Saturday, August 22, 2009

Marriage of Herr


Stephen B. Ruben, CFLS

In re Marriage of Herr is a must-read worth careful analysis. Here, a compendium of errors were made, by both trial counsel and the trial judge, who granted a motion for reconsideration to reduce child support when no new facts or evidence was presented, much less in a timely manner.

We know the unpleasant task of counseling a client after receiving an adverse ruling denying a motion to modify child support. We want to give our client comfort and lessen the blow with potential post-trial remedies. But too often family law practitioners do not appreciate the fundamentals for seeking either a motion for reconsideration or a motion for new trial.

In Herr, the trial judge erroneously granted a motion to reconsider sua sponte (on its own) irrespective that counsel for Mark Herr failed to file either a motion for reconsideration or a motion for new trial in a timely manner. Admittedly, a trial court has the inherent authority to correct an erroneous ruling or order, but it has no authority to order a new trial. However, in this case, after a two-day trial and as an accommodation to the plight of Mark Herr, the Court directed that new declarations be prepared because the “quality and reliability and accuracy” of the previous declarations were questionable and the Court wanted competent evidence to support the parties’ respective positions. But then what was that trial? An illusion? In the apparent spirit of fair play, the Court on its own effectively granted a motion for new trial which it does not have the authority to do. The Court was strictly limited to reconsidering the evidence presented and not setting the matter for a new trial.

Before suggesting the possibility of a motion to reconsider or for a new trial to family law clients, I strongly suggest first carefully reading Code of Civil Procedure §1008 and determining if there are significant factual differences, circumstances or changes in the law within the ten-day statutory deadline following service of written notice of the entry of the order. If not, there is simply no remedy. Similarly, a motion for a new trial is strictly controlled by statutory provisions and must meet one of the grounds as set forth in the Code of Civil Procedure §§656 and 657: (1) an irregularity of the proceedings where one of the parties was not afforded a fair trial; (2) accident or surprise; (3) newly-discovered evidence; (4) insufficiency of the evidence to justify the Court’s decision or the decision was against the law and (5) error in law occurring at the trial and excepted to by the moving party. A motion for a new trial must be made within 15 days of the clerk’s mailing of notice of entry or service by the party of notice of entry.

Counsel for Mark Herr filed his Motion for Reconsideration fifty-six days later but was fortunate to have the receptive ear of Judge Golden take this matter into his own hands and grant his own motion to reconsider irrespective of Mark Herr’s failure to file timely or raise new facts. The Appellate Court was not as generous and reversed, stating that Judge Golden had no power to grant a new trial since Mark Herr’s motion was not timely filed and failed to set forth any statutory grounds for the granting of a new trial.

Practice pointers

In order to avoid the same adverse ruling that Mark Herr received, we should all remember two things. First, be sure to meet the statutory criteria for either a motion to reconsider or for a new trial. If not, advise the client to move on and plan the next motion for support modification to be based on changed circumstances substantially different than those that led to the adverse ruling. Second, be aware that the Court has discretion to impose sanctions for a frivolous motion or dilatory conduct under Family Code §271. See Green v. Uccelli (1989) 207 CA 2d 1112-22, 255 Cr 15, 319-322. Don’t give into the desire to comfort a client by filing a meritless motion. Such an accommodation may result in an award of sanctions, attorneys’ fees, or both. Mark Herr and his counsel were indeed fortunate. Keep in mind that sanctions that exceed $1,000 must be reported to the State Bar. The results could have easily been a denial of an untimely and meritless motion for new trial or reconsideration along with sanctions under Family Code §271 and a bar notification given the cost of defending a frivolous Motion for Reconsideration. Must I say more? The lesson to be learned from Herr when seeking a modification of support is to make sure you present all of your documentary and testimonial evidence of change in circumstances at the hearing and do not hope for another bite of the apple by filing a motion for reconsideration or for a new trial unless you meet the strict statutory grounds and file in a timely manner.

Monday, April 13, 2009

Believe it or Not



Are you still paying spousal support after your dissolution? You are not alone. Many former spouses face the more than unpleasant task of writing that monthly spousal support check to their ex-wives or ex-husbands after the divorce proceedings have ended. Marriages less than 10 years in duration typically have a built-in end date for paying spousal support. For these short term marriages, spousal support typically runs about one-half the length of the marriage. For example, after a marriage of six years, you’d be done paying support in three. Not so bad.

