tax basis. (Alan Nobler) therapist to the child or subsequently going to court to seek
Fredrick S. (Rick) Cohen had a practical comment: orders terminating the therapy, the unilateral decision will
I spoke with a mortgage underwriter. He CONFIRMED have made the child’s situation worse, not better.
that even if the house were awarded to the other spouse Just as Mom can consent to therapy unilaterally, dad
(say, the Husband) the Wife would still have that mortgage can revoke the consent unilaterally – creating a stalemate.
payment counted against her income when Wife tries to (Leslie Ellen Shear)
buy her own house.  3. “Delivery” or “non-delivery” of stock ­certificates for
One of the final comments, by Terri D. Newman: publicly traded stock. (Beginning date/time: 2/10/2010,
So, maybe in these changing times, we allow the “in” 3:29 p.m.; Chain title: “Stock Certificates”)
spouse to keep the house only if it’s feasible for the “out” Lisa Kiriakidis’ query here was: “I represent husband.
spouse to buy a home currently, and then require the “in During marriage, wife’s father purchases stock for each of
and out” spouses to both participate in obtaining a loan the parties, and the stock certificates are in each of their
on the new house, thus putting both parties on an equal respective names. I have not yet seen the certificates, but
footing, again. Not likely this could happen in court, but I expect to soon. The stock is in a publicly-traded company
creative settlement negotiations might, in at least some (which was started by wife’s brother). The certificates are
cases, render this off the wall solution as a means to in father-in-law’s possession and are never delivered to
achieve equity, equal division, and prevent anyone from the parties. Now at dissolution, I assume the stock is an
receiving a greater benefit than the other, etc. (Of course, unenforce­able gift, since there was no delivery. But I want
there are a number of problems with something like this, to think that the fact the stock is in my client’s name is sig-
but, it might work in some cases to ease the “hit” on both nificant, and might actually result in him having ownership
parties). of the stock. Encouragingly, our settlement judge yesterday
2. Therapy for children where both parents do not thought so. I don’t know enough about corporate securities
consent, but child is over 12 and wants it. (Begin- to know where to go from here.”  
ning date/time: 12/15/2009, 11:43 a.m.; Chain title: The responses included some very practical advice about how
“Therapy”) to handle situations involving publicly traded stocks:
Rick Cohen’s query on this issue was: “When parties Call investor services at the company. Ask them to reissue
share joint legal custody with no further details or specifica- the shares because you cannot “locate” the original shares.
tions, may one parent take their child to see a therapist over (Rick Cohen)
the other party’s objection provided that the appointments A review of these items reveals that even the most revered
are (a) known to the other party in advance and (b) do not of us can differ as to application of the law and likely outcomes
interfere with the other party’s parenting time?” at court. We hope that this “taste” of the listserv will encour­
The comments on this one were quite diverse and included age you to jump in with your opinion the next time a new topic
the following: finds itself in your inbox.
It all depends on whose ox is being gored: And please, dear readers, when you receive a request for
 With no definition of joint custody either parent can a release, kindly respond in the affirmative, so that we may
do pretty much what they want. The other parent needs to share your pearls of wisdom. ■

