BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1482|
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                              UNFINISHED BUSINESS


          Bill No:  SB 1482
          Author:   Wright (D)
          Amended:  8/2/10
          Vote:     21

           
          SENATE VOTES NOT RELEVANT

           ASSEMBLY FLOOR  : 71-0, 08/05/10 - See last page for vote


           SUBJECT  :    Spousal support:  modification:  change of  
          circumstances

           SOURCE  :     Family Law Section of the State Bar (FlexCom)


           DIGEST  :    As it left the Senate, this bill made  
          corrections to an erroneous cross-reference contained in  
          the California Lottery Act of 1984.  

          This bill now extends 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.  This bill also enumerates specified circumstances  
          in which termination of the child support order does not  
          constitute a change of circumstances.

           ANALYSIS  :    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  
                                                           CONTINUED





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            duration that the court deems just and reasonable based  
            on the standard of living established during the  
            marriage. 

          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. 

          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 circumstances that may be the  
            basis for a request for modification of spousal support. 

          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. 

          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  







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            basis of the change in circumstances caused by the  
            termination of a child support order be filed within six  
            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 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.

           Comments
           
          According to the Assembly Judiciary Committee analysis,  
          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 (Chapter 247, Statutes 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 to  
          allow time to see whether the process led to increased  
          family law litigation or other impacts.  That sunset ends  







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          this year, and the author introduced this legislation at  
          FlexCom's request to extend the bill. 

          This bill, 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. 

           Prior Related Legislation
           
          SB 415 (Harman), Chapter 247, Statutes of 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. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  8/6/10)

          Family Law Section of the State Bar (FlexCom) (source) 


           ARGUMENTS IN SUPPORT  :    FlexCom writes in support of this  
          bill:

               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  







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               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." 

               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 Section 473 to file a  
               motion to set aside an order or judgment; six months  
               is the deadline in Family Code Section 3690 and 3691  
               to set aside a support order; and six months is the  
               timeline suggested by the court in  Kacik v. Kacik  .


           ASSEMBLY FLOOR  :  
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Tom Berryhill, Block, Blumenfield,  
            Bradford, Brownley, Buchanan, Caballero, Charles  
            Calderon, Carter, Chesbro, Conway, Cook, Coto, De La  
            Torre, De Leon, DeVore, Eng, Evans, Feuer, Fong, Fuentes,  
            Fuller, Gaines, Galgiani, Garrick, Gatto, Gilmore,  
            Hagman, Hall, Harkey, Hayashi, Hernandez, Huber, Huffman,  
            Jeffries, Jones, Knight, Logue, Bonnie Lowenthal, Ma,  
            Mendoza, Miller, Monning, Nava, Nestande, Niello,  
            Nielsen, Norby, Portantino, Ruskin, Salas, Saldana,  
            Silva, Skinner, Solorio, Audra Strickland, Swanson,  
            Torlakson, Torres, Torrico, Tran, Villines, Yamada, John  
            A. Perez
          NO VOTE RECORDED:  Blakeslee, Davis, Fletcher, Furutani,  
            Hill, Lieu, V. Manuel Perez, Smyth, Vacancy


          TSM:nl  8/9/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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