In re the Marriage of DAWN E. and PAUL E. MOSLEY.

The Fourth California Appellate District determined, December 10, 2010, that the 180-day time limit to appeal a Judgment or appealable order (per California Rules of Court 8.104(d)(3)) is measured from the date an order is filed in a publicly-accessible location, which is not necessarily the date it is file-stamped by a Court.

This decision was part of the Appellate Court’s denial of a motion to dismiss the appeal of an order of an Orange County Superior Court. The order had been file-stamped April 1, 2010 but was not entered into the Court’s computerized case management system until September 10, 2010. In fact, the Court had lost the order and did not relocate it until August 20, 2010.

The party, who ultimately appealed the order, made phone calls to the Court in June and July 2010 inquiring as to the status of the order. Both times, she was told that orders had been filed. On July 21, 2010, she went to the Courthouse to speak to a clerk in person. The clerk conceded that the order appeared to be lost, and she suggested that both sides resubmit all of their paperwork for review and a new order. Both sides complied, but by then the order had been found and was subsequently sent out to the opposing party, who received it on September 13, 2010. He then mailed it to the soon-to-be appellant on September 18.

The appealing party filed her appeal on October 1, 2010, and on October 19, the appellate Court indicated that it was considering dismissing her appeal as it had been filed 13 days outside the 180-day time limit. The appealing party filed a brief letter addressing the timeliness of her appeal along with a sworn declaration describing her efforts to ascertain the status of the Court’s order. A Superior Court supervisor chimed in with a declaration confirming that the order had been misplaced and that conformed copies had not been timely provided.

The Court determined that, for the purposes of establishing when the 180-day appeal clock starts, “a judgment or an appealable order is presumptively filed on the file-stamped date. This presumption, however, may be rebutted by evidence that the order was not accessible to the public in either paper or electronic form, and was not sealed by court order, or made confidential by law.” This construction was necessary, the Court stated, to preserve the constitutional right of appeal as, otherwise, trial courts would be able to shield judgments from appellate review by holding them in pectore until the 180-day appeal limit had run its course.

The appellate Court noted that its decision should not be broadly interpreted to determine when a document’s filing date for any other purpose. Its decision only applies to the 180-day time limit for appealing Judgments and orders.

Full transcript of the Court’s decision can be found here.

For over 30 years, California Superior Courts have generally barred live testimony from the Courtroom in family law proceedings pursuant to the “Riefler/Stevenot rule” [Marriage of Reifler (1974) 39 CA3d 479 and Marriage of Stevenot (1984) 154 Cal.App.3d 1051] which allowed Judges to decide cases solely on the basis of written declarations. While procedurally convenient, it often excluded vital evidence from being heard.

All this changed as a result of the landmark Elkins decision [Elkins v. Superior Court, (2007) 41 Cal.4th 1337], in which the California Supreme Court Chief Justice held that there is a basic right to present live testimony in Family Court. “When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency…A party’s opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court,” Elkins stated.

The Elkins decision was codified in California Family Code Section 217, (amended 1/1/2011) which states:

217. (a) At a hearing on any order to show cause or notice of
motion brought pursuant to this code, absent a stipulation of the
parties or a finding of good cause pursuant to subdivision (b), the
court shall receive any live, competent testimony that is relevant
and within the scope of the hearing and the court may ask questions
of the parties.
(b) In appropriate cases, a court may make a finding of good cause
to refuse to receive live testimony and shall state its reasons for
the finding on the record or in writing. The Judicial Council shall,
by January 1, 2012, adopt a statewide rule of court regarding the
factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other
than the parties shall, prior to the hearing, file and serve a
witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court
may, on request, grant a brief continuance and may make appropriate
temporary orders pending the continued hearing.

As a result, San Diego County has changed its local rule 5.5.8(H), which outlined strict guideliness for requesting live testimony. It now essentially restates CFC §217:

H. Limitations on Evidence/Oral Testimony. If any party wishes to present oral testimony, written declarations must still be filed in a timely manner. The written declarations must be the direct testimony of the declarant. Written notice of the intent to present oral testimony must be served on the opposing party at least five court days before the scheduled hearing. The notice must state the name[s] of the intended witness[es] and the subject matter of the witness[es]‘ testimony. Failure to give the required notice will generally result in a denial of the request for oral testimony.

California Governor Arnold Schwarzenegger signed AB 1050 into law, August 27, 2010, requiring family court to “consider and give due weight to the wishes of a child in making an order granting or modifying custody or visitation” and “permit a child who is 14 years of age or older to address the court regarding custody and visitation.” The law passed both houses of the State Congress on August 9, 2010. It goes into effect on January 1, 2012.

