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Be Warned!! Disclosure in divorces: In Marriage of Fong

The recent case of In re Marriage of Fong, 193 Cal.App.4th 278, 123 Cal.Rptr.3d 260, 3/3/2011 once again shows the risks for non-disclosure of community assets. in that case Husband was sanctioned $100,000 in attorneys fees for non-dsclosure

An interesting extract from the case:


"Gary contends the trial court failed to consider his ability to pay. A court awarding attorney fees and costs as a sanction under section 271 must consider "all evidence concerning the parties' incomes, assets, and liabilities" and must not impose an unreasonable financial burden on the sanctioned party. (Id., subd. (a).) Gary's final declaration of disclosure and income and expense declaration, filed in April 2008, was presented at the hearing on the motion. His disclosed assets included nine rental properties, his personal residence (a ranch), ten cars, a yacht, savings accounts, gold coins, and other items. Gary does not cite or discuss this evidence or argue that it is insufficient to justify the amount of the award. Instead, he argues in a conclusory manner and without citing the record that the court failed to consider his ability to pay. We conclude that Gary has not shown that the court failed to consider the evidence in the record and therefore has shown no error on this basis.*N5

Gary also contends the award is excessive in light of the trial court's prior orders awarding Marci a total of $272,500 in attorney fees for various reasons. We note that some of those orders stated that the awards were subject to later reallocation, if appropriate. Gary does not discuss the evidence of his ability to pay and has not shown that the award is excessive in light of that evidence, and therefore has shown no error on this basis.

Gary also argues that the evidence does not support the trial court's finding that his conduct frustrated settlement and cooperation between the parties and counsel. He cites evidence of his informal disclosures and purported cooperation in settlement efforts. In our view, the cited evidence does not compel the conclusion that the court's factual finding was erroneous.

Marci presented evidence that Gary had failed to fully and timely respond to discovery concerning bank records, mortgage loan applications, refinancing, and rental income; failed to cooperate in obtaining bank records directly from the Canadian banks; failed to respond to her two settlement offers; produced at trial bank records that he had failed to produce in response to discovery requests seeking those records; refinanced community real property on several occasions in violation of a court order; failed to provide an accounting of all rents and refinances and the disposition of those proceeds, as required by the order of March 21, 2007; and attempted to sell real property in Canada in violation of a court order. The trial court reasonably could conclude based on this evidence that Gary's conduct frustrated settlement and cooperation between the parties and counsel and justified an award of attorney fees and costs under section 271.

Finally, Gary argues that the trial court abused its discretion by awarding attorney fees and costs under section 271 to a party whose own conduct had frustrated settlement and cooperation between the parties and counsel. He notes Marci's failure to serve her preliminary declaration of disclosure until more than three years after filing her petition for dissolution, her "unreasonable" settlement proposal, and her filing of a duplicative proceeding in Canada. He argues that the court effectively awarded a noncomplying party for her noncompliance and that this cannot be what the Legislature intended.

The trial court awarded Marci $100,000 in attorney fees and costs under section 271 as a penalty for Gary's noncompliance and uncooperative conduct. As the party in possession of a greater share of the community assets, Gary bore a greater burden of disclosure and fiduciary responsibility with respect to the community assets. Unlike section 2107, subdivision (c), section 271 does not necessarily require that the moving party be in compliance with particular obligations before moving for an award. Although the extent to which the moving party's conduct furthers or frustrates settlement may be an appropriate consideration for a court considering an award under section 271, Gary has not shown that Marci's conduct in these circumstances was so egregious as to compel the conclusion that the award in her favor was unreasonable and an abuse of discretion."

Los Angeles Divorce Lawyer


New Rules on Children Testifying in Custody cases in California

 Cal. Rules of Court, rule 5.250, 1/1/2012

RULE PROVIDES: "(a) This rule is intended to implement [Fam. Code §3042]. Children's participation in family law matters must be considered on a case-by-case basis. No statutory mandate, rule, or practice requires children to participate in court or prohibits them from doing so. When a child wishes to participate, the court should find a balance between protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child's input while ensuring all parties' due process rights to challenge evidence relied upon by the court in making custody decisions.

(b) (1) The following persons must inform the court if they have information indicating that a child in a custody or visitation (parenting time) matter wishes to address the court: (A) A minor's counsel; (B) An evaluator; (C) An investigator; and (D) A child custody recommending counselor who provides recommendations to the judge under Family Code section 3183.

(2) The following persons may inform the court if they have information indicating that a child wishes to address the court: (A) A party; and (B) A party's attorney.

(3) In the absence of information indicating a child wishes to address the court, the judicial officer may inquire whether the child wishes to do so.