ACFLS NEWSLETTER PAGE 31 SPRING 2010, NO. 1


Association of
Certified Family Law
Specialists

ACFLS CLE on DVD


18th Annual Spring Seminar  3/27/2010 – 3/28/2010
Titles, Transfers and Transmutations:
When Spouses Change the Character of Assets and Obligations
Fundamentals of Transmutations – Dawn Gray, CFLS; Title, Transfers and Transmutation Trial Practicum –
Stephen J. Wagner, CFLS Peter M. Walzer, CFLS; Christopher Melcher, CFLS
Title Presumptions and Burdens of Proof – Settlement Practicum: Outside the Box Settlement Tools
​Stephen Temko, CFLS, CALS – Eileen Preville, CFLS
’Til Death or Divorce Do Us Part: Probate and Ask the Judges: “The Last Word” – Hon. Thomas Trent
Family Law Crossover Issues – Hon. Mitchell Beckloff; Lewis; Hon. Michael Naughton; Hon. Maren Nelson
Diana E. Richmond, CFLS; Avery Cooper, CFLS
18th Annual Spring Seminar Pre-Conference Institute  3/26/2010
Advanced Attorneys’ Fees
Maximizing Your Results in Making or Opposing Family Law Fee Requests – Hon. Kenneth Black (Ret.)
Practical Strategies for Attorneys’ Fees Issues – Garrett C. Dailey, CFLS; Hon. Michael Naughton; Hon. Kenneth Black (Ret.)
Hot Issues in Attorneys’ Fees Practice – Leslie Ellen Shear, CFLS, CALS
17th Annual Spring Seminar  4/17/2009 – 4/18/2009
Complex Property Characterization and Disposition Issues:
Strategies for an Uncertain Economy
Practical Solutions to “Real” Estate Problems: Char­ Practical Strategies for Business Valuation and Cash-Flow
acter­ization and Division in a Down Real Estate Market Analysis in an Economic Downturn – Peter M. Walzer, CFLS;
– Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS Jerry E. Randall, C.P.A.
Upside Down and Inside Out: Coping With Fore­ Don’t Delay the Deferred Comp Issues: A Review of Pension
closures and Short Sales – D. Thomas Woodruff, CFLS; and Retirement Division Law and How to Minimize Risks
Jonathan G. Stein, J.D.; Randy C. Renfro, C.P.A., J.D.; – R. Ann Fallon, CFLS; James M. Crawford, Jr., J.D.
Arnold Breyer, CFLS “The Last Word” on Characterization and Division
Beyond Pereira and Van Camp: Equitable Apportion­ – The Judges Will Take Your Questions Now… –
ment in a Chaotic Market – Dawn Gray, CFLS; Garrett C. Dailey, CFLS (moderator); Hon. Donald King (Ret.);
Stephen J. Wagner, CFLS Hon. Thomas Trent Lewis; Hon. Jerilyn L. Borack
16th Annual Spring Seminar  3/15/2008 – 3/16/2008
Spousal Support: Everything the Family Law Practitioner Should Know, and More
Spousal Support: The Historical Perspective and Income v. Cash Flow Available for Spousal Support –
the Future Vision – James A. Hennenhoefer, CFLS; Stephen J. Wagner, CFLS; Cynthia V. Craig, C.P.A.
Diana Richmond, CFLS Taxation Issues Relative to Spousal Support Orders –
How to Prove the Elements: Difference in Temporary Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS
v. Permanent Spousal Support & Burdens of Proof – Collection of Spousal Support from Retirement Income
Ronald S. Granberg, CFLS; Robert Blevans, CFLS Streams/Murray – R. Ann Fallon, CFLS; James M.
Modifications, Step-Downs and Terminations of Spousal Crawford, Jr., J.D.
Support – Garrett C. Dailey, CFLS

