Attorney C. Chan, Esq. Affordable Family Law,Strategy-Driven, 4.7/5 Ratings! Free Consultation, Butte county Family Law Attorney C. Chan 530.359-8810

Tuesday, September 22, 2020

NEW RULES FOR USA TIK TOK AND WECHAT DOWNLOADS, PROHIBITIONS, AND MORE!

 https://www.jdsupra.com/legalnews/u-s-government-bans-tiktok-and-wechat-61368/?origin=CEG&utm_source=CEG&utm_medium=email&utm_campaign=CustomEmailDigest&utm_term=jds-article&utm_content=article-link



all-- everyone using these apps should use every precaution possible. It is difficult to tell what fallout may transpire during COVID times, the Presidential election, and etc.

Usually, "when in doubt, do without" is a safe bet.  The last thing you need right now is to have your phone, computer or other devices to be affected by some wayward electronic nonsense.

These days, with COVID changing everything, it is predicted that regardless of who wins the election, things are going to be drastically changing and that COVID will never be going away in six months.

In fact, it may never go away.



COVID FALLOUT--SHOULD YOU FILE BANKRUPTCY NOW??

 https://chicofamilylawattorney.blogspot.com/2016/12/

Bankruptcy and Divorce..should You File Now??


Attorney wrote about this over 4 years ago. NOW due to COVID, so many legal changes have transpired, if in fact you are considering filing bankruptcy, please make sure that you hire an attorney who has done bankruptcy cases for many years. Bankruptcy is very complicated and attorney herein has done her share of bankruptcy cases for clients in the past. 


For Butte county residents, the filing venue for bankruptcy cases is in Eastern District Federal Bankruptcy Court located in Sacramento.  (Attorney has been signed into Eastern District BK Court for many years, but does not currently work on bankruptcy cases at this time.)

Bankruptcy is VERY VERY complicated, but the system involves a lot of form filling out to test for whether you do or do not qualify, and whether there are impediments to even filing (you may not qualify, plus new rules due to COVID have impacted nearly all courts, regardless of venue.)  

http://www.caeb.uscourts.gov/documents/Forms/misc/ProPer.pdf

Attorney is very familiar with WHICH document processing entities are known to be proficient in Sacramento for filing Chapter 7.  They are not all the same! This corporation typically knows bankruptcy very well judging from its past performance (former clients have used this company..)


Today is: Thursday, September 17, 2020. Bankruptcy Petition Forms Package.
If you are filing for bankruptcy without the help of an attorney, this booklet tells ...

MUSICAL.LY APP REPORTED IN NEWS, BACK IN 2016 BY ATTORNEY

 https://buttecountychicofamilylawattorney.blogspot.com/2016/

LINK TO ANOTHER OF ATTORNEY'S LEGAL BLOGS, STARTING IN 2014 INCLUDING DATA FROM 4 YEARS AGO INVOLVING MUSICAL.LY APP

Dog Smile

Published by attorney on legal blog in 2016 and as can be seen, today the data is still true but even worse with the advances made in technology, impacting even children and minors...........

There is no bright line law or family case law currently in California which seals a parent's fate as to "marijuana" in general right now, and there is not likely a published case on using non appropriate media as a sole reason for denial of custody (although we have had cases where porn movies being shown and allegations of abuse have resulted in loss of visitation...)
 There is a non certified  
dependency case involving some marijuana issues (not a family law case; it is an unpublished Los Angeles appeal under Juvenile Court Law, DCSS and involved two teenage kids, 15/14 at the time...).

Custody is likely to be highly affected by Domestic violence TROs, inappropriate punishment, inappropriate drug use, abusive situations, neglect, etc. Parents with DV charges or TROs against them cannot usually be the custodial parent. We see some parents accept DV TRO charges for one reason or another, but generally, it's best to fight such charges in most cases. We also see many females use DV TROs when they have no grounds. Occasionally males may do the same.

Although attorney herein has research knowledge on medicinal marijuana and various state law issues involving same, there is no one criteria in either medicinal marijuana or recreational marijuana, that would be the 100% certain win or lose factor for a parent, because in most cases, it's only one issue, and not the ONLY issue at hand. Depending on how many other issues are involved, the credibility of each parent, the depth of insight that the attorney has, and how well an attorney can size up each parent, this can make or break a case.

Simply hiring "experts" means who can afford more--it doesn't mean necessarily that one parent really wins. It will also depend on how well each parent can present him or herself, answer questions, and understand how the mediation process works. Attorney of this website has seen countless cases involving mediation, and has seen some cases go sideways at mediation, because the client may ruin his or her case by saying the wrong things.Attorneys are not allowed in mediation, therefore attorney can only try to teach client how mediators operate so they will understand what is actually being done. Attorney has seen extremely biased mediators (judging from the report they put out) over the years, good mediators, and those that are fair.  Underestimating the mediation process usually results in bad results.

