BILL ANALYSIS Ó
AB 2586
Page 1
Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2586 (Bloom) - As Amended: April 21, 2014
SUBJECT : FAMILY LAW: POST-JUDGMENT DISCOVERY
KEY ISSUE : SHOULD A PARTY TO A POST-JUDGMENT PROCEEDING UNDER
THE FAMILY CODE BE ENTITLED TO DISCOVERY AS A MATTER OF RIGHT,
WITHOUT THE NECESSITY OF SEEKING COURT APPROVAL FIRST?
SYNOPSIS
Unlike other areas of the law, family law cases may go on for
years even after a judgment is issued. Custody and support
orders, which can last for years, may require multiple
modifications, based on changing incomes and changing
circumstances. Missed assets may be discovered after issuance
of a judgment dividing property. Each of these issues may
require discovery. Until recently, family law practitioners
regularly conducted post-judgment discovery, after a new motion
was filed, without prior approval of the court. However, a
recently appellate court decision held there is no automatic
right to discovery and required parties to seek court approval
prior to discovery. This bill seeks to abrogate that decision
and instead permit parties to conduct automatic discovery for
post-judgment motions, without the need for prior court
approval. This bill is supported by family law practitioners
and has no known opposition.
SUMMARY : Re-opens discovery when a post-judgment motion is
filed in a family law proceeding. Specifically, this bill
provides that, in a family law proceeding, when a request for
order or other motion is filed and served after entry of a
judgment, discovery automatically reopens as to the issues
raised in the pleadings. Provides that, for purposes of
determining when the discovery period ends and when discovery
motions must be heard, the trial date means the date the
post-judgment proceeding is set to be heard or the date of the
evidentiary trial, whichever is later.
EXISTING LAW :
1) Unless otherwise provided, applies the rules of practice
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and procedure generally applicable to civil actions,
including specified provisions of the Code of Civil
Procedure (CCP), to proceedings under the Family Code.
(Family Code Section 210.)
2) Provides a simplified and inexpensive discovery method
prior to commencement of a proceeding to modify or
terminate an order for child, family, or spousal support.
In particular, allows, up to once every year, either party
to a support order to request a completed Income and
Expense Declaration from the other party even in the
absence of a pending motion. (Family Code Section 3660 et
seq.)
3)Except as otherwise provided, entitles any party, as a matter
of right, to complete discovery proceedings on or before the
30th day before the date initially set for the trial and to
have motions concerning discovery heard on or before the 15th
day before the date initially set for the trial. (CCP Section
2024.020.)
4)Allows the court, on the motion of any party, to grant leave
to complete discovery proceedings, or to have a motion
concerning discovery heard, closer to the initial trial date,
or to reopen the discovery date after a new trial date has
been set. Requires that such motion be accompanied by a meet
and confer declaration, as provided. (CCP Section 2024.050.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : Unlike other areas of the law, family law cases go on
for years even after a judgment is issued. Custody and support
orders, which can last for years, may require multiple
modifications, based on changing incomes and changing
circumstances. Missed assets may be discovered after issuance
of a judgment dividing property. Each of these issues may
require discovery. Until recently, family law practitioners
regularly conducted post-judgment discovery, after a new motion
was filed, without prior approval of the court. However, a
recently appellate court decision held there is no automatic
right to discovery and required parties to seek court approval
prior to discovery. This bill seeks to abrogate that decision
and instead permit parties to conduct automatic discovery for
post-judgment motions, without the need for prior court
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approval.
In support of the bill, the author writes:
Unlike most civil actions, a family law case often does not
end at the time the case is initially set for trial or a
settlement agreement is reached, resulting in a 'final
judgment.' Because family law has continuing issues, such
as child custody, visitation, child support, spousal
support, domestic violence, omitted assets or matters over
which the court has retained jurisdiction, there are
frequently post judgment motions that are filed addressing
significant, substantive issues. Those issues often
require discovery.
For example, if a financially struggling custodial parent
sees the other parent buying expensive new assets; yet, is
only paying a modicum of child support, the supported
parent may need discovery to ascertain the other party's
true income. If a custodial parent is seeking to move the
minor child to another state or country, the non-moving
parent may need discovery to obtain the evidence to defend
against the move. . . .
However, this year the Third Appellate District issued a
published opinion in the case In re Marriage of Boblitt
(C072685 2/7/14) holding that discovery is not open during
family law post-judgment motions, and rather the parties
are required to file a separate motion to seek a court
order to permit discovery.
Such a motion would increase the cost of the litigation,
increase attorney fees and would significantly delay the
hearing on the substantive issue, as a motion for discovery
would need to be filed and heard before the discovery could
even be issued.
Recent Appellate Court Case Requires Court Approval Prior to
Discovery : The Third Appellate District recently found that
there was no right to automatically re-open discovery when a
post-judgment motion is filed in a family law proceeding. (In
re Marriage of Boblitt (2014) 223 Cal.App.4th 1004.) In that
case, a wife objected to the court adding issues to the
post-judgment evidentiary hearing on property issues less than
30 days before that hearing, effectively foreclosing her ability
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to do discovery of those additional issues. In upholding the
trial court's ruling against her, the appellate court found that
once discovery closes on the original trial date, discovery will
only reopen upon a motion for leave of court or agreement of the
other party. The appellate court acknowledged that existing law
is not particularly clear and that the court's ruling was based
on construing the statute, and suggested that the Legislature or
the Judicial Council might want to clarify the law:
It might behoove the Legislature, or the Judicial Council,
to specifically address the application of the Civil
Discovery Act to postjudgment family law proceedings. (See
Fam. Code, § 211 ["Notwithstanding any other provision of
law, the Judicial Council may provide by rule for the
practice and procedure in proceedings under this code."].)
In the absence of specific guidance, however, we are left
to construe what law there is, and we construe the existing
law to require a motion to reopen discovery in a marital
dissolution proceeding when discovery is desired regarding
a matter raised by a postjudgment motion. Of course, the
parties can always agree between themselves to permit
postjudgment discovery even without a court order.
(Id. at 10024, footnote 10.)
This Bill Takes the Court Up on Its Suggestion for Legislative
Clarification : This bill takes up the court's suggestion to
specifically address discovery rules in post-judgment family law
proceedings. Specifically, this bill provides that parties to
post-judgment motions in family law proceedings may
automatically conduct discovery on any issue raised in the new
pleadings, without the need for prior court approval.
The Association of Certified Family Law Specialists believes
that this change "will not only save time and money for
litigants as they will not be required to file a post-judgment
request to re-open discovery when bringing a motion to modify
custody or support, but it will clarify the discovery
requirements for all family law post-judgment motions."
REGISTERED SUPPORT / OPPOSITION :
Support :
Association of Certified Family Law Specialists (sponsor)
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Family Law Section of the State Bar
Opposition :
None on file
Analysis Prepared by : Leora Gershenzon and Marissa Shea / JUD.
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