Thursday, September 13, 2018

Is a Stalker Spyware Program Secretly on Your Phone??



In 2014 testimony, U.S. Senator Al Franken told the story of a Minnesota woman who wasn’t aware that an abusive partner was tracking her through her phone:
“She went to a domestic violence program located in a county building. She got to the building, and within five minutes, she got a text from her abuser asking her why she was in the county building. The woman was terrified. And so an advocate took her to the courthouse to get a restraining order.”
“As soon as she filed for the order, she got a second text from her abuser asking her why she was at the courthouse, and whether she was getting a restraining order against him.”
Stalking apps allow someone to see where you are, what you text and who you talk to at any time. And you’d never know it. The spyware is now popping up more frequently in domestic violence cases, so we look into the warning signs, and how to get rid of it in this 7 News Consumer Watch. If a stalking app was put on your phone, would you know it? Very unlikely, according to tech expert Logan Staggs, who owns Campus Computer in Spartanburg. “Generally there’s no way to tell without doing a forensic investigation of the data on your phone.”

 Here are some danger signs the FTC points to: 


 Your phone battery suddenly starts draining faster.

The abuser has had access to your phone out of your sight. Spyware installation can take from 10 to 25 minutes, depending on the device.

The abuser knows a surprising number of details about your life.

 It’s hard to turn your phone off.

Random boots and shutdowns, unusual noise

Strange text messages with different codes or symbols

Higher data USAGE

SOUNDS when your phone is not even being used!

Delay in phone shutting down

You use "pirated" apps

Your phone has been rooted (for Android devices) or jailbroken (for iOS) and you didn’t do it.
The process bypasses software restrictions on the device, and is usually necessary to install spyware

http://wspa.com/2016/11/24/stalking-apps-could-be-on-your-phone-without-you-knowing-it/

[previously posted in Dec 2016]

Friday, August 31, 2018

Imputed Income+Rental Assets-- Even If Health Issues and Barely Working

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.

Tuesday, January 31, 2017

Spouse Prevailing in Appeals Court Twice after Failing in Family Law Court

http://chicofamilylawattorney.blogspot.com/




Attorney herein believes that winning the DV action or defending it (Petitioner or Respondent)  is crucial; second, attorney is at a loss as to how the wife (who had a huge history of domestic violence) had not prevailed prior, and both parties appear to have been represented? Couple married in 1989, filed for disso in 2004, and appears only in 2007 they filed a statement of issues (where DV issues mentioned)-- but there is nothing which indicates that a DV TRO had been attempted during marriage, before marriage, etc. It does state Judge Mize considered the DV in setting the spousal support.

Attorney's guess is that if no DV TRO was attempted, but the issue was given some weight according to the history of the case, attorney herein (who is familiar with Judge Mize)--is led to believe that wife had her own business and property, and only left husband 15 years later. 

During that time, if wife could not then bring the DV issue forward properly, it might be that Judge was not inclined to find her testimony so compelling.... because she brought it up at settlement conference time, but perhaps not years before? This is only a guess, but something is definitely missing from the articles/appeal which would explain how it happened, or rather didn't happen earlier.

Below is summary of difficult litigation spanning many years, and  which resulted in a published [for partial certification appeals case] ---in two separate cases of same parties:

BOBLITT case from Third District Ct. of Appeals 190 Cal.App.4th 603 (2010)  :
http://www.leagle.com/decision/In%20CACO%2020101130051/BOBLITT%20v.%20BOBLITT    ( in this tort action for damages based on Steven's alleged domestic violence against Linda (see Civ. Code, § 1708.6 [recognizing tort of domestic violence]), the trial court concluded Steven was entitled to judgment on the pleadings because the judgment in the dissolution proceeding (which was then on appeal) precluded Linda from further litigating the domestic violence issues under the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

BOBLITT case from Third District Ct. of Appeals 223 Cal.App.4th 1004 (2014)   :

http://www.leagle.com/decision/In%20CACO%2020140207016/IN%20RE%20MARRIAGE%20OF%20BOBLITT  (Wife had never petitioned to re-open discovery and was precluded from engaging in same; new law below eliminated need to petition requirement as to issues raised in postjudgment, see below)

On July 21, 2014, less than six months after the holding in the Boblitt case, Governor Brown signed ACFLS-sponsored AB 2586 into law.