Attorney herein researches these issues as they apply to California Family Law, and makes best efforts to remain current on new cases or decisions.  Attorney is well aware of the long running case involving marijuana, from Butte County that then seeming moved to another county just north of Butte, with varying detriment (depending on what one considers detrimental...)

In any event, any type of drug, even if it's a prescription, can be cause for concern in a divorce case.     
Image result for pictures drugs    Image result for pictures alcohol and prescription bottles

We all know that alcohol use can be a concern, but it's legal to buy it, right, and even to consume in the home? We have seen many court orders where alcohol is NOT to be consumed during one parent's custody.
And it's legal to obtain many drugs straight off the shelf at the store.

When courts have to consider whether drug usage is going to affect custody, it will depend on what evidence is available, how good the attorney is at setting up the defense or attack of the issue, what the exact facts are and are they verifiable, and how; essentially, all of the foundation requirements for evidentiary hearing, and all of the foundation requirements for supporting evidence should be known; further, the lack of such evidence and the preclusion possibilities, as with all evidence, will come into play.

Trying cases with drugs involved should be left to attorneys who handle trials, because the proof and litigation aspects can be done with more precision. Many clients don't want to spend the funds to engage litigators to gain appropriate custody because they do not understand the time involved to make the defense, or the admissibility for proper charging evidence.

In family law we usually see many clients that just believe all they have to do is say something, and that makes it true.  That is not the case necessarily.  Conversely, clients often believe they can just say something is not true, and that will prove their case. That too is not necessarily true, because if it was, then there would be no NEED for any attorneys at all, because clients could prove everything themselves?

Obviously, clients, at least most of them, are not able to do that because they did not go to law school and then work for 20+ years at honing their skill. 
We have to deal with inaccurate facts, misleading statements, the social media nightmare, Facebook (often the absolute worst), and tons of  Internet postings, admissions, accusations, texts, blogging, examples: 
               
Lively, Instagram, Vine, Snapchat, Kiks Messenger, WhatsApp, GroupMe,tumblr, Twitter,Musical.ly,** You Now: Broadcast,Chat,and Watch Live Video, Burn Note,Whisper, Yik Yak; could be inappropriate.........
--- Omegle+Tinder ( not appropriate for kids).  Some of these apps will or can be hidden or disappear, or may cause kids to meet up with others that could be predators-- with parents not even knowing it is happening.

**CURRENTLY IN 2020, TIK TOK AND FORMER mUSICAL.LY ARE IN LITIGATION INTERNATIONALLY AND WITH THE USA. PRESIDENT TRUMP AND NATIONAL CORPORATIONS ARE BATTLING FOR CONTROL OVER THE POTENTIAL FOR HARM IN PEOPLE USING THE APPS WITHOUT KNOWLEDGE OR REGARD FOR POTENTIAL BACK DOOR THREATS.................... 


NOTE:
New apps come out all the time and they will never stop. These things can be worse than drugs in some ways as unknown people can take advantage of kids, teens, etc. A parent would never even know because most parents don't really know what kids are doing with their phones.

Personally, we would not give kids a phone, computer or any electronic device which was NOT monitored, it is very easy to obtain software to do this!


Sunday, September 20, 2020

YOUR EX SPOUSE AND PRIVACY BREACHES? FINANCIAL COMMINGLING, BITCOIN??

SOME people who have not experienced an invasion of privacy do not understand what a breach of privacy might be, and if so, they may not likely understand their own personal rights?   

Most people own a computer or cell phone or tablet or some electronic device these days, and without knowing what a privacy breach is, you could be in for some really bad news. Usually because once your privacy has been breached, it cannot exactly be "un-breached?"

  Especially during COVID, I believe the courts will not

 take kindly to a breach of any fiduciary duties at all?


 There are actually many things that can constitute an invasion of privacy, you may want to look at the EFF (Electronic Frontier Foundation)  https://www.eff.org/  

Some of these  issues could  become problems in custody, visitation, divorce, community property issues and far, far more. Spouses spying on each other is not that uncommon. so if you are going to get a divorce or are in the middle of one, you should be more careful.  Attorney has seen one spouse simply close all joint credit cards without any notice to spouse, leaving the spouse both stranded, and unable to even buy food or gasoline?