(c) [Guidelines to determine whether addressing the court is in the child's best interest]

(d) [Guidelines for receiving testimony and other information]

(e) [Responsibilities of court-connected or appointed professionals]

(f) [Methods of providing information to parents and supporting children]

(g) [Education and training]



NOTES: Advisory Committee Comment: Rule 5.250 does not apply to probate guardianships except as and to the extent that the rule is incorporated or expressly made applicable by a rule of court in title 7 of the California Rules of Court.

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Do I need a lawyer to handle a divorce? Can I afford one?

Amazingly, I still get asked this question by intelligent professional people who would never ask this question of their doctor, car mechanic or accountant. Yes, there are some situations where there are no children involved and the assets and liabilities are minimal and a "summary dissolution" procedure where you generally do not need lawyers is appropriate. However, it is adviseable to retain an attorney at the outset if there are custody, support and property issues. Failure to do so before you file a Petition for Dissolution may prejudice your case. Simply because you hire an attorney does not mean that there will be a long drawn out battle. Lawyers and Judges are usually settlement orientated and want to see the parties make their own decisions with minimal conflict. There are also different models for reach agreement in a divorce such as mediation and collaborative law. However, there are situations where conflcit is inevitable and the Courts will be involved. This often results in the so called "out spouse" with less resources being in a difficult financial position and unable to hire an attorney. When one spouse is at a financial disadvantge the Court's are mandated by California law to level the playing field and make an award of attorney fees so that both spouses have the ability to litigate. If the "in spouse" will not voluntarily advance legal fees, the "out spouse" is well advised to file a Motion for Attorneys Fees early in the case. In fact, if the litigation becomes protracted there is nothing stopping a spouse from making several applications for attorneys fees during the course of the litigation.

 

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Christmas Day with Mom or Dad

This from Richard Sharpe's blog. He is an English solicitor. 

Standing in line at a supermarket checkout in Bath the other day, I overheard two teenage sisters and a friend discuss Christmas. It wasn’t a conversation filled with joy or excitement about the forthcoming festivities but on where and with whom they would be this Christmas holiday.

“Maybe we should do Christmas Eve with Dad then go up to Mum’s Christmas Day. That way it would be one day each” suggested one sister to the other. “Ok let’s not talk family stuff right now” was the frustrated response.  

As Constance Ahrons in her book “We’re still family” reminds us, as children get older, they want and need flexibility in their living arrangements. They want to have their needs considered more by their parents and be able to transition between households on their schedules, not their parents. Often they are far less concerned about the specific number of days per week they spend being with one parent or another and more on how their parents relationship will affect the emotional climate during the transitional period between parental households.

These wants and concerns can be particularly evident at family events like Christmas which can sometimes turn a dream into a nightmare. As someone once told me – “what really upset me was how my parents kept fighting about whether I spent more time with one of them than the other. It made me feel that what matter to them was who won that fight not the time with me.”

This Christmas, let’s

·         Put our children first – The Christmas season is centred on children. So focus on them. Ask what you can do to ensure the holidays are happy and productive for them.

 

·         Share time with children over the Christmas period – Christmas is a time when families can focus on what unites rather than what divides them. Unless parents live miles apart, there is no reason why children cannot see and be with both parents over the Christmas holiday if that is what they want.

 

·         Help children remain in contact with both parents and extended family – A simple telephone call to say “Happy Christmas” to the other parent maybe all that is needed. Grandparents, Uncles and Aunts etc are also an integral part of a child’s life.

Perhaps the greatest gift you can give your child this Christmas and beyond is to love your children more than you hate your (ex) spouse and work cooperatively with that person to co-parent your children

http://www.familylawcollaborativedivorce.co.uk/

Los Angeles Divorce Attorney

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California Prenuptial, Prenups

 

 


Breastfeeding As An Issue In Custody Proceedings

Thank you to John Hardings Blog for this :

Kate M. Baxter-Kauf has published an article in the Richmond Journal of Law and Public Interest dealing with breastfeeding as an issue in child custody cases.  According to the abstract, the article explores the relationship between breastfeeding in custody proceedings and the supposedly discredited common law coverture and tender years doctrines. It argues that the case of custody disputes highlights the contradictory nature of family law through the relationship between parental autonomy, the privatization of dependency, and the judicially determined appropriateness of maternal relationships.

Please click here for more information.

 


What's Behind A Temper Tantrum? Scientists Deconstruct The Screams

Anatomy Of A Tantrum

Source: YouTube (by permission), iStockphoto.com

Credit: NPR

Children's temper tantrums are widely seen as many things: the cause of profound helplessness among parents; a source of dread for airline passengers stuck next to a young family; a nightmare for teachers. But until recently, they had not been considered a legitimate subject for science.

