BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1735 (Waldron)
          Version: April 21, 2016
          Hearing Date:  June 14, 2016
          Fiscal: No
          Urgency: No
          NR   


                                        SUBJECT
                                           
               Dissolution of marriage:  bifurcated judgment:  service

                                      DESCRIPTION  

          When there is a modification of a judgment or order, or a  
          subsequent order, in a proceeding relating to marriage, existing  
          law requires that service for the new order or proceeding be  
          made upon the party, and specifies that service upon the  
          attorney of record is not sufficient.

          This bill would require, in cases where issues have been  
          bifurcated for separate trial, that service be on the attorney  
          record for represented parties or on the parties themselves if  
          unrepresented. In actions where a pleading has not been filed in  
          the six months after the entry of a bifurcated judgment, this  
          bill would require service to be upon both the party and the  
          attorney of record.

                                      BACKGROUND  

          In contested divorces involving complex issues, such as property  
          or custody disputes, it may take years before a divorce is  
          finalized.  Bifurcation of a divorce proceeding allows a court  
          to issue a judgment of dissolution as to marital status only,  
          thereby preserving the other issues (e.g.,  custody and  
          visitation of minor children, economic rights, community  
          property interests, healthcare rights, and retirement interests)  
          until those matters are heard and division of the community  
          assets is finally adjudged.  Bifurcation is most common when one  
          or both parties want to remarry prior to the divorce being  
          finalized.  

          This bill, sponsored by the California Commission of Bar  
          Associations, seeks to clarify notice requirements related to  






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          the outstanding issues when parties have been granted  
          bifurcation in a dissolution proceeding.  

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that the attorney in an action may be  
          changed at any time before or after judgment or final  
          determination, if consented to by both the client and the  
          attorney, and filed with the clerk or entered into the minutes.   
          (Code Civ. Proc. Sec. 284.)
           
          Existing law  provides that, when an attorney is changed, as  
          provided above, written notice of the change and of the  
          substitution of a new attorney, or of the appearance of the  
          party in person, must be given to the adverse party. Until then  
          he must recognize the former attorney. (Code Civ. Proc. Sec.  
          285.)
           
          Existing law  provides that an attorney of record for any party  
          in any civil action or proceeding for dissolution of marriage,  
          legal separation, or for a declaration of void or voidable  
          marriage, or for the support, maintenance or custody of minor  
          children may withdraw at any time subsequent to the time when  
          any judgment in such action or proceeding, other than an  
          interlocutory judgment, becomes final, and prior to service upon  
          a party of pleadings or motion papers in any proceeding then  
          pending in said cause, by filing a notice of withdrawal. Such  
          notice shall state: (a) date of entry of final decree or  
          judgment; (b) the last known address of such party;and  (c) that  
          such attorney withdraws as attorney for such party. A copy of  
          such notice shall be mailed to such party at his last known  
          address and shall be served upon the adverse party. (Code Civ.  
          Proc. Sec. 285.1.)
           
          Existing Professional Rule of Conduct  prohibits an attorney from  
          communicating directly or indirectly with a party he or she  
          knows to be represented by another lawyer in the matter, unless  
          the attorney has the consent of the other lawyer. (California  
          Rules of Professional Conduct, 2-100.)
           
          Existing law  requires that after entry of a judgment or  
          permanent order, as specified, under the Family Code, no  
          modification of the judgment or order, and no subsequent order  








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          in the proceedings, is valid unless prior notice is served upon  
          the party. Existing law additionally provides that for the  
          purposes of this requirement, service upon the attorney of  
          record is not sufficient, and allows for notice to modify an  
          order to be served on a party by first-class mail or airmail,  
          postage prepaid, with an address verification. (Fam. Code Sec.  
          215.)

           This bill  would create an exception to the provision immediately  
          above by allowing service upon the attorney of record in matters  
          where a court has ordered an issue or issues bifurcated for  
          separate trial in advance of the disposition of the entire case.  
           Specifically, this bill would provide that service of a motion  
          on any outstanding matter shall be served either upon the  
          attorney of record, if the parties are represented, or upon the  
          parties, if unrepresented. 

           This bill  would provide that, in the event that no pleading has  
          been filed in the action for a period of six months after the  
          entry of the bifurcated judgment, service shall be upon both the  
          party, at the party's last known address, and the attorney of  
          record.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

            In bifurcated judgment cases, the judgment resolves just one  
            aspect of the case, often dissolution, and the matter still  
            must proceed to a final judgment on one or more additional  
            issues - e.g., property allocation, support, custody, etc.  In  
            these cases, service on the non-moving party, and not on his  
            or her attorney, as would otherwise be required, increases  
            confusion and costs.  It also may cause some motions to "fall  
            through the cracks" in that the parties may not notify counsel  
            of receipt of these time sensitive documents in a timely  
            manner, if counsel is notified at all.   