Browse our Topical Index on the next page, and then order from the
full Catalog listing more than 40 programs on the pages that follow.
SPRING 2010, NO. 1 PAGE 32 ACFLS NEWSLETTER
TOPICAL INDEX OF ACFLS CLE ON DVD TITLES
Custody • “The Last Word” on Characterization and Division – The
Judges Will Take Your Questions Now… – Garrett C. Dailey, CFLS
• The Five W’s and the H of Deposing Child Custody (moderator); Hon. Donald King (Ret.); Hon. Thomas Trent Lewis;
Litigants: Who, What, When, Where, Why and HOW – Leslie
Hon. Jerilyn L. Borack
Ellen Shear, CFLS, CALS
• Alienation – What Is It Really? And What Can You Do • Collection of Spousal Support from Retirement Income
Streams/Murray – R. Ann Fallon, CFLS; James M. Crawford, Jr., J.D.
About It? – Nancy Olesen, Ph.D.
• What Every Family Law Practitioner Should Know About • Facilitated Discussion of Two Key 2009 Cases: In re Mar­riage
of Dellaria and In re Marriage of Knowles – Bob O’Hair, CFLS;
3rd Party Placement in Guardianships and Adoptions – Jeff Posner, CFLS
Janet Uthe, CFLS; Thomas Volk, J.D.
• Everything Family Law Practitioners Should Know About • Family Law Real Property Issues in This Troubled Real Estate
Market – Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS
the Three Levels of Supervised Visitation in Custody
Disputes – Jim vanEck, P.P.S.; Stephanie H. Stilley, M.S.W. • Short Sales and Foreclosures of Primary Residences and the
Basic Rules of IRC 108 – Keith E. Pershall, LL.M.; Anthony A.
• Juvenile Dependency: A Practical Guide for Family Law Arostegui, J.D.
­Attorneys – Gregory Ward Dwyer, CFLS
• Reunification Therapy in the 21st Century – Linda S. Tell, • The Elements of Tassi Training – D. Thomas Woodruff, CFLS
R.N., M.F.T.; Stephanie H. Stilley, M.S.W. • A Systematic Method of Enforcing Fiduciary Duties: Marriage
of Feldman – Dawn Gray, CFLS; Stephen J. Wagner, CFLS
• Issues Related to the Use of Psychological Testing in • Actuary Consultation – George W. McCauslan, F.S.A.
Evidence Code § 730 Custody Evaluations – Sidney K. Nelson,
Ph.D. • The Effect of Refinancing Property on Characterization and
Reimbursement Rights: Real Estate Is Down, Walrath Is Up –
• Dispelling Common Myths and Misconceptions about the Robert E. Blevans, CFLS; Ronald S. Granberg, CFLS
UCCJEA – William M. Hilton, CFLS; Caralisa Hughes, CFLS
Support Tax
• Spousal Support: The Historical Perspective and the • Income v. Cash Flow Available for Spousal Support – Stephen
J. Wagner, CFLS; Cynthia V. Craig, C.P.A.
Future Vision – James A. Hennenhoefer, CFLS; Diana
Richmond, CFLS & Taxation Issues Relative to Spousal Support Orders – Sally
White, C.P.A.
• How to Prove the Elements: Difference in Temporary • IRS Update for Family Lawyers: What to Expect from the IRS
v. Permanent Spousal Support and Burdens of Proof –
Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS in 2009 – Steven J. Mopsick, J.D.
• Modifications, Step-Downs and Terminations of Spousal • IRS Issues for the Family Law Practice – Steven J. Mopsick, J.D.
Support – Garrett C. Dailey, CFLS Substance Abuse
• Income v. Cash Flow Available for Spousal Support – • Tips, Tricks and Toxins of Drug Testing – Sue Ramsden,
Stephen J. Wagner, CFLS; Cynthia V. Craig, C.P.A. ­Toxicologist
& Taxation Issues Relative to Spousal Support Orders – • Substance Abuse in the Legal Profession – Thomas L. Russell,
Sally White, C.P.A. L.C.S.W.; Michael S. Parr, M.D.
• Facilitated Discussion of Two Key 2009 Cases: In re • Chemical Dependency and Substance Abuse Issues in Family
Marriage of Dellaria and In re Marriage of Knowles – Law – Thomas L. Russell, L.C.S.W.; Sue Ramsden, Toxicologist
Bob O’Hair, CFLS; Jeff Posner, CFLS Appeals
• Special Issues Related to Disability Benefits in Child • How to Win Your Appeal at Trial – Bernard N. Wolf, CFLS
Support – Ron Ladage, J.D.; Kathleen Amos, J.D.
• Spousal Support and Marital Standard of Living Issues in Domestic Violence
Family Law: Marriage of Ackerman – Roundtable Discussion • Everything Family Law Practitioners Should Know About
Domestic Violence Restraining Orders – Hon. Jerilyn Borack
Property
• Valuation of Professional Goodwill – Mary Martinelli, CFLS; Bifurcation – Status
Rob Wallace, C.P.A.; David Black, C.P.A. • Everything Family Law Practitioners Should Know About
• Titles, Transfers and Transmutations: When Spouses Revised Family Code § 2337: Navigating the Bifur­cation
Change the Character of Assets and Obligations – See 18th ­Triangle – R. Ann Fallon, CFLS; James M. Crawford, Jr., J.D.
Annual Spring Seminar, front cover Attorney Fees
• Practical Solutions to “Real” Estate Problems: Characteri­ • 18th Annual Spring Seminar Pre-Conference Institute:
zation and Division in a Down Real Estate Market – Ronald Advanced Attorneys’ Fees: Maximizing Your Results in Making
S. Granberg, CFLS; Robert E. Blevans, CFLS or Opposing Family Law Fee Requests, Practical Strategies,
• Upside Down and Inside Out: Coping With Foreclosures and Hot Issues – Hon. Kenneth Black (Ret.); Hon. Michael Naughton;
and Short Sales – D. Thomas Woodruff, CFLS; Jonathan G. Garrett C. Dailey, CFLS; Leslie Ellen Shear, CFLS, CALS
Stein, J.D.; Randy C. Renfro, C.P.A., J.D.; Arnold Breyer, CFLS
• Beyond Pereira and Van Camp: Equitable Apportionment in Psychological and Counseling
a Chaotic Market – Dawn Gray, CFLS; Stephen J. Wagner, CFLS • Everything Family Law Practitioners Should Know About the
Three Levels of Supervised Visitation in Custody Disputes –
• Practical Strategies for Business Valuation and Cash Flow Jim vanEck, P.P.S.; Stephanie H. Stilley, M.S.W.
Analysis in an Economic Downturn – Peter M. Walzer, CFLS;
Jerry E. Randall, C.P.A. • Reunification Therapy in the 21st Century – Linda S. Tell, R.N.,
• Don’t Delay the Deferred Comp Issues: A Review of Pension M.F.T.; Stephanie H. Stilley, M.S.W.
and Retirement Division Law and How to Minimize Risks – • Issues Related to the Use of Psychological Testing in Evidence
R. Ann Fallon, CFLS; James M. Crawford, Jr., J.D. Code § 730 Custody Evaluations – Sidney K. Nelson, Ph.D.

