Appellate ruling, part 3

I am posting a summary of the appellate decision that was just published in my case. There were four legal issues from Comm. Joseph's family court orders that I was appealing.

1. Comm. Joseph ordered that I be taxed on my income as if I had invested in bonds instead of stocks.

George first objects to the court's imputation of a 3 percent rate of return on his stock market portfolio. ... George's argument that the imputation is invalid because the court has no authority to direct his investment strategy also is unavailing. The trial court has broad discretionary authority to impute income and need not defer to the parent's choice of investment. ... We therefore find no error in the court's failure to note "special circumstances" justifying the imputation of a 3 percent rate of return. In sum, we find no abuse of discretion in the court's imputation of income.

2. Comm. Joseph ordered that because I am not spending $3000 per month on a mortgage, then I should give 30% of that to my ex-wife.

George’s mortgage-free housing is not an employee benefit, nor is there evidence that it resulted from an effort to funnel income into a form that would not be recognized in the dissomaster calculation. We therefore conclude the court abused its discretion in including the purported rental value of George’s residence as non-taxable income. We reverse the December 20 child support order and remand to the court to determine the proper guideline amount.

3. California child support guidelines say that I should spend 60% of my after-tax income on my kids, but Comm. Joseph ordered that I spend an additional $500 per month on stay-at-home mom activities like dance classes.

Jill included a detailed list of the girls' activities over several months and the attendant expenses. ... After hearing George’s arguments on the subject, the court included a discretionary add-on of $500 in the child support order: "And that takes care of diminished ability to provide for things as varied as private school, tap dance, gymnastics, dance, dance teams, and other stay-at-home mom activities. I valued that roughly at $500 a month as being the obligation in order to maintain a standard that was previously enjoyed, half of which will be father’s obligation." We find no abuse of discretion. Section 4062 provides for discretionary add-ons to account for the specific needs of the children, including their educational needs. Moreover, the guidelines stress that the parents are mutually responsible for the support of the children, and that the children should be supported according to each parent's ability to pay and standard of living.

4. I objected to having to pay $6,500 in attorney fees twice, especially when a handwritten order from Judge Kelly said that I didn't have to.

Although the court at one point credited the $6,500 payment against the $20,000 order, it appears to have been a mistake. ... The order to pay an additional $6,500 in attorney’s fees is valid, is not contrary to the court’s prior orders, is not an abuse of discretion, and is affirmed.

Needless to say, I disagree with much of this.

Today's status conference

I just got out of a family court status conference with my ex-wife and Commissioner Irwin H. Joseph. I think that he wants to get rid of us. He pretended not to know about the appellate court ruling, and told us to go away and come back for 6 months. He said that he doesn't need to see us while we pursue discovery issues. He scheduled a status conference for us on Oct. 24, and asked if that was acceptable.

I said that I thought that we'd have to meet sooner in order to reconcile the child support order with the recent appellate decision. At that point he explained that he had read the appellate decision, and he made a point out of saying that he had been upheld on three of the four issues on appeal. He said that we gets gets official notice of the remand from the appellate court, the family court will send out notice of a scheduled hearing to deal with it. I asked about adjusting the figures for my ex-wife's current job, and he said that it could be done at the same time if it were stipulated, but otherwise I'd have to bring a separate motion. He admitted the obvious inefficiencies, but said that the court works that way, and we have no choice about it.

Then we left. I guess that I continue paying what I have been paying, for now.

Back to family court this week

My next status conference in family court is Wednesday. I sent in a one-page status conference statement a couple of weeks ago, with no proof of service. The clerk did not return it. I guess I am better off skipping the proof of service, as the clerk refused my statement the last time I submitted a proof of service.

Since then, I got the appeal decision, so my status statement doesn't mention it. One of the main objects of this conference should be to bring the mom support orders into compliance with the appellate decision. I'm not sure how that will happen, and I haven't written anything yet on how I think that ought to be done. The judge probably doesn't get reversed on appeal very often, so he may not even know what to do.

