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California Ban on Same-Sex Marriage Struck Down.. Star Jones Files For Divorce.. The Art & Science of Custody Evaluations.. Ex-Wife of Former Beatle Explains Dousing of Opposing Counsel..
Contents:
California Ban on Same-Sex Marriage Struck Down
In a much-anticipated 4-3 ruling issued Thursday, the California Supreme Court struck down the state's ban on same-sex marriage as unconstitutional Gay couple John Lewis, left, and Stuart Gaffney celebrate outside the California Supreme Court on Thursday. The ruling clears the way for the state to become the second to legalize same-sex marriage. Several gay and lesbian couples -- along with the city of San Francisco and gay rights groups -- had sued, saying they were victims of unlawful discrimination. A lower court ruled San Francisco acted unlawfully in issuing marriage licenses to same-sex couples, but Thursday's ruling overturned that decision.
Star Jones Files For Divorce
NEW YORK (AP) -- Three years after tying the knot in a spectacular, over-the-top affair that caused some backlash, Star Jones has decided to end her marriage to banker Al Reynolds.Star Jones and Al Reynolds, here in 2006, married in late 2004.The 46-year-old TV personality quietly filed divorce papers March 26 in New York Supreme Court in Manhattan. The records are sealed, syndicated entertainment show "Entertainment Tonight" reported Wednesday. For more information on Arizona Divorce Lawyers, contact NRG. But a representative for SHADOW PR, which represents Jones, confirmed to The Associated Press that she is seeking to end the union.In a statement to "Entertainment Tonight," Jones said: "Several years ago I made an error in judgment by inviting the media into the most intimate area of my life. A month ago I filed for divorce."The dissolution of a marriage is a difficult time in anyone's life that requires privacy with one's thoughts. I have committed myself to handling this situation with dignity and grace and look forward to emerging from this period as a stronger and wiser woman."It's not the approach Jones took when she threw her uber-lavish, Park Avenue wedding to Reynolds in November 2004. She received criticism for endlessly discussing the wedding -- and plugging its sponsors -- as a co-host on ABC's "The View." The negative reaction to the affair, which was attended by guests ranging from Sen. Hillary Rodham Clinton to Spike Lee, was cited by Barbara Walters as a reason why Jones' contract wasn't renewed by ABC's "The View" in 2006.The former prosecutor recently hosted a talk show on truTV
The Art & Science of Custody Evaluations
If you are interested in learning more about custody evaluations, check out this book. If you need to see a Arizona custody lawyer, contact www.nrglaw.net for a complete analysis of your situation.
Ex-Wife of Former Beatle Explains Dousing of Opposing Counsel
LONDON, England (AP) -- The ex-wife of former Beatle Sir Paul McCartney said Friday that she snapped when she poured a jug of water over the head of her former husband's lawyer during their bitter divorce battle in Britain's courts. McCartney's lawyer Fiona Shackleton, left, pictured after Mills threw water over her.Heather Mills said she became angry when McCartney's lawyer Fiona Shackleton argued that full details of the case, including some related to their daughter, should be disclosed."Mrs. Shackleton said something under her breath so I cleansed and baptized her," Mills told Britain's GMTV on Friday. "I thought she looked fantastic -- I thought it did her the world of good."Mills was awarded a $48.6 million divorce settlement last month after her four-year marriage to the former Beatle.But judge Hugh Bennett said Mills was a less than candid court witness whose original demand for $250 million was exorbitant.Mills' evidence was "not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness," Bennett said in his judgment.Mills was speaking from Las Vegas, where she is among celebrity judges for the Miss USA pageant. Mills joins actor-comedian Rob Schneider, actor-musician Joey Fatone, Olympic champion swimmer Amanda Beard and others on the panel.
Wife of Entertainment Mogul Simmons Files for Divorce
LOS ANGELES, California (AP) -- Kimora Lee Simmons has already moved on, but she took steps to make it official by filing for divorce from her husband of seven years, entertainment mogul Russell Simmons.For information on Arizona divorce law, see NRG Family Law. Kimora Lee Simmons and Russell Simmons have been married for seven yearsAlthough the couple separated in March 2006, Kimora Lee Simmons just filed divorce papers Tuesday in Los Angeles Superior Court. The 32-year-old Baby Phat fashion designer and reality TV star cited irreconcilable differences.She and Russell Simmons, 50, have two daughters: 8-year-old Ming Lee and 5-year-old Aoki Lee.