Effective January 1, 2015, SECTION 1. Section 218 is added to the Family Code, to read: 
Section 218. With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court. 

The date initially set for trial of the action specified in subdivision (a) of Section 2024.020 of the Code of Civil Procedure shall mean the date the postjudgment proceeding is set for hearing on the motion or any continuance thereof, or evidentiary trial, whichever is later.


(BELOW-----This was seen as an example online.....when you lose in Family Law Court, are there any avenues left to try?  Maybe, as this BOBLITT case eventually resulted in the Legislature creating NEW law in the Family Code,  Attorney herein has practiced years in Sacramento family law court, and knows the attorney representing the husband by special appearance.)
Apparently the wife  sued the husband for assault/battery, domestic violence, intentional infliction of emotional distress, negligence.  Usually in Family Law Court, one would bring a TRO for a restraining order; however, it seems Judge didn't find wife's facts to be compelling enough to issue it for whatever reason. Attorney herein believes that perhaps no DV TRO was ever filed?  Tort claims against spouses are allowed in civil court; one must have been married to file the claim.
Attorney's position is that the TRO domestic violence moving documents are often granted even without sufficient evidence, just to maintain some semblance of non violence, but may not be granted as easily for 3-5 years when the actual hearing takes place, depending if an attorney was representing the moving party or the defendant.  
It is attorney's belief that ALL TRO DV allegations be challenged, since the threshold used is very low to give the TRO order, and most clients cannot themselves, defend the accusations since they are not attorneys.  Attorney believes that the female in example below, did not have competent legal help. Resorting to civil court can work if there was definite proof of the allegations. I say definite because dicey facts usually don't work well in civil claims.
------------------------------------------------------------------------------------------------------
(From a blog-- Bonnie Russell-- talking about the Boblitt Sacramento case at https://bonnierussell.wordpress.com/2014/06/21/linda-boblitt-defeats-statute-of-limitations-and-attorney-marc-hughes/ )

........Last week finally yielded a little light in the shadow of what routinely passes for “justice” in family court.  Years too late, given Family Court Judge James Mize’s amazing “not credible” comments. But it’s a start.  Naturally Linda Boblitt’s win wasn’t in Family Court.  Boblitt prevailed in the Law & Motion Department of Civil Court against Steven B. Boblitt’s Motion To Dismiss.  
Note by attorney herein: In trial court litigation, both parties were represented by attorneys.
The parties owned businesses and had assets.
The long litigation was then followed by two appeals by Wife, and she won both of those appeals and was represented by counsel in each case.
Losing such an appeal means the other party (former husband) would be responsible to pay those attorney fees.  Attorney herein does not believe necessarily that women get the shaft in Family Law Court, in fact, it is usually the women that get the kids more often than the men.
Boblitt - Beats Statute of Limitations 1
Attorney herein notes:  See the paragraph: 
"The Third District Court of Appeals reversed and remanded the action, holding, in part that 
(1)  "a request for spousal support in a marital dissolution proceeding is NOT based on the same primary right as a tort action based on domestic violence and therefore,  

(2)  a party is not necessarily precluded from seeking damages for alleged acts of domestic violence and ALSO asking a family law court to consider those same acts of domestic violence in awarding spousal support...

