Articles Posted in Appeals

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If you don’t like a ruling from a trial court in a divorce case, you have the right to appeal. The problem, however, is that appeals courts take a fairly deferential stance in those cases. As the Fourth District Court of Appeals recently explained, appeals courts review trial judge decisions for an “abuse of discretion.” In other words, a judge must generally have abused the fairly broad discretion he or she is afforded in order for a decision to be overturned. That makes it vital that a person considering a divorce seek the advice and counsel of an experienced attorney as soon as possible in the process in order to put a strong case before a trial judge.child

Husband and Wife were married for some nine years and had two children before separating in 2009. The couple agreed to share joint legal and physical custody of the kids and split expenses. A court eventually issued a divorce judgment encompassing that agreement. That set off what appeared to be a series of disputes between the former spouses about how to parent the kids.

Additional litigation ensued, and Wife eventually asked for greater visitation rights, child support, and spousal support. In response, Husband asked a court to give him sole physical custody of the children. He argued that Wife wasn’t using all of her visitation time with the kids and said she had violated the terms of the divorce judgment by proposing to change their daughter’s therapist without consulting him. He also said that the switch to full custody would be in the children’s best interests. The trial court disagreed and ordered the spouses to continue with joint custody. It also made Husband’s home the primary physical residence for the kids.

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You only get one bite at the apple. It might be an over-used cliché, but it’s absolutely true in many divorce proceedings. As California’s Fifth District Court of Appeals recently explained, spouses and their lawyers must be actively involved in their cases and must act promptly to raise any problems or issues in order to ensure that they’re addressed.

open-mic-night-67704-mAfter filing for divorce, Husband and Wife through their attorneys informed a trial judge assigned to the matter that they’d reached a settlement on all of the outstanding issues related to property division. The parties’ lawyers explained the details of the settlement, which included allocating various types of property among the former spouses, to the trial court. In response to the trial judge’s inquiry, both Husband and Wife said they understood and agreed to the terms of the settlement.

When Husband’s lawyer wrote out the terms of the settlement agreement, however, Wife refused to sign it. Importantly, she didn’t formally object to the terms of the settlement in court. Nor did she file a motion asking the trial court to resolve any outstanding issues. Instead, Husband’s attorney later filed the settlement as a proposed judgment. After two additional months in which no one filed any objections to the proposal, the trial court adopted the judgment.

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Things happen. Circumstances change. This is the general premise that guides the legal review of spousal support awards in California divorce cases. Specifically, a spouse can seek to modify an award by claiming that his or her financial situation has changed since the award was issued. Reduced income, for example, may limit a spouse’s ability to pay support or may increase the spouse’s need for support. As the state’s Fourth District Court of Appeals recently explained in In re Marriage of Baysinger, however, the person seeking the modification has to prove that things have changed.

money-607703-mAfter years of judicial wrangling and an attempt at reconciliation, a California trial court ordered that Husband and Wife’s marriage be dissolved in a judgment issued in July 2005. The judge didn’t order any spousal support awards at the time, but the court retained jurisdiction to order such an award if necessary in the future. Wife eventually filed a motion in 2010 asking the court to award her $600 a month in spousal support, arguing her income had changed in the nearly five years since the couple had been divorced.

Although Wife claimed that she no longer had any income, the trial judge observed that she was scheduled to begin receiving about $1,200 per month in Social Security payments beginning in 2012. As a result, he ordered Husband to pay Wife $200 per month until she began receiving the Social Security money. At that point, the court said the payments would no longer be warranted because Husband’s and Wife’s incomes would be roughly equal. The payments were set to stop – and the trial court’s jurisdiction terminate – on Jan. 1, 2013.

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If you’re unhappy with the outcome of a divorce case, you have the legal right to file an appeal. As the Fourth District Court of Appeal recently explained, however, the burden is on you to present sufficient evidence detailing where the original court went wrong.

gavel-2-1409592-mWife filed a motion seeking to dissolve her marriage with Husband in February 2009, and a trial court granted the divorce more than two years later. It also ordered Husband to pay certain amounts of monthly child and spousal support. Following additional proceedings, Husband filed a motion to set aside the order, arguing that Wife significantly understated her income level in order to get more support money out of him.

The trial court denied the motion as untimely. Family Code Section 2122(b) provides that an action alleging perjury must be brought within one year from when the person discovered or should have discovered that the other party committed perjury.

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