Recent Blog Posts in 2009 |
| 14 posts found. Viewing page 1 of 1. |
| December 02, 2009 |
| Tiger Wood Keeps His Domestic Disturbance Under Wraps |
| Posted By Donald P. Schweitzer |
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| So far, Tiger Woods and his legal advisers have done a pretty good job of warding off the police and keeping him and his wife out of trouble. At this point the only thing the police have against Tiger and his wife is that Tiger crashed his 2009 Cadillac into a fire hydrant and a tree in his neighbor's yard after he pulled out of his driveway at 2:25 a.m. Alcohol apparently was not involved in Tiger's collision. The police officers involved in the case reported that upon their arrival they found the 33 year-old PGA star lying in the street with his wife hovering over him. Tiger's wife was described as being "frantic and upset". She told the officers she was in the family's mansion when she heard the accident and came out and broke the back window with a golf club. Two troopers attempted to interview Mr. Woods at his home after the incident, but his wife turned them away claiming that Tiger was sleeping. When the troopers came back the next day Tiger was not available. Tiger then canceled subsequent appointments that his attorneys made with the police who were attempting to obtain his statement. From the evidence released concerning the incident it appears that a domestic disturbance between Tiger and his wife ensued in their early morning hours. It is also possible, based on the evidence, that one of the two parties committed domestic violence. After all, Tiger admitted to having an extramarital affair with a woman in California, and the evidence shows that he was desperately trying to cover his tracks about the affair at the same time that this incident occurred. Thus, it is not beyond the realm of all possibilities that his collision with the tree was caused by the dispute. Some critics complain that Tiger was wrong for not speaking to the police about the incident. I'm not an expert on protecting people's images or their trade names, but I do know a little bit about protecting people from getting into trouble with the police. In this regard Tiger and his legal representatives should be commended. The police are not likely to be able to make charges stick against Tiger or his wife, so long as neither one of them agrees to cooperate. This case strongly demonstrates the fact that the Fifth Amendment right against self incrimination is alive and well. Unfortunately, most people do not know that they have a right to refuse to speak to the police at any time. Take a page from Tiger's book. In the unfortunate event that the police come knocking on your door to speak to you about a domestic squabble, exercise your rights and ask to speak to a lawyer. The police and the prosecutors are making extraordinary efforts to dig up evidence to determine whether or not Tiger or his wife committed crimes, which is typical these days in cases involving domestic disturbances. In my view this incident was not the crime of the century and I'm sure that Tiger and his wife will have no problem paying full restitution for the damages that he caused to the tree and the fire hydrant. The only injuries that appear to have taken place are the injuries that Tiger caused to himself. It looks like it was a purely private matter between Tiger and his wife, given that neither one of them are asking the police or prosecutors to file charges. I cannot help but wonder why the police would state that there are charges pending or that they were attempting to obtain a search warrant of the mansion. In order for the police to obtain a search warrant for Tiger's mansion, they must show a court that there is probable cause to believe that there is evidence of a crime within the mansion. I doubt that the prosecutors can get a search warrant issued from the evidence thus far, as this incident involved a car crash. What evidence do they hope to find in the mansion? The police and prosecutors ought to exercise discretion in this case and lighten up on Tiger. Tiger already has severe problems with respect to protecting his image, not to mention keeping his family intact. Who knows, this case may end up in a divorce, in which case we will have plenty to write about. Anyone care to guess if there was a premarital agreement or how much Tiger would have to pay in child support? Written By: Donald P. Schweitzer |
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| November 24, 2009 |
| Three Tips for Sharing Custody This Holiday Season |
| Posted By Donald P. Schweitzer |
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| It's that time of year again. It's a time for food, family, and of course, holiday shopping. However, it's also that time of year where many parents disagree about who "gets" the children during the holidays. Every year during the merry months of November and December, you'll see attorneys frantically running into family court with ex parte motions (emergency motions) asking Judicial Officers to intervene and decide which parent gets to spend a holiday with their child. This is truly one of the most unpleasant events in any family law Judge or attorneys' career. So, if you are a parent who is contemplating this course of action, I'd strongly suggest you keep reading. Before you instruct your attorney to run into court, know that most courts will refuse to consider ex parte motions brought forward simply because parents are unable to agree on something. Just recently, I was forewarned by a Judicial Officer that she was not going to make any exceptions for holiday visitation schedules. This is because Courts want to discourage litigants from filing these motions and encourage co-parenting. Ex parte motions on custody matters are statutorily permitted only where there is an emergency, such as risk of imminent harm or child abduction. While emotionally difficult, not spending Christmas morning with your child to open gifts is not an emergency. As you can imagine, this legality is quite difficult to communicate to a parent who wants nothing more in World than to share the holidays with their child. However, you should know that courts disfavor such motions because they deal with such highly personal issues. How can a court make both parties happy? In the rare case that the court intervenes, both parties often walk away feeling unhappy with the decision; a lose-lose scenario. Before you file your ex parte motion, I suggest that you take some time to consider my three tips below: 1. Whose interest are you really serving? Are you looking out for yourself or for your child? We know that you want to be with your child 24/7, but the reality is that children love and need both sides of their family. A shared holiday schedule is essential in making your child feel secure and loved. 