BILL ANALYSIS SB 1482 Page 1 Date of Hearing: June 29, 2010 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 1482 (Wright) - As Amended: June 17, 2010 PROPOSED CONSENT (As Proposed to Be Amended) SENATE VOTE : Not relevant SUBJECT : SPOUSAL SUPPORT: MODIFICATION: SUNSET EXTENSION KEY ISSUE : SHOULD THE SUNSET ON EXISTING LAW WHICH ALLOWS A PARTY TO "AUTOMATICALLY" BE PERMITTED TO SEEK NEW OR MODIFIED SPOUSAL SUPPORT WHEN A CHILD SUPPORT ORDER TERMINATES (TYPICALLY BY THE CHILD REACHING THE AGE OF MAJORITY) BE EXTENDED FOR ANOTHER THREE YEARS TO ALLOW THE LEGISLATURE TO CONTINUE TO EVALUATE THE EFFECTS OF THIS LAW CHANGE? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This non-controversial family law bill addresses those family law cases where a child support order terminates by what is called "operation of law," which typically results when the child or children reach the age of majority and are no longer entitled to support. Prior to 2008, where some or no spousal support was in effect when a child support order ended, the termination of the child support order by operation of law did not automatically allow the party who had received the child support to go back to court to seek either new spousal support (if they had not been receiving it already) or an increase in an existing order of spousal support. Under this traditional approach prior to 2008, other supporting facts -- constituting a so-called "change of circumstances" -- were required before the spouse seeking new or additional spousal support was permitted to return to court to seek new or additional spousal support. However in the 2007 legislative session Senator Harman carried SB 415 (Chap. 247, Stats. of 2007) on behalf of the Family Law Section of the State Bar ("FlexCom") which altered the traditional rule on an experimental basis to allow a party to "automatically" be permitted to seek new or modified spousal SB 1482 Page 2 support when a child support order terminates. That bill was "sunsetted" after three years by this Committee to allow time to see whether the process led to increased family law litigation or other impacts. That sunset ends this year, and the author introduced this legislation this month at FlexCom's request to extend the measure. This bill, as proposed to be amended, in addition to extending the sunset for three more years, reasonably limits the availability of such "automatic" spousal support request cases to those cases that are filed within six months from the date the child support order terminated, in the interest of fairness and certainty. In addition, the bill adds a new provision permitting in such "automatic" spousal support request cases either party to request the appointment of a vocational training counselor. This is consistent with the approach taken with spousal support requests at the initial dissolution proceedings. Finally, again as proposed to be amended, the extended law will not be available in cases that resolve pursuant to a stipulated marital settlement agreement, in order not to discourage settlements of family law disputes at the time of dissolution. Like the original law change in 2008, this bill is sponsored and supported by FlexCom. SUMMARY : Seeks to extend by three years the sunset date on the provision regarding change of circumstances that may be the basis for a request for modification of spousal support. Specifically, this bill : 1)Extends by another three years the sunset date for the provision which provides that in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support shall constitute a change of circumstances that may be the basis for a request for modification of spousal support. 2)Requires that a motion to modify spousal support on the basis of the change in circumstances caused by the termination of a child support order be filed within 6 months of the termination of the child support order. 3)Authorizes either party to request the appointment of a vocational training counselor if a motion to modify spousal SB 1482 Page 3 support on that basis is filed. 4)Bars the availability of this "automatic" change of circumstances doctrine in cases that resolve pursuant to a stipulated marital settlement agreement, in order not to discourage settlements of family law disputes at the time of dissolution. EXISTING LAW : 1)Authorizes the court, in a judgment of dissolution of marriage or legal separation, to order one party to pay spousal support to the other party in an amount and for a duration that the court deems just and reasonable based on the standard of living established during the marriage. (Family Code section 4330. All further statutory references are to this code unless otherwise noted.) 2)Imposes on parents a duty to support an unmarried child who has not attained the age of 18 years. For a child who has attained the age of 18 years, but is still a full-time high school student and is not self-supporting, the duty of support is extended until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. (Section 3901.) 3)Prohibits, until 2008, a court from considering the termination of a child support order by operation of law as a change of circumstances warranting a request for modification of spousal support. ( In re Marriage of Lautsbaugh (1999) 72 Cal. App. 4th 1131.) 