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:
AB 1735
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Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334