Automatic Restraining Orders in Family Law Summons

Application of Automatic Restraining Orders in Family Law Summons

Necessities of Life

The situation is one party uses community funds for the necessities of life and to pay legal fees. The other party in essence wants reimbursement to the community for these funds.  

The demand for reimbursement is based on the automatic standard restraining orders of Family Code § 2040(a)(2) that bar either party from:  “. . .  from transferring, encumbering, hypothecating, concealing, or disposing of any property, real or personal, whether community, quasi-community, or separate, without the other party’s written consent or a court order. . .”

But Family Code § 2040(a)(2) has an exception which specifically states: “except in the usual course of business or for the necessities of life.” “Read literally, the restraining orders forbid a divorcing spouse from even buying groceries (“you and your spouse are restrained from … transferring … or in any way disposing of any property, real or personal ….”) unless one reads further and realizes the blanket preclusion is qualified for disposals of property either in the “usual course of business or for the necessities of life.” Besides being a matter of common sense, these qualifiers are mandated by a formidable body of constitutional law precluding the summary deprivation of property without due process, i.e., without notice and hearing. That law was forged in the context of overreaching creditor’s remedies in which alleged debtors found themselves summarily deprived of the use of their property without deliberative court proceedings. (See Randone v. Appellate Department (1971) 5 Cal.3d 536 [96 Cal. Rptr. 709, 488 P.2d 13] [prejudgment attachment procedure unconstitutional without notice and hearing]; Blair v. Pitchess (1971) 5 Cal.3d 258 [96 Cal. Rptr. 42, 486 P.2d 1242] [same for claim and delivery]; see also Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [23 L. Ed. 2d 349, 89 S. Ct. 1820] [summary attachments without notice and hearing unconstitutional].)” Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1393

Contrast the clearly stated exceptions to the ATROs with the marriage of McTiernan, where the sale of stock was held a violation of the ATROs. Specifically: “In April 1998, faced with a cash shortage, husband sold certain community property stocks, the proceeds of which he used in part to pay community expenses. Husband did not inform wife or seek court approval of the stock sale before conducting it.” In re Marriage of McTiernan & Dubrow (2005)133 Cal.App.4th 1090, 1103

The McTiernan court did not specify what the proceeds from the sale of stock were used for except in part to pay community expenses. The McTiernan court did not state the proceeds were used for the necessities of life or legal fees. In fact during the eight and three-quarter years of marriage before separation, husband had earned approximately $15 million. Most likely the sale proceeds were not used for necessities of life or legal fees.

In absence of a statement of facts the sales proceeds were used for necessities of life and/or legal fees, should the McTiernan case apply to expenditures for the necessities of life? The “tentative ruling” of the court is the community should be reimbursed.

 

Application of Automatic Restraining Orders in Family Law Summons for Attorney Fees

California Family Code Section 2040(a) (2) allows the payment of attorney fees. “Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property.”

Should a person be allowed to use community funds to pay for dissolution of marriage without reimbursing the community for those funds? The “tentative ruling” of the court is the community should be reimbursed.

Community Property Interest Created in Separate Property

Community Property Interest Created in Separate Property due to Principal Pay Down

Presumption on Community Credit

“There is a rebuttable presumption that property acquired on credit during marriage is community property. [Citations] But “funds procured by the hypothecation of separate property of a spouse are separate property of that spouse.” [Citations] The proceeds of a loan made on the credit of separate property are governed by the same rule. [Citations]] In accordance with this general principle, the character of property acquired by a sale upon credit is determined according to the intent of the seller to rely upon the separate property of the purchaser or upon a community asset. [Citations]] In the absence of evidence tending to prove that the seller primarily relied upon the purchaser’s separate property in extending credit, the trial court must find in accordance with the presumption.” Gudelj v. Gudelj, (1953) 41 Cal.2d 202, 211

What is the amount of the community interest?