ACFLS NEWSLETTER PAGE 33 SPRING 2010, NO. 1


ACFLS CLE ON DVD ORDER FORM
Date of MCLE Price/
Event Title Presenters Hours Qty. Unit Subtotal
3/15/08 – 16th Annual Spring Seminar: “Spousal Support: See front cover for session and speaker
3/16/08 Every­thing the Family Law Practitioner Should details 8.45 $299
Know, and More”
4/18/09 – 17th Annual Spring Seminar: “Complex Property See front cover for session and speaker
4/19/09 Characterization and Disposition Issues: Strategies details 8.5 $299
for an Uncertain Economy”
3/27/10 – 18th Annual Spring Seminar: “Titles, Transfers See front cover for session and speaker
3/28/10 and Transmutations: When Spouses Change the details 9.0 $299
Character of Assets and Obligations,” including
Pre‑Conference Institute: Advanced Attorneys’ Fees
3/26/10 18th Annual Spring Seminar Pre-Conference Hon. Kenneth Black (Ret.); 
Institute: Advanced Attorneys’ Fees: Maximizing Hon. Michael Naughton;  3.0 $125
Your Results in Making or Opposing Family Law Garrett C. Dailey, CFLS; 
Fee Requests, Practical Strategies, and Hot Issues Leslie Ellen Shear, CFLS, CALS
1/12/08 A Systematic Method of Enforcing Fiduciary Duties: Dawn Gray, CFLS;  3 $175
Marriage of Feldman Stephen J. Wagner, CFLS
3/27/07 Actuary Consultation George W. McCauslan, F.S.A. 1 $38
2/25/10 Alienation – What Is It Really? And What Can You Nancy Olesen, Ph.D. 1 $38
Do About It?
4/18/09 Beyond Pereira and Van Camp: Equitable Dawn Gray, CFLS;  1.5 $55
Apportionment in a Chaotic Market Stephen J. Wagner, CFLS
6/26/07 Chemical Dependency and Substance Abuse Issues Thomas L. Russell, L.C.S.W.; 1 $38
in Family Law Sue Ramsden, Toxicologist
3/16/08 Collection of Spousal Support from Retirement R. Ann Fallon, CFLS;  1.5 $55
Income Streams/Murray James M. Crawford, Jr., J.D.
6/15/06 Dispelling Common Myths and Misconceptions William M. Hilton, CFLS;  1 $38
About the UCCJEA Caralisa Hughes, CFLS
4/19/09 Don’t Delay the Deferred Comp Issues: A Review of R. Ann Fallon, CFLS; 
Pension and Retirement Division Law and How to James M. Crawford, Jr., J.D. 1.5 $55
Minimize Risks
2/26/08 Everything Family Law Practitioners Should Know Hon. Jerilyn Borack 1 $38
About Domestic Violence Restraining Orders
1/22/08 Everything Family Law Practitioners Should Know R. Ann Fallon, CFLS; 
About Revised Family Code § 2337: Navigating the James M. Crawford, Jr., J.D. 1 $38
Bifurcation Triangle
5/26/09 Everything Family Law Practitioners Should Know Jim vanEck, P.P.S.; 
About the Three Levels of Supervised Visitation in Stephanie H. Stilley, M.S.W. 1 $38
Custody Disputes
1/26/10 Facilitated Discussion of Two Key 2009 Cases: In re Bob O’Hair, CFLS;  1 $38
Marriage of Dellaria and In re Marriage of Knowles Jeff Posner, CFLS
8/28/09 Family Law Real Property Issues in This Troubled Ronald S. Granberg, CFLS;  3 $125
Real Estate Market Robert E. Blevans, CFLS
3/15/08 How to Prove the Elements: Difference in Temporary Ronald S. Granberg, CFLS;  1.5 $55
v. Permanent Spousal Support and Burdens of Proof Robert E. Blevans, CFLS
6/21/07 How to Win Your Appeal at Trial Bernard N. Wolf, CFLS 1 $38
3/16/08  Income v. Cash Flow Available for Spousal Support Stephen J. Wagner, CFLS;  1.75  $125
  & Cynthia V. Craig, C.P.A.   Total
3/16/08 Taxation Issues Relative to Spousal Support Orders Sally White, C.P.A. .75
3/25/08 IRS Issues for the Family Law Practice Steven J. Mopsick, J.D. 1 $38
1/27/09 IRS Update for Family Lawyers: Steven J. Mopsick, J.D. 1 $38
What to Expect from the IRS in 2009
9/25/07 Issues Related to the Use of Psycho­logical Testing in Sidney K. Nelson, Ph.D. 1 $38
Evidence Code § 730 Custody Evaluations
3/24/09 Juvenile Dependency: A Practical Guide for Family Gregory Ward Dwyer, CFLS 1 $38
Law Attorneys
3/15/08 Modifications, Step-Downs and Terminations of Garrett C. Dailey, CFLS 1.17 $38
Spousal Support