My ex-wife notified me today that she just mailed her status conference statement, and if I don't get it by Wednesday then she'll bring an extra copy to court. She will be reporting on serving subpoenas to my employers of the last ten years, and to banks and I don't know who else. She will tell the judge that she is preparing for a trial on certain financial issues. I don't really get what she is trying to prove, but I guess that I'll find out.

Using first names

One curious thing about my appellate court opinion is that it refers to me and my ex-wife entirely by our first names! I did that in my briefs, but the lawyers and court personel all seemed to prefer stilted language like "father" and "mother". Sometimes they would also last names, but that is confusing because my ex-wife's last name has changed a couple of times over the course of the case.

It makes sense for the court opinion to use first names; I'm just surprised because I've never seen a court opinion that did that.

Alec Baldwin rant

Here is the audio message that Alec Baldwin left on his 11-year-old daughter's answering machine. Ex-wife Kim Basinger used it in court to reduce his visitation privileges, and apparently leaked it to TMZ.com to embarrass him.

Apparently there is bad behavior all around here, but I mainly blame the family court for attaching such importance to messages like this. It is very common for parents to occasionally chew their kids out like this, and the courts would do nothing if there were no custody dispute. If it is legal for a parent in an intact family to speak harshly to his kids, then why should it be illegal for a divorced dad to do it? By acting on evidence like this, the court just encourages warring couples to escalate their disputes.

This ABC News article discusses how the whole incident may have been provoked by parental alienation and Basinger's history of obstructing visitation, but nevertheless says:

Baldwin has dealt a severe blow to his custody claims in the future. The welfare of children is the primary concern of family law judges. "So regardless of who's wrong and who's right in terms of frustrating visitation rights," says Segal, "if the court finds that you have involved the child to the extent that Baldwin did here, [it] is going to lash out and come down very, very hard on him, regardless if Kim Basinger is the Wicked Witch of the West. This guy has no defense."

Appellate ruling, part 2

My appellate decision was "certified for partial publication". This means that it will be published in book form, and appear in law libraries. The word "partial" means that one section will be excluded from publication.

At first I thought that the court put private financial data in that section, and publish all the legal analysis. But no, it turns out that the one section excluded was a decision on a relatively minor issue involving attorney fees.

That section will not be published because of this sentence:

Although the court at one point credited the $6,500 payment against the $20,000 order, it appears to have been a mistake.

What happened was that Judge Kelly credited me with paying $6,500 in attorney fees, but Comm. Joseph said that I had to pay the money again anyway. The only way the appellate court could justify making me pay the fees again was to assume that Judge Kelly made a mistake. So I guess that the appellate court did not want the public record to show that Judge Kelly made a mistake.

I contended that Judge Kelly did not make a mistake, and Judge Kelly never admitted to making a mistake. I think that it is really slimy that Comm. Joseph and the three appellate judges want to make me pay $6,500 based on some theory that Judge Kelly made a mistake, but they aren't willing to go on the record saying that he made a mistake.

Appellate ruling, part 1

The first annoying thing about a family court appeal is the standard for review. The family court judges have very broad discretion to do what they want, and the only way to reverse them to prove that they abused their discretion. The appellate court said:

A child support order is reviewed for an abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282 (Cheriton); see also In re Marriage ofDestein (2001) 91 Cal.App.4th 1385, 1393 (Destein) ["A trial court's decision to impute income to a parent for child support purposes based on the parent's earning capacity is reviewed under the abuse of discretion standard."].) We determine "whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." (de Guigne, supra, 97 Cal.AppAth 1353, 1360.) We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order. (Ibid.)

In practice, this means that family court judge can just say that he made a factual determination that his order was in the best interest of the child, and the appellate court will uphold it.

My appeal decided

I just got the decision from the California appeals court. It is 17 pages. I brought the appeal to complain about four family court issues, mostly having to do with how the child support formula was applied (or not applied). The appellate ruled in my favor on one of the issues, and against me on the other three. I'll post more on this later.