Existing law already requires the family court, if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the child in making an order granting or modifying custody. In practice, family courts and minor’s counsels have often been reluctant to have children take the stand, even teenagers.

Under the newly enacted law, the court can still preclude a minor from testifying if it determines that doing so is not in the child’s best interests, but the court must now state its reasons for that finding on the record and provide alternative means of obtaining input from the child and other
information regarding the child’s preferences.

Full transcript of the Court’s decision can be found here.

In a decision issued August 4, 2010, Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California, ruled that Proposition 8, which defines marriage as strictly between a man and a woman, is unconstitutional as violative of both the Due Process and Equal Protection Clauses. Proposition 8 was passed by a narrow majority of voters in November 2008 and has been in litigation ever since.

According to Walker, the 18,000 gay marriages granted between June 16, 2008 and November 5, 2008 (the brief window during which same-sex marriages were legal) have not and do not pose any public harm. Walker ordered an entry of judgment permanently enjoining enforcement of Proposition 8. However, Walker also ordered a temporary stay of execution of that judgment pending the anticipated appeals to higher courts, perhaps all the way to the Supreme Court.

Both current governor, Arnorld Schwarzenegger, and former governor and current gubernatorial candidate, Jerry Brown, delivered letters to the Chief Judge on August 7, 2010, opposing the stay. “The Administration believes the public interest is best served by permitting the court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” Schwarzenegger wrote in his letter.

In 2005, self-represented Contra Costa county resident, Jeffrey Elkins, was barred by local rules from testifying in his own divorce case. The rule was supposed to expedite hearings by keeping lengthy testimony out of the Court room. The result was a crushing judgment which left Elkins with virtually nothing.

Elkins appealed the decision, and in the landmark 2007 Elkins v. Superior Court (Elkins) (2007) case, Chief Justice Ronald George lambasted the Contra Costa local rules, and by extension, the California Family Court system as a whole:

“[Judges] must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies. Such decisions must be made in an atmosphere of substantial justice…The strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.”

The result was the Elkins Family Law Task Force, appointed in May 2008 to conduct a full review of family law proceedings. The Task Force concluded work on April 23, 2010, presenting a 113 page report containing 21 main recommendations and 117 specific recommendations to the Judicial Council of California calling for sweeping changes to the system.

“California’s family courts are struggling with enormous caseloads, complex legal issues, and increasing numbers of self-represented litigants,” Judicial Council chair Chief Justice Ronald M. George stated. “I am pleased that the Elkins Family Law Task Force has developed comprehensive
recommendations to provide greater access to justice, improve processes and procedures, and address the critical resource needs of these important courts.”

The entire report can be found here.

Proposition 8, the constitutional amendment passed into law by the majority of California voters in November 5, 2008, provides that “Only marriage between a man and a woman is valid or recognized in California.”

But on October 12, Governor Arnold Schwarzenegger signed into law SB 54 which states that while California’s constitution remains unchanged, California courts will recognize out-of-state same-sex marriages which contracted prior to the passing of Proposition 8.

The new law does not recognize out-of-state same-sex marriages contracted after November 5, 2008, but it does provide that parties contracted in out of state same-sex marriages would be afforded the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouse with the sole exception of the designation of “marriage”.

A legal challenge to constitutionality of Proposition 8 goes before the Supreme Court early next year.

The text of the new law can be found here.

California Rules of Profession Conduct rule 1-650, operative 8/28/29, says that an attorney who provides short-term limited legal services under the auspices of a program sponsored by a court, government agency, bar association, law school or nonprofit organization is subject to rule 3-310 (which prohibits representing multiple parties whose interests are mutually adverse) only if the member knows that the representation of the client involves a conflict of interest or if the member knows that another lawyer associated with the member in a law firm would have a conflict of interest with respect to the matter.  If, after commencing a short-term limited representation in accordance with rule 1-650, a member undertakes to represent the client in the matter on an ongoing basis, rule 3-310 and all other rules become applicable.

According to the State Bar of California Website:

“Courts, government agencies, bar associations, law schools and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms that will assist persons in addressing their legal problems without further representation by a lawyer. In these programs…there is no expectation that the lawyer’s representation of the client will continue beyond that limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.

“A member who provides short-term limited legal services pursuant to rule 1-650 must secure the client’s informed consent to the limited scope of the representation. If a short-term limited representation would not be reasonable under the circumstances, the member may offer advice to the client but must also advise the client of the need for further assistance of counsel.”