2. Put on your 'good parenting' hat. The best way to demonstrate to the court that you are mature and responsible is to share custody. This will require concessions on both sides so that your child's needs and interests are placed before your own. 3. Have a little empathy. Place the emotional turmoil aside and try to empathize with the other parent. As much as it hurts to even fathom being without your child on a holiday, understand that the other parent is probably having the exact same feelings. My message to you is that the best gift you can give your child is to cooperate and share the holidays with the other parent. A little peace during this holiday season will go a long way in maintaining stability and making your child feel loved! Written by: Donald P. Schweitzer
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| November 15, 2009 |
| The Recurring Gift That Pays Child Support |
| Posted By Donald P. Schweitzer |
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The ability to take down a deadbeat dad seems to get easier with every appellate court decision in California. In Marriage of Alter (2009) 171 Cal.App.4th 718, the court decimated the type of dead beat dad that many of us previously believed were bullet proof. The type of deadbeat I'm talking about is the father who sits at the pool all day working on his tan, while his children live with mom in a one bedroom apartment on the wrong side of the tracks. The type of guy who drives a fancy car, takes nice trips, and lives in a large house, while paying little to no child support, because the only money he receives is a recurring gift from his parents, which was once considered to be non income for the purpose of calculating child support. In Alter, the man of the hour was named Jack. Jack was divorced to a woman named Cindie. Jack and Cindie had two children named Samantha and Alexandra. A couple of years after their divorce, Jack and Cindie found themselves back in court, dealing with a motion that Jack filed for modification of his child support obligation. During the hearing, Cindie argued that Jack's claim to have little to no income was bogus, since she knew that Jack's mother had given him a regular stipend for years. To the trial judge, Jack admitted that his mother covered many of his expenses. She had been regularly giving him $3,000 per month for many years. For a time after the divorce, Jack lived with her, rent free. In 2005, she purchased a house and Jack moved into it. She then increased Jack's monthly stipend to $6,000, $3,000 of which Jack used to pay the rent his mother charged. Jack's mother also paid for Jack's daughter's schools, tutoring, and summer camp. Jack used his mother's credit card to buy clothes and other things for the girls. His mother paid for transportation and lodging for Jack to visit his daughters in Georgia several times a year. She gave him money from time to time when he needed it. She paid his attorney's fees in California and Georgia. And, although Jack had declined the offer, his mother had also volunteered to pay the difference between the court-ordered support and that which Jack was able to pay himself. On appeal Jack tried to convince the court that gifts should never be considered income for the purpose of calculating child support, since the federal government does not consider gifts as income for income tax purposes. Unfortunately for Jack, the court was not persuaded with his argument. When ruling in favor of Cindie the court stated: "We conclude that nothing in the law prohibits considering gifts to be income for purposes of child support so long as the gifts bear a reasonable relationship to the traditional concept of income as a recurrent monetary benefit... Jack has been receiving regular cash payments from his mother for over a decade. The periodic and regular nature of the payments means that the money is available to Jack for the support of his children."
Obviously this decision should be considered a big victory for a lot of custodial parents. However, a couple of cautionary notes needs to be made. First, the Alter court made it clear that not all gifts will be considered income for the purpose of calculating child support, especially if the gift is not recurring. Furthermore, the question of whether gifts should be considered income for purposes of the child support calculation is one that is left to the discretion of the trial court. Finally, it is always possible that mommy and daddy will quit giving money to the deadbeat dad, in which case he can file a request for a downward modification of child support.
Written by: Donald P. Schweitzer |
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| November 15, 2009 |
| Donald Schweitzer Elected to PBA Board |
| Posted By Law Offices of Donald P. Schweitzer |
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| The Pasadena Bar Association has announced the election of Donald P. Schweitzer as a board member for their organization. Mr. Schweitzer will begin serving on the board January 1, 2010.
Mr. Schweitzer will attend all of the board meetings, participate in the PBA's planning and events, and will vote on various propositions that are brought up at the Pasadena Bar Association meetings.