Christina Applegate Divorce Finalized
LOS ANGELES, California (AP) -- Christina Applegate is now unmarried ... with no children. Johnathon Schaech and Christina Applegate were married in 2001. The actress and her actor husband, Johnathon Schaech, have officially parted ways a year and a half after he filed for divorce. The pair's split was finalized in Superior Court on Friday, according to court documents obtained by CelebTV.com.Applegate, known for her role as ditzy daughter Kelly Bundy on TV's "Married ... With Children," and actor Schaech married in October 2001. They separated in November 2005, citing irreconcilable differences, according to court papers. Schaech filed for divorce December 5, 2006. Applegate's publicist, Ame Van Iden, and Schaech's publicist, Cindy Guagenti, both declined to comment Friday.The judgment awarded Schaech more than $1.5 million in bank accounts dating back to last February, a cement Buddha in Applegate's possession, and a 2001 Mercedes-Benz S500.Applegate, 35, was awarded two of the ex-couple's Los Angeles residences, a 2006 Lexus and more than $7.5 million in bank accounts dating back to late December 2006, according to court documents.Applegate has starred in movies including "Anchorman: The Legend of Ron Burgundy," and earned a 2005 Tony Award nomination for her Broadway role in "Sweet Charity." Schaech's acting credits include 1996's "That Thing You Do!" and 2005's "Sea of Dreams."Both waived the right to seek spousal support.The pair did not have children.
Asylum Ruling Leaves Out Chinese Spouses
(AP) - NEW YORK-The husbands of women forced to abort a pregnancy or undergo involuntary sterilization, or else face persecution under China's coercive population control program, do not automatically qualify for asylum, a federal appeals court ruled Monday. The ruling by the 2nd U.S. Circuit Court of Appeals found that U.S. law does not automatically grant asylum to spouses or partners in cases in which the women have been persecuted under China's family-planning policy, which limits most urban couples to one child and families in some rural areas to two.The ruling conflicts with a dozen other federal appeals courts, as well as the findings of the the Board of Immigration Appeals and 10 years of decisions in immigration cases, said Judge Guido Calabresi, who partially dissented. The ruling was unusual because all 12 judges joined the opinion.The court said that the board, which decides whether to accept immigration judges' conclusions, had been too permissive and that spouses do not necessarily qualify for asylum.The majority opinion, written by Judge Barrington Parker, said spouses would have to prove their own resistance to a coercive population-control program or demonstrate a well-founded fear that he or she will be subjected to persecution for resisting the policy.However, the judges said the ruling should not result in the reopening of cases in which Chinese refugees have been granted asylum. The opinion also noted that Congress can rewrite the law if it finds the court's interpretation inconsistent with its intentions.The court was ruling on three separate asylum cases, none involving spouses. Two of the cases involved boyfriends of women awarded asylum, and the other involved a fiance.China's family planning policy was implemented in the late 1970s to control population growth and conserve natural resources. Human rights activists claim it has led to forced abortions, sterilizations and a dangerously imbalanced sex ratio because of a traditional preference for male heirs, which has prompted countless families to abort female fetuses.
Federal Court Restricts Pro Per Child Custody and Child Support Litigant From Further Filings & Appeals
In Andrews v. Heaton, a pro per litigant filed three appeals and an array of appellate motions arising from two federal lawsuits he brought seeking to compel federal judges to enjoin state court proceedings and obtain damages from them regarding rulings in child support custody matters.
Mr. Andrews's complaints were deemed defective, among other things, for the following reasons: (1)
they sought to assert claims against defendants entitled to absolute judicial immunity, (2) failed to meet the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure, and (3) sought to enforce criminal statutes through a civil action. To read the full opinion, click here.
Contact NRG if you would like advice regarding your child custody or child support case.
Press Release: Arizona Foundation for Women
DOMESTIC VIOLENCE - Although there has been progress over the last two years in funding domestic violence shelters in Arizona, roughly 2/3 of all women seeking shelter are still turned away due to lack of space. Both the Governor and the legislature support an appropriation of least $3 million to increase the number of shelter spaces and help to end turn-aways. $3 million is reportedly included in the Senate draft budget. Domestic Violence WHAT'S GOING ON?
Lots going on! $3 million for additional shelter beds seems very likely to be included in the final state budget. More immediately, SB1227, which allows victims of domestic violence to terminate their lease for safety reasons, has passed and is ready to go to the Governor- thanks to all who sent emails! SB1424, which allows for enhanced penalties for repeat domestic violence offenders, has passed, and is headed for the Governor's desk as well.
WHY IS IT IMPORTANT TO ARIZONA WOMEN?
