Sandra Hill, Appellant, v. Thomas Dittmer, Respondent.  2012 DJDAR 688

In Hill v. Dittmer, two relatively wealthy individuals, both represented by attorneys, allegedly did not fully explain their financial affairs to each other prior to signing their deal. 

Most, if not all prenuptial agreements include disclosures of assets, debts, income and expenses as attachments to the agreement.  This disclosure of the parties balance sheet and profit and loss position, allows an intelligent understanding of what the parties entering into the agreement might be giving up.

The case reads like the lifestyles of the rich and shameless.  Hill had divorced the founder of MTV.  In that divorce she walked with 20 Million.  Hill also had quite a history in the print and television industries as an author, editor, spokesperson, and/or owner of numerous companies (Mademoiselle, Brides, Vogue, Allure, Traveler, Code Nast, USA Today, NBC, Nabisco, DuPont) .  Dittmer was just as or perhaps more successful, starting up a trading company called Refco.

Dittmer’s attorney, not even a California attorney, probably saved the day.  Marshall Eisenberg made Hill and her attorney sign a clause saying that they had been given an offer to have full and complete access to Dittmer’s finances and Trust.  This was to include essentially any accountant or representative for Dittmer, on any issue.  Also in the agreement was a specific waiver of the relevant Family and Probate Code sections on the right to disclosure.

Then Dittmer made a disclosure that his net worth was 40 Million, one fourth of Hill.  Hill had a mere 10 Million.  This is apparantly all that was left of the 20 million she siphoned from the last (presumably unwilling) participant in her serial monogamy soap opera. 

The law in California states that a contract of this kind shall be found not only unfair, but unconscionable, if the parties to it did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive them.  The law in California also mandates a waiting period between the signature of the document and the first reciept of the document of a minimum of seven days.

It helped in this case that the trial court could not say that 40 Million was inaccurate.  The ruling does not make it clear why Hill was upset, but it appears likely in reading between the lines that he had more money tucked away in some kind of trust.  Sadly, the otherwise brilliant representation of Mr. Eisenberg is marred by the allegation of Hill that somehow Eisenberg failed to get Hill’s attorney to agree to put off the wedding for seven days until Hill had read and/or initialed all pages of a full copy of the last of many drafts.  Hill then tried to say that she was missing the key page. Surprise Surprise.

Needless to say, at this point, Hill’s credibility starts to be a little in question.  A cynic might at this point start to wonder if Hill’s first divorce or other affairs contained any issues of honesty or accountability. 

The court of appeal then made some interesting legal rulings about things like retroactivity of 2002 statutory changes, and the probability that if you have an attorney (and probably if there were multiple drafts) that the seven day rule does not apply.  None of which are really new or surprising.  The surprising thing is that this appeal was not sanctionable.

Moral of the story…. Start planning the prenuptial agreement before you set the date for the wedding.  If that simply will not do, get two lawyers sending drafts back and forth.  If you need a prenup, maybe the wedding is a mistake.  If the wedding is a mistake you just cannot avoid making, you definitely need a prenup.  Last, she probably will serve you the same as she served the last guy.   She will serve you with papers.  Papers constituting a lawsuit.  Because 10 Million just isn’t enough.

We divorce attorneys have long known the importance of Grandma being willing to sue their divorcing children over that unpaid debt.  Now we know another reason to do so, and separate from the divorce.

If you as grandma get pulled into the divorce litigation as a party, you will lose your right to insist that your money be paid to you or at least a bond be put up.

We knew after Marriage of Van Hook (1983) 147 Cal.Cpp.3d 970 that third party creditors (Grandma) could be enjoined from enforcing a judgment or be the subject of a restraining order even though they were not part of the divorce case.  However, in that case, there had at least to be a bond.  Not so if Grandma is joined as a party.

So the moral of the story is this.  If you are owed money (Grandma): Make sure to sue , and don’t let them suck you into the divorce case.