Mr. Schweitzer received this position by attending numerous Pasadena Bar Association events, helping out the board members, and his identifying himself as having a sincere desire to be an active participant. According to Mr. Schweitzer, "At this stage of my career, I realize more than ever the contributions the local bar association makes to the community, to our legal systems, and to the individual private attorney, and I believe the work we do on behalf of the association is very important. I also enjoy the camaraderie I have with the other attorneys who serve on the board." In addition to serving as the Secretary of the PBA, Mr. Schweitzer also holds the position of Chairman of the PBA family law section. "I would like the Pasadena Bar Association to continue to create benefits to the private attorneys in our local community. I would also like to work with the Pasadena Bar Association in bridging the gap with our local courts."
Mr. Schweitzer is a Certified Family Law Specialist with over 15 years of trial experience. Prior to going into private practice, Mr. Schweitzer served as a Deputy District Attorney in Orange County for 8 years. Mr. Schweitzer worked in numerous units within the District Attorney's office including, Writs and Appeals, Family Support, Municipal Court, Felony Panel, Gang Target, Felony Filing, and the Sexual Assault Unit. He is a member of the American Bar Association, the California State Bar, Los Angeles Bar Association, and the Pasadena Bar Association. Posted by: Law Offices of Donald P. Schweitzer |
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| October 31, 2009 |
| Honoring Real Heroes Who Help Domestic Violence Victims |
| Posted By Donald P. Schweitzer |
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| The politicalization of domestic violence legislation can make anyone feel a little jaded about such a serious and pervasive issue. Fortunately, there are people who have not forgotten that domestic violence is still a societal ill, and who have dedicated their lives to actually helping victims of domestic violence. These individuals have created innovative methods of breaking the cycle of violence. In recognizing these heroes, I'm not referring to those in Sacramento who churn out new laws like funnel cakes at the state fair. Most of these laws, passed by self-serving politicians, do nothing for victims of domestic violence, as they are redundant and often unenforceable. Nevertheless, these laws continue to pass because no one has the courage to call them what they really are; cheap badges of honor for politicians whose campaign M.O. is to be "tough on crime."
As a family law attorney, however, I have not lost sight of the fact that domestic violence still needs to be fought, as it is committed every minute of every day in this country. I also recognize that domestic violence victims need, more than anything, people who will protect them and assist them in getting out of dysfunctional relationships. As Chairman of the Pasadena Bar Association, Family Law Section, I wanted to honor "Domestic Violence Awareness" month and recognize the real heroes in the fight against domestic violence. The goal was also to educate my section members of all of the great things that are being done on behalf of victims. I invited guest speakers to our section meeting who are actually involved in the day-to-day effort to help domestic violence victims. The first speaker we were fortunate to hear from was Sara Rondon. Sara is the coordinator of the Domestic Violence Project, which is located on the first floor of the Pasadena Courthouse. The Domestic Violence Project is a program created and sponsored by the Los Angeles County Bar Association. Sara and her small staff are in the trenches every day assisting victims in preparing the requisite paperwork to obtain restraining orders. As you can imagine, they see the worst types of cases. Most victims do not understand the legal process and cannot afford legal representation. Thus, without the assistance of Sara and the Domestic Violence Project, these victims would be unable to proceed effectively through the legal process. Although Sara's staff is quite small, there are a number of paralegals and attorneys who volunteer their time to work with the victims (during the past year one of the paralegals from my office served as a volunteer, which is how I came to meet Sara). An interesting point that Sara made during her presentation, is that studies show that the issuance of restraining orders significantly curtails repeat offenses. It would seem, consequently, that Sara's work is having a meaningful impact against domestic violence. The second speaker at our section meeting was Trish Steele, who is the founder of "Safe Passage," a non-profit organization dedicated to assisting domestic violence victims. Trish's approach to rescuing domestic violence victims is very innovative, and it goes further than providing temporary shelter. Safe Passages has found a method to get victims back on their feet by giving them a complete "makeover." For example, Trish has recruited numerous doctors and dentists to volunteer their time to perform cosmetic surgery on the many victims who have suffered injuries to the facial area. With a little help from Trish's volunteers, these individuals are able to re-boost their confidence so that they can go out and market themselves for work. As Trish points out, victims of domestic violence are frequently caught in a cycle of violence because they are financially unable to "get out" of their current circumstances. For this reason, Trish's approach addresses the physical, emotional as well as the financial aspects of rebuilding one's life after leaving an abusive relationship. Trish is constantly looking for professionals willing to volunteer their time and donate resources to victims of domestic violence. As you can see, eliminating domestic violence requires the work of special people, who are the real heroes in the fight against domestic violence. Written by: Donald P. Schweitzer
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| October 22, 2009 |
| Lowering Child Support By Investing In A New Spouse |
