LAKERS’ GUARD STEVE NASH PLAYS DEFENSE AGAINST CHILD SUPPORT

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When future NBA hall of famer Steve Nash first signed on with the Los Angeles Lakers he talked about hittin’ a few jumpers, maybe winning a championship, and how his family would benefit by him being so close to his children.  Now, however, the superstar guard finds himself in a full court press to keep those same children in Arizona and out of California.

That’s because Nash’s ex-wife, Alejandra Amarilla, has spiced things up by attempting to move the couple’s children to California in order to get a child support order from her ex.  This in turn appears to have prompted her aging point guard ex to dig in for what promises to be an expensive legal battle for the two.

Mom says she just wants to move the kids to California so they can spend more time with their father.  And she’s hired one of L.A.s biggest divorce lawyers to prove it – and maybe to do a little battle in both the California and Arizona family law courts.  Dad, on the other hand, believes it’s all just a scheme to get child support and not necessarily what’s in the best interests for the kids.

The couple announced their split in 2010, five years after they were married.  Previously, an Arizona family law judge ruled that Amarilla is not entitled to child support in Arizona, however, she might be able to seek it in California, should she move there.

So maybe there are better schools in California, as mom has stated.  And maybe the former Mrs. Steve Nash and the former couple’s children will enjoy living in California for six months and…if things haven’t settled by then…mom can file in California’s family law court.  And the child support case will be back on, only this time it’ll be California style.  And little Stevie will probably be on the financial hook for a heckuva lot more than if he’d just settled things with the former missus back in Arizona.

THIRD PARTY JOINED TO DISSOLUTION ORDERD TO PAY ATTORNEY’S FEES

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In another important family law court determination that affects third party’s to marital dissolutions, California’s Second Appellate District has held that a trial court did not err by ordering a third party, who was joined by the dissolution, to pay attorney’s fees of petitioner Wife without first determining whether petitioner was likely to prevail in her action.  The facts involved in the remarkable case of In re Marriage of Bendetti are as follows:

During their dissolution proceedings, Husband and Wife executed a Marital Settlement Agreement (MSA) that resulted in dividing their community property, which included their 50% interest in two restaurants, and ordered Husband to pay spousal support to Wife.  The MSA also stated that the parties’ Partner in the restaurants was willing to buy out their interest for $400,000, by paying off their existing IRS liability and paying the remainder to Husband and Wife in equal shares.

Per the agreement, Partner was supposed to sign a promissory note to Wife for her interest and pay off her share in equal installments over ten (10) years at 10% interest.  Partner was to pay Husband’s share to him in full.

Over the years, Partner failed to sign a promissory note to Wife, but paid her $1,500 every once in a while “to help her out because she had not been treated well in her divorce.”  Meanwhile, Husband failed to make regular spousal support payments.

In 2006, Wife took legal action to recover Husband’s spousal support arrearages.  During that process, she found out that Husband and his second wife (W-2) were parties to litigation over a $750,000 investment they made in another restaurant.  During Husband’s deposition in that litigation, he claimed that he and another Investor agreed to be partners in all of Investor’s California restaurants, but W-2 had signed the operating agreement for the restaurant that was involved in the current suit.

Husband also stated that Partner had paid part of what he owed to Husband from a restaurant that was involved in the current suit.  Husband further stated that Partner had paid part of what he owed to Husband from a restaurant sale by contributing to Husband’s capital contribution to the partnership with Investor.

When Wife learned of all this, she filed a judgment lien in the litigation.  The litigation settled in June of 2007, and W-2 received a $7.25 million payment, “apparently without regard to the lien.”  Within months, Husband paid $271,000 of those funds to Wife for the accrued spousal support arrearages.  Wife then filed a motion, seeking $31,693 for attorney’s fees incurred in recovering unpaid spousal support.

In response, Husband pleaded poverty.  He claimed that his only income was $950 per month from Social Security and that he had no other assets.  In his supporting declaration, Husband claimed that W-2, not he, was the investor in Investor’s restaurants, that he received nothing from the litigation settlement, and that he received no money from Investor’s restaurants.

Wife replied that Husband was the investor in Investor’s restaurants and that Husband had fraudulently transferred his settlement proceeds to W-2.  W-2 filed declaratory relief in July of 2008 from the U.S. District Court, seeking judgment that settlement proceeds belonged to her, but, acting on Wife’s motion, District Court dismissed W-2’s action.

In 2008, Wife successfully moved to have W-2 joined in the dissolution proceedings.  She then filed a complaint in joinder, alleging actual and constructive fraudulent transfers and unjust enrichment, and seeking declaratory relief.  When W-2 filed her demurrer and motion to strike, Wife amended her complaint to delete the cause of action for unjust enrichment, but still sought declaratory relief for actual and fraudulent transfers under the Uniform Fraudulent Transfer Act.

In 2010, Wife filed a motion seeking $223,090 in pendente lite attorney’s fees from Husband and W-2 for fees incurred for spousal support enforcement, defense of W-2’s federal action, and for preparation of pleadings in the current action.  She asked for an additional $100,000 for “work to be performed.”

The family law trial court in Los Angeles noted that Husband and Wife-2 claimed Wife’s suit was a sham, but found no need to deny Wife’s attorney’s fee request simply because her suit might be meritless.  The trial court concluded that Wife needed the fee award to ensure that she could sufficiently fund her suit for the trial court to hear the merits.

Accordingly, the trial court ordered Husband and W-2 to pay Wife $30,000 for fees in opposing W-2’s demurrer and motion to strike, $30,000 for omitted asset motion, $45,750 for legal services involved in W-2’s federal suit, and $26,000 for joinder, meet and confer, and other discovery requests in connection with the current action, for a total of $131,750.  The trial court declined to order fees for work not yet performed.