Both bills will keep victims safer, and send an important message to abusers that Arizona takes domestic violence seriously. WHAT CAN I DO? Contact Sponsors Senator Jim Waring and President Tim Bee. These men are heroes who fought off powerful interest groups in order to get these two bills passed. Thank them for helping SB1227 and SB 1424 go all the way. Jim Waring jwaring@azleg.gov Tim Bee tbee@azleg.gov
Order Modifying Child Support Reversed -- Err In Imputing Non-Taxable Income
In California, an Order modifying child support is reversed where the court erred in imputing $3,000 of non-taxable income per month based on husband's mortgage-free housing. For information on Arizona child support issues, contact NRG Family Law at www.nrglaw.net. In re Marriage of Schlafly (2007) , Cal.App.4th [No. H029918. Sixth Dist. Apr. 10, 2007.]
In re the Marriage of JULIE and ROGER SCHLAFLY. JULIE SCHLAFLY, Respondent, v. ROGER SCHLAFLY, Appellant. [Opinion certified for partial publication. fn. * ] (Superior Court of Santa Cruz County, No. FL018328, Irwin Joseph, Judge.) (Opinion by Mihara, Acting P.J., with McAdams, J., and Duffy, J., concurring.) COUNSEL Roger Schlafly, In propria persona for Appellant. Julie Schlafly, In propria persona for Respondent.
OPINION MIHARA, ACTING P.J.- Appellant Roger Schlafly, former husband of respondent Julie Schlafly, appeals from an order modifying child support. Roger fn. 1 claims that the court erred in imposing a child support payment that deviated from the guideline amount and in retroactively modifying child support without using actual income figures. Roger also claims the court erred in imposing an attorney's fees order contradicting an earlier order by the court. We conclude that the court erred in imputing $3,000 of non-taxable income per month based on Roger's mortgage-free housing. We therefore reverse the December 20, 2005 child {Slip Opn. Page 2} support order and remand the action for further proceedings. We affirm the attorney's fees order.
I. Background Roger and Julie married in December 1996 and have two minor children, Millicent (born in 1997) and Geneva (born in 1999). Millicent was born three weeks after Julie graduated from law school, about six months into the marriage, and Julie remained at home throughout the marriage to care for the children. Roger, a mathematician, is self-employed and is an independent contractor in the computer software industry. In addition to other assets, Roger owns a minority interest in a closely-held corporation, several patents, his own business, and a mortgage-free home. The couple separated in October 2003, and Julie filed for dissolution of marriage. The parties initially split custody of the children fifty-fifty by mutual agreement, and, in July 2004, the court ordered Roger to provide Julie a temporary support payment of $3,000 per month. The court also set a hearing in August 2004 to discuss financial issues and ordered Roger to file and serve an income and expense declaration and to provide recent tax returns. During the August 30, 2004 hearing, the court (the Honorable Thomas Kelly presiding) chastised Roger for providing "evasive" answers and incomplete information regarding his financial situation. The court ultimately ordered $2,759 in child support, retroactive to July 1, 2004. In doing so, the court deviated from the guideline amount of $1,697 based on Roger's "living mortgage-free in house worth 3K/month." The additional $1,062 increased Roger's total support payment to $4,000 per month. The support order was made retroactively modifiable so that it could be revised when the court had "more information on father's actual income" and on Julie's efforts to enter the work force. On November 16, 2004, Roger's custody percentage decreased from 50 percent to approximately 20 percent. On May 13, 2005, the court conducted another status hearing {Slip Opn. Page 3} regarding financial issues. Judge Kelly modified the temporary support figures to reflect the adjusted timeshare, retroactive to November 16. In doing so, the court expressly stated that it was not taking into account the fact that Roger lived in a mortgage-free house: "Since today is a snapshot, temporary order, I'm not going to depart from guideline [based on a lack of mortgage] . . . . But she's going to make an argument next month I should depart from guideline as I did before." The child support order thus was modified to $2,575, the Dissomaster guideline amount based on the financial information then available. The court again ordered Roger to produce financial documents, intending to address the mortgage-free housing issue at a later hearing when the court believed more accurate information would be available. The support orders were again made retroactively modifiable, and the court entered a judgment of dissolution as to status only. Roger provided Julie with his 2004 tax return in October 2005, and a new hearing was set for December 2005 before Commissioner Irwin H. Joseph, who took over the case from Judge Kelly. On December 20, 2005, the court issued a new child support order of $2,525, effective January 1, 2006, "based on changed income and timeshare for father." The court ordered further modification, effective January 23, 2006, to $2,112, based on an anticipated increase in Roger's timeshare to 50 percent. In calculating the new payments, the court imputed a 3 percent rate of return for Roger's stock market portfolio as taxable income and imputed $3,000 in non-taxable income per month based on Roger's mortgage-free housing. After calculating the guideline amount, the court added $500 to provide for the children's education and activities, split evenly between the parties. Julie waived her rights to any future spousal support. In