Never leave or lend your phone or computer, tablet or any other electronic device which could be synced to the spouse or anyone you believe will or could spy on you. If you do not understand what syncing means you can go look it up.  It is a fact that far too many people sync all their data, which can have a very bad result down the line if problems come up, especially if it's all personal data and not business data.

Attorney never recommends syncing anything to be honest, that is strictly personal.  One does not need to use that just because you "can" do it. Even if you do trust a spouse 100%, with texts, email, or even encrypted data; I don't even believe a spouse should know every password to everything.... all data can be examined by an expert (if your spouse went that far, as in example of female who won the lotto and hid it from the husband....)... this is an older information piece, but if you're not running a business, I believe it's still worthy to consider......https://www.msecure.com/blog/saving-passwords-best-practices/

 IF you have a very jealous spouse, you should probably have a mechanic scan your vehicle for a tracking device--I know of two cases where this was done and two devices were, in fact, found on vehicles.



Learn the signs of how a spy app (stalkerware) could already BE on your phone or other electronic devices. (Attorney has a separate post on this on this same blog....) NEVER sync anything to any computer, tablet, or any other device. It may save some time, but you don't need to be lazy. If your ex takes all your data, you will not have access to it and will lose all the passwords most likely. 

I always recommend that each spouse have a backup account/password and that your data is not stored ONLY on a joint account.  I have seen spouses lose all their email and computer access because of over-sharing of accounts; then it becomes both tedious and expensive because you must spend hours opening new accounts, and start all over again? 



Married spouses with separate accounts that were opened during marriage usually means there is a fiduciary duty to know what each other is doing with community funds.

 Let's say wife inherited 100k and opened her own separate account; as long as nothing that went into that 100k account was community, but only wife's separate property funds went into the account, the tracing of that account should prove that wife owns all of it. But if wife took funds she earned in her job, like 10k, and put it into the account, a problem is created because now community money was added to a separate property account?  This should always be avoided (so you don't create more tracing problems at divorce time!)

I have had cases where this happened during the client's time living in two separate counties, and it quickly became a nightmare. It is to be avoided if at all possible.

In fact, as I mentioned on another post, I had a client that already had all the text messages from all their phones (some kind of family plan arrangement) and in fact, the client found the sex texting of spouse with another person?  Yes, they did get a divorce, no surprise there?

Make sure you already have copies of the tax returns because if he/she filed changed tax returns and you never saw the real tax returns you can be in big trouble (not that you did anything wrong) but you can order the last returns from the IRS for almost free anyway.

IF you are in charge of the phone bill, or home phone bills, or credit cards, you may have to look carefully at what is being purchased. Many spouses never even look at the bills and just pay them?  I have known of several cases where the husband was not only conducting long distance affairs, he had at least one illegitimate kid from some gal in another city and by time the wife figured it out, the kid was not that young anymore?

If you don't know what bitcoin is, I suggest you go look it up. It is very difficult to find evidence of it but if you find it, it would likely be in the computer data the spouse owns. If your spouse guards the computer as if he/she is very afraid of something, it's fairly likely something is being hidden. https://www.exodus.io/blog/how-many-bitcoins-are-left/        https://techjury.net/blog/how-many-bitcoins-are-there/#gref

[*Attorney has access to people who know Bitcoin pretty well]


 If your spouse loves to go to casinos, the casinos always send out tax information on winnings. There is a famous case from California on this issue where the wife won a huge amount on the CA lotto and never told the husband, she then later divorced the husband and he found out about the lotto accidentally; subsequently, he went to court to remedy this using the fact that ex wife used subterfuge to conceal the winnings won during marriage. 

The court then awarded the entire amount to the husband because non disclosure like this is illegal?  California law provides there is a fiduciary duty between spouses, thus if one party finds out about hidden assets, the game is on!  Also, most judges in family law tend not to like cheating spouses? 


BYTeDANCE &TIKTOK "SECRET" DEEPFAKES MAKER? WEEKEND LEARNING AND ENTERTAINMENT DURING COVID!!

For those out there that are careless with their cell phones, and do not care what happens in case the Tik Tok + WeChat "Bans" go awry, you might be interested in this legal article. 

It doesn't have anything to do with family law BUT if your kids find out (or even you find out) that somehow your data and phone were compromised and bad things start happening, don't say I didn't call it to your attention....I see all these things on legal articles --- otherwise I would not really understand it because I would not want anything to do with the former Musically thing or this current item.........I have watched kids I know perform it and show me their videos though....LOL

https://techcrunch.com/2020/01/03/tiktok-deepfakes-face-swap/

ByteDance & TikTok have secretly built a deepfakes maker



https://www.jdsupra.com/legalnews/first-federal-legislation-on-deepfakes-42346/

NOTE:      

What Deepfakes are and how they may be dangerous?
Deepfakes have the ability to create fake news and malicious hoaxes. They manipulate relationships and pose a serious threat to posterity. The increase in accessibility has led to a boom in prevalence across sectors like social media, cinema, politics and porn.Oct 17, 2019

Deepfakes
 (a portmanteau of "deep learning" and "fake") are synthetic media in which a person in an existing image or video is replaced with someone else's likeness. ... Deepfakes have garnered widespread attention for their uses in celebrity pornographic videos, revenge porn, fake news, hoaxes, and financial fraud.

