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 AB 1735 (Waldron) Page 2 of ? 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 AB 1735 (Waldron) Page 3 of ? 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 AB 1735 (Waldron) Page 4 of ? 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 AB 1735 (Waldron) Page 5 of ? 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." AB 1735 (Waldron) Page 6 of ? 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 AB 1735 (Waldron) Page 7 of ? 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)