| Posted By Donald P. Schweitzer |
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| I'm about to tell you something that will make no sense: getting remarried after a divorce may result in a situation where you can lower your child support obligation after the court takes into consideration your new spouse's income. Before you call me crazy, please give me a chance to explain . . . . When a Family court calculates child support in California it has broad discretion in detemining what constitutes a parties' "income." Trial courts have been upheld in imputing income to parties in a variety of situations. For example, trial courts have been upheld after imputing income to a party based on a reasonable return on his or her investments. However, there is one type of income that the California Family Code expressly prohibits judges from considering, and that is a parties' "new mate income," except in very limited circumstances. Family Code Section 4057.5(a) provides:
The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or nonmarital partner. (Emphasis added.) In a recent published opinion, entitled, "In Re Marriage of Knowles," the Court of Appeal added to this rule, by holding that the trial court violated the Family Code when it considered half of the community income attributable to the subsequent spouse when it modified the father's child support obligation. In this case, Elizabeth and Thomas Knowles divorced and in 1995 Thomas was ordered to pay a paltry $506 per month in support of their son - Carter. On January 6, 2005, Elizabeth filed a motion to increase Thomas' child support obligation. During the proceedings, Elizabeth asked the Court to consider as income, certain capital gains that Thomas and his new spouse (Sara) enjoyed as a result of investments they made after their marriage. The capital gains that Thomas and Sara enjoyed were more than 3.1 million. Much of these gains were invested in a brokerage account and a real estate development. Although the brokerage account and the real estate development investments were community property of Thomas and Sara, the trial court considered the full amount in determining the reasonable return on those investments. In other words, the trial court did not reduce the value of the investments by 50 percent as a result of Sara's half ownership. In reversing the trial court, the Court of Appeal recited the basic concept of community property law: "Income generated from community property is community income, and an equal, undivided interest in that income is attributable to each spouse." Thus, according the Court of Appeal, the trial court erred by including Sara's half of the community income when calculating Thomas' child support obligation. In light of this decision, we can see how an obligor of child support may benefit when he invests his money with his new spouse. There are also situations where the inclusion of a new spouse's income in the calucation of child support reduces the obligation. This happens when the parties file jointly and the tax consequences reduces the child support obligor's net disposable income available for support. However, I would not suggest you run off to get re-married based on this article. There are, after all, some things that money cannot buy, like peace of mind and a stable relationship. Written by: Donald P. Schweitzer |
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| October 19, 2009 |
| In the News: Akon to Baby Mama, "Can't Find Me, Try MySpace!" |
| Posted By Don Schweitzer |
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The mother of Akon's child has been trying (and failing) to serve him with legal papers over child support -- so now she's gonna call him out in the L.A. Times. The lawyer, [Patrick Baghdaserians] for [name omitted] tells us they will be taking out an ad in Monday's L.A. Times to serve Akon publicly. If he doesn't respond, they will pursue a default judgment. But we caught up with Akon in NY -- and it's all news to him. As he told our guy, "You got a hold of me and you ain't even trying. I'm a celebrity. My schedule is on the internet. You can go on my MySpace, it'll tell you where I'm at!" Source: TMZ  |
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| October 12, 2009 |
| Children Witnesses in Domestic Violence Cases |
| Posted By Donald P. Schweitzer |
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Last week I concluded a seven day jury trial involving allegations that my client committed domestic violence against his ex wife. Fortunately for my client, it took the jury less than an hour to find my client not guilty. Prior to going to trial I attempted to convince the Deputy District Attorney that he should not proceed with the case, since the only corroborating evidence he had was the supposed statement that the parties' seven year old son gave to the police. The ex wife had taken their seven year old son to the police station about two hours after the incident to make a police report. When I explained to the prosecutor that the child was an unreliable witness due to the child's age, the prior inconsistent statements he made to our investigator, and because of the fact he was not in a position to have witnessed the incident, the prosecutor dryly replied that he was still going forward with the case because he had interviewed the child and believed his story. Small children do not make very good witnesses for a variety of factors, and they should be called to the stand only when it is absolutely necessary. In the seventeen years that I have practiced law, I have only seen small children called to the stand on a couple of occasions. Not only do small children generally make poor witnesses, but the emotional impact of calling a child to the stand has to be great. In this case, the little boy was called to testify against his father in a rather minor incident. I can only imagine the strain this experience will have on their relationship and the feelings of guilt the poor child will feel for the rest of his life for taking the stand. Once again I am reminded that exercising one's discretion not to proceed with a "domestic violence" case has to be allowed within our system of justice.