           2.Court may retain jurisdiction over family law issues for many  
            years
           








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          A "final" judgment in a family law action does not necessarily  
          mark the end of litigation between the parties.  With the  
          exception of a property division adjudicated by a final  
          judgment, many family court orders are "modifiable" and are  
          often modified long after the judgment's finality.  For example,  
          the family law court's jurisdiction to issue or modify child  
          support orders in a marital action continues until the child  
          reaches majority and independent of any reservation of  
          jurisdiction.  In effect, for child support purposes, a  
          dissolution action remains pending throughout the child's  
          minority as a matter of law. (Marriage of Armato (2010) 88 CA4th  
          1030, 1042.)  In addition, child custody and visitation orders  
          are modifiable whenever the court finds that a modification is  
          "necessary and proper" in the child's best interests.  Thus,  
          even after entry of the underlying dissolution judgment, custody  
          and visitation matters remain pending. (Marriage of Kriess  
          (2004) 122CA4th 1082, 1085.) Similarly, spousal support awards  
          and agreements, temporary as well as permanent, are modifiable  
          throughout the support period except as otherwise provided by  
          the parties.  (Marriage of Hibbard (2013) 212 CA4th 1007, 1013.)

          Despite the ability to modify family law orders for many years,  
          it is not uncommon for a client and attorney to terminate their  
          relationship after the initial orders related to the dissolution  
          are issued.  Parties may then retain counsel (be it the same, or  
          a different, attorney) if modification of an order is sought.   
          Because of the cost of litigation, it is also common for a party  
          to terminate his or her relationship with an attorney before all  
          of the separate family law issues are resolved and represent him  
          or herself.  In fact, the vast majority of family law cases in  
          California contain at least one party who is unrepresented.   
          Existing law recognizes this and provides for notice and  
          procedures an attorney must follow when withdrawing from a case  
          or when a client decides to hire a new attorney (see Comment 4).

          This bill, by additionally providing for the situation where no  
          pleading has been filed in a bifurcated trial in six months,  
          appropriately acknowledges the reality that whether a family law  
          litigant is represented in a particular matter is, to a large  
          degree, fluid.  By requiring, when six months or more has  
          elapsed, that both the party and his or her attorney of record  
          are served notice of a proceeding, this bill will likely ensure  
          that the party actually receives notice and therefore will have  








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          a fair opportunity to defend his or her interests.  

           3.Attorneys are prohibited from contacting a represented party  
            directly in a matter
           
          Existing Professional Rule of Conduct prohibits an attorney from  
          communicating directly or indirectly with a party he or she  
          knows to be represented by another lawyer in a matter, unless  
          the attorney first has the consent of the other lawyer, and  
          violation of this rule may subject an attorney to disciplinary  
          action by the State Bar (California Rules of Professional  
          Conduct, 2-100).  

          Yet, as described in Comment 2 above, because family law orders  
          are modifiable for many years, serving notice of a modification  
          on an attorney years after an order has been issued, may be  
          problematic if that attorney no longer represents the client.   
          Accordingly, the Family Code provides that "no modification of  
          the [family law] judgment or order, and no subsequent order in  
          the proceedings, is valid unless any prior notice [?] is served,  
          in the same manner as the notice is otherwise permitted by law  
          to be served, upon the party. For the purposes of this section,  
          service upon the attorney of record is not sufficient." (Fam.  
          Code Sec. 215.)  

          Thus, one rule prohibits an attorney from contacting a party  
          directly, while another one requires it.  With regard to a  
          bifurcated trial where the dissolution is determined prior to  
          the other family law issues, these laws arguably require a  
          violation of one or the other by an attorney. Resolving this  
          conflict, this bill would clarify that service of a motion on  
          any outstanding matter in a bifurcated trial shall be served  
          upon the attorney of record, if the parties are represented.   
          The author writes that this would "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."









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           4.Attorneys are required to notify the court and the opposing  
            party in the event of withdrawal or change of counsel
           
          Existing law established the process by which an attorney may  
          withdraw from a case, or a client may hire new counsel, and  
          provides for notice of the action to be given to the court and  
          the opposing party.  Specifically, an attorney in an action may  
          be changed at any time if consented to by both the client and  
          the attorney, and filed with the clerk or entered into the  
          minutes.  When an attorney is changed, written notice of the  
          change and of the substitution of a new attorney, or of the  
          appearance of the party in person, must be given to the adverse  
          party. Until then, the adverse party must recognize the former  
          attorney. (Code Civ. Proc. Secs. 284 and 285.).  In addition, an  
          attorney in any civil action or family law proceeding may, at  
          any time subsequent to the judgment, other than an interlocutory  
          judgment, and prior to service of pleadings or motion papers in  
          any proceeding then pending in said cause, withdraw by filing a  
          notice of withdrawal. The attorney must mail a copy of the  
          withdrawal to his client and a copy shall also be served on the  
          adverse party. (Code Civ. Proc. Sec. 285.1.)

          Thus, existing law contains protections to ensure that parties  
          and the court are notified when the opposing party fails to be  
          represented by an attorney. Accordingly, parties and counsel  
          should arguably be able to comply with the provisions of this  
          bill, which require service upon either the opposing party or  
          his or her attorney in a bifurcated trial, depending on whether  
          the party is represented.  

           Support  :  None Known

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  California Conference of Bar Associations

           Related Pending Legislation  : None Known 

           Prior Legislation  : AB 939 (Committee on Judiciary, Ch. 352,  
          Stats. 2010) made various changes to family law proceedings  
          thereby implementing a number of recommendations issued by the  








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          Elkins Family Law Task Force, including requiring  that a  
          post-judgment motion to modify a custody, visitation, or child  
          support order may be served on the opposing parties by  
          first-class mail, provided the proof of service includes an  
          address verification.

           Prior Vote  :

          Assembly Floor (Ayes 76, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)