(3)  because this tort action for domestic violence was NOT precluded by the judgment in the dissolution proceeding, we will reverse the judgment in this action and remand the case with instructions to the trial court to DENY Steven's (husband) motion for judgment on the pleadings. (emphasis added)
Statute of Limitations
Boblitt decision, Sacramento Civil Court
Marc Hughes made a rote defense.
Marc Hughes, family law
Marc Hughes loses in Law & Motion, Sacramento, CA

Best for last – “The Court affirmed the tentative ruling.”
domestic violence scores a win
Linda Boblitt prevails against Steven Boblitt and on-again, off-again attorney, Marc Hughes

Monday, January 30, 2017

Changing Spousal Support in Long Term Marriage

If you have been married more than 10 years and had been a high wage earner and are paying "spousal" support--would your ex then receive support for life-- or could that happen?  Does the law actually require such a thing--for LIFE???  Despite FC 4336c, there is nothing in the code itself that limits the court's discretion to stop spousal support in later proceedings where changed circumstances are shown or proven.
It is best to get help from an attorney that has seen cases over the years, and we don't mean just a few years, but one that has actively worked in Family Law as a litigator/in trials. Arguing for or against this type of change requires a hard look on the circumstances, and thus the argument that you may have could be based on not just one or two facts, but a combination of things, which would include changes as to the ex's life in tandem with the payor's circumstances.  
While the code does focus on the payor's changed circumstances, since payor is paying the ex spouse, if the ex spouse has completely different circumstances now (let's say she inherited a lot of money)-- should that be ignored completely?  If so, why?  It would not seemingly make sense?  Has the ex squandered her money and never attempted to work?  Has the ex shacked up with a new man? Did the ex buy an expensive new car, go on vacations, and seemingly has a lot of money--more than you even give her? Are the kids gone and she's now in a huge house?
Since the factors used for spousal support are numerous, obtain an attorney that can and will vigorously litigate issues. Preferably one that is heavily vested into law and motion since it is likely this type of issue cannot be done in 15minutes at a short cause hearing and would require a long cause hearing.


Friday, January 6, 2017

Are You Losing Your Case? Get Help Before It's Too Late

Many cases are lost and clients simply give up.  Usually due to money reasons.

Once in awhile the facts are so bad, one parent really will lose the opportunity to raise his or her own child.  It's rare but it occasionally happens.

The best way is to stick with it and not give up, find another attorney who won't charge as much and will work with you.  It is a parent's RIGHT to raise their kids.  When cases go sideways and the other husband or other wife starts to take over your job, and in so doing takes away and over-influences your kid, then you are losing.


For this to have happened, there has to have been mistakes made since there is no law which technically favors a step parent; the real parents are usually given chances to fix as much as possible.  Attorney has seen some of the worst cases but even when kids have been taken, they are given back although it will take time.  If the kids are placed into foster care, the parents are given some pretty good chances to get the kids back.  There are many appeals cases involving cases where kids were not given back---but best not to go there by following everything one needs to do for reunification.
Attorney is aware that many kids in Butte are targets for foster care. Don't let it happen to you.

CASES INVOLVING ANIMAL LAWS, ANIMALS, PETS, and ESPECIALLY OWNERS!

If you have a CPS case attorney can likely help you on the case.  Sometimes CPS may seize kids based on something the "pet" did---- normally a dog.

Because attorney is well versed in animal law issues nationally,  having worked and studied animal law issues [which are mostly constitutional law, criminal law, and property law] since 2002, and worked with lobbyist to defeat certain activist errant legislation over the years, attorney is well qualified to work on issues involving animals, seizure, kennels, contract disputes involving animals, vet disputes; also, criminal charges involving animals and animal seizure, pre seizure notices, post seizure notices; post seizure hearings and more.

Attorney and other legal people contribute to site online at https://petdefense.wordpress.com/  which basically explains how activists seek to stop interstate commerce sales of animals, use of animals, trading of animals, breeding of animals; implement  forced altering of all animals; severe punishment upon allegation of abuse (even when there is none) and seizure of animals, just because they (animal control) "CAN."

In particular, attorney is extremely well versed on issues involving 'pitbull' type dogs, and laws associated with animals, including any dogs as emotional support (Federal law) or therapy, assistance dogs, breed restrictions, housing restrictions,etc.  Right now, the laws are fairly clear on these issues, but sometimes the facts may blur the issues.

Monday, January 2, 2017

PARENTS: Some APPS NOT SUITABLE FOR YOUNGER KIDS

http://foreverymom.com/mom-gold/parents-kids-10-dangerous-apps-time-hit-delete/
(has 2015/2016 list of possible APPS not suitable for stated reasons........)

https://safesmartsocial.com/  (Examples below!!)

