Abbas Hadjian on KIRN: May 11, 2018
Abbas Hadjian discusses various aspects of California divorce involving Iranian marriage, Iranian dowry, and division of assets. نيمروز ادينه
In IRMO CEJA (2013 [S193493, Ct.App. 6 H034826, Super. Ct. Nos. CV112520 & CV115283]), decision filed today, the Court concluded that, “Indeed, a reasonable person test would make it markedly more difficult to extend the civil benefits of marriage to those parties most in need of the putative spouse doctrine and its protection, namely, those innocents whose youth, inexperience, or lack of education or sophistication contributed to an honest belief in the validity of their marriages…”
You may get a copy of the case from http://www.courts.ca.gov/opinions-slip.htm.
San Diego, California, May 24, 2011: Court of Appeal of California, Fourth Appellate District, Division One held that a spousal support waiver in the parties’ 1999 premarital agreement cannot be invalidated based on the Fam. Code, § 1612, subd. (c), enacted in 2002. The court of appeal held that § 1612, subd. (c), requiring legal representation by the spouse who waives the spousal support was a material change in the law as to enforceability of a spousal support waiver and the Legislature did not intend it to apply retroactively.
In addition, there was substantial evidence that the wife entered into the agreement voluntarily, was advised but refrained from obtaining legal counsel, understood the agreement, and there was no evidence of duress, fraud, or undue influence. Wife argued that she signed the agreement without the benefit of having an attorney, under duress of having the preparation for the parties’ wedding was contracted and completed, and that canceling the wedding would have created great embarrassment.
For the complete texts of the Decisions, send an e-mail to Admin.
Santa Clara, California, April 19, 2011: In Ceja v. Rudolph & Sletten, Inc., the California Appellate Court for the 6th District held that an innocent party to an invalid marriage would be entitled to marital benefits even if her beliefs were unreasonable.
By this holding, the court disagreed with more than two decades of California law reflected in the case of “In re Marriage of Vryonis”, decided in 1988, which declared that good faith belief in validity of marriage must be reasonable.
In Vryonis the court rejected claim of an Iranian woman who believed her private cultural marriage to her Greek husband was valid, although it was made in her home, without obtaining a marriage license as required by California law.
In Ceja, after death of her Husband at work, Mrs. Ceja brought action for wrongful death, but Husband’s employer moved for summary judgment claiming that as a matter of law, Mrs. Ceja did not qualify as a putative spouse because at the time of marriage knew that her Husband is married.
The trial court agreed and granted summary judgment, applying an objective test for putative status. The court found that it was not objectively reasonable for Mrs. Ceja to have believed that her marriage was valid. The appellate court disagreed. The court believed that good faith belief in validity of marriage asks whether that person actually believed the marriage was valid and whether he or she held that belief honestly, genuinely, and sincerely, without collusion or fraud.
The court disagreed with In re Marriage of Vryonis, which held that the statutory language incorporates an objective test. The court found that: 1. The concept of putative spouse, allowing marital benefits to a spouse even if the marriage is defective is a judicially created relief and the judicial definition of the putative spouse required only a good faith belief in the validity of a marriage. 2. The Legislature codified that definition without intending to change it. 3. The Vryonis court engrafted an objective test to the statutory definition based on the legally unsupported view that “good faith belief” necessarily incorporates an objective standard. 4. The Vryonis court intruded upon the Legislature’s prerogative.
The courts have followed and uncritically accepted Vryonis decision but the policy of stare decisis carries little weight. Despite its widespread acceptance, Vryonis created a conflict with prior cases. The rule of statutory construction is inapplicable, because there is an unresolved conflict in the judicial holdings. https://www.courts.ca.gov/documents/5-s193493-app-nancy-ceja-answer-brief-merits-111411.pdf
California(August 4, 2010): Judge Vaughn R. Walker, Chief Judge, the United States District Court for The Northern District Of California, ruled that California Proposition 8, the voter-enacted amendment to the California Constitution in November 2008, is unconstitutional. Proposition 8 provides that: ”Only marriage between a man and a woman is valid or recognized in California.”
In his ruling, Judge Walker found that Proposition 8, violates the due process and equal protection rights of the same-sex couples who wish to get married, including 18, 000 same sex couples who have already obtained their license to get married.
In the ruling, titled: PRETRIAL PROCEEDINGS AND TRIAL EVIDENCE CREDIBILITY DETERMINATIONS FINDINGS OF FACT CONCLUSIONS OF LAW ORDER, Judge Walker made reference to testimony of many witnesses who addressed the issue of same-sex marriage from the cultural point of view.
Here are quotations of the ruling referring to culture. .
A party to an invalid marriage may receive the spousal support and one-half of the community property, if the marriage is “putative”. A “putative marriage” is created when both or either spouses believe in good faith that the marriage is valid.
In “In re the Marriage of GUO and SUN“, filed July 28, 2010, the Appellate Court of California in Los Angeles determined that a “putative marriage” exists when the “innocent spouse” believes in its validity. This decision contradicts the decision of “In re Marriage of Tejeda”, by the California Appellate Court in Santa Cruz, filed November 25, 2009, which determined that if one spouse is found to be putative, the marriage becomes putative.