Keep a clear barrier between your estate and the estate of your divorcing heir.  Make sure that your dealings are in writing.  Any loans have a written note with repayment terms.  Enforce those terms, and sue if there is non payment.  You are doing no one a favor by letting it slide.

Thoughts for the day…

One of the barriers that fathers still run up against is the need for them to welcome the child into their home to qualify to be a presumed parent.  This month we saw a potential opening for fathers closed by the Fourth District. 

In this case, two married sailers found themselves stationed in the Middle East.  They had an affair and a pregnancy resulted.  The two of them went to doctor’s visits, and the biological father spoke, read and sang to the child in utero.  The two allegedly agreed to divorce and marry each other.  He told his family of his new biological child and mother allegedly confirmed he was the father to him.

Wife decided to stay with her husband and suit ensued. 

The key reasoning was … in approval of Kelsey S. supra (see footnote) … that “increasingly over the last three decades, our courts have resolved paternity disputes by looking to the existance and nature of the social relationship between the putative father and child  …  We have given great weight to these social relationships, holding the relationship of a man who has lived with a child and treated the child as his son or daughter is much more important, to the child at least, than a biological relationship of actual paternity…”

As noted in the footnote, one of the primary reasons for this was that in 1975 we changed the paternity laws to focus less on the historical stigma of being born out of wedlock.  This was, incidentally, about the same time that no fault divorces were enacted by the state legislature.

 We know that where there is no justice the people suffer. I am not sure whether I feel any sympathy for this father or not.  When you sleep with someone else’s wife, there might be some negative consequences.    However, it does appear that our attempts at following a new moral compass lead us in places that we never expected.  And I think I have an issue with where this is all leading us.

Once we assume that, like in the movie the Highlander, that there “can be only one” someone is going to be pretty unhappy.  I am not sure that we can trash the concept of traditional families, and expect Father’s Day to go well.   My question is only this.  Once we decide that marriage, ethics, and the traditional family is going to be tossed in the rubbish heap, can we then still as a society say that we should have only one father?  And if so, why?  What do you think?

Footnote: The case of Kelsey S. 1 Cal4th at p. 845 states that:

Richard M., supra, 14 Cal. 3d 783, was decided in a statutory context much different from the one that now exists. At that time, the determination was whether the child had been legitimated by the father. The Richard M. court stressed this fact. “Because of the stigma and unfavorable legal treatment that attends classification of a child as illegitimate, California courts have almost consistently held that [former] section 230 must be liberally construed in favor of finding legitimation.” (Id., at p. 793.) If a child were not legitimated, it had no legal father. In 1975, however, the Legislature enacted California’s Uniform Parentage Act, which abolished the concept of legitimacy (or illegitimacy) and replaced it with the concept of parentage. (§ 7002; In re Sabrina H., supra, 217 Cal. App. 3d 702, 709, fn. 7.) Subsequent decisions have observed that the policy reason for straining to find legitimation by expanding the doctrine of constructive [1 Cal. 4th 829] receipt is no longer present. In situations like the one before us, “the baby will end up with a father …”-either the biological father if he is granted presumed father status or the adoptive father. (Adoption of Marie R., supra, 79 Cal. App. 3d 624, 629, italics added.)

More recently, we referred to the notion of constructive receipt with apparent disfavor in Michael U. v. Jamie B., supra, 39 Cal. 3d 787 (Michael U.). As in the present case, a biological father sought custody of his child despite the mother’s objection and her desire to have it adopted by third parties. We reversed an order granting the father temporary custody. In explaining the statutory framework, the lead opinion stated, “Michael is a natural father, not a presumed father, because he has not yet received Eric [the child] into his home. [Citation.] If, however, he actually acquired physical custody, he could receive Eric into his home and thereby acquire the status of a presumed father. [Citations.] … Thus the present controversy, although nominally about the temporary custody of Eric pending the adoption proceeding, will probably determine the fate of the proposed adoption.” (Id., at p. 791, fn. omitted.) The lead opinion also cited without criticism the statement in Adoption of Marie R., supra, 79 Cal. App. 3d 624, 630, that constructive receipt is insufficient under section 7004(a)(4). (Michael U., supra, 39 Cal. 3d at p. 791, fn. 3.)

