BILL ANALYSIS Ó AB 1735 Page 1 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 AB 1735 Page 2 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 AB 1735 Page 3 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 AB 1735 Page 4 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. AB 1735 Page 5 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 Page 6 Support Conference of California Bar Associations (sponsor) Opposition None on file Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334