Our Family Law Appeals
The trial court found that a marital settlement agreement failed to divide the spouse’s interest in a judgment against third parties, using the stringent test in Family Code section 852 for transmutations instead of the more relaxed rule in section 2550 for marital settlement agreements. The court of appeal reversed but also used the transmutation standard in its analysis. Top family law attorney Christopher C. Melcher, on behalf of the Association of Certified Family Law Specialists (ACFLS), asked the California Supreme Court to depublish the decision. Read his letter here.
The mother (Monasky) took an infant away from the father (Taglieri). The mother and father were both living in Italy. Mom took the baby to the US. Dad filed an action to return the child to Italy.
The Hague Convention “addresses a pressing and never-ceasing policy problem—the abductions of children by one half of an unhappy couple” in order to gain an advantage in the child-custody determination accompanying the marriage’s dissolution. When one parent unilaterally moves the child within a nation, that nation’s domestic law is capable of resolving the dispute. But when a child is abducted across international borders, an agreement among nations was needed to provide a prompt and effective mechanism for resolving the dispute.
“The Convention’s mission is basic: to return children ‘to the State of their habitual residence,’ to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child.”
“Habitual residence” is thus the linchpin of the Convention’s protections— the Convention is “based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.”
This case presents two questions regarding the Convention’s habitual residence standard—the standard of appellate review for district courts’ determinations of habitual residence; and whether an actual agreement between the parents regarding the place where the child will be raised is a necessary prerequisite to establishing the child’s habitual residence.
Top family law attorney Peter M. Walzer filed an amicus brief for the American Academy of Matrimonial Lawyers(AAML) supporting the father’s position in this appeal.
Supreme Court Opinions
The wife in this appeal claimed the family court should have characterized money she borrowed from her family in China as belonging to her family members, not as community property. Wife also claimed the award of spousal support was too low to meet the marital standard of living. Top family law attorneys Christopher C. Melcher and Steven K. Yoda successfully defended those rulings on appeal on behalf of the husband. The Court of Appeal affirmed the decision in full.Respondent’s Brief
Opinion by the Court of Appeal, 6th District
A mother of young children wanted to relocate them from San Francisco to Denmark because the mother was hearing impaired and believed there were more resources for her to use Danish Sign Language. The family court denied the move and the mother appealed, claiming the judge did not give proper weight to her disability. Top divorce attorney Christopher C. Melcher represented the father, a founder of a publicly traded company. Christopher was able to have the case name anonymized and information redacted from the appeal to protect the privacy of the family. After briefing, the mother voluntarily dismissed the appeal.Respondent’s Brief
This appeal involved how to calculate child support when a tax return for the last year had not been filed. The wife claimed that a mistake was made by setting support on the husband’s base salary and ordering him to pay additional child support according to what his tax return showed as income when filed. Top divorce attorney Christopher C. Melcher respresented the husband. After breifing the appeal, the parties settled and the appeal was dismissed.
Top family law attorney Christopher C. Melcher represented the father of a child who had petitioned the Los Angeles Superior Court for child custody orders. The mother, a former number 1 tennis player, claimed that the Republic of Belarus had jurisdiction over the child. The trial court ruled in father of the mother. Chris was hired and sought an emergency stay by the Court of Appeal to prevent the mother from removing the child from California, which was granted pending the outcome of my client’s appeal. The appellate court held that California had jurisdiction.
Christopher C. Melcher and Steven K. Yoda appealed a child support order involving a famous film director who made over 300,000 dollars per month in income but was only ordered to pay 8,500 dollars in child support. We convinced the Court of Appeal that the trial court made an error in awarding such a low amount of support and had the case sent back for a new hearing.
Opinion by the Court of Appeal, Second District
Steven K. Yoda and Christopher C. Melcher appealed an order requiring a United States service member to pay part of his combat related service pay to his former wife as a division of community property. We convinced the Court of Appeal that the trial court lacked authority to divide that benefit under federal law.
Opinion by the Court of Appeal, Third District
Christopher C. Melcher is amicus curiae in this appeal, which raises the issue (1) whether the trial court has statutory authority to strike a timely responsive pleading of a party and enter that party’s default in a family law action for failure to comply with the disclosure requirements of the Family Code , and (2) whether the trial court possesses the inherent authority to impose such a sanction in the absence of express statutory authority.
Opinion by the Court of Appeal, Third District
Christopher C. Melcher, Leena S. Hingnikar, and Scott M. Klopert were appellant counsel for Husband. Wife appealed a ruling against her on a breach of fiduciary duty claim. Husband moved to dismiss the appeal because the order she appealed from was not appealable. The Court of Appeal dismissed the appeal.