Proposed law on alienation testimony

Glenn Sacks writes:

My new co-authored column, "AB 612 Will Make It Harder to Protect Children from Parental Alienation" (Riverside Press-Enterprise, 4/2/07), criticizes a new California bill which will make it harder for noncustodial parents to protect their relationships with their children after a divorce or separation. The bill will be heard in the Assembly Judiciary Committee in next week.

The bill would discourage mental health professionals from issuing findings of Parental Alienation in divorce/custody cases. It would also make it more difficult for target parents to get courts to order psychological evaluations as part of child custody investigations.

I usually agree with Glenn Sacks on these issues, but Calif AB 612 doesn't seem so bad to me. It requires a showing a "good cause" for a family court judge to order
psychological testing, and for a child custody evaluator to present more thorough details on his procedures and results.

It is true that there is no recognized psychological test for Parental Alienation (PA), but there are recognized psychological tests for making custody recommendations either. Much of what the custody evaluators do is completely bogus. The more that they are required to justify their actions, the better.

Sacks is correct that PA is a "common, well-documented phenomenon in divorce". It means one parent manipulating a child to dislike the other parent. A lot of divorced parents do it, with moms doing it much more than dads. Custody evaluators are often then fooled into thinking that the child has a better relationship with the mom than the dad, and recommend that the mom be given primary custody. I would rather just get rid of the custody evaluators, in most cases.

Evils of supervised visitation

The NY Times has a story on a child custody problem:

Custody battles are rarely gentle affairs, but if you are poor, such fights can carry an added frustration: waiting months to get a court-approved visit with your own child.

In cases involving allegations of domestic violence, which are increasing, or other issues, such as drug abuse and long absenteeism, judges often require that child’s visits with the noncustodial parent take place only in the presence of a professional, like a social worker.

But when judges order supervised visitation, neither the court nor other government agencies pay for the service, a growing problem in New York City and across the nation.

Because he cannot afford to pay for supervised visitation, which routinely costs $100 an hour, Juan Manuel Fernandez, 51, of Washington Heights, said, he has not seen his two daughters, ages 6 and 11, since last October. A year ago, he said, his wife walked out, moved the girls to New Jersey, and told the court he was threatening her. He denies the accusation, but the judge in his case ruled that supervision was necessary. So now he is waiting for free supervision through a nonprofit agency, which can take months.

It is not just poor Mexican immigrants who object to have to pay someone $100 per hour to supervise seeing their own kids.

List of child support problems

A reader asked me to summarize what is wrong with the American child support system. Here is my list, in no particular order.

• It is not related to actual needs or expenses of the kids.
  
• There is no requirement or obligation to spend the money on the kids.
  
• The formulas give each parent a huge financial incentive to deny the
  
• other parent access to the kids.
  
• Payments are required even if the custodial parent is rich.
  
• The formulas presume that a parent who never sees his kid should spend just as much on him as one who sees his kid every day.
  
• The percentage of income allocated on child-rearing is based on an obscure academic analysis of spending on alcohol, tobacco, and adult clothing.
  
• The formulas are supposed to be based on income, but do not use actual income like IRS taxes.
  
• The system has turned middle class single and remarried parents into welfare cases.
  
• Debts are treated as criminal offenses, and a man can be jailed just because he is unemployed and broke.
  
• A man can be forced to pay even if a DNA test proves that he is not the father.
  
• Parents have no financial privacy, and a bitter ex-spouse can use the system for many years of harassment.
  
• Judges can ignore the formulas with impunity, and there is rarely any appeal.
  
• For some women, it is a huge and undeserved financial winfall.

If I missed anything, please add it in the comments.

Group Protests Outside Pizza Place

Cincinnati news:

Protesters were outside a Hamilton Pizza Parlor because the owner's working to help track down deadbeat parents.

Members of the national group "Fathers for Justice," are picketing outside Karen's Pizza on Eaton Avenue.

This is one of three Butler County Pizza Parlors putting the County's most wanted deadbeat parents on pizza boxes.

I'm with the fathers. We don't humiliate people who can't pay their taxes or Visa bills, so why go after dads who can't pay court-ordered payments to moms?

I recommend boycotting the pizza parlors. Better yet, eat their pizza and then tell them that their bill has lower priority than other debts.