SPRING 2010, NO. 1 PAGE 34 ACFLS NEWSLETTER


Date of MCLE Price/
Event Title Presenters Hours Qty. Unit Subtotal
4/18/09 Practical Solutions to “Real” Estate Problems: Ronald S. Granberg, CFLS; 
Characterization and Division in a Down Real Estate Robert E. Blevans, CFLS 1.5 $55
Market
4/19/09 Practical Strategies for Business Valuation and Cash Peter M. Walzer, CFLS;  1.5 $55
Flow Analysis in an Economic Downturn Jerry E. Randall, C.P.A.
8/26/08 Reunification Therapy in the 21st Century Linda S. Tell, R.N., M.F.T.;  1 $38
Stephanie H. Stilley, A.S.W.
2/24/09 Short Sales and Foreclosures of Primary Residences Keith E. Perschall, LL.M.;  1 $38
and the Basic Rules of IRC 108 Anthony A. Arostegui, J.D.
5/22/07 Special Issues Related to Disability Benefits in Ron Ladage, J.D.;  1 $38
Child Support Kathleen Amos, J.D.
4/24/07 Spousal Support and Marital Standard of Living Roundtable Discussion 1 $38
Issues in Family Law: Marriage of Ackerman
3/15/08 Spousal Support: The Historical Perspective and the James A. Hennenhoefer, CFLS;  1 $38
Future Vision Diana Richmond, CFLS
9/23/08 Substance Abuse in the Legal Profession Thomas L. Russell, L.C.S.W.;  1 $38
Michael S. Parr, M.D.
2/27/07 The Effect of Refinancing Property on Characteri­ Robert E. Blevans, CFLS; 
zation and Reimbursement Rights: Real Estate is Ronald S. Granberg, CFLS 1 $38
Down, Walrath is Up
4/22/08 The Elements of Tassi Training Thomas Woodruff, CFLS 1 $38
5/4/10 The Five W’s and the H of Deposing Child Custody Leslie Ellen Shear, CFLS, CALS 1 $38
Litigants: Who, What, When, Where, Why and HOW
4/19/09 “The Last Word” on Characterization and Division – Garrett C. Dailey, CFLS (moderator);
The Judges Will Take Your Questions Now… Hon. Donald King (Ret.); Hon. Thomas 1 $38
Trent Lewis; Hon. Jerilyn L. Borack
02/23/10 The Wisdom of Solomon And How to Divide the Michelle R. Witt, M.A, M.F.T. 1 $38
Baby – A Guide to Property Division Facilitation
10/27/09 Tips, Tricks and Toxins of Drug Testing Sue Ramsden, Toxicologist 1 $38
4/18/09 Upside Down and Inside Out: Coping With D. Thomas Woodruff, CFLS; Jonathan G.
Foreclosures and Short Sales Stein, J.D.; Randy C. Renfro, C.P.A., J.D.; 1.5 $55
Arnold Breyer, CFLS
4/27/10 Valuation of Professional Goodwill Mary Martinelli, CFLS; Rob Wallace, 1 $38
C.P.A.; David Black, C.P.A.
9/22/09 What Every Family Law Practitioner Should Know Janet Uthe, CFLS; 
About 3rd Party Placement in Guardianships and Thomas Volk, J.D. 1 $38
Adoptions

Please submit this form with a check payable to ACFLS or with


credit card information.
Mail: ACFLS, 15 Corrillo Drive, San Rafael, CA 94903-3902 Total Programs:
Email: acfls@comcast.net  •  Fax: (415) 479-1347
I prefer to pay by MasterCard or Visa:
Name: Sales Tax (9.5%):
Phone Number:
Mailing Address:
City: Shipping: (1–3 DVDs flat rate): $7.50
(4 + DVDs flat rate): $12.00
State: Zip:
Credit Card Acct. Number:
Order Total:
Exp. Date:
Name as it appears
on credit card: ❏ Please email me information about future programs.
Email Address:
Signature:
ACFLS is a State Bar of California–approved mcle provider and an approved family law provider by the California Board of Legal Specialization. Provider #118.

ACFLS NEWSLETTER PAGE 35 SPRING 2010, NO. 1


BOOK
REVIEW
Leslie Ellen Shear, cfls, cals
ACFLS President
Los Angeles
custodymatters @earthlink.net

“Some Other Time: A Novel”


by ACFLS’s own Diana Richmond

I
spent last Saturday evening read­ reaction to the loss of Sunday shape lawyers will recognize Greta’s
ing 2007 ACFLS Hall of Fame their future personal and profes­ patients as the folks who populate
Award Winner Diana ­Richmond’s sional lives in profound ways. Greta our client lists – including a lesbian
Some Other Time: A Novel on becomes a therapist, raises a son, considering parenthood, a couple
my Kindle. I found it absorbing – but never enjoys a long-term rela­ recovering from the death of their
and didn’t turn out the tionship. Sunday becomes a college only child on different timetables,
bedside light until I professor, marries, and has and a husband who feels his life is
­finished it. three children. being dragged down by a chroni­
Some Other Time Each of cally ill wife who has become
begins in 1940s Mil­ them addicted to her pain meds.
waukee and traces escapes Diana’s book holds special
three generations of from their interest for me, because I lived
two families to con­ daily lives in ­Milwaukee from toddlerhood
temporary ­Berkeley through through the seventh grade (1963).
and San Francisco. casual sexual When I saw that the early chapters
The core stories encounters were set in Milwaukee, Diana and
focus on Greta at pro­fes­sional I began comparing notes by email.
and Sunday, a conferences. We were surprised to learn that
white girl and They meet up we both attended the 95th Street
black boy who again in the Bay ­Elementary School, albeit a few
fall in love in area when Sun­ years apart. We compared notes,
high school, day’s wife seeks memories and experiences of race
but go off therapy from Greta. relations in the midwest in the
to different Meanwhile, Greta’s 1960s by email and then I started
colleges. son and Sunday’s reading.
Sunday’s daughter meet in Amazon prices Diana’s book at
decision high school, and start $9.95 for the Kindle edition and
to walk away from dating. $16.25 with free shipping in hard­
his love for Greta, and Greta’s Along the way, family cover. ■