More information on this new rule can be found at the California State Bar Rules page.

With the signature of Governor Schwarzenegger, AB 706 took effect as urgency legislation on 8/5/09.  It adds §361.49 to the Welfare and Institutions Code providing that:

Regardless of his or her age, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.

AB 706 also amends W&I C §361.5 providing that court-ordered services for children three and older shall end 12 months after the child entered foster care.  The bill also limits the duration of services provided where a child is under three and makes changes to requirements for filing motions to terminate services.

Full text of the bill can be found here

The California Supreme Court, May 29, determined 6-1 in re Strauss v. Horton (S168047) that Proposition 8, the 2008 constitutional amendment which simply states that “Only marriage between a man and a woman is valid or recognized in California,” is a legal amendment.

Prop 8, passed by 52% of the voters last November, was put on the ballot in response to a prior supreme court decision in re Marriage Cases (2008) 43 Cal.4th 757 . The Court then upheld the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”

The Supreme Court affirmed the constitutionality of the amendment, arguing that Prop 8 does not fundamentally alter the meaning or the substance of state constitutional equal protection principles. Only the designation “marriage” is reserved from same-sex couples. All other protections granted under the law are undisturbed, the court decided.

The Court did not, however, overturn the thousands of marriages created between the Marriage Cases decision and the passing of Prop 8. It was determined that the Court has a duty to interpret and enforce California’s Constitution in its current form, not as it was when the court decided Marriage Cases.

As the lone dissenter, Justice J. Moreno said, “requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.’”

Justice Moreno concluded, “Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons.”

On the day of the Strauss v. Horton decision, the American Foundation for Equal Rights filed suit in U.S. District Court for the Northern District of California to challenge the validity of Proposition 8. The American Foundation for Equal Rights also filed a preliminary injunction that would, if successful, immediately restore same-sex marriage in California until the federal suit is decided.

By Rivka Israel, Esq. Marcus Family Law Center, PLC

(originally published in Lavender Lens, 11-08)

In my prior article I began with the statement “Now that marriage is possibly on the horizon…” The reason for my careful phrasing has now become clear. Between the time of the Supreme Court ruling in May and the “amendment” to the California constitution earlier this month, I and many other attorney’s were recommending that same-sex couples register as DP’s in addition to marrying. This was aimed at protecting the legal rights of couples and their families the validity of whose marriages would be in question if proposition 8 passed.

The Prop 8 issue has been on everyone’s minds. Why it passed and why it is so wrong? Why shouldn’t such a law pass by majority vote in a democracy? What effect, if any, does it have or is it only a ‘feel good’ issue with no real legal or social effect? Though many same-sex couples are not interested in getting married, everyone, regardless of race, religion or sexual orientation should be interested in the potential civil rights ramification of the legitimacy of such an “amendment” to our constitution.

Our system and our laws are designed to afford equal rights to everyone and to protect minorities from the oppression of the majority. This is one of the basic foundations that make our country so great. Here in California, there are two distinct procedures for making changes to our constitution. These procedures reflect the seriousness of the change. A change that is relatively minor and does not effect substantive rights is considered an amendment and can pass by way of obtaining sufficient signatures and then passing by majority vote. A change to the constitution that has a more profound effect, such as one which eliminates the fundamental rights of a minority group, must first be presented to both legislative houses and pass by a 2/3rds vote before being submitted to the voters. In addition, enforcement of equal protection is placed in the hands of the judiciary. The issue of people’s rights is not left to the majority. If the rights of an entire minority group can be eliminated by a simple majority vote, just think what other 1discriminatory laws can be enacted by a majority vote.

In May the Supreme Court concluded that 1) gay and lesbian citizens are a protected class of minority entitled to heightened protection and 2) marriage is a fundamental right under the due process and equal protection clauses of our state Constitution. The Supreme Court has now agreed to hear the matter of the legality of the amendment and its effects in the context of several cases filed after the election.

The issues which the Court will address are: 1) Is proposition 8 a revision rather than an amendment of the state Constitution? 2) Does proposition 8 violate the separation of powers doctrine of the state Constitution? & 3) If the proposition is constitutional, what effect will it have on the same-sex marriages performed before the adoption of the amendment? As a family law practitioner, I believe that the third issue is the most important on an individual basis, as it will determine many of the rights of these couples, relating to issues such as custody and property. Argument on the case is anticipated to take place in March of 2009.

Rivka Israel is an attorney with the Marcus Family Law Center.  She can be reached at marcussd@barefootlawyer.com.