4)Provides, commencing in 2008 until January 1, 2011, that in a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support shall constitute a change of SB 1482 Page 4 circumstances that may be the basis for a request for modification of spousal support. (Section 4326.) 5)Provides that in a proceeding for dissolution of marriage or for legal separation, the court may order a party to submit to an examination by a vocational training counselor upon a noticed motion, for good cause, by one of the parties. (Section 4331(a).) COMMENTS : This non-controversial family law bill addresses those family law cases where a child support order terminates by what is called "operation of law," which typically results when the child or children reach the age of majority and are no longer entitled to support. Prior to 2008, where some or no spousal support was in effect when a child support order ended, the termination of the child support order by operation of law did not automatically allow the party who had received the child support to go back to court to seek either new spousal support (if they had not been receiving it already) or an increase in an existing order of spousal support. Under this traditional approach prior to 2008, other supporting facts -- constituting a so-called "change of circumstances" -- were required before the spouse seeking new or additional spousal support was permitted to return to court to seek new or additional spousal support. However in the 2007 legislative session Senator Harman carried SB 415 (Chap. 247, Stats. of 2007) on behalf of the Family Law Section of the State Bar ("FlexCom") which altered the traditional rule on an experimental basis to allow a party to "automatically" be permitted to seek new or modified spousal support when a child support order terminates. That bill was "sunsetted" after three years by this Committee to allow time to see whether the process led to increased family law litigation or other impacts. That sunset ends this year, and the author introduced this legislation this month at FlexCom's request to extend the measure. This bill, as proposed to be amended, in addition to extending the sunset for three more years, reasonably limits the availability of such "automatic" spousal support request cases to those cases that are filed within six months from the date the child support order terminated, in the interest of fairness and certainty. In addition, the bill adds a new provision SB 1482 Page 5 permitting in such "automatic" spousal support request cases either party to request the appointment of a vocational training counselor. This is consistent with the approach taken with spousal support requests at the initial dissolution proceedings. Finally, again as proposed to be amended, the extended law will not be available in cases that resolve pursuant to a stipulated marital settlement agreement, in order not to discourage settlements of family law disputes at the time of dissolution. Precise Amendment Language To Be Crafted Following Hearing With Assistance From Sponsor : The amendments described in the analysis will be crafted with the help of FlexCom representatives following passage of the measure. ARGUMENTS IN SUPPORT : FlexCom, the sponsor of this legislation, wrote a helpful letter to the Committee explaining the strong foundations of each of the provisions in this legislation. Regarding the 6 month deadline for filing under the bill's provisions, FlexCom noted helpfully, for example: This amendment is a result of the opinion in Kacik v. Kacik (2009) 179 Cal.App.4th 410, where the court stated: "Because of the unusual circumstance of construing a piece of legislation that has less than 18 months before it sunsets, we address the Legislature directly: Section 4326 is scheduled to terminate on January 1, 2011. If you decide to renew it, please consider saying exactly what you mean by 'is in effect.' One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed. (Cf. Code Civ. Proc., 473.)." The six month filing deadline for a party to file a motion to modify spousal support based on the change of circumstances outlined in section 4326 is supported by current law. Six months is the time-frame stated in the Code of Civil Procedure 473 to file a motion to set aside an order or judgment; six months is the deadline in Family Code 3690 and 3691 to set aside a support order; and six months is the timeline suggested by the court in Kacik v. Kacik. SB 1482 Page 6 Prior Related Legislation : As noted in detail above, SB 415 (Harman, Chap. 247, 2007) provides that in a proceeding in which a spousal support order exists and a companion child support order is in effect, the termination of child support by operation of law shall, contrary to historical approach, itself constitute a change of circumstances that may be the basis for a request for modification of spousal support. REGISTERED SUPPORT / OPPOSITION : Support Family Law Section of the State Bar (FlexCom) (sponsor) Opposition None on file Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334