Do You Want to Win Your Case?

Attorney herein always sizes up each fact pattern of all cases, because unless you have a definite slam-dunk case (you likely wouldn't need an attorney) but many cases are NOT as slam dunk as we like?  Therefore, it makes sense that to win a case, not only must we have some law on our side, but we must be the better presenter, have the better argument, or be more persuasive than the average Joe, PLUS, be able to give client the confidence showing it can be done.

The client must believe in the attorney for the best result, and  issues below indicate there might be spousal support (alimony); so as an example, let's say we were concerned with the "Modifiability" of the spousal support, or the NONMODIFIABLE spousal support order; or of the modifiability of such support orders in another state? Or it could be the BASIS for modification, and if there was a material change of circumstances...Yes there is case law on all these issues at the appellate level.  Therefore, even if new case law comes up on the subject, it may or may not affect your case. That is why we do legal research to make sure nothing has changed in the law that might affect our facts.

Family Codes such as FC3603, 3651(c)(d), 4333, 4335, 4336, 4336(a)(b)(c), 3591(e),3590,3591(a)(b)(c),4909(f) and far more, can pertain to many cases involving modifiability of spousal support, basis for modification, and material change in circumstances.

                                         CASE EXAMPLE INVOLVING FEES/SUPPORT

As just a personal example, attorney's client was over age 65 and he was retired; the wife was also retired. In our attempt to be awarded attorney fees, we also requested spousal support because the wife made about 3x  the income of what the client made, BUT the client had a pending "TRO DV" in another county that was not yet litigated, and the court allowed the wife's attorney to keep the TRO issue open for at least a year?  Now most attorneys would instantly tell you-- your client ain't gonna get fees or support because of the pending TRO DV in another county? [Pending does not mean conviction obviously!] 
Under the law,  the court can consider not awarding spousal to someone who has a conviction under a TRO DV...However, the client here, had a pending TRO DV case,  and nothing had moved forward on it? FC4320(m)

Attorney herein believed that attorney might be awarded a small amount of  legal fees, but not likely the spousal support.  Surprisingly,  the Court awarded the client spousal support, after the opposing attorney went off (in front of at least 30 attending attorneys) and claimed that attorney herein "did not know Family law?!"  LOL Biggest joke ever, the opposing attorney should be retired because he's a know it all that just lost the case because he couldn't keep his mouth shut?

Attorney laughs every day at that incident, and is now good friends with the client for years. OH--and this isn't legal jargon--but attorney herein has a down to earth friendly, social personality, and is not overly bookish or serious. Attorney does research technology regularly.  Must be from working with so many male contractors over the years! We really don't need overly serious attitudes for every aspect of divorce. Really.

Do You Have a Non-Winnable Case?

There are some instances which present facts that are, realistically speaking, not winnable.
At least not at first.

If your case is not difficult, then it likely to be one where you can win something, as opposed to nothing. Some difficult cases are not really something you can win, and will be forced to settle. Other cases could be settled but the clients don't necessarily want to do that.

The difference between what the client wants and what the client can get is one thing. However, attorney herein will often get what the client wants simply because attorney will not give up when there is a possibility of changing something important.

What attorney has seen in various cases, is that many people don't want to settle their cases and don't want to lose either. Some of the more difficult cases usually involve fighting over time share of kids, and then the division of property.  While it doesn't usually make a lot of sense to go too far overboard, it is true that some things can be won, but it may depend on the costs. Also, some clients just want to roll over the other party just "because"----???

Regardless of client's choices or desires, attorney has worked on some of the most difficult cases ever imagined over the years, including civil and criminal litigation, and cases in the news, newspapers (family law --and criminal law--when there were printed newspapers!), and precedential decision at SPB (on sexual harassment) plus federal litigation both in California and Denver, Colorado. Additionally attorney is well versed in animal law and litigation on various animal law issues.

If you have a difficult case, feel free to call attorney Chan at  916.794-5777. One of the few attorneys known for taking the cases other attorneys won't touch!

Spousal Support "Exempted" in Bankruptcy?

SO..when is spousal support  "exempted"  in Bankruptcy?  How about under CCP 703.140?

.......... What if the "MSA was purportedly ambiguous?"

.......... What if the court thinks the MSA lists the spousal support--- but                        it's really not spousal?

.......... What if the alleged support was not reasonably necessary for such                      support?

-------> Must the Court look beyond the labels provided for in the Marital Settlement Agreement?