In California, an offer by a Defendant to settle joint claims of a Husband and Wife (under California Code of Civil Procedure 998) may be made to either of them even if the claims are not identical.
This is because recovery from claims of spouses is a community asset (under Family Code Section 760) and either of the spouses have absolute power to accept or reject such an offer (under Family Code Section 1100(a).
Of course, the non-accepting spouse may have a claim for breach of fiduciary duty against the accepting spouse, for improper compromise of community’s claim (under Family Code Section 1100 (e)).
In the Case of Barnett et Al., V. First National Insurance Company of America (2010) 184 Cal. App. 4th 1454, filed May 26, 2010, the Court of Appeal of California, Second Appellate District, Division Seven (Los Angels) reversed a prior decision by the same Court (Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075), which required separate offer to each spouse. The Court admitted that in reaching the prior decision, it did not consider the effects of the California community property law on the joint offers.
Assuming the infant is being cared for primarily in one parent’s home, the following are some examples of contacts by the non-residential parent.
BIRTH THROUGH AGE 6 MONTHS: Three non-consecutive days per week for two hours each day. Many infants take multiple naps and require feeding every three or four hours during the day. If at all possible, time with the nonresidential parent should aim at not disrupting the infant’s nap and feeding pattern.
AGE 7 MONTHS THROUGH 12 MONTHS: Three non-consecutive days per week for three hours each day. Overnight, if appropriate. If a parent has not been involved in care-giving previously, these short and frequent visits will help to develop a mutually secure relationship and allow the parent to master the tasks and sensitivity required to care for an infant. As the care-giving skills are mastered, the parent-child bond strengthens and the time with the infant may increase.
AGE 13 MONTHS THROUGH AGE 18 MONTHS: Three non-consecutive days each week for three-four hours each day. One weekend day for up to eight hours. Overnight, if appropriate. Children at this age still require a predictable and consistent daily routine. Communication between the parents about the infant’s routine and any new developments is essential to enhance the infant’s adjustment.
AGE 19 MONTHS THROUGH 36 MONTHS: One weekend day for ten hours. One mid-week for three hours. Overnight, if appropriate. Children of this age go through many changes, such as weaning from the bottle, toilet training, beginning pre-school, and adjusting to new siblings. Parents should avoid choosing a plan that requires the child to change routines frequently.
For further information, visit the Los Angles County Superior Court Website at: http://www.lacourt.org/selfhelp/familiesandchildren/pdf/parentingunder3.pdf
For a Judgment of child support to be valid, the Summons and Petition establishing the support must be personally served. A fraudulent declare of service of Summons and Petition, violates the due process rights of the supporting parent, and renders the subsequent Judgment void and unenforceable.
This is the summary of the decision in the case of County of San Diego v. Graham, reached by the Court of Appeal of California, Fourth Appellate District, Division One (San Diego), filed on July 21, 2010:
In this Case, the supporting father, Artis Earl Gorham appealed from an order of San Diego Court, denying his motions to set aside a 1998 default judgment obtained against him by the County of San Diego Department of Child Support Services (DCSS) and to dismiss the action. He argued that the trial court never acquired jurisdiction over him in this case because he was never served with a summons and complaint contrary to the fraudulent representation of the process server’s return, and, therefore, the judgment was void. Further, the summons and complaint were not served on him within three years of the date this action was commenced, which requires mandatory dismissal of the case under the Code of Civil Procedure.
The Court of Appeal agreed.
To receive the full text of the decision, send a request to Admin.
From LA Times Blog: https://latimesblogs.latimes.com/lanow/2010/07/california-chief-justice-george-will-not-run-for-reelection.html
July 14, 2010 California Supreme Court Chief Justice Ronald M. George, whose legacy is likely to be his authorship of a landmark ruling that briefly legalized same-sex marriage in the state, announced Wednesday that he would not run for retention in November. “My 70th birthday this year focused my attention on a question recently posed by my family: Why file for reelection for another 12-year term, after having authored hundreds of judicial opinions and overseen major administrative reforms in the judicial system? What more do you hope to accomplish other than refining and preserving what has been achieved?” George said.”Reflection convinced me now is the right time — while I am at the top of my game — to leave while the proverbial music still plays, and return to private life.” George, an appointee of former Gov. Pete Wilson, has served 14 years as head of the California court system. When he steps down in January, he will have served a total of of 38 years in the state court system. George is a moderate Republican who has often been a swing vote on the state court high. He generated national attention over the issue of same-sex marriage. In an interview with The Times, he said he was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he said. “I think,” he concluded, “there are times when doing the right thing means not playing it safe.” Gov. Arnold Schwarzenegger will appoint his successor. The governor may nominate a new chief justice by Sept. 16. Once a justice decides not to file for retention, the governor at the time is responsible for his or her replacement. — Maura Dolan in San Francisco