BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1735


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          Date of Hearing:  April 26, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1735  
          (Waldron) - As Amended April 21, 2016


                                  PROPOSED CONSENT


          SUBJECT:  BIFURCATED FAMILY LAW JUDGMENTS: SERVICE


          KEY ISSUE:  IN ORDER TO IMPROVE THE LITIGATION PROCESS IN FAMILY  
          LAW FOR LITIGANTS, ATTORNEYS, AND THE COURT, SHOULD THE SERVICE  
          RULES BE MODIFIED SO THAT A PARTY SERVES THE ATTORNEY OF RECORD  
          RATHER THAN THE PARTY, AFTER A COURT HAS ENTERED A BIFURCATED  
          JUDGMENT, FOR MOTIONS ON OUTSTANDING ISSUES? 


                                      SYNOPSIS


          This non-controversial bill, sponsored by the Conference of  
          California Bar Associations, seeks to improve the service rules  
          in family law litigation matters when a court has entered a  
          bifurcated judgment.  Currently, when a party seeks to modify a  
          permanent order or judgment in a family law matter, the party  
          must notice and serve the party who is the subject of the order,  
          rather than the attorney of record.  This service rule protects  
          litigants in family law disputes who may no longer be  
          represented by an attorney.  According to the author and the  
          sponsor, some California courts have applied this service rule  








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          to motions filed after a court has entered a bifurcation  
          judgment.  Since a bifurcated judgment usually means that  
          motions filed after the judgment are sought to resolve  
          outstanding issues, it is more appropriate to notice and serve  
          the attorney of record.


          Accordingly, this bill seeks to clarify that the service rules  
          do not apply when a court enters bifurcation; after a court has  
          entered a bifurcated judgment, the attorney of record must be  
          served with moving papers on outstanding issues, rather than the  
          party.  In order to protect litigants who might lose  
          representation during what could be a long period of time after  
          bifurcation, this bill also provides that if no pleadings have  
          been filed in the action for a period of six months after the  
          entry of the bifurcated judgment, service shall be upon the  
          parties and the attorney of record.  The bill has no known  
          opposition.


          SUMMARY:  Requires a party to serve the attorney of record, for  
          parties who are represented, when the party is filing a motion  
          on an outstanding matter after the court has entered a  
          bifurcated judgment.  Specifically, this bill:  


          1)Provides that the service rules required of a modification,  
            judgment or order in family law matters, as specified, shall  
            not apply if the court has ordered an issue or issues  
            bifurcated for separate trial in advance of the disposition of  
            the entire case. 


          2)Requires a party to serve the attorney of record, for parties  
            who are represented, when the party is filing a motion on an  
            outstanding matter after an entry of bifurcation.


          3)Provides that if no pleading has been filed in the action for  








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            a period of six months after the entry of the bifurcated  
            judgment, service shall be upon the parties at the party's  
            last known address, and upon the attorney of record.


          EXISTING LAW provides that a modification to a judgment or order  
          of dissolution or legal separation, or paternity, or permanent  
          order involving visitation, custody, or child support shall not  
          be valid unless prior notice is served upon the party except  
          where otherwise permitted.  Further provides that service upon  
          the attorney of record is not sufficient.  (Family Code Section  
          215.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  After a court has issued a judgment or order in a  
          family law matter, parties are allowed to seek a modification of  
          that judgment or order under certain circumstances.  For  
          example, a party might seek to modify a child support order  
          because of a change in income.  Currently, when a party seeks to  
          modify a permanent order or judgment in a family law matter, the  
          party must notice and serve the party who is the subject of the  
          order, rather than the attorney of record.  The general policy  
          behind this intuitive rule (previously Civil Code Section 4809,  
          and before that, Civil Code Section 147) is to protect litigants  
          in family law disputes who may no longer be represented by  
          counsel.  As one California court has explained, because a  
          family court retains jurisdiction indefinitely for certain  
          disputes, an attorney who has lost touch with a former client  
          might receive filings for a motion to modify an order that the  
          attorney was previously involved with; this scenario creates a  
          difficult situation for parties, the attorneys, and the court.   
          (In re Marriage of Roden (1987) 193 Cal.App.3d, 939, 943.)   
          Accordingly, the service rules ensure that litigants-who may no  
          longer be represented by an attorney-are served and noticed when  
          there are proceedings to modify a previous court judgment or  








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          order.


          However, some family courts have interpreted this  
          litigant-protection service rule to also apply to bifurcated  
          judgments.  Bifurcation, a common practice in family law, allows  
          a court to resolve one or some of the issues in a case, while  
          reserving the resolution of remaining issues for a later date.   
          For example, in a marital dissolution case, a court might  
          bifurcate and resolve the issue of terminating marital status,  
          and reserve remaining issues like custody, property division,  
          and spousal support for the future.  In this example,  
          bifurcation allows the parties to continue on with their lives  
          and remarry while the court works with the parties to resolve  
          those outstanding issues.  


          Courts like bifurcation because it tends to promote resolution  
          among the parties.  Bifurcation simplifies the case, determines  
          other issues, and even encourages dialogue between parties.   
          Indeed, as one court has stated, "[t]he inability to resolve  
          issues frequently inhibits the ability of the parties to settle  
          other issues.  If it appears that the resolution of a pivotal  
          issue by a bifurcated trial of that issue will enable the  
          parties to settle all other issues, bifurcation is to be  
          encouraged."  (In re Marriage of Wolfe (1985) 173 Cal.App.3d  
          889, 894.)  


          Because bifurcation occurs in the early phases of a case,  
          parties who file motions after the bifurcated judgment are  
          seeking to resolve the outstanding and remaining issues.   
          However, because of litigant-protection service rules, motions  
          associated with outstanding issues are required to be served and  
          noticed on the litigant and not the attorney of record - even  
          when a final judgment or order has not yet been entered.











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          In support of the bill, the author writes:


            AB 1735 would amend Family Code Section 215 to clarify that  
            motions filed after an entry of judgment on a single,  
            bifurcated issue must be continue to be served as before entry  
            of the bifurcated judgment (either to counsel or to the party  
            if the party is self-represented) and not solely on the party  
            as provided in Section 215.  The bill will clarify the law, to  
            avoid confusion about service, and ensure that attorneys are  
            not required to violate the ethical rule that prohibits direct  
            communication with a represented party.


          Accordingly, this bill seeks to clarify that the service rules  
          do not apply when a court enters bifurcation; in other words,  
          after a court has entered a bifurcated judgment, the attorney of  
          record must be served with moving papers on outstanding issues,  
          rather than the party.  This approach appears reasonable since a  
          bifurcated judgment usually means that motions filed after the  
          judgment are sought to resolve outstanding issues, which means  
          that it is probably more appropriate to notice and serve the  
          attorney of record, rather than the party.


          In order to protect litigants who may decide to no longer have  
          representation after a bifurcated judgment, this bill  
          essentially reverts to the current service rules if no pleadings  
          are filed within six months.  In order to protect litigants who  
          might lose representation after bifurcation (due to litigation  
          costs), this bill provides that if no pleadings have been filed  
          in the action for a period of six months after the entry of the  
          bifurcated judgment, service shall be upon the parties and the  
          attorney of record.


          REGISTERED SUPPORT / OPPOSITION:










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          Support


          Conference of California Bar Associations (sponsor)




          Opposition


          None on file




          Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334