-----------------------------------LOL Not related but you gotta see this--- !!!!!!!

Old Movie Stars Dance to Uptown Funk........  https://youtu.be/M1F0lBnsnkE




Saturday, September 19, 2020

Can You Lose Custody Due to Bipolar,Drugs, Arrests, Domestic Violence, or Even Lies??

First... we should remember that there is both legal custody and physical custody. Many parents are concerned over physical custody as it is tied into child support; and many parents are concerned about legal custody, because shared legal custody is often given, unless one parent has shown he or she has issues in that area; CA law favors joint legal/physical if agreed upon, but the court has wide discretion for parenting and will consider the child or children's best interest.

Legal custody basically involves the health, welfare, education and safety issues involving raising of children. Attorney has seen many parents lose legal custody [prior to consulting attorney herein] due to very poor decisions made with kids (i.e. drunk driving, drug history, domestic violence, criminal actions, harming of kids, abandoning kids, etc.) As an example of "joint legal custody" in a form (by the CA Judicial Council, and used by all CA courts, see form FL341(E) online..)

 It is potentially possible that one parent can poison the relationship between a parent and child to extent that the Court might have to award the other child to the other parent to prevent the same parental alienation from happening?

Family Code 3042 goes over a child's preference of where to live (one parent or another) and generally,  gender, race, religion, sexual orientation or handicap supposedly are irrelevant to custody of children. If this was your partner being arrested, consider the difficulty at trial as to whether or not it would make a difference to your case?



So when your mediation results in a recommendation you do not like or want, did the mediator make informed decisions or did he or she ignore you and just listen to the other parent? It is very common to find out after the mediation that neither parent really understood what happened in the mediation itself. Not all mediators do the actual mediations exactly alike.

Attorney has found that many clients do not do well in mediation because they do not understand why they need to even go to mediation. Then they just blurt out anything they want to, may express high anger or no patience, and basically do not present well to the person that will decide their fate with the kids?

When considering whether one can lose custody to any of the named things listed in the title for this post, attorney has indeed seen parents lose custody for those things, in combination with many other things, most of which were negative. Negative things (smoking inside, falling asleep drunk, letting kids wander alone outside in front yard, giving kids alcohol or drugs, leaving kids alone home, allowing large animals with kids unsupervised, putting older kids in charge of younger kids while older kid is playing video games entire time, letting kids be truant, failing to take kids to doctor, ignoring kids' homework, etc.)

The reason that gender, race, religion and sexual orientation or handicap are not relevant to custody is because those items are already under Federal law protections, so it would be discriminatory. Note however, that if a parent was trying to get away with something by claiming it fell under one of those categories but in reality, it did NOT, that would be a different story.)

If you are facing mediation and need help, contact attorney.


3 BOOKS THAT MIGHT HELP YOU GET YOUR MIND STRAIGHT

 Attorney is a prolific reader of self help and healing topics, thus attorney has read quite a number of books in regard to being able to recommend reading, for example,  getting over either depression, inability to cope, improving your outlook, and related. I personally do not read any books on depression as a topic because I am seldom ever depressed, however many of the clients are depressed so I have to make a best efforts try and figure out what might work.





My search concluded that years ago, I usually recommend the book Emotional Clearing by John Ruskan because a number of men have told me it was such a big help to them?  

Of course there are older and newer books out there; The Power of your Subconscious Mind by Joseph Murphy is a very old standby and is very well known and very easy to understand.The Healing Code by Alexander Loyd, 2010 is rather easy to use (the writing is very straightforward) and the Emotion Code by Dr. Bradley Nelson (How to release your trapped emotions) was done in 2019.  

You might look online to get a glimpse of what is in each book as they are different, but all have good pointers.  I would venture to say that those who refuse to even consider reading any self help books may never be able to change themselves because change is very difficult, it is human nature to NOT want to change anything for that matter?

ABOUT STALKERWARE AND YOUR CASE AND YOUR PHONE................

 First, if you don't have a case but have someone who is knowingly and illegally stalking you then in reality you do have a case but you're allowing someone to stalk you, because you didn't take charge and find out how to remove the crap from your phone? Your computer?


