Family law with Jeffrey Blum

On A Long Enough Timeline, The Probability Of Not Seeing An Issue In Litigation Drops To Zero

If you litigate long enough, you run into practically every issue that you might imagine can arise in a case. However, it took nearly 40 years of litigating family law cases for me to encounter, in the same action, the issues of spoliation of evidence and a violation of restraining orders. This created a two-pronged attack in a combined "Marvin action" and dissolution of marriage action.

Spoliation of evidence was addressed in Cedars-Sinai Medical Center vs. Superior Court, 18 Cal. 4th 1, 12 (1998). In that case, the California Supreme Court recognized that destruction of legally relevant medical records while there is a reasonable anticipation of a discovery request amounts to a misuse of the discovery process. The options available to the court in such an instance include monetary sanctions, issue sanctions ordering the designated facts be taken as established, contempt sanctions, and terminating sanctions. When deciding which sanctions to apply, courts attempt to tailor the sanction to the harm caused by the withheld evidence.

The other prong of the discovery sanction attack was a violation of automatic restraining orders issued at the outset of a dissolution of marriage/legal separation action. The applicable restraining order bars a party from disposing of property, regardless of the character of the property, without court consent or the consent of the other party.

My client's Marvin claim -- based on the 1976 decision in Marvin v. Marvin, 18 Cal. 3d 660, the case establishing California's test for palimony -- was reasonably good, irrespective of the discovery sanction attacks. She and her significant other lived together for 24 years prior to marrying and then lived together as husband and wife for another 10 years. In the pre-marital period, they bought two real properties together and he designated her as a beneficiary on employment related life insurance. They even collaborated in writing and publishing medical research papers. Notwithstanding these facts and others supporting her claim, her ex was offering her pennies on the dollar and she was being strongly pressured to settle for little. Rather than settle, she talked to her financial adviser, who urged her to reject the proposal and get a lawyer.

While taking the other party's deposition, I learned that he considered my client to be a hoarder, who kept anything and everything, including financial records, cards, correspondence and pictures, dating back years. As a matter of habit, she kept the type of documents that could establish the nature of their non-marital cohabitation relationship. By his own admission, her hoarding was a source of contention between the parties.

My client's ex disposed of many of her documents after he filed a dissolution of marriage action. My client was away when he disposed of her documents. Moreover, he did not have my client's consent to the property disposal. He admitted these things in his deposition and provided us with the receipt substantiating the date of the disposal and the instructions he gave to the disposal company. Until these facts were established in his deposition, neither he nor his attorney had considered the spoliation of evidence/violation of restraining orders issues. By the time they recognized what was going on during his deposition, it was too late; a prima facie case of evidence spoliation/restraining order violation had been established.

Despite his admissions concerning evidence spoliation and notwithstanding the violation of the restraining orders, there still was some question as to whether the other party was aware of my client's Marvin claim when he disposed of her documents. However, the risk of having issue sanctions or terminating sanctions imposed against him, sufficed to make him settle on much more favorable terms than he had been offering previously. My client ended up receiving substantially more on her Marvin claim than she had been offered in mediation a few years before.

While the case law in the areas of spoliation of evidence and restraining order violations is sparse, these are nevertheless two important issues to address with new clients in every litigation action. If you litigate long enough, one or the other or both of these issues will likely arise at least once.

Wanted: A Legislative Fix

Judges and attorneys often tell divorcing parties that, as parents, they know what is best for their children. This behooves parents to try to work things out themselves, without court intervention. However, a recent case indicates the law does not always allow judges to follow their admonitions to parents -- and it calls out for a legislative fix.

In Stover v. Bruntz, 12 Cal. App. 5th 19 (2017), the parties stipulated to a retroactive child support order. Presumably this was done to avoid the parties having to incur the cost of preparing and filing a request for order seeking to have the court determine the appropriate amount of support. Ordinarily, support may only be ordered payable for a period beginning at the date of filing a request for order. The parties here sought to circumvent this rule by agreeing to retroactivity to a date prior to any filing of a request.

There are a few problems with what the parties tried to do in Stover. Several Family Code statutes provide that an order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date. Family Code Sections 3653, 3651 and 3603. These provisions permit the trial court to make its ruling retroactive to the filing date of the motion, but no earlier. In re Marriage of Cheriton, 92 Cal. App. 4th 269, 300 (2001). The filing date establishes the outermost limit of retroactivity. These statutes and the Cheriton case require a parent who believes the amount of support ordered is too high or too low, to seek support modification going forward. Thus, a trial court has no discretion to absolve an obligor of support arrearages or interest thereon. A court order modifying support retroactive to any time period before the filing date of a modification motion violates the governing statutory scheme.

In Stover, the court apparently relied on the retroactivity condition contained in the parties' stipulation to allow Stover a credit for each month that Bruntz could not prove child care expenses. The effect of the court's order was to retroactively reduce the arrearages Stover owed under the support order for several years preceding the filing of Stover's modification motion. By awarding Stover a child care credit of $441 for each month from January 2007 until Stover filed his modification motion on May 10, 2011, the court effectively reduced the $1,000 support amount previously ordered to $559 and completely wiped out many of the accrued arrearages.

The Stover court indicated that Bruntz was not estopped from attacking the written stipulation and order on retroactive support, since the California Legislature has declared the important public policy of protecting minor children to ensure that their needs are met when their parents separate. In re Marriage of Ayo, 190 Cal. App. 3d 442, 451(1987). The legislature has determined that equity is not served by retroactive modification of support orders, where simplified procedures are available for prospective modification. In re Marriage of Tavares, 151 Cal. App. 4th 620, 625-26 (2007). The court ruled that preventing Bruntz from attacking the retroactivity condition contravenes public policies and allowing Stover to avoid child care costs for several years in which no motion to modify has been filed could seriously destabilize the minor children's home life and Bruntz's ability to meet their needs.

If, as we are so often told, the parents know what is best for their children, would it not make sense to have an exception to these strict statutory rules allowing the parties to agree in writing to retroactive support if they believe it is in the best interests of their children? Would not such an approach possibly reduce the costs of litigating dissolution of marriage cases, which are already so significant? The Stover court indicates filing for support modification is a simplified procedure, but this is by no means always the case. The retroactivity issue raised by Stover may warrant a legislative fix.