BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2586 (Bloom)
As Amended June 2, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
NR
SUBJECT
Family Law Proceedings
DESCRIPTION
This bill would automatically reopen discovery as to the issues
raised in the pleadings when a request for order or other motion
is filed and served after entry of judgment in a family law
case.
BACKGROUND
Family law cases, which are typically accompanied by support and
custody orders, may go on for years after a judgment is entered.
Courts retain continuing jurisdiction over many family law
orders, in order to allow parties the flexibility to seek
modification of support after a change of financial
circumstances, or alter a custody order to facilitate relocation
of one of the parents. Continuing jurisdiction and the
accompanying availability of discovery also allows parties to
prove to the court when one party is hiding assets or otherwise
manipulating the court to avoid a support obligation.
Generally, rules governing practice and procedure (including
discovery) in civil cases apply to family law as well, unless
there is a specific rule or statute designed for family law
cases. One such statute in the Family Code allows for a
simplified and inexpensive discovery method which allows parties
to request an Income and Expense Declaration up to once a year
to facilitate modification of a support order. (See Fam. Code
Sec. 3600 et seq.)
(more)
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This practice of "reopening discovery" without a court order
after a judgment has been entered has been widely used in family
law, until an appellate decision earlier this year upheld a
strict statutory analysis of a trial court. In In re Marriage
of Boblitt, the trial court found, and the appellate court
affirmed that "although some informality and flexibility have
been accepted in marital dissolution proceedings, such
proceedings are generally governed by the same statutory rules
of evidence and procedure that apply in other civil actions. No
statute or rule of court exempts a marital dissolution
proceeding from the application of the Civil Discovery Act (Code
Civ. Proc. Sec. 2016.010 et seq.). Accordingly the provisions
of the Civil Discovery Act-including those provisions that
govern the time for completion of discovery-apply to such
proceedings. ? [A]bsent a court order, continuance or
postponement of the trial date does not operate to reopen
discovery proceedings. (In re Marriage of Boblitt, 223
Cal.App.4th 1004, 1022.)
The appellate court also invited the Legislature to address the
inconsistencies between practice and statute with regards to
family law matters and discovery. This bill would respond to
that invitation by providing that when a request for order or
other motion is filed and served after entry of judgment in a
family law proceeding, discovery shall automatically reopen as
to the issues raised in the pleadings.
CHANGES TO EXISTING LAW
Existing law establishes the Civil Discovery Act which entitles
any party, as a matter of right to complete discovery
proceedings on or before the 30th day before the date initially
set for trial, and to have motions concerning discovery heard on
or before the 15th day before the date initially set for the
trial. (Code Civ. Proc. Secs. 2016.010 et seq., 2024.020.)
Existing law additionally 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. (Code Civ. Proc. Sec. 2024.050.)
Existing law provides that unless otherwise provided for by rule
or statute, the rules of practice and procedure applicable to
civil law apply to family law proceedings. (Fam. Code Sec. 210.)
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Existing law provides a simplified discovery method prior to
commencement of a proceeding to modify or terminate an order for
child, family, or spousal support which allows, up to once a
year, either party to a support order to request a completed
Income and Expense Declaration from the other party. (Fam. Code
Sec. 3660 et seq.)
This bill would, when a request for order or other motion is
filed and served after entry of judgment in a family law
proceeding, cause discovery to automatically reopen as to the
issues raised in the pleadings.
This bill would provide that the date initially set for trial of
the action is also the date the post judgment proceeding is set
for hearing on the motion or any continuance thereof, or
evidentiary trial, whichever is later.
COMMENT
1.Stated need for the bill
According to the author:
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.
Family Code Section 3662 already states that methods of
discovery other than one specific method laid out in that
section are "only" available if a motion for modification or
termination of support is pending. Most family law attorneys
have relied on this language to routinely issue and respond to
formal discovery during post-judgment support (and other)
proceedings.
However, this year the Third Appellate District issued a
published opinion in the case In re Marriage of Boblitt
holding that discovery is not open during family law
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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.
2.Bill responds to judicial request for legislative action to
address application of Civil Discovery Act to post-judgment
family law proceedings
This bill would automatically re-open discovery when a
post-judgment motion is filed in a family law proceeding.
According to the author, until recently, family law
practitioners regularly conducted post-judgment discovery,
without approval of the court, after a new motion was filed.
However, in In re Marriage of Boblitt, the appellate court
affirmed the trial court's strict interpretation of statute, and
held that existing law does not automatically re-open discovery
in family law matters absent a statute authorizing such an
action or motion from the party. The appellate court
additionally invited the Legislature to look at discovery in
family law proceedings and address any inconsistencies. The
court wrote:
It might behoove the Legislature, or the Judicial Council, to
specifically address the application of the Civil Discovery
Act to post judgment family law proceedings. (See Fam. Code
Sec. 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
post-judgment motion. (In re Marriage of Boblitt, 223
Cal.App.4th 1004, 1024.)
The author argues that since this holding, many family law
practitioners have begun to oppose full disclosure of all
material facts and information needed to address pending
"requests for order" by asserting that discovery is not
available post-judgment. As a result, the already strained and
back-logged family law courts are suffering from additional
stress.
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Staff notes that while many family law judgments are subject to
modification, as a matter of policy there is also a need for
finality in family law matters. Parties should be able to move
on with their separate lives after a dissolution is final, and
subjecting them to a life-long threat of issues being reopened
does little to promote this finality. The following amendment
would clarify that the automatic reopening of discovery under
this bill would be limited to issues currently before the court,
and not all issues, including those that have been finalized,
related to the dissolution.
Amendment
Page 2, line 5 before "pleadings" add "post judgment"
Page 2, line 5, after "pleadings" add "currently before the
court"
The sponsor of this bill, the Association of Certified Family
Law Specialists, writes in support that "this proposed
legislation 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."
Support : Executive Committee of the Family Law Section of the
State Bar (FLEXCOM)
Opposition : None Known
HISTORY
Source : Association of Certified Family Law Specialists
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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