Say What You Mean; Mean What You Say
| Publication year | 2018 |
| Author | Nathan W. Gabbard |
Nathan W. Gabbard
Nathan W. Gabbard practices family law in Los Angeles and is certified as a Family Law Specialist by the State Bar of California Board of Legal Specialization. Mr. Gabbard serves on the Leadership Council of the Los Angeles Center for Law and Justice (LACLJ), which is a non-profit organization providing legal services to survivors of domestic violence and abuse. He participates in the Regional Legislative Committee, where he reviews and comments on proposed changes in legislation. He serves on the Executive Committee of the Beverly Hills Bar Association - Family Law section and has been a member of the Executive Committee on the LGBT Bar Association of Los Angeles. He was designated as a "Super Lawyer Rising Star' in 2017 and 2018, a designation awarded to only 2.5% of the lawyers in the state.
Say what you mean and mean what you say. This could be the takeaway from the court of appeal case of In re Marriage of Minkin, 11 Cal. App. 5th 939 (2017) (Minkin). Similarly, when drafting Marital Settlement Agreements and stipulated judgments, best practices suggest clearly identifying and describing in unambiguous terms the parties' intentions, as they exist at the time of entering into the agreement.
Put another way, don't be sloppy. Of course, that sets the bar bizarrely low—far lower than the competency requirements set forth in the California Rules of Professional Conduct1 Nonetheless, the point is not lost on reviewing courts, which have called out sloppiness when it appears before them. For example:
- It was "sloppy drafting" where a stipulation twice referred to a business as "community corp" instead of a separate property asset in which there may be community interest.2
- An order after hearing regarding adjusting an accounting was erroneous on its face as the result of either sloppy drafting or a sloppy discussion of the issue in chambers, or both.3
- Argument in declarations of counsel may be common practice, but it is a sloppy practice that should stop.4
Moreover, often subconsciously, terms of art and legal jargon are sometimes employed with a general application far beyond the actual scope of their true meaning. Even without a failure of competence or lack of care, practitioners may, from time to time, slip into familiar vernacular (instead of pointedly acute locution) when discussing common issues that arise routinely in the practice of family law. For example, the issue of income available for support is a familiar phrase and common concept. However, the way it is discussed can become overly simplified. "While we recognize that family lawyers and forensic accountants sometimes use the phrase 'cash flow' as a sloppy synonym for the word 'income' as it appears in the support statutes, it isn't."5
It is well settled that "income" for purposes of determining a support order must be a stable number, based on a time sample that is fair and representative (as opposed to extraordinary) and that is also a reasonable predictor of that party's income in the immediate future.6
Bonuses are typically included in determination of income available for support. See Family Code § 4058's non-exhaustive list of sources of income, which expressly includes "bonuses." Even sporadic bonuses may not be deducted from a determination of prospective income if the bonuses are recurring and predictable.7
However, when it comes to determining monthly income available for support, it is not always appropriate to simply divide a party's annual net disposable income by twelve.8 This is particularly true when a party's income fluctuates, and if he or she has received a bonus that is not guaranteed to recur or has only speculative future recurrence.9
Just as it is sloppy to refer to "cash flow" when discussing "income," it can also be an imprecise over-simplification to make a general reference to an "Ostler/Smith" provision when referring to provisions for additional child support or additional spousal support.
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"An Ostler/Smith provision is 'an...
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