However, in California, for marriages that run for more than 10 years, unless the supported spouse remarries, dies or experiences a significant change in his or her finances to become self-sufficient, there is little light at the end of the tunnel for the supporting spouse. They are paying what is called “long term” or “permanent” support. Especially now that the job market is so precarious, even if the supported spouse has been admonished by the Court to make good faith efforts to become self-sufficient, the chances that the support obligation will end are slim.

With unemployment currently over 10% in California, employment opportunities are fewer and the competition for jobs is fiercer. However, this does not mean that all payers of spousal support throw in the towel and resign themselves to continuing to send monthly support checks. Some paying spouses remain courageous and determined to secure a release from their long term spousal support obligation. In the cases I describe below, two husbands were determined to terminate their spousal support obligations based on the post-divorce criminal conduct of the former wives they were supporting. Read on and see how well they did. Believe it or not!


In Craissati v. Craissati, Andrew, an investment banker, agreed to pay his former mate, Patricia, $2,000 each month for eight years or until her death, remarriage or cohabitation with another person. This spousal support order was confirmed in a judicially approved marital settlement agreement and entered as the Judgment of the Florida Family Law Court in 2001.

Four years later, Patricia was convicted of driving under the influence (D.U.I), causing serious bodily harm to two individuals, and leaving the scene of the accident. Her actions were not taken too kindly and she was sentenced to nine years at the Hillsborough Correctional Institute in Riverview, Florida. With Patricia nestled in the slammer, Andrew seized the opportunity to get out from under his spousal support obligation. Admittedly, Patricia was not in need of monthly support since the State of Florida was covering her monthly expenses. However, the spousal support order had very specific conditions for terminating support, and getting financial assistance from a penal institution was not one of them. Andrew knew that he had to be more creative. He therefore took the position that Patricia was cohabitating with a cellmate and thus he was no longer obligated to support her.

Believe it or not, both the trial court and the appellate court agreed with Andrew, holding that Patricia was truly cohabitating with another person. Certainly a bizarre ruling, but was it legally defensible? Yes. California has numerous cases dealing with cohabitation as basis for terminating or modifying support. However, in all of these cases, the California courts looked at the “traditional” view of living together in a home, apartment or trailer, not within the confines of a penal or correctional institution. A question to ponder: would the decision have been different if Patricia were in solitary confinement or under house arrest? The world will never know.


When New Jersey comes to my mind, I immediately think about Tony Soprano of The Sopranos, the “Bada Bing Club,” and the cute little pig on the top of the Italian deli in Tony’s hometown. But New Jersey has much more to offer than great delis and entertainment. Welcome to the wonderful world of family law and the New Jersey way to try to get out of paying spousal support.

Under New Jersey law, long term spousal support can only be terminated in the traditional ways: remarriage or death. Unless a payer is able to show that the receiving party has committed an act “so violative of social norms that would confound the notion of simple justice,” spousal support must continue.

Enter Linda Calbi. In a drunken rage, she kicked her 15-year-old son to death. Her ex-husband, Christopher, pointed to her killing of their son as his way to stop writing monthly support checks. Slam dunk, right? FORGETABOUTIT!

Incredibly, the trial court and later the appellate court found that Linda’s actions did not evidence evil intent. The trial court was quite lenient in passing sentence, finding that she would have to live with what she had done for the rest of her life. And that Christopher would have to continue to pay spousal support for the rest of his. Believe it or not!


Admittedly, these cases are in the extreme and probably would not pass muster in California’s Family Law Courts.

In the example of Patricia, the spouse incarcerated in Florida, a series of cases clearly define the more traditional arrangements that constitute cohabitation in California. Under California law, Patricia’s unique (and imposed) living arrangements would not be a basis for ending spousal support. However, since her current needs were being reasonably met (albeit by a penal institution) there would be a legitimate basis for a modification of Andrew’s support obligation.

As to the New Jersey case, Linda’s criminal conviction does not have any relationship to Christopher or, by extension, his support obligation. Therefore, under California’s Family Code, as in New Jersey, such a conviction would probably have no impact or benefit to the paying spouse. Only if Linda had perpetrated domestic violence against Christopher directly might there have been some financial relief for him.

Recently, I spoke to our Family Law Section of the Bar Association and outlined a series of legal exit strategies that have successfully reduced or terminated our clients’ spousal support obligations. If you are paying long term spousal support, you need a road map with definitive goals and objectives based on a well-defined legal exit strategy—we can help.