SPRING 2010, NO. 1 PAGE 36 ACFLS NEWSLETTER


Reflections on the Human Side of Family Law Practice:

My Perfect Divorce
Heidi S. Tuffias, cfls
Los Angeles County
tuffias @aol.com
www.familylawsolutions.com

T
he wedding planner thinks about the market dipping, after our marriage,
the day when she will have the well below the value of the condo at the
perfect wedding, the obstetrician date of marriage and then popping back
thinks about the perfect birth of her up before we sold it. Come to think of
baby and the travel agent dreams about it, do I even have all those files from that
the perfect trip. Me, I think about my condo? Could I meet the burden? My
perfect divorce. I have already started document production would be really
some things of course; we both have stellar. I do not exactly keep organized
copies of all the photographs on our records now but I do keep volumes of
hard drives, neither of our parents gifted records, which could be made into one
the two of us anything ambiguously and heck of a response to request for docu­
there are no “videotapes,” if you know ments. Let’s not forget the look at the
what I mean. FC 4320 factors applied to our life. Of
Of course, I know we would mediate course, we are so much like the Winters,
blissfully and rationally coming up with saving all that money, that this issue
interest-based, creative solutions to all would clearly be well examined. Don’t Heidi Tuffias has been a Certified
issues presented by our post-separation even get me started on all of my fidu­ Family Law Specialist since 1995.
lives. We would be able to put aside ciary duty analyses. She practices in Brentwood. Heidi
resentments and disappointments, if What if we could not resolve things and the members of her firm provide
there were any, and cost-effectively in mediation and we needed a settle­ the full range of family law legal
design simple, yet custom-made plans ment conference with a retired Judge? services. Heidi focuses her practice
that worked perfectly for our family. We Who would I want? Warm and cuddly on alternative dispute resolution and
would live down the street from each or straight to the point? Maybe there settlement-oriented representation
other, have flexibility and consistency would be a certain poetry about having of clients in litigation.
in our parenting plan and we would call the Judge who married us do it. I think
it a parenting plan, never custody. We I would insist on us each paying at will make for dinner, and I know just
would maximize our dollars with family least a portion of the costs to keep us which Ph.D. I would want. I will have
support and find a way to make use of evenly invested in the process working. one of those fancy notebooks from the
both of our $250,000 capital gains tax I would want to be in separate rooms forensic with the colored tabs, in-depth
shelter. I know I could be very big about most of the time, have my turn to spout tracings, maybe even pie charts! The
personal property issues and annoying off vehemently about the unfairness, his vocational evaluation, real property
details where he wants everything his flaws and my criticisms of his parenting. and furniture appraisals, maybe even
own way. I might even enjoy drafting I would also like to explain the ridicu­ an educational evaluator. Wouldn’t an
the Judgment. lousness of each of his unwarranted and expert on the reasonable compensation
Then I start thinking about the com­ absurd allegations of my imperfection. for my job be fun?
plexities and nuances. Could I make Oh and the experts! The psychologi­ There could be a trial, private judge
a Van Camp argument about the value cal custody evaluation, the test where or through the Superior Court? I would
of my law firm? There is no way I am my daughter gets asked who do you go definitely want it on consecutive days.
taking my retirement accounts without to when you’re scared? Happy? Con­ My direct examination would be flaw­
a significant discount for their illiquid, fused? The MMPI all for my family! I less; I would listen to the question and
pre-tax nature. That would be an excit­ know just what I’ll do for the home visit, not digress. The Judge will be com­
ing Moore/Marsden analysis, what with what nutritious and delicious thing I pletely riveted and drawn in by my testi­