W-2 appealed, claiming that the family law trial court had erred by awarding fees without requiring Wife to show a reasonable likelihood of success in her suit, and the 2nd Appellate Court of California has affirmed the trial court’s decision, having found that:

1)      California Family Code §2030(d) permits the trial court to order a third party, who has been joined in a legal action, to pay another party’s attorney’s fees;

2)      That the trial court may order a third party joined in an action to pay another party’s attorney’s fees without requiring that fee recipient show a reasonable likelihood of prevailing in her claims against a third party; and,

3)      There was sufficient evidence of the dissolution issues related to W-2 (Husband’s conflicting claims re his involvement and W-2’s receipt of settlement funds) to show that W-2 was connected to the subject of the litigation.

CHILD SUPPORT ORDER SURVIVES DISSOLUTION OF TEMPORARY RESTRAINING ORDER

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Another important case was recently decided by the California Appellate courts which declared that the trial court’s jurisdiction to make child support orders survives the dissolution of a temporary restraining order.  The facts behind Moore v. Bedard (DCSS) (2013) (Cal.App.4th) are as follows:

Wife requested domestic violence restraining orders to protect her from her Husband who was the father of their three (3) children.  Her request for DVPO’s also asked for child custody, visitation, and child support orders that would modify orders previously entered.  A TRO was entered but never served.  When the matter came on for hearing the parties stipulated to orders that dissolved the temporary restraining order.  The stipulation also resolved child support issues and other monetary issues.

Three years later, the Riverside County DCSS filed a substitution of payee form designating it as the payee of child support.  In 2010 and early 2011, various enforcement actions, including a bank levy, were undertaken and several hearings were held.  Two years after that, Husband filed a request for a hearing to modify child support.  There, the trial court found there were no restraining orders in place and dismissed the case.  Regarding child support, the court referred the parties to DCSS, and it ordered the entire action to be dismissed.

DCSS then moved to vacate the order dismissing the action, noting Husband had taken the position that there was no valid support order because the entire action had been dismissed.  At the hearing, the trial court concluded that it had lost jurisdiction 5 years earlier when the requested restraining order was not issued.  The trial court “voided” the parties’ stipulation and the orders entered the previous year.  The trial court ruled it had lost jurisdiction to make a child support order because it did not issue a restraining order.

Nevertheless, the trial court set aside the order of dismissal on the ground DCSS was not represented at the hearing.  DCSS appealed and it was reversed.  The appellate court ruled it to be an error to dismiss the action for a lack of jurisdiction.  The court had jurisdiction to make child support orders, and such jurisdiction survived the “dissolution” of the TRO.

STATE SEEKS CHILD SUPPORT FROM SPERM DONOR

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So you’re a Topeka man and you’re feeling quite virile, and so you answer a Craigslist ad from a lesbian couple seeking a sperm donor.  No problem, right?  You’ve got the juice, you make a little donation, take a couple bucks home for your trouble, and you’re back to your own life, searching through more Craigslist ads.  And that’s when it hits you, and the trouble really begins.

Believe it or not, this all happened to a gentleman named William Marotta.  And he’s now battling the state of Kansas for his troubles.

According to the Ventura County Star, Marotta, a Topeka, Kansas man, donated sperm to a lesbian couple after answering an online ad.  He now finds himself fighting the state’s efforts to suddenly force him to pay child support for the now 3-year-old girl, arguing that he and the women signed an agreement that waived all of his parental rights.

No doctors were used for the artificial insemination, thus, Kansas argues that because Marotta didn’t work through a clinic or doctor, as required by state law, he can be held responsible for the approximately $6,000 that the child’s biological mom received through public assistance – as well as future child support.  At least ten (10) other states have similar requirements in their laws, including California.

In this case, after answering the Craigslist ad in 2009, Marotta and the lesbian couple exchanged e mails.  They then met, and all three signed an agreement relieving Marotta of any financial or paternal responsibility.  However, the Kansas Department For Children and Families argues that the agreement isn’t valid because no doctor was used.  Instead, Marotta agreed to drop off containers with his sperm at the couple’s home.

The women handled the artificial insemination themselves using a syringe, and then one of them became pregnant.  Later that year they broke up, and Mom ended up receiving public assistance from the state.  And now Marotta is left holding the bag, literally, as Kansas seeks reimbursement for the benefits and to hold Marotta liable for future child support payments.

Although the agreement the lesbian couple signed with Marotta said the women would “hold him harmless” financially, and that they would not list a father on the birth certificate, he appears to still be on the hook legally.  That’s because the state of Kansas law appears to consider a sperm donor not to be the father only when the donor provides sperm to a licensed physician for artificial insemination of a woman who is not the donor’s wife.  This law is said to encourage donors and prospective mothers to work with a doctor instead of an empty jar and syringe.

SAME-GENDER COHABITATION NOW ON PAR WITH THAT OF OPPOSITE-SEX

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Over the last half century, California law has evolved tremendously when it comes to same-gender cohabitation and spousal support.  It has gone from penalizing same-gender cohabitation by the termination of spousal support and the requirement of restitution from the date of cohabitation to extending the same rights, obligations, and privileges of marriage to same-gender cohabitating partners.

Same-gender couples should now be prepared to assume the benefits of cohabitation as well as the burdens that have always been placed on cohabitating couples of the opposite-sex.  They should recognize that the sharing of household expenses reduces the need for spousal support regardless of the genders involved.  The reality is that the presumption of decreased need for support upon cohabitation is a gender-neutral issue.

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