Many domestic violence victims are stalked by stalkerware, which are just basically a type of program that eliminates your privacy (illegal) and especially without your knowledge?


You can see one of attorney's other sites, for example, https://chicofamilylawattorney.blogspot.com/2016/12/httpwebcache.html  to read the data on the phone stalkerware. 

Also, anyone with the "feature", for example with Verizon, when it's a family plan and there is the ability to see all the text messaging, etc. by doing whatever the phone company gives you, so the data is shared or you cannot keep secret text messages or whatever-- attorney does not believe in sharing private data on any devices, period, so attorney would never have this problem unless someone infiltrated a phone or computer,etc. and I did not notice it? 

I usually never allow texting from clients because forensically it is considered as UNSECURE........)  It is also a nightmare to have to pay and introduce data in that way into court cases. The new forensics on text evidence is very expensive and burdensome when one tries to introduce such evidence.

 


..WHEN YOUR DOMESTIC VIOLENCE CASE IS CHARGED AS A CRIMINAL OFFENSE..................

 https://domesticviolencelegalchico.blogspot.com/

YES, this is another blog by attorney on domestic violence and criminal charges.....

NOT every DV case in family law ends up with criminal charges (thank God..)

BUT if your case does, it will definitely likely wreck your custody case, and it will take a lot of work to get it fixed.  But YES, attorney can help you fix it over time.

Many cases occur which involve drinking, driving, drugs (the 3 "D's") and it would take time obviously to change this. HOWEVER, this has been done, but the client must do the changing since attorney can only recommend what to do, she can't do it for y'all?


Usually the person charged with the violence is male, but there will be an occasional female. It doesn't matter what gender, if the client is willing to turn a new leaf attorney can help the client. I have seen at least 3 cases where the party who was arrested did in fact, change his/her life for the better. If it wasn't alcohol, but it was drugs, that too can be changed. The client must want it bad enough to do it. Without that, it will not work.

Conversely, a different female client did try and reform but inevitably, she ended up sticking with drugs, even if legal drugs, and she gave up her kids' custody to the dad knowingly.  So it depends solely on how much the client is willing to make that effort. It will always be difficult because usually, the person that won't give up the drugs has either an emotional, spiritual, mental or other dysfunction or syndrome, not named, which keeps the client from having the required desire, to overcome some substance abuse. It's not the end of the world, it's just that each person must choose their path themselves.  It does help to really think hard about such decisions so you won't end up on a path that you hate for life?



Former worker's Chosen Attorney (not me) Lost at California Appellate Level, Third District in 1999, Published Opinion

Before the appellant filed this case, and despite his health stature, any attorney that really knew what they were doing would have likely realized that one cannot charge cheap rent in San Francisco, and it is unlikely this was under rent control at the time, therefore the attorney should have warned the client that if that came up, it would cost the client as to imputed income? I seriously doubt that was done and the attorney likely did not do a thorough investigation of why the rent was so low. (I actually know the real facts but it was not my position to tell another attorney how to do his job...)




 http://law.justia.com/cases/california/court-of-appeal/4th/76/150.html

                                     MARRIAGE OF DACUMOS


Although this is an older case, attorney found it to be  interesting, as before  attorney relocated to San Diego,  the Appellant used to work in our shared law office with several other attorneys across from Arden Fair Mall in Sacramento. It is true that Appellant had become quite ill as he suffered a stroke and also was later not able to work. 


Court of Appeal, Third District, California.

In re the MARRIAGE OF Eduardo and Hilda DACUMOS. Hilda Dacumos, Respondent, v. Eduardo Dacumos, Appellant.

No. C030209.

    Decided: November 08, 1999

Thomas Upholt, for Appellant. Douglas Broomell and Hilda Dacumos, in pro. per., for Respondent.


Eduardo Dacumos appeals from a judgment awarding child support and attorney fees to his ex-wife, Hilda Dacumos.   Eduardo contends the trial court abused its discretion in imputing rental income to determine his income, including the entirety of his 401(k) plan distributions in determining his income, in excluding Hilda's second job from her income, and in awarding Hilda attorney fees.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hilda and Eduardo were married in 1989 and had a son the following year.   They separated March 4, 1991.   A judgment of dissolution was entered in 1992, with jurisdiction reserved on other issues, including child support.

In 1996, Hilda moved for an order for child support.   She declared that Eduardo had paid $650 a month child support when they separated.   He had decreased the support without explanation and was now paying only $350 a month.