the December 20 order, the court also addressed past support payments. The court modified the child support order effective November 16, 2004 to account for Roger's mortgage-free housing, noting that "Judge Kelly failed to perpetuate his calculated deviation for father's housing circumstance." In this instance, the court adopted Judge Kelly's approach and added $1,062 to the guideline amount. {Slip Opn. Page 4} Roger filed a motion for modification, deemed a motion for reconsideration, contesting both the December 20 child support order and a December 16 order regarding attorney's fees. The court denied the motion on February 16, 2005. Roger timely appealed. II. Discussion Statutory guidelines regulate the determination of child support in California. (See Fam. Code, §§ 4050-4203.) fn. 2 The guidelines set forth several important principles relating to child support determinations, including that (1) the interests of the child are the state's top priority, (2) a parent's principal obligation is to support his or her children "according to the parent's circumstances and station in life[,]" (3) "[b]oth parents are mutually responsible for the support of their children[,]" (4) "[e]ach parent should pay for the support of the children according to his or her ability[,]" (5) children should share in both parents' standard of living, and (6) in cases "in which both parents have high levels of responsibility for the children[,]" child support orders "should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children's living standards in the two homes." (§ 4053, subd. (a)-(b), (d)-(g).) The guideline amount of child support, which is calculated by applying a mathematical formula to the relative incomes of the parents, is presumptively correct. (See §§ 4055, 4057, subd. (a); In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359 (de Guigne).) "The court may depart from the guideline only in 'special circumstances' set forth in the child support statutes. (§ 4052)." (County of Stanislaus v. Gibbs (1997) 59 Cal.App.4th 1417, 1419.) 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 of Destein (2001) 91 Cal.App.4th 1385, 1393 (Destein) ["A trial court's decision to impute income {Slip Opn. Page 5} 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.App.4th 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 this case, Roger claims the court "erroneously deviated from [the] guideline" amount by imputing a rate of return to his stock portfolio that exceeds the actual rate of return, by including $3,000 of non-taxable income based on his mortgage-free housing, and by imposing a discretionary add-on for the children's activities. He also claims the court failed to comply with section 4056, modified a temporary child support order using inaccurate figures, and erred in ordering him to pay an additional $6,500 in Julie's attorney's fees. A. Imputation of 3 Percent Rate of Return Roger first objects to the court's imputation of a 3 percent rate of return on his stock market portfolio. At the time of the order, Roger's portfolio contained approximately $2.9 million in assets and, according to Roger, paid dividends of about 1.6 percent annually. fn. 3 Roger contends that because the portfolio was income-producing, fn. 4 the {Slip Opn. Page 6} court was required to use the actual income received and was not authorized to impute additional income. We disagree. Section 4058, which defines annual gross income for purposes of child support calculations, expressly provides: "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (§ 4058, subd. (b).) This earning capacity doctrine "embraces the ability to earn from capital as well as labor." (de Guigne, supra, 97 Cal.App.4th at p. 1363; see also Mejia v. Reed (2003) 31 Cal.4th 657, 671 ["[i]n assessing earning capacity, a trial court may take into account the earnings from invested assets"].) "Just as a parent cannot shirk his parental obligations by reducing his earning capacity through unemployment or underemployment, he cannot shirk the obligation to support his child by underutilizing income-producing assets." (In re Marriage of Dacumos (1999) 76 Cal.App.4th 150, 155 (Dacumos), emphasis added.) In this case, the court implicitly determined that Roger's 1.6 percent return on almost $3 million of assets was an underutilization of the assets and that imputing a higher rate of return was in the best interests of the children. The court explained that the 3 percent figure was a more accurate reflection on the value of the assets; unless Roger was earning at least 3 percent annually in the stock market, he would invest in bonds and be guaranteed a 3 percent return. This determination was within the court's discretion. (See In re Marriage of LeBass (1997) 56 Cal.App.4th 1331, 1340 (LeBass) ["Section 4058 is unmistakably clear that the only qualification to the discretionary imputation of income is that it be consistent with the children's best interest."]; Destein, supra, 91 Cal.App.4th at p. 1396 ["[O]ur Supreme Court has refused to read any limitation into a trial court's discretion to impute income when in the child's best interests."].) The court's decision is well-supported by California caselaw. Dacumos, supra, 76 Cal.App.4th 150 provides one persuasive example. In that case, the father owned two rental properties that generated higher expenses than the amount received in rent. (Id. at {Slip Opn. Page 7} p. 153.) The trial court nevertheless imputed rental income based on the fair market rental value of the properties and the father's net equity in the properties. (Ibid.) The appellate court concluded that a broad "definition of earning capacity to include income that could be derived fro ...
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