An evidentiary hearing in Bankruptcy Court is very interesting. (See ftp://38.98.2.146/DKupetzArticle.pdf )
...............["While there are significant differences between adversary proceedings and contested matters, the similarities between them are greater than appellant assumes. 
In a contested matter, there is no summons and complaint, pleading rules are relaxed, counterclaims and third-parties practice does not apply, and most pre-trial procedure is either foreshortened or dispensed with in the interest of time and simplicity.

 ...Nevertheless, . . . discovery is available, testimony regarding contested material factual disputes must be taken in the same manner as in an adversary proceeding, and the court must make findings of fact and conclusions of law before entering an order that has the status of a judgment." ]

In this particular case, the Trustee objected to the purported spousal support exemption under the CCP code cited above.  Also noted, Trustee mentioned that the item was purportedly concealed before, but that was not  made very clear.

Both parties had attorneys, both parties had attorneys during the MSA process, and the wife had expert. Wife stood to lose about $200,000. and yes,
she did lose it.

...[T]he court initially noted that nearly all cases regarding whether an award is in the nature of spousal support are in the context of nondischargeability under § 523(a)(5), as opposed to an exemption, which was "a different situation." Hr'g Tr. (Jan. 20, 2012) 88:2.      Nevertheless, the court proceeded to discuss In re Combs, a nondischargeability case, and the factors a court can consider in determining whether an award in a divorce decree is in the nature of spousal support or a property settlement. 

     In considering the Combs factors, the court concluded that the Met Life Account was not spousal support; it was a division of property, and therefore not exempt under CCP § 703.140(b)(10)(D). 

The court further noted that the MSA's express provision for spousal support which, under Stout, could be considered in determining whether an award in a divorce decree is support or property division, was an important factor in its decision to disallow the exemption.

The bankruptcy court entered an order sustaining Trustee's objection and disallowing Diener's exemption of the Met Life Account as spousal support under CCP § 703.140(b)(10)(D) on February 10, 2012. Diener timely appealed.
http://www.leagle.com/decision/In%20BCO%2020121128926.xml/IN%20RE%20DIENER  (read case at this link)

http://www.leagle.com/decision/In%20BCO%2020121128926.xml/IN%20RE%20DIENER

You will likely need to be an attorney to understand it, but then again, maybe not.The bottom line is-- if your client may end up in bankruptcy court to salvage assets, you better be sure that the MSA will work under bankruptcy rules and state exemptions, otherwise, as can be seen here, it can open a brand new issue never decided by a bankruptcy court before, and your client is the guinea pig.

Had the wife accepted payments of support without the need for later claiming that the award was an intended buy out for spousal (which was not apparently stated) in the MSA, perhaps she could have left that provision subject to open jurisdiction to enforce; but by taking the money all at once, and since it was not deemed spousal (which would make it taxable to wife) it appears that the Trustee realized this, because the debtor kept amending the Schedule C Exemptions. 
                                 Which is likely a red flag in our opinion....Oops......

Using "Limited Scope" Designation with Attorney..........Should You?

Many clients simply cannot afford full scope representation by hiring an attorney for every single issue in the divorce. This is understandable; however, an attorney who is willing to do only certain
issues in the case might be able to handle those issues which are important, while not representing clients on every single issue in the case.

As an example.... if you are using DCSS for child support-- you may not actually need an attorney, unless you have some issues which are not ordinary within the child support issue.

Or if you only have a TRO but expect that it might resolve with a no negative conduct, you may only need help with a custody order.

Or, let's say you have finished mediation and only want to contest the mediation recommendation--and it requires a trial; or the opposite, your spouse wants to contest the mediation report but you want to keep it as an order?

Or, let's say your ex did the calculation re spousal support, but made an error and it must be changed, but to what degree and why?

Many issues that come up during divorces are not especially difficult because the law only allows one way to do something (such as splitting an asset 50/50)  but in the cases where such things can be evaluated according to facts, circumstances, and behaviors, i.e. FC 3044, then see: https://www.courts.ca.gov/documents/3044sheetEN.pdf

Attorney has done many of these  types of cases both as Petitioner's Counsel and as Respondent's. and because attorney has been involved in criminal law cases (i.e. such as defending an alleged gang member, criminal protective orders, alleged stalker, etc.) attorney has seen both sides, pro and con. Strategy is an important part in family law, and many attorneys simply waste time and client's money.

