Divorce Cases Butte Co.530.497-0777 C. Chan, Esq.: Spouse Prevailing in Appeals Court Twice after Failing in Family Law Court

http://chicofamilylawattorney.blogspot.com/

Originally posted in 2017 but same effect..............................

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.

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(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)