ACFLS NEWSLETTER PAGE 37 SPRING 2010, NO. 1


Tuffias
Continued from page 37 Join ACFLS’s Lively On-Line Community
mony. Not so much so for my husband,
I am afraid; doubtless he will listen to The experience and wisdom of our members
his attorney as well as he listened to is our most valuable member benefit. Between
me. The money, yes the money would issues of the Newsletter and CLE programs,
be very well spent and as I watched ACFLS members share their experience and
the tens of thousands of dollars float expertise online through our website, family
out the door (even with the substantial law blog and active listserv. Please share your
professional discount). I would think to perspective on our blog and listserv.
myself yes, this is better than paying for Visit our website at www.acfls.org for:
a college education for my daughter or a
trip around the world or a new kitchen • Latest ACFLS news • Registration for ACFLS events
• Order ACFLS CLE on DVD • Online membership management
and bathroom. • ACFLS Members’ Directory • Archived issues of the ACFLS Newsletter
Maybe this is not such a great idea. • Research database • Board of Directors information
I tell my husband, to whom I am very
happily married, not to be scared when Converse with members on the ACFLS list-serv
I give this article to him to proofread. I Visit www.acfls.org/members/forum.php for instructions on subscribing to the listserv,
do believe if you did a study you would posting to the list-serv and accessing list-serv archives. Members use the blog
find that there were slightly fewer for practice tips, referrals and discussion of recent appellate decisions.
divorces among family lawyers. I think
Read the ACFLS Family Law Blog and
that this is because family lawyers are
post comments or blog entries
so intimately familiar with the following
truisms: Recent blog posts include: “Hague or UCCJEA?: A Cautionary Tale” by Leslie Ellen Shear;
1. The devil you know is better than “Side Effects: A Tale from the Courthouse” by Thomas M. Hall; “More Adventures With
Finney (my iPad)” by Leslie Ellen Shear; “How I Spent My Spring Vacation” by Frieda Gordon.
the devil you don’t know;
2. The grass is always greener on the Visit www.acfls.org/famlawblog
other side of the fence; Anyone may post comments to blog entries. To become a blogger yourself, email our
3. It’s just too damn expensive to get webmaster (bonnielriley@comcast.net) for blog credentials and contribute to our blog.
divorced. For more information about ACFLS’s online community contact:
Maybe family lawyers and morticians Technology Coordinator Barbara Hammers, cfls (BHammers@HammersBaltazar.com)
are just better off, dreaming about the Webmaster Bonnie L. Riley, j.d. (bonnielriley@comcast.net)
perfect vacation. ■

ACFLS MEMBERSHIP APPLICATION


Eligibility for ACFLS membership is limited to attorneys certified as family law specialists by the State Bar of CA, Board of Legal Specialization.

Applicant name______________________________________________ State bar no.________________Date certified as CFLS by BLS___________


Firm name______________________________________________________________________________________________________________

Address____________________________________________________ City/State/Zip_________________________________________________

Telephone_ _________________________________________________ Fax_________________________________________________________

Email______________________________________________________ Website_ ____________________________________________________

If more than one member of the firm is joining, please attach additional page with information about each applicant.
Dues for first member in firm $250  Dues for ____ additional members from same firm at $175 each  Total amount of payment $________________

❏ Check enclosed  Charge to  ❏ Mastercard  ❏ Visa   Credit card account no.____________________________________ Expiration date_______

Name as it appears on credit card_______________________________________Authorized signature_____________________________________

Credit card billing address  ❏ Same as above  ❏ Different billing address___________________________________________________________


Join online at www.acfls.org or send your application and payment by mail: 
Lynn Pfeifer, ACFLS Executive Director, 15 Corrillo Drive, San Rafael, CA 94903-3902, or fax: (415) 479-1347, or scan and email to acfls@comcast.net