 Attorney herein does not like to waste money on non-needed legal maneuvers; attorney has routinely worked with contractors, who are mostly men, and easily relates to those working in the trades. Primadonnas are not attorney's preferred client. Now we know most attorneys would never say this, but since millions of people these days put their personal/business data out there, such as on Facebook, attorney will never be on Facebook. Therefore, take that for what it's worth. And attorney just saw on another attorney's website, they WILL NOT TAKE YOU AS A CLIENT, if you have a DV TRO against you, or if you have had two attorneys in the past on your case, or if you are not current on support. WOW, that's rather prejudicial IMHO......

Attorney has been highly sought after for many difficult cases and has to turn down many cases due to a limited work load. Attorney's comparative fee scale is also considered the most affordable. Additionally, attorney has appeared in many different jurisdictions over the years including San Diego (Facilitator's), San Mateo, Denver CO, Sacramento Federal Court, Los Angeles Superior Court, etc. So if you believe you may need help in your case, consider calling attorney. It cannot be guaranteed that attorney can do your case however,  😊 ... attorney is not judgmental, and is friendly.

Why Pay to Settle if You Can Win Your Case Without Trial

Let's be honest, no one enjoys having to hire an attorney for the most part; yet we see clients on an almost daily basis, fritter away legal money spent for no actual good reason?

Attorney herein operates FAR differently than most attorneys.
Rather than focusing on how many billable hours attorney can bill for, attorney instead sizes up each case on factual basis (and much experience) --  and makes some type of estimate on what could happen (and why..) and what might NOT happen (and why..)...then taking into account the variables that have been made known, attempts to best determine the pros and cons of each, in part, based upon the past conduct, the past hearings (if any) and the potential hearings if applicable.

Because attorney has done family law for many years, attorney has seen many, many variables in human behavior; in wage income disparities; in prolonged custody issues; in bad human behavior- including handling criminal case issues;  scads of mental issues including anxiety, bi-polar, narcissism, you name it; even with both parties being afflicted....criminal protective orders, domestic violence requests, supervised visitation, no contact orders, prolonged litigation by other party's attorney or even the opposing client themselves...... attorney has huge experience in cases involving animal law (even in federal court) and is competent on animal placement, even within a dissolution case (since CA law now provides that Judges can award custody of pets..)

If you would NOT like to have protracted litigation then it does pay to think ahead, even far ahead.

Some parents are honestly not suitable for being the custodial parent; and it will be obvious. Other parents know they are NOT the suitable parent and really doesn't even like watching the kids, but will pretend to be suitable to save on paying support. Inasmuch as shared custody is common, all of the aforementioned situations are things that will cost more money, usually, for nothing to be gained as far as proper parenting is concerned.  Therefore, doing such things is a waste of money?

While attorney herein cannot stop this entirely, attorney makes no effort to hide these facts and will actually simply call out those facts throughout the case since litigation does take time if the parties continue to disagree.

Trial should be avoided unless absolutely required.  As an attorney in family law, trial should usually be reserved only for issues that are a complete dead end, and there is a possibility of gaining something. It is a bad idea to do this just to raise the other side's costs. It is rather unethical actually, and attorney herein would  not make that choice.

Marijuana Issues Within Custody Cases-- Big Deal Lately

Could you lose custody of your children due to smoking marijuana?

Most county employed mediators have standard provisions that parents should adhere from smoking in presence of children, or sometimes even when the kids are under the control of that specific parent. Further, even if smoking is allowed in certain areas, many mediators don't want kids near second hand smoke, period. EVEN if it's inside the house in another room...EVEN if it's anywhere near where the kids might be, play, or access? Like outside?

The "smoking" will generally cover most forms of tobacco and possibly edibles.... (cigar, cigarette, vape, medical MJ, etc...)  And many times, smoking by third parties in the home may not be a good idea due to secondhand smoke. VAPING is almost worst because it is becoming well known, that the nicotine involved, is fused with scents (i.e. cherry,etc) that the teens are running to buy/try?   https://vaping360.com/how-old-to-vape/

In Butte County, a jury has previously returned a guilty verdict over an issue of whether medical marijuana is a defense (to child endangerment charges)--- the long contested case of  Daisy Bram, where allegedly, the lesser count of misdemeanor child endangerment was found (as opposed to child endangerment likely to cause great bodily harm)... Judge Glusman ruled that no valid evidence was presented as to the certified use of medicinal marijuana and thus it was not available as a defense. Ms. Bram was not represented by counsel, which obviously hindered her defense.

http://reason.com/blog/2014/03/07/daisy-bram-a-witness-in-federal-case-aga

Child Endangerment in California...