In my next post, I’ll discuss the case of an Orange County man who tried to avoid both his spousal and child support obligations by claiming he needed to defer his salary to support his struggling start-up company, where our would-be entrepreneur, Marc, went wrong, and what his former spouse, Raquel, did right in seeking an appellate review of their case.

Wednesday, February 4, 2009



All citizens, irrespective of gender, have a constitutional right to marry, so said the California Superior Court on May 15, 2008. In the landmark decision, the California State Supreme Court ruled that same-sex couples can get married. This landmark decision meant that same-sex couples who wanted to tie the knot have the same legal rights as heterosexual couples.
As a result of this decision, the doors were thrown wide open at City Hall in San Francisco and throughout the Golden State. All one had to do was go to City Hall and apply. Arrangements could be made for a wedding ceremony there, or couples could make alternative arrangements for off-site ceremonies. Many churches and synagogues were right on board to provide their official blessings. 18,000 same-sex marriages have been performed, but what happens now to “happily ever after” for those couples who live out of state and just married in California? And what is the impact on the passage of Proposition 8 for the same-sex married couples who live in California?

On November 4, 2008, the majority of voters in California approved a constitutional amendment that specifies that marriages in California are between a man and woman only. At present, Proposition 8 is being legally challenged as unconstitutional. Numerous briefs have been filed by supporters and opponents alike, including the California General Attorney and Former Governor, Jerry Brown. On November 14, 2008, the Supreme Court of California issued a stay preventing same-sex marriages from taking place until a decision is reached on the constitutionality of Proposition 8. In the meantime, what about those 18,000 couples? Are they doing the legal “limbo rock”? Are they now facing those “Wedding Bell Blues”?


Prior the passage of Proposition 8 last November, the majority of California Supreme Court Justices made the trip to the altar an easy one for many same-sex couples. The first to be wed in San Francisco were Del Martin and Phyllis Lyon, pioneering gay rights activists who had been a couple for 50 years. Since the decision, hundreds of weddings were performed for couples from California and elsewhere. The phrase, “By the powers vested in me by the state of California,” had the San Francisco Convention and Visitors Bureau buzzing. Going to the “Chapel of Love” was no longer a tourist draw exclusive to Vegas: the “city that knows how” welcomed couples like Mike Silverman and Dave Greenbaum, who traveled from Lawrence, Kansas to wed, with open arms. Silverman and Greenbaum were previously “married” in a traditional Jewish wedding ceremony in Omaha, Nebraska and came to California to obtain civil recognition. But will Nebraska recognize their marriage when they return home?


The 18,000 couples that made a trip to the alter perhaps believed that their marriages were valid not just in California but throughout the United States. However, legal assumptions can be dangerous. During the Clinton administration, Congress overwhelmingly passed the 1996 Defense of Marriage, which gives states the authority to not recognize same-sex marriages performed elsewhere. The Courts in Nebraska will likely reject the Silverman/Greenbaum marriage when they return home. Specifically, under Nebraska Constitutional Article 1, 29 and Nebraska Statutes 42-177, same-sex marriages are prohibited and the Nebraska Court will not recognize an out-of-state same-sex marriage.

Unfortunately, like Nebraska, most states do not recognize same-sex marriages at all. Aside from California, there are not many takers. Massachusetts and Connecticut have legalized same-sex marriages and will recognize California and Connecticut same-sex marriages. Interestingly enough, New York recognizes out-of-state same-sex marriages but does not perform them. Nine other states and Washington, D.C. allow civil unions or domestic partnerships, which have some rights of marriage but are clearly defined by state law. To add to the mix, neither same-sex marriages nor civil unions qualify under Federal Law for the myriad of benefits afforded to heterosexual couples such as the right to file joint tax returns (at a lower tax rate) or the right to deduct alimony or spousal support should the marriage or union terminate.


Without state court recognition, gay and lesbian couples have no access to the family courts in the event of seeking an end of their marital relationship. Instead, they must divide their property based on the state law of contracts and partnerships. This lack of legal recognition affects all facets of these committed relationships, including child custody and visitation, child and partner support, and inheritance rights in non-marital cohabitational relationships. Litigation is more complex and requires, in almost all instances, experienced and adept counsel.