Motion to Dismiss
Christopher C. Melcher and Peter M. Walzer were co-appellate counsel with Garrett C. Dailey on this successful appeal to the California Supreme Court. Chris was the lead trial counsel for Frankie Valli in the underlying divorce action. One of the issues at phase three of the trial was the character, division, and valuation of a life insurance policy Frankie purchased during marriage on his life with community funds. Randy Valli was named the owner of the policy for income tax purposes and argued that the policy was her separate property because it was titled in her name. Frankie countered that the policy was bought during marriage with community property, so it is community property. The trial court agreed with Husband and awarded the policy to Husband as community property. Randy appealed and convinced the Court of Appeal that the policy was her separate property because it was titled in her name. Frankie petitioned for review and the California Supreme Court reversed, holding that the trial court properly characterized the policy as community property.
Opening Brief on the Merits in the California Supreme Court
Decision by the California Supreme Court
Christopher C. Melcher served as co-appellate counsel with James M. Donovan, Michael Glenn, Anthony D. Storm in opposing a writ petition filed by Wife regarding mediation confidentiality. Husband and Wife settled the marital dispute in mediation. They prepared and exchanged the required financial disclosures in mediation. Wife later moved to set aside the settlement agreement, claiming lack of disclosure and other grounds. Wife demanded that Husband produce a copy of the disclosures that were prepared in mediation. Husband objected because any documents prepared in the course of mediation are confidential and are not subject to discovery. The trial court agreed with Husband’s position, but the Court of Appeal reversed.
Opposition to Petition for Writ
Decision by the Court of Appeal, Second District
Christopher C. Melcher and Anthony D. Storm were substituted in as appellant counsel for Husband to file a reply brief on his cross-appeal. The case involved the validity of a premarital agreement, which the trial court ruled was invalid. The major issue was whether an award of attorney’s fees to Wife was sufficient. The Court of Appeal affirmed the orders.
Reply Brief on Cross-Appeal
Christopher C. Melcher and Anthony D. Storm were appellate counsel for Husband in opposing Wife’s appeal of an order that her trust income should be counted for purposes of making a support order against her. Wife dismissed eventually her appeal.
Christopher C. Melcher and Shannon Stein were appellate counsel for Husband in opposition to Wife’s appeal of an order allowing withdrawal of funds from a 401k account. Husband filed a motion to dismiss the appeal, and Wife agreed to dismiss the appeal.
Motion for Involuntary Dismissal
Christopher C. Melcher and Jennifer M. Riemer were the appellate counsel for Maurizo R., who sought the return of his son who had been kidnapped from Italy by the child’s mother. The trial court denied Maurizio’s application to return the child under The Hague Convention on the Civil Aspects of International Child Abduction, finding that there would be a grave risk of harm to the child if returned to Italy. The Court of Appeal disagreed and held that the trial court was required to order the child’s immediate return to Italy, for custody proceedings in that country.
Decision by the Court of Appeal, Second District
Christopher C. Melcher and Jennifer M. Riemer were appellant counsel for Wife in opposing Husband’s appeal. Husband claimed that the trial court erred when it issued evidentiary sanctions against him for his attorney’s negligent failure to file a witness list and exhibit list for trial, as required by local court rules in effect at that time. The Court of Appeal held that Husband failed to show any prejudice and affirmed the decision.
In a story that has become all too familiar, Deborah Diaz and Alex Montenegro could not agree on custody and visitation over their son, Gregory. During the child custody proceedings, Diaz and Montenegro entered into various stipulations, confirmed by the trial court, “resolving” their disputes over Gregory. In the last such stipulation, Diaz and Montenegro agreed to joint legal custody of Gregory, with Diaz having primary physical custody.
When Gregory was to start kindergarten, however, they were unable to resolve their differences and asked the trial court to modify its last stipulated custody order. After an adversarial hearing, the trial court awarded primary physical custody to Montenegro based on the “best interests” of the child. The Court of Appeal reversed, concluding that the trial court applied the wrong standard.
Finding that two of the stipulated orders were final judicial custody determinations, the Court of Appeal held that the custody arrangement was subject to modification only if Montenegro established a significant change in circumstances. The California Supreme Court reversed the appellate court and held that the trial court properly applied the best interest standard, rather than the changed circumstance rule.
Although the Supreme Court concluded that stipulated custody orders may be final judicial custody determinations for purposes of the changed circumstance rule, it also recognized that many stipulated custody orders not intended to be final judgments.
After this case attorneys representing parties in custody cases were careful to make sure a custody order that was intended to be “permanent” was so designated in the stipulated order or if contested, that the court hearing the matter found or the record that the order was a permanent order.
Our founding partner, Peter M. Walzer, appeared as Amici Curiae on behalf of Minor Child with the following people and organizations: Leslie Ellen Shear, Encino, for Levitt and Quinn Family Law Center, Inc., Association of Certified Family Law Specialists, Inc., Los Angeles, Harold J. Cohn, Douglas Darnell, Robin Drapkin, Lyn Greenberg, Lee Lawless, San Diego, Hugh McIsaac, Nancy Oleson, Philip M. Stahl, Richard Warshak, Leonard Weiler, San Ramon, and Linda Wisotsky.