State law governs virtually every aspect of a divorce proceeding. Each state has its own “family law code” and code of civil procedure that dictate in large part the course of a case. The importance of adhering to each and every legal requirement cannot be overstated, especially when your family’s future is involved. Matters concerning child support are particularly regulated, due to the importance of a child’s welfare and inability to advocate for him or herself. Various local agencies have the authority to step in if there are complaints about one party’s failure to make child support payments. Sorting through the legal options can become somewhat complicated. With respect to any aspect of a divorce proceeding, parties are encouraged to contact an experienced family law attorney who is fully aware of the legal procedures affecting cases in the San Diego area.
A recent divorce case illustrates some of the legal issues that can arise when one parent is alleged to have avoided court-ordered child support obligations. In this matter, the couple divorced in 2004. The dissolution judgment incorporated the terms of their marital settlement agreement (“MSA”). The MSA provided in part that the parents would share equally certain of the children’s expenses and costs. The agreement further itemized the amount of child support for which both parties would be responsible. In 2011, the San Diego County Department of Child Support Services filed motions seeking to enforce the dissolution judgment.
The motions included a notice to the parties letting them know that the case could be referred to a court commissioner for a hearing. Under state law, the commissioner does not have the authority to issue a final order and judgment in a contested case (unless they are acting as temporary judges). But, under the law, parties have a right to object to the commissioner acting as temporary judge and may also object to any recommended order made by the commissioner. Here, the father sought to reduce the child support obligation to zero. The mother sought child support arrear, attorney fees, and other costs.
The father filed an objection under section 4251 of the Family Code to the commissioner acting as temporary judge and sought his disqualification under section 170.3 of the Code of Civil Procedure. The trial court found that the father’s objection under section 4251 was untimely and awarded the mother attorney fees. The court of appeals affirmed in part and reversed in part. First, the court upheld the award of attorney fees, refusing to disturb the lower court’s ruling absent a clear showing of abuse. The record shows that the court considered both parties’ income and expenses and determined that the mother was entitled to an estimated one-third of the attorney fees she incurred.
The court, however, ruled in favor of the father, declaring the orders void because the court effectively became “disqualified” after it failed to act on the father’s second statement of disqualification. Because of this, the commissioner lacked the power to hear and decide the merits of the matters at the hearing. The court remanded the case back to the lower court for further proceedings.
In this case, certain procedural rules were not followed. Unfortunately, the matter must now be heard again and decided at a later date, delaying the final outcome. In an effort to protect your family’s rights, parties anticipating any sort of family law matter are encouraged to contact an experienced divorce attorney as soon as possible. Roy M. Doppelt has been representing parties in divorce matters for more than 20 years. His office serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt And Forney, APLC through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).
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