The dissolution of non-marital relationships is one of our firm’s areas of expertise; however, this is the exception and not the rule for most family law firms given that this civil litigation occurs outside the familiar legal territory of our family courts. Children always come first in our firm’s representation, but for same-sex partners, the legal landscape of child custody and visitation is challenging. Unless there is a legal adoption or the parties are in a registered domestic partnership, the non-biological partner cannot automatically assert custody or visitation rights merely as a result of the parties’ relationship. On the financial side, the concept of implied contracts and sweat equity are less problematic.

In the California Supreme Court landmark decision involving the late actor, Lee Marvin, and his mate, Michele Trigona, the Supremes provided a legal platform for asserting contract, partnership rights and even the right to claim implied contracts based on personal efforts and services outside the bedroom as compensable. Marvin .v Marvin is consistently cited by the California Courts and other state courts as the leading decision in this field. However, when the case was returned to the trial court from the Supremes, Michele lost on all claims based on her claim of partnership and claims for services.

Most meaningfully, in the event of a medical emergency, one partner may not be allowed to access the other’s hospital room or be allowed to make decisions unless a separate health care directive or power of attorney was properly prepared and executed, authorizing such actions.


For gay couples remaining in the Golden State, the picture is still quite blurry. One of the issues that the Supreme Court will address on the Proposition 8 marriage ban is the legal impact to the 18,000 gay couples who were already married before Proposition 8 was passed. Are these marriages valid? The answer hinges on whether Proposition 8 will be given retroactive effect and thus invalidates those marriages conducted from May 15 through November 4, 2008. Some proponents of Proposition 8 are requesting that the Supremes invalidate these 18,000 marriages.

Under Article 1, Section 10 of the California Constitution, “no state shall pass an ex post facto law.” A similar provision is found in Article 1, Section 9 of the California Constitution. Ex post facto laws (or retroactive laws) are generally prohibited. At first glance, these constitutional prohibitions on retroactivity seem simple enough. The marriages were conducted before Proposition 8 was passed. However, so far ex post facto laws have been applied to criminal conduct but not to civil matters. For example, a new law that creates a criminal offense that did not exist when a prior criminal activity occurred and for which a person has been already charged cannot be retroactively imposed on the accused.

Additionally, there remains considerable debate in the legal opinions and among legal scholars that civil matters such as contracts, including the union of marriage, may be modified retroactively by the enactment of a new state statute or constitutional provision. Both the state constitution and federal constitution prohibit legislation impairing contracts. The obligation is governed by the laws in effect at the time the contract was made. This presumably could apply to marriage contracts as well. However, this ongoing constitutional debate among bench, practicing attorneys and legal scholars is the impetus for the California Supreme Court to request briefing on this important constitutional issue and certainly creates more uneasiness for those gay and lesbian couples who made the trip to the alter. They are clearly now facing those wedding bell blues waiting to learn if their marriages will be upheld.


Marriage is a monumental and important decision for any couple regardless of sexual orientation. Since the passage of Proposition 8, no gay or lesbian marriages are being conducted and many California couples must put their marriage plans on hold pending the decision of the California Supreme Court. For those who already wed, their marriages are not a legal certainty at all. Should their marriages be invalidated, these couples will face an inconsistent body of law and case decisions and an ill-defined exit plan should their relationship end. If the Supremes do rule that the passage of Proposition 8 does not impact those 18,000 couples, the news is only positive for those couples who remain in California. Relocation by one or both of the marital partners may have significant impact given that most states do not recognize gay or lesbian marriages particularly on issues of property rights, child custody or support. At least one gay marital will be required to establish California residency to dissolve the marital status; however property rights and support obligations are more problematic when the other married partner does not reside in California. Residency of a minimum of 6 months or more in California is required before any legal proceedings to dissolve the marriage may be filed. Welcome to “Hotel California.”

Same-sex couples need to be aware of the significant legal challenges facing them now and in the future. Because of this legal limbo, we can expect gay or lesbian couples to feel more than uncertainty but perhaps self-blame, depression and feelings of isolation, lamenting their wedding bell blues. For these reasons, it is of utmost importance for gay and lesbian couples to be knowledgeable of the legal challenges their marriages may face in California or in the event one or both partners relocate. Legal consultation is an absolute must before moving forward in facing the legal challenges of same-sex marriages.

By Stephen B. Ruben, Certified Family Law Specialist
Managing Partner, The Ruben Law Firm, San Francisco