Now research suggests that, beneath all the screams and kicking and shouting, lies a phenomenon that is entirely amenable to scientific dissection. Tantrums turn out to have a pattern and rhythm to them. Once understood, researchers say, this pattern can help parents, teachers and even hapless bystanders respond more effectively to temper tantrums — and help clinicians tell the difference between ordinary tantrums, which are a normal part of a child's development, and those that may be warning signals of an underlying disorder.

The key to a new theory of tantrums lies in a detailed analysis of the sounds that toddlers make during tantrums. In a new paper published in the journal Emotion, scientists found that different toddler sounds – or "vocalizations" – emerge and fade in a definite rhythm in the course of a tantrum.

"We have the most quantitative theory of tantrums that has ever been developed in the history of humankind," said study co-author Michael Potegal of the University of Minnesota, half in jest and half seriously.

 

The first challenge was to collect tantrum sounds, says co-author James A. Green of the University of Connecticut.

"We developed a onesie that toddlers can wear that has a high-quality wireless microphone sewn into it," Green said. "Parents put this onesie on the child and press a go button."

The wireless microphone fed into a recorder that ran for several hours. If the toddler had a meltdown during that period, the researchers obtained a high-quality audio recording. Over time, Green and Potegal said they collected more than a hundred tantrums in high-fidelity audio.

The scientists then analyzed the audio. They found that different tantrum sounds had very distinct audio signatures. When the sounds were laid down on a graph, the researchers found that different sounds emerged and faded in a definite pattern. Unsurprisingly, sounds like yelling and screaming usually came together.

"Screaming and yelling and kicking often go together," Potegal said. "Throwing things and pulling and pushing things tend to go together. Combinations of crying, whining, falling to the floor and seeking comfort — and these also hang together."

But where one age-old theory of tantrums might suggest that meltdowns begin in anger (yells and screams) and end in sadness (cries and whimpers), Potegal found that the two emotions were more deeply intertwined.

"The impression that tantrums have two stages is incorrect," Potegal said. "In fact, the anger and the sadness are more or less simultaneous."

Understanding that tantrums have a rhythm can not only help parents know when to intervene, but also give them a sense of control.

Green and Potegal found that sad sounds tended to occur throughout tantrums. Superimposed on them were sharp peaks of yelling and screaming: anger.

The trick in getting a tantrum to end as soon as possible, Potegal said, was to get the child past the peaks of anger. Once the child was past being angry, what was left was sadness, and sad children reach out for comfort. The quickest way past the anger, the scientists said, was to do nothing. Of course, that isn't easy for parents or caregivers to do.

"When I'm advising people about anger, I say, 'There's an anger trap,"' Potegal said.

Even asking questions can prolong the anger — and the tantrum.

That's what parents Noemi and David Doudna of Sunnyvale, Calif., found. Their daughter Katrina once had a meltdown at dinnertime because she wanted to sit at one corner of the dining table. Problem was, the table didn't have any corners – it was round. When David Doudna asked Katrina where she wanted to sit, the tantrum only intensified.

"You know, when children are at the peak of anger and they're screaming and they're kicking, probably asking questions might prolong that period of anger," said Green. "It's difficult for them to process information. And to respond to a question that the parent is asking them may be just adding more information into the system than they can really cope with."

In a video of the tantrum that Noemi Doudna posted on YouTube, Katrina's tantrum intensified to screaming, followed by the child throwing herself to the floor and pushing a chair against a wall.

"Tantrums tend to often have this flow where the buildup is often quite quick to a peak of anger," Green said.

Understanding that tantrums have a rhythm can not only help parents know when to intervene, but also give them a sense of control, Green said.

That's because, when looked at scientifically, tantrums are no different than thunderstorms or other natural phenomena. Studying them as scientific subjects rather than experiencing them like parents can cause the tantrums to stop feeling traumatic and even become interesting.

"When we're walking down the street or see a child having a tantrum, I comment on the child's technique," Potegal said. "[I] mutter to my family, 'Good data,' and they all laugh."

Noemi Doudna said she now looks back on Katrina's tantrums and sees the humor in them.

Katrina often demanded things that made no sense in the course of tantrums, Noemi Doudna said. She once said, "'I don't want my feet. Take my feet off. I don't want my feet. I don't want my feet!'"

When nothing calmed the child down, Noemi Doudna added, "I once teased her — which turned out to be a big mistake — I once said, 'Well, OK, let's go get some scissors and take care of your feet.'"

Her daughter's response, Noemi Doudna recalled, was a shriek: "Nooooo!!"