Written by: Donald P. Schweitzer |
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| September 14, 2009 |
| Agreements To Pay Spousal Support - Watch Out For The Pit Falls!!! |
| Posted By Donald P. Schweitzer |
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| If you are going through a divorce or a legal separation and find yourself negotiating spousal support, be especially careful before you accept the terms of the agreement. Modifying a spousal support obligation is not as easy as you may think. It's not as if you can simply walk into a court and ask the judge to modify the order based on the fact that your ex-spouse recently acquired access to funds. Unfortunately, the process is a little more complicated than that. The test for modifying a spousal support obligation in California has always been whether or not there has been a "material change of circumstances." A material change of circumstances means a reduction or increase in the supporting spouse's ability to pay and /or an increase or decrease in the supported spouse's needs. Thus, it would seem obvious that grounds for a modification of support would exist anytime a party acquires access to retirement funds or if his or her assets significantly appreciate in value. Think again. In a recently published opinion entitled "In Re Marriage of Dietz," the Appellate Court decided that the trial court erred by concluding that the accessibility and increased value of a retirement account, previously awarded to the wife in a stipulated judgment, constituted a material change of circumstances justifying a decrease in the husband's monthly spousal support obligation. On the surface, this opinion seems to contradict the holding in In re Marriage of Schmir. In Schmir, the Appellate Court affirmed the trial court ruling that there were material changes of circumstances to justify modification of support after Ms. Schmir became eligible to withdraw funds from her retirement account without penalty. However, the Dietz case was decided after the terms of the parties' marital settlement agreement were scrutinized by the Appellate Court, which held that the trial court was required to give effect to the husband's and wife's intent, as expressed in the agreement. The stipulated judgment that Mr. and Mrs. Dietz signed expressly acknowledged their expectations that the value of the subject retirement account might increase. The agreement stipulated that each party would receive one-half of the community property interest in the retirement accounts, including "any and all contributions made up to the date of separation, and any increase or decrease in value of such assets related to market conditions." Based on this decision, it would seem prudent for anyone entering into a marital settlement agreement, containing a spousal support order, to insist that the judgment include a detailed list of future events that will constitute a material change of circumstances. For example, if the parties anticipate a penalty-free withdrawal from retirement funds at a future date, it should be specifically indicated in the agreement that the occurrence of such event will constitute a material change of circumstances. The Dietz decision also serves to remind us that drafting a spousal support agreement can be a highly technical exercise that requires knowledge of all possible pitfalls. Through the years, the courts have created special rules pertaining to the amount, duration, modification, and tax consequences of spousal support orders. When negotiating spousal support, pay particular attention to the proposed terms of the agreement. As Mr. Dietz learned, the failure to do so can have severe long term consequences. Written by: Donald P. Schweitzer |
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| September 14, 2009 |
| Child Support Modification for Changed Circumstances |
| Posted By Don Schweitzer |
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Where there is a change in circumstances of the child or of either parent, a modification of the amount of child support may be requested and will be granted where appropriate.
Change in Circumstances
Some changes in circumstances are sufficient to warrant a modification of custody or visitation but are not substantial enough to require a change in child support. A parent may move or a child may change schools, either of which might cause a change in the visitation schedule, without a change in child support. A child might become entitled to receive some type of benefit, such as a dependent child Social Security benefit from a stepparent. Many courts will not adjust child support merely because the child now has more resources. Other changes in circumstances do require a modification of child support.
Change in Circumstances of Parents
Where a parent loses a job because the only factory in town has shut down, the parent who lost the job may not be able to get another job at a comparable pay and a reduction in child support may be warranted. Where a parent gets a new job paying substantially more money, the change in circumstances of the parent warrants an increase in child support. If a parent becomes disabled and retires on a disability pension and Social Security disability benefits, the parent is entitled to request a modification. It should be noted that the disabled parent is not entitled to stop paying child support and assume that the child's social security benefit will be sufficient to meet the parent's child support obligation; modification by a court or tribunal is required. The fact that a parent remarries or subsequently has another child is usually not the type of change that requires modification of child support. If, however, the parent takes a job in another state, the end of sharing custody and the cost of visitation may require reconsideration of child support.