SPRING 2010, NO. 1 PAGE 38 ACFLS NEWSLETTER


2010 ACFLS BOARD OF DIRECTORS
President Newsletter Editor: Director South: Director at Large Sacto/NE:
Leslie Ellen Shear Dawn Gray Karen C. Freitas Camille H. Hemmer
16000 Ventura Blvd., Suite 500 2036 Nevada City Highway, Burke Williams & Sorensen Law Office of
Encino, CA 91436 Suite 195 444 S. Flower Street, Suite 2400 Camille H. Hemmer
818-501-3691 Grass Valley, CA 95945 Los Angeles, CA 90071 555 University Avenue,
Fax: 818-501-3692 530-477-5574 213-236-0600 Suite 125
lescfls@earthlink.net Fax: 530-477-5578 Fax: 213-236-2700 Sacramento, CA 95825
www.custodymatters.com dawn_gray@earthlink.net kfreitas@bwslaw.com 916-922-8500
www.californiafamilylaw.com Fax: 916-922-8505
Newsletter Editor-Elect: Director South-Elect: camille@hemmerfamlaw​.com
President-Elect: Debra S. Frank Robert J. Friedman
Diane Wasznicky Debra S. Frank, APLC Law Offices of Robert J. Friedman Past President:
Bartholomew & Wasznicky LLP 2029 Century Park East, 9454 Wilshire Blvd., Suite 500 Joseph J. Bell
4740 Folsom Blvd. Suite 1400 Beverly Hills, CA 90212 Law Office of Joseph J. Bell
Sacramento, CA 95819 Los Angeles, CA 90067 310-273-2959 350 Crown Point Circle,
916-455-5200 310-277-5121 Fax: 310-273-2855 Suite 250
Fax: 916-455-6300 Fax: 310-277-5932 rjfesqcfls@aol.com Grass Valley, CA 95945
diane@divorcewithrespect​ dfrank@debrafranklaw​.com 530-272-7477
Director at Large: Fax: 530-272-7340
.com www.dsfranklawoffice​.com Sterling E. Myers attorney@bellslaw.com
Secretary: Legislative Coordinator: Helms & Myers
150 N. Santa Anita Avenue, Ex-Officio Directors:
Shane R. Ford Lynette Berg Robe
The Ford Law Firm Law Office of Suite 685 David J. Borges
Arcadia, CA 91006 Borges Law Corporation
500 12th Street, Suite 250 Lynette Berg Robe
626-445-1177 350 Castaic Avenue
Oakland, CA 94607 12711 Ventura Blvd., Suite 315
Fax: 626-445-2085 Shell Beach, CA 93449
510-835-9000 Studio City, CA 91604
stermyers@aol.com 805-773-3465
Fax: 510-835-9090 818-980-9964
sford@fordfamilylaw.com Fax: 818-980-7141 Director at Large North: alawbiz@aol.com
portia1000@aol.com Vivian L. Holley Nancy P. DiCenzo
Secretary-Elect: Law & Mediation Office of 701 Fulton Avenue, Suite A
Patricia A. Rigdon Technology Coordinator: Vivian L. Holley Sacramento, CA 95825
Palermo, Barbaro, Chinen Barbara Hammers 1335 Sutter Street, 2nd Floor 916-480-9133
& Pitzer Hammers & Baltazar San Francisco, CA 94109 Fax: 916-480-9135
301 E. Colorado Blvd., Suite 700 1410 2nd Street, Suite 302 415-474-1011 nancy@dicenzo-law.com
Pasadena, CA 91101 Santa Monica, CA 90401 Fax: 415-441-8102
626-793-5196 310-458-0796 Linda Seinturier
vholley@creative.net 1308 Placer Street
Fax: 626-793-3602 Fax: 310-393-9402 www.vivianholley.com
prigdon@pbcplaw.com bhammers@hammersbaltazar​ Redding, CA 96001
.com Director at Large South: 530-243-0253
Treasurer: Frieda Gordon Fax: 530-243-5475
Jennifer Crum Director North: Cooper-Gordon, LLP l4linda@aol.com
Hanson Crawford Michael B. Samuels 2530 Wilshire Blvd., 3rd Floor Stephen Temko
Family Law Group 1120 Nye Street, Santa Monica, CA 90403 1620 5th Avenue, Suite 800
411 Borel Avenue, Suite 440 Suite 250 310-829-7220 San Diego, CA 92101
San Mateo, CA 94402 San Rafael, CA 94901 Fax: 310-829-2490 858-274-3538
650-524-2144 415-258-9064 friedag@cooper-gordon.com Fax: 619-238-0851
Fax: 650-524-2141 Fax: 415-258-9074 www.cooper-gordon.com estemko@aol.com
jc@hansonflg.com samuelslaw@​comcast​.net
www.mbsamuelslaw.com
Treasurer-Elect:
Lulu Wong Director North-Elect:
Law Offices of Lulu Wong Michelene Insalaco
1303 Jefferson Street, Sucherman-Insalaco LLP
Suite 710B 100 Spear Street, Suite 1640
Napa, CA 94559 San Francisco, CA 94105
707-226-5565 415-357-5050
Fax: 707-226-5450 Fax: 415-357-5051
lwong@sonic.net mi@sucherman-insalaco.com

ACFLS NEWSLETTER PAGE 39 SPRING 2010, NO. 1


NEWSLETTER
Lynn Pfeifer, acfls Executive Director
15 Corrillo Drive
San Rafael, CA 94903-3902

S AV E T H E D AT E !
Celebrate

30 Years of Family Law Legal Specialization in California


Join us for dinner, dancing and memories...
December 4, 2010
St. Francis Westin Hotel, Union Square, San Francisco
30th Anniversary Co-chairs:
Ronald S. Granberg, cfls, and Hon. Donald King (Ret.)
In 1979 the State Bar of California added Family Law to its pilot legal specialist certification
program. Today, Family Law is the largest of the thirteen specialties certified by the Board
of Legal Specialization – with more than 1100 Certified Family Law Specialists in our state.
Stephen Adams founded the Association of Certified Family Law Specialists in 1980, with a
membership consisting of the first class of certified specialists. Over the past 30 years, ACFLS
has grown in size and stature to play a major role in California’s Family Law community,
culture and development. Along the way, each of us has made many friends through ACFLS.
Our 2010 Holiday Party will honor our 30 past presidents, our many Hall of Fame award
winners, the first class of family law specialists, and all of our members. We’ll also inaugurate
Diane Wasznicky as 2011 President and swear in her new board.
During our 30th year, we are gathering archival material documenting our history ­including
photo­graphs and newsletters. Please contact Ron Granberg (ron@granberglaw.com) to share
any historical material you have. We’ll be happy to scan it, and return the originals to you.
Throughout 2010 ACFLS will be posting historical information on our website and in our
­newsletter. Please also share your ideas about who we should invite and other ways of
­celebrating 30 years of Family Law specialization.