Check it out, you never know what new app is out there and what is not suitable unless
you check it yourself!!


Overcoming Digital Device Addiction



Teach kids how to use digital devices in a healthy way instead of using these tools as a way to “check out” from the daily activities of life. Learn how having face-to-face communication, disconnecting and helping teens find their strengths can help teens overcome digital device 

Here are our latest digital teen safety tips:

Digital Citizenship Webinar
Parent App Guide



Sunday, December 11, 2016

Using an MSA to Wreck the Other Spouse


When people don't hire attorneys, sometimes we have to fix everything that went wrong.

A legal document preparer does not give legal advice, but may know the criteria to be addressed in a normal MSA (marital settlement agreement).......this could involve a blurb re child support, spousal, the community and separate property/division of same, seeking counsel, etc.

While some legal document preparers can do the job sufficiently, they normally charge quite a bit for a RFO (Request for Order) and to do part of the Judgment, at least in Sacramento...they are charging $750.  One can go to SHARP at the Chico courthouse, or to the Oroville location, it is basically at no cost. The type of cases that can go to SHARP are mostly those with nothing to divide, no pensions, and nothing of value such as a house, timeshare, stock portfolio, separate property assets used to obtain community assets and other related financial issues.

Child custody issues which involve contested financial issues are usually better done in court, because SHARP cannot give legal advice.  Cases where the parents have problems and are extremely high conflict may end up with the Court assigning a third party to represent the child or children.

HOWEVER if the spouse who paid the document preparer fails in some other area such as those below, then just about anything can happen---most of it being bad, and costly! Only an attorney can fix all that went wrong, since the document preparer cannot practice law.

IMPROPER HANDLING OF FINANCIAL DISCLOSURES IS COMMON BECAUSE

ONE SPOUSE NORMALLY WILL TAKE ADVANTAGE OF THE OTHER SPOUSE!



EXAMPLES OF WHAT CAN GO WRONG ESPECIALLY IF DONE ON PURPOSE


  • Declaration of Disclosures-- done improperly...for example, not even filled in?!

  • Pension plans, 401K or ERISA plans...given away in "settlement" without regard for valuation and tax ramification, or income levels, or anything else!!

  • Actual Separate Property Disclosure not done...at all...no valuation, no appraisal, and no
  • knowledge by Judge as to how separate property (especially underwater property) is handled

  • Actual community property Disclosure misrepresented purposely

  • Spousal support and Jurisdiction, other spouse cut off? Long term marriage?

  • Fraud or Misrepresentation in any of the areas represented, normally financial? There are TIME LIMITS for most of these issues [usually based on a time certain or knew or should have known]

  • Actual Fraud by Telling Spouse not to Attend Hearing, Then Going to Hearing? and
  • Wiping Out Spouse on Purpose?

  • Failure to Obtain Valuation of Home Correctly, especially prior to trial...huge mistake

  • Home under water valuation and FC2640 Issues, where huge CASH is put down by one party only, home given to party that didn't own the house on title (at pro se trial, no one was represented; judge awarded wrong party the house) post judgment RFOs failed, and client can't afford an appeal and never got what he/she was supposed to get as far as household property, thus client lost everything

  • Waivers which were not done, creating more issues on division of property; technically, any property deemed separate when later commingled creates issues of waiver, notice and far more and brings up a ton of issues requiring not only tracing, but factual disputes and things that parties probably don't want to make public

  • Commingling of separate/community assets, creating more tracing issues; and when done improperly, because no one kept any paperwork, can create huge liability or windfall to a party

  • Failure to Trace source of Assets Correctly, creating trial issues

  • Selling off Residence Then Claiming there was no money and never listing it on any
  • documents like the FL-142?  Failing to do the Disclosures correctly and purposely
  • not listing household items or anything else for that matter?

  • Eliminating Spousal support by claiming the spouse is self-supporting when spouse has never worked during the marriage and still doesn't work?