Change in Circumstances of the Child
A change of school or a change of after-school activities are not the type of circumstances that require modification of child support. On the other hand, when day care expenses or after school care is no longer needed, child support for such expenses should end, requiring a modification in child support. When a child has extraordinary medical expenses, those expenses may be added to basic child support, requiring modification. A child may inherit a large trust fund responsible for schooling or other expenses included in the child support obligation. The child support obligation should be adjusted to reflect the trust fund payment of this expense. When there is a change of custody, it is obvious that there must be a modification of child support. |
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| July 13, 2009 |
| In the News: Akon's Baby Mama Wants Money Right Now Na Na |
| Posted By Family Law Attorney |
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Akon made a baby with a woman who now wants him to make child support payments -- but she claims the only thing he does better than sing is hide from process servers. [name omitted]'s lawyer, Patrick Baghdaserians, has been desperately trying to serve Akon but so far no luck. Akon has already taken a paternity test -- and it was a match! The kid is 6 months old. Akon's lawyer gave us the following statement: "Akon has taken responsibility and has been extremely cooperative and proactive in handling this private matter. Paternity was only established just over 30 days ago. Since the case was filed outside of Georgia jurisdiction, where he is a legal resident, Akon is currently in the process of engaging counsel in California and will continue to handle this matter in a timely manner." -Source: TMZ |
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| May 26, 2009 |
| Casey Marticorena, along with Southwestern Students and Alumni, Helps Join Families During Adoption |
| Posted By Family Law Attorney |
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It was difficult to tell whose smiles were brighter - the newly adopted children and their parents, or their advocates who had worked with them to get to this special day - during the recent adoption hearings atEdelman Children's Courthouse in Monterrey Park. The emotion-filled hearings marked the culmination of Adjunct Professor Amy Pellman's Children and the Law course.
A judge of the Los Angeles Superior Court, Professor Pellman spent the semester training her students to help complete adoptions of children in the foster care system. This year, she worked closely with Public Counsel to accomplish a goal she has had for a long time: to pair Southwestern alumni with current students to execute these adoptions. The result of that collaboration was Adoption Day 2009, in which students and pro bono attorneys from Southwestern completed the adoption process for 12 children during hearings held on April 17. In all, this year's program will place 16 children in permanent homes.
"In this process, the students have an opportunity to experience a wide range of lawyering skills," Judge Pellman said. "First, they are in the role of an associate working with a partner on an adoption. They are learning how best to interact with a supervisor. In this same vein, they could be networking with that lawyer and helping their chances for obtaining a job after law school. They are learning interviewing skills and issue spotting. When they interview the families, they are responsible for assessing the adoption benefit and deciding whether it is correct for the child's level of needs."
Casey J. Marticorena '07, who works as a family law attorney in Pasadena, co-coordinated Adoption Day 2009 with Joanna Sanchez '07 by acting as a liaison between the pro bono attorneys, students and Public Counsel. The attorneys oversaw the progress of each adoption case in order to assure timely filing of all paperwork and that each adoptive family receives the appropriate benefits.
When she was a student, Marticorena participated in National Adoption Day. "Now, as an attorney, I am able to have more of a one-on-one relationship with the adoptive parents and the children," she said. "The students were responsible for preparing the Judicial Council Forms and interviewing the adoptive parents. They were very professional during the visit to the adoptive parents' homes."
Second-year day student Arpie Jivalagian worked with Marticorena. "This has been a great experience," Jivalagian said. "It opens your eyes to a different world, and it gives you a great feel for how the system works."
Public Counsel conducted a training session during one of Judge Pellman's classes where all participating attorneys and students were present. Students then worked individually or in pairs with alumni to finalize the adoptions. They drafted letters, either met face to face with the family or had conference calls, completed the actual forms for the adoption, advocated for the AAP rate (Adoption Assistance Program) for which the child was entitled, appeared at the hearing and took the parents' testimony in court. Judge Stephen Marpet finalized several of the adoptions that day, saying, "As a judge, this is the best thing you ever do, bar none."
Judge Pellman, a former senior trial attorney with Dependency Court Legal Services and legal director for the Alliance for Children's Rights, has had a great deal of experience with adoptions on both sides of the bench, and was the recipient of the American Bar Association's distinguished Child Advocacy Law Award. During her tenure with the Alliance, a "National Adoption Day" was established to highlight the need for adoptive parents for children in the foster care system. That program has since grown exponentially so that now every state participates.
Children who grow up in foster care often have an array of psychological, physical and educational challenges, and therefore the need for competent legal assistance. "Foster parents, many of whom are relatives, need legal support in order to help the children they adopt thrive and grow into productive adults," Judge Pellman said. "The system is so large that often many social workers have been assigned to the child's case, and this invariably leads to mistakes. The students (along with the pro bono attorneys) have a huge responsibility to ensure nothing is missed at this last stop to a permanent loving home." |
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| January 19, 2009 |
| The Penniless Attorney And His Obligation To Pay Child And Spousal Support |
| Posted By Donald P. Schweitzer |
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THE PENNILESS ATTORNEY AND HIS OBLIGATION TO PAY CHILD AND SPOUSAL SUPPORT
You know that paying child and spousal support is tough in California where even a high paid attorney complains about his support obligations. In the case of Marriage of Mosley, an attorney pleaded with the court to modify his monthly child and spousal support payments, claiming that he was financially destitute after making his payments. After sorting out the interesting facts of this case, the Court of Appeal had to address two common issues: 1) how to apply bonus income to the support calculations; and 2) when to impute earning capacity to a party who insists on not working. I think you will find that the Court applied some common sense in rendering it's decision.