The observation in Michael U., supra, 39 Cal. 3d 787, does not resolve the question before us because the issue of constructive receipt was not before the court, and the quoted statements were unnecessary to the decision. Michael U. therefore provides no authority for deciding whether the doctrine of constructive receipt is valid under section 7004(a)(4). (Brown v. Kelly Broadcasting Co., supra, 48 Cal. 3d 711, 734-735.) Moreover, the observation as to constructive receipt was made in a lead opinion signed by only two justices. [6] “[A]ny proposition or principle stated in an opinion is not to be taken as the opinion of the court, unless it is agreed to by at least four of the justices.” (Del Mar Water, etc. Co. v. Eshleman (1914) 167 Cal. 666, 682 [140 P. 591]; see generally 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 808, pp. 787-788.)

[2e] In summary, nothing in the language or legislative history of section 7004(a)(4) supports the claim of constructive receipt. The decisions of the Courts of Appeal have also rejected the claim. We have not previously decided the question and, to the extent we have noted the issue, our decisions either provide little guidance or cast doubt on the notion of constructive receipt, especially in light of the statutory abrogation of illegitimacy. Petitioner therefore correctly admits that section 7004(a)(4) does not by itself provide for presumed father status based on a father’s constructive [1 Cal. 4th 830] receipt of the child, i.e., his unsuccessful attempts to obtain custody over the mother’s objection. We cannot accept petitioner’s invitation to construe section 7004(a)(4) to avoid the alleged constitutional conflict. To do so would require us to judicially rewrite the statute.

As we know, however, common sense is all too often not common.  As an attorney, there is no question that the most frustrating part of our work is documentation.  How do you find the documentation.  How do you get the documentation admitted into court.  The person who has something to lose, and their attorney, are very motivated to conspire to ensure that the key document that you need to win never gets seen by the court.

This case is a breath of fresh air into a sinful and fraudulent world.  Now we have official authority for the proposition that the managing spouse had better keep all the reciepts, all the statements, all the invoices, all the bills, and had better keep good lists and notes too.  Otherwise, all the joint savings spent (or wasted) by them after the breakup will be charged to them.  Take a look here if you are interested in more….

http://www.acfls.org/famlawblog/?p=680

Last Thurday, our local inland empire court of appeal has sided on the part of the ‘good’ (child support services)  against the ‘evil’ (people who owe support). 

In this case, the father got custody as the wife was in rehabilitation for alcohol abuse.  He was ordered to pay support.  He eventually got a reduction of that support, but was unable to pay all of it.  This presumably was partially due to the cost of raising the parties children, and partially due to the literal wreckage of the home and the parties credit.  The lower court (Pacheco) granted his request for hardship as to his current pension income, allowed his social security to be garnished but allowed his IRA to be invaded.  It was not clear from the ruling as to whether the involuntary levy of the IRA resulted in tax or penalty to the prior owner. This may have been a fair decision by Pacheco, and also the court of appeal.  Regardless, the situation calls for legislative intervention at the national and state level. 

Let me say preliminarily, that government employees have money taken from them for their pension benefits, and more money gets chipped in by their employer at that time.  Then after retirement, the vastly underfunded pension fund then gets subsidised by the 12 people in California that still pay income taxes.  This pension money cannot be touched or levied upon.  The current contributions (and matching) are removed from income for calculation of support.

