January 2013 Archives

Spousal Support After Remarriage, Retirement - In re Marriage of Cesana

January 27, 2013, by

Spousal support is an important issue in many California divorce proceedings. As California's First District Court of Appeals' recent ruling in In re Marriage of Cesana shows, the issue can become tricky when one or both former spouses' situations change over the years.

869848_roads_sign.jpgNelly and Amedeo Cesana were married for 24 years before divorcing in 1985. Under the terms of a settlement agreement between the former husband and wife, Amedeo agreed to pay monthly spousal support to Nelly at a rate of 30 percent of Amedeo's income, capped at a maximum $9,000 per month. As the court explained, "Amedeo's financial circumstances varied greatly" in the years following the couple's divorce. As a result, the two agreed verbally that Amedeo would support Nelly to the best of his ability. He made varying payments until 2008.

Later, Amedeo experienced financial difficulty when the company that he founded went bankrupt shortly after the divorce. He subsequently started a second company with his new wife, Rhonda, and employed Nelly as an administrative assistant from 2004 to 2007. He did not pay marital support during this time, but began paying Nelly $1,500 a month after her employment with the company was terminated.

Amedeo (60 percent) and Rhonda (40 percent) owned the company jointly until 2007 when he transferred his ownership interest in the company to his wife, making Rhonda sole owner. A lawyer for Nelly contacted Amedeo by letter in January 2008, claiming that he owed Nelly a significant sum of money for missed spousal support payments over the years. Amedeo disputed the claim and shortly thereafter retired from the company, reducing his salary to $60,000 from $180,000. Rhonda, meanwhile, continued to work for the company at an annual salary of $140,000.

In the lawsuit that followed, a trial court ordered Amedeo to pay $1,500 per month in spousal support, as well as $15,000 for Nelly's attorney fees, but denied Nelly's request that he also be required to pay support arrears. In determining the monthly support sum, the court combined Amedeo and Rhonda's current salaries ($200,000) and divided the figure in half to calculate what it called Amedeo's annual income. The court explained that much of Rhonda's income was owed to Amedeo's efforts in starting and running the company. "[W]hile Rhonda has a significant management role in the company, and certainly performs more than just a clerical or administrative function,... it is inequitable and unreasonable to divide the collective income received by Amedeo and his wife in anything other than an equal manner," the trial court explained.

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California Court Explains Retroactive Child Support Orders - In re Marriage of Barth

January 23, 2013, by

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it," Judge P.J . Moore recently wrote, introducing the matter of In re Marriage of Barth. As Moore went on to explain, California law allows a court to order a parent to pay retroactive child support going back to an original petition for divorce, even if it was filed in the wrong state.

796465_sunset.jpgJeffrey Barth spent years trying to avoid the enforcement of an Ohio court's ruling granting wife Andrea Barth's petition for divorce, custody and child support, only to have a California court grant similar petitions and order a substantially larger child custody payment.

The couple were married in 1989 and had two children. Ms. Barth filed for divorce in October 2004 after her husband admitted to extramarital affairs, according to the court. Following protracted litigation on the matter, an Ohio court awarded the divorce, granted Ms. Barth custody of the children and ordered Mr. Barth to pay $1,600 per month in child support.

Mr. Barth ultimately had the order overturned after the Ohio Supreme Court agreed that the state courts did not have jurisdiction over the matter because Ms. Barth had not lived in Ohio long enough before filing suit. Prior to the divorce, she left the state with her kids to join Mr. Barth in California, but returned shortly thereafter upon learning of her husband's affair.

Litigation moved to California, where an Orange County court granted the divorce and ordered Mr. Barth to pay retroactive support of between $2,700 and $3,125 per month for 2004 to 2005, $7,645 per month for 2006 and between $1,000 and $3,050 per month for 2007.

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Who Decides Custody Issues When Parents Live in Different States? In re T.J.

January 1, 2013, by

In a recent ruling in the matter of In re T.J., the Second District Court of Appeals tackled an important question that often arises in California child custody cases: which court has jurisdiction to consider a custody matter when the parents live in different states?

659603_-us_map-.jpgRJ and AJ married in Texas in 2001 and had a son, TJ, two years later. The couple split in 2004 and AJ moved to New Jersey with the child. The parents obtained a divorce in Texas in 2007. Through mediation, they reached a custody agreement under which AJ was declared the "Sole Managing Conservator" of T.J., with the right to decide his primary residence while RJ was given detailed visitation rights. RJ talked to TJ over the phone regularly and the child spent long stretches of the summer in Texas with his father.

After living together in New Jersey for several years, AJ and the child moved to California in 2011. The move was in part intended to help AJ cope with depression, her thinking being that the weather and a location change would improve her general mood. A few months after the move, however, AJ checked herself into a clinic with depression and thoughts of suicide. A hospital social worker referred TJ to the L.A. Department of Children and Family Services because AJ was unable to make other arrangements for him while she was being treated. AJ later completed her treatment.

The Department filed a petition in state court pursuant to Welfare and Institutions Code section 300, which gives courts jurisdiction to ajudicate matters concerning a minor child who has suffered or is at substantial risk of suffering "serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child." RJ then filed a motion seeking custody. The court later ordered that TJ be placed in his mother's home under Department supervision.

On appeal, the Second District reversed the decision, finding that the lower court lacked jurisdiction to issue it. The Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted as law in both California and Texas, "is the exclusive method for determining the proper forum in custody cases involving other jurisdictions and governs juvenile dependency proceedings," the court explained. Because the original decision regarding TJ's custody was rendered by the Texas court, that court maintained exclusive jurisdiction under the UCCJEA to decide any further custody-related issues.

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