Moore cited Aufmuth as the authority for parsing out the community interest. It is basically the reduction of principal and does not allow for reimbursement for property taxes, interest or insurance. “Although many formulae have been suggested, we are not persuaded that any of them would be an improvement over a formula based on the reasoning of In re Marriage of Aufmuth (1979) 89 Cal.App.3d 446, which was approved In re Marriage of Lucas (1980) 27 Cal.3d 808. We were there concerned with determining the respective community and separate interests in a residence purchased during marriage with a combination of community and separate funds where the community contributed the loan and subsequent payments on it and there was an agreement or understanding that the party contributing the separate property down payment was to retain a pro rata separate property interest. The formula we used there recognized the economic value of the loan taken to purchase the property. In the formula postulated in Lucas the proceeds of the loan were treated as a community property contribution on the assumption that the loan was made on the strength of the community assets” In re Marriage of Moore, 28 Cal. 3d 366, 374

Marriage of Aufmuth Formula

The Aufmuth court’s opinion stated: “It was stipulated that the home had a fair market value of $125,000, an increase in value of $58,500 over the original $66,500 purchase price. The mortgage balance at the date of separation was $47,000. The community contributed $50,000, and wife contributed $16,500 of her separate funds, to the original purchase price. The community interest in the property was therefore 75.19 percent ($50,000 divided by $66,500), and the remaining 24.81 percent interest was wife’s separate property, when the residence was acquired.

In accordance with this formula, the trial court found that “the present value of the $16,500 initial investment in said residence is $31,014 and the present value of the joint investment is $46,986.” Although not expressly stated, it is apparent that the court calculated the $ 31,014 figure by adding the amount of capital appreciation attributable to separate funds (24.81 percent of $58,500) to the amount of the equity paid by separate funds ($16,500); the $46,986 figure, by adding the amount of capital appreciation attributable to community funds (75.19 percent of $58,500) to the amount of equity paid by community funds ($50,000 minus $47,000).” In re Marriage of Aufmuth (1979) 89 Cal.App.3d 446, 458

Child Custody Basics

Author:  Mark W. Bidwell, www.BidwellLaw.com

In child custody for the average parent, the following guidelines may provide you insight into how child custody could be ordered by a court.

Public Policy is Frequent and Continuing Contact. Family Code 3020(b) “The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.”

Joint Physical Custody Family Code 3004. “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

No Gender Preference Family Code 3040(a) “The court may not prefer a parent as custodial parent because of that parent’s gender.”

Child’s Preference Family Code 3042. (a) “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child’s preferences.”

Maturity Is Not Measured By Chronological Age. “The mediator gave her opinion that both children were very mature. The court had an opportunity to personally observe the children and judge their sincerity, bearing and degree of maturity, while questioning them in chambers. With children 10 and 13 years of age we believe it is peculiarly the function of the trial judge to determine what consideration is to be given, if any, to their expressed preference as to custody.” Marriage of Rosson (1986) 178 CA3d 1094, 1103.

Child Custody Terminology

3002. “Joint custody” means joint physical custody and joint legal custody.

3003 . “Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

3004. “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

3006. “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

3007. “Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.

Child Support Under California Family Law

In implementing the statewide uniform guideline, the courts shall adhere to the following principles:

(a) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent’s actual income and level of responsibility for the children.
(d) Each parent should pay for the support of the children according to his or her ability.
(e) The guideline seeks to place the interests of children as the state’s top priority.
(f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.
(g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes.
(h) The financial needs of the children should be met through private financial resources as much as possible.
(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.
(j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.
(k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
(l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states.

Here is the statewide uniform guideline for determining child support orders.

CS = K (HN ‑ (H%) (TN)).

The components of the formula are as follows:

CS = child support amount.

K = amount of both parents’ income to be allocated for child support as set forth below.
K (amount of both parents’ income allocated for child support) equals one plus H% (if H% is less than or equal to 50 percent) or two minus H% (if H% is greater than 50 percent) times the following fraction:

_ _ Total Net Disposable
_ _ Income Per Month (K)
_ _ $0‑800 0.20 + TN/16,000
_ _ $801‑6,666 0.25
_ _ $6,667‑10,000 0.10 + 1,000/TN
_ _ Over $10,000 0.12 + 800/TN

For example, if H% equals 20 percent and the total monthly net disposable income of the parents is $1,000, K = (1 + 0.20) X 0.25, or 0.30. If H% equals 80 percent and the total monthly net disposable income of the parents is $1,000, K = (2 ‑ 0.80) X 0.25, or 0.30.

HN = high earner’s net monthly disposable income.

H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent. _ In cases in which parents have different time‑sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child.

TN = total net monthly disposable income of both parties.

For more than one child, multiply CS by:
_ 2 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1.6
_ 3 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2
_ 4 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.3
_ 5 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.5
_ 6 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.625
_ 7 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.75
_ 8 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.813
_ 9 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.844
_ 10 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.86