In response, Eduardo explained that he had been laid off from his job as an engineer and had been plagued with health problems.   He had been diagnosed with a panic disorder that limited his ability to work.   He was currently working part-time for a law office and was unable to obtain employment in the engineering field.   

He had depleted funds in his retirement plan to meet his financial obligations.   He was able to pay only $350 a month in child support.   His income and expense declaration indicated he had income of just over $2,000 a month.   This income included a rental property in South San Francisco, which had been rented for $1,000 a month, but after a vacancy was rented for $500 or $750 a month.   The rent exceeded expenses by only about $1,000 a year.

Eduardo was ordered to pay $400 a month in child support, plus $76 a month for tuition.   The order was based on Hilda's monthly wages of $5,349.00 and Eduardo's income from self-employment of $2,013 and other income of $234 a month.

In 1998, Hilda filed an at-issue memorandum.   Hilda requested the $400 a month child support be continued and that the court determine there was an arrearage of $7,616.   Hilda's income and expense declaration showed she had two jobs in 1997.   She worked full-time as a nurse at Kaiser for $67,423.62 a year, and had a part-time job at Methodist Hospital from which she received $5,599.87.   She listed as community assets, real property located  on Erin Drive in Sacramento and a Nolte Associates 401(k) plan of unknown value.

The parties entered into a marital settlement agreement that was approved by the court.   Hilda was awarded legal and physical custody of the child.   Their separate property was confirmed and Eduardo was awarded the property in Sacramento and contributions to the Nolte Associates 401(k) plan. There was no agreement on child support.

Eduardo provided a new income and expense declaration that indicated his expenses exceeded his income.   He made $9,400 a year as a legal assistant, but he had two rental properties that lost money.   The property in South San Francisco was rented for $550 a month and lost almost $2,000 in one year.   The property in Sacramento was rented for $375 a month and lost over $11,000.

The court ordered Eduardo to pay $832 a month in child support.   The court based its order on Hilda's wages consistent only with her full-time job.   It found she had a second job because Eduardo was unwilling to support his child.   The court imputed income to Eduardo of $2,000 a month, based on his income of $4,000 a month in 1994.   It also considered $2,900 a month of additional income, consisting of distributions from pension investments and imputed rental income.   The court determined the imputed rental income by considering both the fair market rental value of his properties and his net equity in the properties of $200,000 to $250,000.   The court ordered Eduardo to pay Hilda $2,500 in attorney fees.   There was no request for a statement of decision.

DISCUSSION

I

Eduardo contends the trial court abused its discretion in imputing rental income in determining his income for child support purposes.   He contends the only express provision permitting imputation of income is Family Code section 4058, subdivision (b), which 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.”   Eduardo argues “earning capacity” is limited to income derived from employment and does not include imputed rental income.

 “The fundamental principle of statutory interpretation is to ascertain the legislative intent in order to effectuate the purpose of the law.  [Citations.]  The statute should be construed with reference to the entire statutory  system of which it forms a part so that harmony may be achieved among the various provisions.  [Citation.]  In determining intent, we first look to the words used.  [Citations.]”  (People v. Martinez (1987) 188 Cal.App.3d 1254, 1258, 233 Cal.Rptr. 877.)

The cases that have considered the definition of “earning capacity” in Family Code section 4058 have followed that set forth in In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372, 263 Cal.Rptr. 243:  “Earning capacity is composed of (1) the ability to work, including factors such as age, occupation, skills, education, health, background, work experience and qualifications;  (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment;  and (3) an opportunity to work which means an employer who is willing to hire.   [Citations.]”  (See, e.g., In re Marriage of Simpson (1992) 4 Cal.4th 225, 234, 14 Cal.Rptr.2d 411, 841 P.2d 931;  In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338, 66 Cal.Rptr.2d 393;  In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1383, 54 Cal.Rptr.2d 314;  In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218, 45 Cal.Rptr.2d 555;  County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1781, 25 Cal.Rptr.2d 681.)


The question we must answer is whether earning capacity is limited to income from work or whether the court may also consider the parent's ability to receive income from assets.   In the cases cited above, the issue was earning capacity from work.   There was no issue as to whether earning capacity could be based on income from sources other than work.   We do not read these cases to limit the definition of earning capacity as cases are not authority for propositions not considered.  (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372, 20 Cal.Rptr.2d 330, 853 P.2d 496.)

In In re Marriage of Regnery, supra, 214 Cal.App.3d 1367, at page 1372, 263 Cal.Rptr. 243, the court adopted the definition of earning capacity from the law of worker's compensation.   In worker's compensation the income at issue is solely that from work, so such a limited view of earning capacity is appropriate.   In the context of child support, however, income is broadly defined to include “income from whatever source derived.”  (Fam.Code, § 4058, subd. (a).)  