If a self employed person wants to save for retirement, first of all, this savings is considered to be voluntary, and support has to be paid on the full income.  Second of all, even if you do manage to scrimp and save it after the larger support order is made (in an IRA), they will be able to take it away from you.  Third of all, this all can be done by computer without meaningful rights to object, and (in this case) even though you have custody of the minor children in the case. 

So if you are self employed, how do you save for retirement?  Certainly staying married is a good solution, but not an option for some people.     I have no answer for you.

Lets list those reasons that it sucks to be self employed in California, starting with the new one, then with the old ones, and then go on to general complaints about support calculations in general.

1. Your IRA is appparently not safe.

2. There is no allowance in the support calculations for reasonable retirement savings (other than that social security that you may never receive).  So child and spousal support will be higher for you than for an employee of someone else.

3. They will all too often make you pay for the accountant to audit yourself, and to pay your exes attorney to call you a liar.

4. They will all too often find that your ‘business’ (you) has goodwill, and you have to pay your spouse for half that as part of the final ruling.  If there is business debts, then those should go with the business as part of the value of the business, but would only offset the goodwill.  Any potential lawsuits or future capital gains tax liability out there are not considered in the value for a divorce as too speculative and not “immediate and specific.”

5. If you have employees, you are lazy and underpaid.  If you have no employees, they will claim you are a workaholic and have no time for the children. 

6. Regardless of if you have employees, you now may have to pay for workers compensation, and self employment tax.  Liability Insurance is also not cheap, not even getting into the issue of health insurance.  That is all a legitimate writeoff, but if you are not making a profit, they will then say that you should be imputed a fair wage for support calculations. 

7. If you decide you need a tax writeoff, buying land does not help.  Homeowners technically pay more support than renters in California.  If you own rental property, the court will disregard the depreciation, and may een consider that non-taxable income.  If you rent out a room, new rulings indicate that may be income as well, and cannot be offset by the mortgage.

8. If you want to remarry, make sure you marry someone with no kids and a great job, as then your tax bracket goes up.   Having a wife who stays at home with her kids brings your tax bracket down, and you pay more support.

9. Last but not least, if you are a success, then you will have to pay income tax, to support all the people who are not paying any tax at all (and/or lying about their income), or working for governmental agencies.

I thing we need to take better care of our honest business owners, land owners and married couples, there is no time in California history that we have needed them more.   Part of that, is to find ways to motivate them to stick in the fight, and allow them a possibility of retirement someday.

We desperately need a better plan for allowing and protecting retirement savings than what we have.  If we do not, we may see a level of elder poverty previously never seen in the history of this nation.

In this case, the trial judge granted Ms. Avalos a two year order to not be ‘harassed’ by Mr. Perez, who did not even show up in court.  If the alleged conduct is serious and recent, usually a court will usually grant a “100 yard stay away.”  These orders are granted by a preponderance of the evidence. In my experience, depending on the judge of course, that will too often mean merely that if the judge has the slightest concern that there might be any possibility of risk of harm, they will grant an order for 100 yard stay away and for a full five years. 

So for a judge to only grant a mere no harass order to Ms. Avalos, means that the bad actor’s alleged conduct was probably relatively minor or not recent or both.  This is evidenced in this case by the lack of evidence of any arrest, conviction or injury.  Thus it is likely the alleging party probably did not allege anything serious.  Even if she did, there is no allegation of any proof other than her testimony.  Of course, if the lady had a good imagination, and willing to lie, that will be admissible evidence, even without a shred of hard proof. 

Under this decision, the court of appeal made the decision, that, (even if the original order could be for any time period up to but not exceeding five years, and even though the original order was only for two years), that the court has only three options.  A Five year extension, a life time restraining order or an order to deny.  Since the man did not bother showing up to court, the court of appeal indicated that under Richie v. Konrad, (2004) 115 Cal.App4th 1275, the court was obligated to grant the request, and had only two choices.  Five years or life.