Under Penal Code section 273a  there is a possibility of criminal prosecution whenever a child is under your care or custody and you:

• Willfully permit the child to suffer;
• Inflict unjustifiable physical or mental pain upon any child; or
• Willfully endanger the health of a child.

If the prosecuting agency in your county believes that you are “endangering the health of your child” by smoking marijuana or growing it in a home where your children reside, you may face criminal charges....

These charges may be filed as a misdemeanor or as a felony. Of course, if the court order stated that any type of smoking or use of same is not allowed while child is under your care, a violation might be a contempt charge potentially, if the other spouse or another was to bring that claim forward?

If convicted of felony child endangerment, you could be sentenced to up to six years in prison and ordered to pay a maximum $10,000 fine. A misdemeanor conviction is punishable by up to one year in county jail, up to a $1,000 fine, or both.

Why is Alcohol Allowed But Not MJ?

Generally, no courts like the idea of alcohol, tobacco, marijuana, edibles, cigarettes, cigars, etc. when it comes to kids. Although there are tons of rules regarding drunk driving, there are not tons of rules for intoxication at home due to getting high on drugs, including legal marijuana and the like. While the hearsay out there is that MJ will be used, consumed and grown by large business, including beer companies, and that the feds will be changing those laws, it is a possibility, but we wouldn't bet your life on it happening super soon.

The banks and other super duty corporations always want to benefit themselves first. BUT if they manage to do it, we can be assured that they will have already thought of safer ways to tone down common marijuana so that it would be as common as alcohol, and treated closer to the way alcohol is regulated.

 OTOH, the presence of nicotine in the vaping formulas which are targeting teens (and apparently succeeding)-- is something that relies on curiosity and being popular, because "everyone" is trying it. However one is supposed to be 21 to be "vaping"....well, we are sure that plenty of people are ignoring that there law?? LOL

Parents that are smoking or vaping, your kids are watching you.

Note:  //The courts generally do not favor the smoking of MJ, even if it is medically prescribed.

 People with chronic anxiety often resort to marijuana use, or prescription meds. The meds only do so much, the overly anxious client will still be overly anxious, but somewhat better than with no meds at all.//

https://buttecountyfamilylawlawyer.blogspot.com/  Another site by attorney C. Chan

Roseville Divorce Family Law Attorney C. Chan

Examples of Cases attorney has done..................

Case against Chase Bank, mortgage fraud, prevailed;  PGE, violation of bankruptcy statute, prevailed;  the American Kennel Club, [as to whether the entry form is an actual contract]--via summary judgment, we proved it was and won right to trial;
Los Angeles District Attorney (involving non profit corporation; all charges dismissed), San Diego's illegal law involving the structured positioning of what entities can or may sell animals, the illegal treatment of TV performing animals;  the denial of DV TRO cases because one parent is an informant
(informants aka snitches, are given favors by government)...

 CA State Personnel Board Published Decision on what is not sexual harassment (1993) involving top computer employee at the State Dept. of Technology Services [attorney used to work there], News article on attorney's case involving molestation case by the father in Sacramento, mid 1990's [all names/info were changed to protect family],

Denver Federal Court, and San Francisco Federal Court--on the issue of whether under Federal law, canines can be labeled as dangerous strictly by breed, and not allowed to own? [Known as breed bans..]  Unfortunately, despite this having been tested in 2007, the courts today still find a rational basis for discriminating by breed in many jurisdictions, especially in Federal Courts........attorney has huge experience in this area of law......... and insurance companies will also name breeds and not insure them typically................

Representing Jack Russell [of the metal band original Great White, now renamed Jack Russell's Great White] on disputed contract/fallout from same, against his former manager's claims [Jack got rid of him!]
News article Butte County, as defense counsel for purported shooter in alleged gang related case [client got out after 4.5 years and is now successful construction foreman], attorney has tons more of winning cases in family law in various jurisdictions! This includes technology issues, stalking, invasion of privacy, representation of law enforcement employees, holders of advanced degrees, etc.  Basically, attorney has done a lot of family law cases, and was in an office prior with a Special Master. However attorney has done plenty of civil and criminal cases as well. So if you have a case or know someone that needs help, feel free to refer them to me. I do consultations at no charge!