County of Riverside v. Keegan

TO BE DECIDED: "Does the Mother's Failure to a File Financial Declaration Deny The Court Jurisdiction to Award Child Support?"

     This is a child support case that arose out of a paternity action initialed by

     Mr. Keegan. The court entered a child support order against Mr. Keegan, retroactive to his date of filing the paternity complaint. At that time, the county had not properly filed an Income and Expense Declaration (I&E) as required by court rules.

     Mr. Keegan challenged the support order on the grounds that the mother had not filed the required Declaration. He also objected to the retroactive order.

     The appellate court found that, although the I & E was required, nothing in the court's rules suggested that failure to supply the I & E denied the court jurisdiction to award support. In addition, the appellate court noted that Mr. Keegan was given copies of an unfiled I & E. The appellate court also noted he agreed with certain figures used to calculate the child support. Further, Mr. Keegan himself produced the mother's pay stubs, a tax return and other documents which supported the court's findings for the child support order. The appellate court found the complaint was sufficient notice of motion to seek child support and therefore, the retroactive order was upheld.

Marriage of Arrietta

TO BE DECIDED: "Does a Prenuptial Agreement Regarding Spousal Support Contravene Public Policy?"

     A California Appellate court has ruled that a waiver of spousal support provision in a prenuptial agreement (PNA) does not contravene public policy.

     Prior to their marriage, the parties each signed a PNA, written by the W, that provided that all assets in her name at the time of the marriage or acquired after marriage in her name, would be her separate property. It also provided that in the event of divorce, there would be no spousal support and the H would waive property settlement.

     W later filed for divorce and the trial court ruled that the portion of the PNA waiving spousal support was not enforceable because it was against public policy.

     California has adopted the Uniform Premarital Agreement Act (UPAA) which permits parties to contract with respect to spousal support. The California legislature however deleted the provision regarding spousal support and has left it up to the courts to decide. The appellate court decided that premarital contracts regarding spousal support are not per se against public policy and upheld the validity of the PNA.

Marriage of Johnson

TO BE DECIDED: "Does a Spouse Retain a Community Property Interest in Enhanced Portion of Husband's Employee Retirement Benefit?"

     This case presents the issue of whether the additional portion of an employee's pension attributable to an early retirement option is community property as compensation for past services which must be shared with a former spouse or is the employee's separate property. The trial court awarded the ex-wife a community property interest in the enhanced portion of the retirement benefits and the appellate court affirmed.

     In this case, husband and wife divorced in 1972. In 1993, 21 years after the divorce, and at the age of 53, H opted for early retirement. His employer offered a voluntary retirement incentive (VRI) program that resulted in higher monthly pension payments than it would have paid under normal early retirement plan if H waited to retire at age 55. Also, if H worked until normal retirement age of 65, his monthly pension payments would have been higher than both the early retirement plan and the VRI plan. H opted for the VRI.

     Ex-W then filed an order to obtain a one-half community property interest in the enhanced portion of the VRI benefit, which amounted to $748.85 per month more than the early retirement plan (what he would have received at age 55). H argued that the enhanced benefit was not part of the original employment contract with his employer and he had no enforceable right to receive it during his marriage to ex-W. He further argued that the company offered the VRI to encourage early retirement to reduce its work force and therefore was not deferred compensation for past services rendered but was a severance package and therefore his separate property. The courts however focused on what the enhancement represented, which was deferred compensation for past services rendered, rather than focus on when the enhancement was offered.

Montenegro v. Diaz

TO BE DECIDED: When Child Custody Previously Decided is Up for Review, What Standard Must the Court Use to Modify Custody?

     This case involved a couple who were dating when their son was born. After a visitation dispute between the parents, the father filed a complaint to establish paternity and requested joint legal and physical custody. Sole physical custody was granted to the mother. For the next few years, the father sought custody "vigorously and repeatedly." Finally, on his third attempt, when the child was five years old, the trial court granted custody to the father. That court found that a change in custody was in the child's best interest because the father was willing to share his son, and to cooperate and communicate regarding their son's care.
     The appellate court reversed that order, stating the trial court erred in applying the "best interest" standard rather than the "changed circumstances" standard. Once there has been an initial judicial determination of custody, custody can only be changed "if changed circumstances make such an order essential or expedient for the welfare of the child."
     Here, mom was awarded custody initially, however, this case also concerns whether a stipulated order for custody is a "prior judicial determination" of the child's best interests and thus requiring that later custody orders be based on "changed circumstances" rather than on the best interest of the child standard.