The courts logic is internally sound up to a certain point:

1. The statute seems to be clear that five years or life are the only options Family Code Section 6345(c).
2. A person’s rights under the constitution are dependant on them showing up to court and objecting. Sommer v. Martin, 55 Cal.App. 603.
3. That the court can set aside a judgment only if a public interest or public policy is involved.  Bayside Timber Co. v. Board of Supervisors, 20 Cal.App.3d.

In this case, the man did not show up at the appeal either, and the person wanting to set it aside was Ms. Avalos, who was not happy with a mere 2 year restraining order, and wanted a 5 year order.  The trial court was set aside for only granting a two year order in a published Court of Appeal decision. 

My concern is this. 

First, it has been too easy to get a restraining order for quite some time. 

Second, that they are now being renewed with a rubber stamp. 

Third that these orders ruin lives and infringe upon fundamental liberties

These restraining orders have a very significant effect on a person’s life.  They can affect every aspect of a person’s life.

They can very seriously limit employment.  Most employers will not employ someone with a restraining order. Thus any employer that does a background check will likely not employ a person with a restraining order. Once a restraining order is granted, the person under the order may not own or possess a firearm. There is no statutory exception for armed security guards, police, military or law enforcement.  There is no statutory exception for members of any formal state guard or militia.  So paid or volunteer police and military could be out of the question.

These orders very seriously effect someone/s ability to seek primary custody or joint custody.  Thus a lousy mother need only make up or over inflate a story of abuse to deprive a child of an otherwise wonderful father.  For as long as she can keep the restraining order in place, this seriously hinders the court from neutrally evaluating the best interests of the child.  The court’s hands are tied legally.

These orders also pop up in the law enforcement computer.  If you get pulled over for a routine traffic stop or other routine police contact, and that pops up, police are definitely going to take a restraining order into consideration in how they deal with you.  You are much less likely to be believed or treated with trust.

Last is the right to bear arms.  You cannot own or possess a firearm with a restraining order.  There is no exception for possessing firearms in your own home or in the case of civil unrest.  Most people alive in America have never experienced danger. We have enjoyed now two generations of relative peace in America from invasion, riot, rebellion or terrorism since World War Two.  Traditionally, only convicted felons lose the right to bear arms.  Now we have created a whole new class of people who cannot bear arms.  For life.

Presiding Judge Elia and concurring Judges Miara and Grover of the Bay area and the Sixth Appellate District ruled yesterday that a man who photo shopped childrens faces onto pornstar bodies could not be convicted of child pornography.  Gerber gave alcohol, vicodin, cocaine and marijuana to a 13 year old girl in seventh grade.  He had met a single mother and dated her on and off.  The minor was his girlfriend’s daughter.  The drugging and photos occurred in the various trailers, homes and hotels that Gerber rotated through.  He first started by allowing the 13 year old to take alcohol from the refrigerator without telling her mother. Once that happened he soon progressed to arranging binge drinking mixed with 4 pills of vicodin,  and then hard liquor mixed with cocaine and methamphetamines.  On interrogation, Gerber admitted making her pose for photos in return for the substances in her underwear several times, but the police could not find the photos, only photos where her head had been put on other bodies.

The court ruled in agreement with the defendant that it would be a violation of his right to Free Speech under Ashcroft v. Free Speech stating:

“Although we may find such altered images morally repugnant, we conclude that such mere possession of them remains protected by the First Amendment to the United States Constitution.  Therefore, to avoid constitutional infirmity, the term “personally,” in section 311.11 must b construed to meand that a real child actually engaged in or simulated the sexual conduct depicted, which is a reasonable interpretation of the legislative history.”

This decision comes from the Silicon Valley.  This area is a key nexus for law, computer games and electronic media.  As of 6-8-11, USA Today claims that minority children spend 13 hours a day using electronic media.  Now they will be able to see computer generated fake minors being sexually exploited as part of that 13 hours a day. Presumably this will even be part of computer games and videos where this is acted out. Exploitation or deep evil?