Follow Procedural Rules in California Divorce Cases, Or It Might Cost You Your Case – In re Marriage of Kosharek

I’ve long believed that Californians thinking about divorce and grappling with related issues like child custody and support consider avoiding the time, cost and stress associated with the traditional judicial system by exploring alternatives like mediation and collaborative divorce. But sometimes, well actually very rarely, that’s just not possible. When proceeding in court, it’s vital to remember that there are a wide range of procedural rules that you must follow closely or otherwise risk losing your case. The First District Court of Appeals’ recent ruling in In re Marriage of Kosharek is just one example of that risk.

Ms. Kosharek sought to modify her former husband’s child support obligation in November 2011. She argued that Mr. Egorov didn’t spend as much time with their two children as had been anticipated in the original custody and support order issued at the time of their divorce. The order had assumed a roughly 50-50 split of time between the parents and crafted the support award accordingly. Egorov opposed the modification.

After hearings in August and November 2012, a trial judge issued a ruling finding that the children spent only about 22 percent of the time between March and August of that year with their father and ordered that he pay additional child support for this time as a result. The judge further found that the children spent equal time with their parents going forward from September 2012 and re-adjusted the child support obligation accordingly.

Egorov appealed the order, arguing that the trial judge’s findings for the March-August period were inappropriately based on time he spent caring for his ill mother and didn’t accurately reflect his relationship with his children during this time. In filing the appeal, however, the Court said Egorov failed to provide a record on which it could sufficiently review the lower court’s decision. The record he provided consisted of a copy of the trial judge’s order along with portions of documents that may have been related to his opposition, but didn’t include the actual opposition pleading that he filed in court. He also didn’t include transcripts of the hearings on which the trial court made its decision.

“It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record,” the Court wrote, citing the California Supreme Court’s 1986 decision in Ballard v. Uribe. “When no adequate record is provided, the judgment must be affirmed.” The Court explained that a lower court’s judgment is generally presumed to be correct and the person challenging that decision must overcome that presumption. Without a clear record of how the lower court ruled – and why it ruled that way – the appellant can’t establish reversible error.

The Court further explained that California Rules of Court specifically require the party appealing a decision to produce an appendix containing all of the documents filed with the trial court, as well as all necessary exhibits and transcripts of any relevant hearings or other proceedings. Here, the Court said Egorov failed to abide by these rules and instead provided documents that were “wholly inadequate” for the Court to evaluate the trial judge’s decision. As a result, the Court affirmed that decision.

Really? An appendix listing all documents, exhibits and transcripts as well as the documents themselves. Yes, in order to make decisions on appeal it is important for a higher court to have all of the requisite information upon which to make a decision, including all relevant filings and orders from the lower court. But this whole exercise over the issue of a few months of custody and support strikes me as a massive attorney make work project and fee generating process that does not help the parties and the family in any meaningful way. Far better to sit down with a mediator and figure out a reasonable resolution.

If you’re considering a divorce in California or facing support and custody issues after a divorce, it is imperative that you seek the advice and counsel of an experienced family law attorney. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.

Related blog posts:

Time to Consider Giving Up on the Family Court System and Use a Private Judge

California Court Says Child’s Best Interests Served by Equal Co-Parenting Plan – In re Marriage of Erb

Divorce Your Spouse, But For the Sake of Your Children, Create or Preserve a Positive Co-Parenting Relationship

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