Accordingly, “earning capacity” should also be given a broad interpretation.   The language is susceptible to a broader interpretation than the ability to earn from work.  “Earning” need not be limited to payment for work;  it may also be defined as:  “something (as wages or dividends) earned as compensation for labor or the use of capital.”  (Webster's New Internat. Dict. (3d ed.1971) p. 714, col. 2.)  “Earn” means “to bring in by way of return.”   (Ibid.)

This broader definition of earning capacity to include income that could be derived from income-producing assets as well as from work is in accord  with the legislative intent.   

In calculating child support, the state's top priority is the interests of the children.  (Fam.Code, § 4053, subd. (e).)  Supporting a child according to the parent's circumstances and station in life is a parent's first and principal obligation.  (Fam.Code, § 4053, subd. (a).)  Child support orders must ensure that children receive sufficient support.  (Fam.Code, § 4053, subd. (l).)  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 under-utilizing income-producing assets.

The trial court did not err in imputing rental income based on the fair market rental value of the properties and Eduardo's equity therein in calculating his income.

II-IV **

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

MORRISON, J.

BLEASE, Acting P.J., and NICHOLSON, J., concur.



Friday, September 18, 2020

YOU SCREWED UP YOUR CASE BECAUSE YOU COULDN'T KEEP YOUR MOUTH SHUT?

https://buttecountyfamilylawlawyer.blogspot.com/

https://buttecountychicofamilylawattorney.blogspot.com/

Both sites on family law blogging by attorney.....you should read it especially if you have been involved in having either inappropriate conduct accusations, pornography, illegal criminal actions, arrests for crimes, seizure of animals, domestic violence, CPS accusations,inappropriate conduct with children, or any other crime listed in any state? (Attorney does criminal law cases and is very aware of what can be illegal, especially when clients haven't even tried to hide or hide anything they have done...plus fact that attorney has several very talented computer experts, we can likely cover nearly any computer involved issue out there.......especially if it is involving such sites as Facebook or improper texting, fake texting and the like.......



 It is exceptionally easy these days to screw oneself over, simply by doing any of the above, OR--posting idiotic things on Facebook (no one should be airing their dirty laundry on Facebook and with AI (aritifical intelligence) the government is simply using Facebook as an evidence gathering tool for most of America, BECAUSE you put your junk out there like a moron???  If you don't believe me you don't have to; it's been the case since Facebook was invented.




 Not to mention all the other stupid sites out there that simply harvest all your personal information? Not many young people worry about AI but they should. Most people do not realize the danger of AI and are too damn lazy to care. Social media is not a good thing, regardless of what most people think.  It is almost like a plague just waiting to ruin your case.  I have a lot of legal experience with cases that prove my point, believe me. There is almost no privacy these days and if you are on Facebook, forget it, it's basically too late even if you erase your data. 




Thursday, September 17, 2020

Best Attorney? What You Might Want-- Might Not Work for Your Case+ How COVID MIGHT IMPACT YOUR CASE...



The correct word is probably more like "appropriate", since each case has the claimed facts, and each side has some type of emotional deal that goes with it.


However, not all attorneys are the same even if we are supposed to all use California law....many attorneys are very strict with their minute by minute charges, which includes everything they do on a case. Attorney herein has never been like that, because it reminds me of working for the government, and I never liked working for the government (trust me, it was even worse than I thought it would be..)

There is no typical family law case, even if  some cases have typical issues, because each individual litigant brings both negative and positive to the table in nearly all cases. My job is to ascertain the type of individual I am dealing with so as to do the best job possible for that person, as not all people will have the same preferences in very individual situations. 
 
Because I have a social work background, I am familiar with most of the pitfalls involved with the demise of relationships, personality issues, husband and wife issues, children and their issues, etc.  The main difference is that my job always involves the understanding of each litigant's personal outlook and how it affects the case; I then attempt to use my experience with both litigants and past cases to devise a strategy that best suits each client. This may sound absurd, but a case can be handled in many different ways. There are some things that may never need to be done whereas in other cases nearly everything will be required. Litigation can be expensive if you are paying to litigate things that really don't require that? 

I used to work as a volunteer for the San Diego family law self help section (this is before the courts even had the SHARP type pro se help division.......) Now nearly all family law courts have some type of clerical help program, although the larger counties tend to have better programs. Because about 70% of litigants CANNOT afford attorneys, one can see that about 70% of people at least in California, do not likely understand or know their rights unless they did the research, or hired an attorney only for selected issues. (It is possible to hire attorney herein to only do certain parts of a case, this is known as limited scope and there is a court form for it..)