THE INITIAL SUPPORT ORDERS
Paul and Dawn Mosley were married for twenty years, lived in Orange County, and had five children. Both parties were licensed attorneys. Notably, Paul was a real estate lawyer during the recent real estate boom. Dawn, on the other hand, quit practicing law early on in the marriage to tend to their children. In 2002 the parties were divorced. The parties' 2002 Judgment of Dissolution ordered Paul to pay Dawn $6,810 per month and 21 % of all of his bonus income. The child support order was based on the fact that Paul earned $447,150 for the year 2001, which equated a gross monthly income of $32,175. Paul's timeshare with the children was 32 percent (a factor considered by the guideline formula in California). No income was imputed to Dawn when support was calculated, since she was still unemployed and taking care of the minor children at the time the divorce was finalized. Paul was also ordered to pay Dawn spousal support, in the amount of $4,100 per month, plus 15 percent of his bonus income. The spousal support order included a provision that the amount of support was insufficient to maintain the marital standard of living. The total amount of support (child and spousal combined), amounted to $10,910, plus 36 % of all of Paul's bonus income.
THE TIMES THEY ARE A CHANGING!
As Paul's tax returns revealed, the practice of a real estate attorney was quite lucrative between 2000 and 2003. This chart shows Paul's income (base salary and bonuses combined), for the listed years: 2000 - $529,652 2001 - $616,697 2002 - $689,215 2003 - $753,651
Unfortunately, the real estate market's bubble burst. Paul found himself out of a job when his law firm phased out their real estate practice. In February, 2005, Paul took up a new job as in house counsel with a home builder. Paul's new base salary was $205,000. However, his new compensation package provided that he could also earn a discretionary bonus of up to 150 percent of his base salary. In 2006 Paul filed an Order to Show Cause for modification of support, asserting that there was a material change of circumstances, warranting the court to modify the support orders. Paul made several arguments in support of his request for modification of the support orders. He explained to the court that he was not capable of paying $10,910 monthly support as ordered, since his take home pay was often less than the amount he was ordered to pay. Paul declared that in the first two months of 2006, he paid Dawn more than the amount of his take home pay and borrowed all of his living expenses. In March, 2006 Paul received the remaining $85,000 of his 2005 bonus, most of which he used to reduce prior borrowings. He estimated that the remaining amount of his bonus would permit him to go two months longer before he would have to start borrowing again. Paul expected he would have to borrow 100 percent of his living expenses for the remaining six months of the year. Paul also argued that the court should impute income to Dawn based on her earning capacity, since she had been given a Gavron warning (an advisement that she should make efforts to become self supporting), she was an attorney with impressive credentials, and based on her education and work history. Paul asserted that Dawn could earn at least $78,000 a year, and the court should impute those wages to her, in spite of the fact she was not working. In opposition, Dawn argued that she could not afford a decrease in child or spousal
support, since her monthly living expenses amounted to $10,000, and she was already living below the marital standard of living. Dawn also argued that the court should not impute wages to her, since she quit the practice of law several years ago, based on an agreement that she and Paul had entered into at the beginning of their marriage. Paul and Dawn had agreed that Dawn would stay home to take care of the kids, while Paul would go to work, and advance his career. Finally, Dawn argued that the support orders should not be modified, since there was no showing that Paul's income had actually decreased to the point where a modification was warranted. Dawn pointed out that Paul's end of the year income for 2005, amounted to $448,392 (which included his base salary and bonus). And even though his 2005 income was less than it had been in several years, it was greater than his base income of $447,150, as reflected in the 2002 judgment. Therefore, Dawn argued, there was no change of circumstances and Paul still had the ability to pay the court ordered support. The trial court denied Paul's request for modification after determining that there was no change of circumstances warranting a reduction of support. Furthermore, the court refused to impute income to Dawn, reasoning that there was no showing that a job was available to her, and it was not in the best interest of the children for Dawn to work.
THE COURT OF APPEAL WEIGHS IN
In a harshly worded decision, the Court of Appeal reversed and remanded the matter back to the trial court, ordering the trial court to recalculate Paul's support obligation, using Paul's base salary, exclusive of his bonus income. As the Court explained, "It exceeded the bounds of reason to require Paul to pay nearly 100 percent of his take home pay in support payments, on the assumption, based on only a one-year history with the home builder, that he would continue to receive a six-figure bonus each subsequent year. It placed him in a position of having to borrow for his living expenses, and thus resulted in a miscarriage of justice." The court further reasoned that, "It would be an abuse of discretion for the court to leave Paul nearly penniless while he awaits the potential of a bonus each year, especially in light of the current plight of homebuilders." The Court of Appeal also held that the new order must include a method for paying support based on his bonus income, citing In Re Marriage of Ostler and Smith (1990) 223 Cal.App.3rd 33, as follow: "No future bonus is guaranteed. It would therefore not be appropriate to base a support order on Husband's bonus income and then require him to file motions to modify at such times as the bonus is reduced. It would be more fair to all parties to base the support order on Husband's income from salary . . . , and to allocate a portion of the future bonus income to the children and to Wife by way of a percentage interest so that future litigation will not be necessary as the bonus income changes." The Court of Appeal also directed the trial court to reconsider it's ruling with respect to Paul's request that income be imputed to Dawn based on her earning capacity, stating, "On remand the trial court shall consider the change in circumstances, Dawn's obligation to provide support for her children, and her ability to do so." While discussing the imputation of income issue, the Court restated the law that a court may not impute earning capacity to a parent unless doing so is in the best interest of the children, citing In Re Marriage of Cheriton (2001) 92 Cal.App.4th 269. The Court then held that the same principals applies to when a Court calculates spousal support, stating, "Even in setting spousal support, the court cannot disregard the impact of the children if the supported person returns to work," citing Family Code, Section 4320. But the Court of Appeal held that the trial court failed to consider all of the evidence before it in evaluating the best interest of the children. The Court recalled Paul's testimony that if Dawn contributed to the support of the children, he would not need to spend as much time at work trying to maximize his bonus and would be able to spend more time with the children himself. In this regard, the Court stated, "We cannot disagree with his assertion that it is in the best interests of the children to receive nurturing from both parents. Indeed, sometimes the best interests of the children are promoted when parents reduce their work hours so as to spend more time with their children." Addressing Dawn's complaint that she did not have enough money, the Court stated, "Also, Dawn complains that the amount Paul currently pays in child and spousal support is insufficient for the children and herself to live according to the marital standard of living. It follows then, that any additional income Dawn could provide would only increase the level of support available to the children, and thus promote their best interests." Finally, the Court of Appeal restated the law that it is both parent's obligation to support their children, by citing Marriage of LaBass & Munsee.
CONCLUSION
It is important to note that where bonus income is at issue, the trial court has the discretion, under appropriate circumstances, to include the bonus income to the payor's gross monthly income by simply entering his or her year to date income into the child support calculator, which will then calculate the average monthly income. However, based on the Marriage of Mosley, we know that it will be an abuse of discretion for the trial court to include the bonus income if there is not a sufficient track record to predict receipt of the bonus income for future years. It is also going to be a problem for the trial court on appeal if it can be shown that the payor would be financially destitute after making the support payment. And finally, based on this case, we know that when calculating spousal support, the court has to consider the best interests of the children before imputing wages to the supported party. Written by: Donald P. Schweitzer
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| January 05, 2009 |
| Secretary of State Refuses to Certify Roland Burns as Senator |
| Posted By Defense Attorney |
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The politicians are supposedly up in arms about Governor Blagojevich's appointment of Roland Burris to the vacant Senate seat. Illinois' Secretary of State - Jesse White, for example, has declared that he will not sign papers to certify the appointment. From their dramatic speeches and press conferences, it would appear these political types have taken the high ground. Think again... This is not the first time our country has seen a politician with pending legal problems appoint someone to office. Remember when Richard Nixon appointed and fired numerous Attorney Generals while facing his problems with the law? Unless specific legal authority exists that grants Mr. White the power to block Burris's appointment, he needs to do what he had been elected to do, which is to sign the papers. The political process will take care of Burris and any cloud hanging over his appointment. The citizens of Illinois will decide if Burris should be their Senator, so his time and influence within the Senate is very tenable. If the citizens decide that Burris is unworthly of the position, he will be gone in a New York minute. The real concern that people should have is that there are elected officials like Mr. White, who are openly declaring that they do not intend to follow the law. Apparently Illinois' politicians are so backwards, that even when crusading for justice, they end up committing crime. Mr. White's willful refusal to sign the certification papers is grounds for impeachment, as he would be refusing to carry out the laws he was elected to uphold. Imagine that, another Illinois politician brought up on charges . . . . |
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