Family law attorneys may focus on divorces, but child custody does not require a divorce in the first place?  Whether married or unmarried, the issue of kids is common, and the issues involving kids is also commonly a point of problematic issues.



COVID tends to come up when one parent wants to take advantage of another parent's timeshare, visitation, vacations, and typically it will be one of the parents that is receiving the support, rather than the one paying it, who will try and use Covid as some type of excuse for not doing something, not allowing something, etc.  OR one  parent will try and claim that due to Covid, there should be no visitation, because the other parent cannot meet the devised requirements set up by the parent who has the larger timeshare.

Covid in family law is just another excuse for why parents won't let the other parent see their kid or kids, and I know it because I knew that was going to happen when Covid started...it would start to snowball and just keep going until it becomes a mammoth ball that can't be moved?? 
Knowing this, each parent who is not the one with physical custody ... must immediately start thinking about how to address all of the potential roadblocks that will be thrown your way.  If you think about every time the other parent made excuses, write it down, with the dates. Over time you will see a pattern and practice which basically will become rather obvious. What is apparent, is, will you rise to the occasion and tackle the issue or get rolled over on???? 





While many attorneys can handle custody issues, and financial issues, and legal issues, there really is not one type of person,  attorney wise, that will be the best fit for all clients. Having knowledge of procedure in family law is a given, but pretty much the way family law attorneys handle divorces and cases can vary.  Some may like to focus on mediation and settlement, and that's pretty much what they do.

It does not take a litigator to focus on settlement. It does not take a real fighter to focus on mediation.


So for those who wish to settle everything, and they can actually agree to work out something, that's great. Should they have to pay $3k, $5k; or even $60k, $200k, or close, to work it out? Maybe, if there are serious numbers in the portfolio, many issues with properties, and tax issues. Or large businesses and valuations (let's say a dentist wants to sell the practice; or doctor wants to divide the practice,etc.) Would that require an attorney or a tax person? Could be both but seems more like tax to me.....

However, for the not so rich  people who don't get along and couldn't work out a plan if you paid both of them, and for any couple that has long been fighting about various issues, of which money might only be one small issue, it may not be the mediator type attorney that can work anything out.

In many cases, clients will not back down for varying reasons, and some of those reasons are definitely valid? and why not? Maybe they are actually being ripped off? Maybe one party has no parenting skills whatsoever? Maybe one parent is on drugs?


What attorney commonly sees, is that one parent is really off base in his or her attitude toward the kids, or whatever they are fighting about, and the other parent will not give in-- and often times, rightly so...  On the other hand, sometimes one person is dead set on some type of action he or she wants, and will not let that go (say, one wants to keep a house but the other wants it..) Or, commonly seen, is that one parent is the better caretaker of kids but is always working, leaving the not so  good parent taking care of the kids--but doing a terrible job?

Then there could be domestic violence issues and not any money issues? OR one or both parents have their own issues inherent to their personalities, and that will fuel more fighting. For the record, attorney herein has done a lot of domestic violence cases successfully.

For the most part, the non financial workouts are often much more difficult emotionally, and the financial ones can be maddening rather than depressing.  You don't usually need litigation for financial workouts if people can agree upon numbers or certain assets. Sometimes there will be fighting because no one will agree on actual numbers, thus there is no agreement on who gets what.

There could be deceit or huge discrepancies used in the financial holdings, in which case tracing would be used and investigators or CPAs if needed. Litigation might have to be used if there is fraud or something close. It could be that spousal support would be an issue as one side claims he/she doesn't make the amount the other side claims?     



Normally -- fraud doesn't just get mediated away? There is a lot written in the family code concerning finances because historically, some people have chosen to try and swindle the spouse; therefore, litigation is usually required. Large dealership sales, acquisitions and larger transfers can be very big litigation issues, especially if they were done without oversight.


As for the children and custody fights, sometimes both parents have some fairly common beliefs and not every parent is wrong. Sometimes a mediator can decide what is in the best interest of the kids, but other times we have seen some decisions that are not exactly what we would call fair...



It might be when some people look for attorneys, they really want a fighter and not a weak advocate. It is true that some attorneys are not able to actually litigate because they really have little skill at trial advocacy. Others may have better skills at settling issues, because they can find some common ground to parcel out to each side.  In choosing an advocate, each client probably needs to feel confident to some degree, that whatever type of action they are trying to get--that the attorney can actually do that action for them.  

The best way for an attorney to find out whether they are suited to a case is to ask a lot of specific questions.  It takes more time, but in the long run it will help the client, and the attorney can better perform the duties required. Hopefully that would lead to success for the client's case!