The Use of Motions in Family Law

• Jurisdiction: California,United States
• Author: Dorie A. Rogers, CFLS
• Publication year: 2017
• Citation: Vol. 39 No. 4

The Use of Motions in Family Law

Dorie A. Rogers, CFLS

Dorie A. Rogers is a Family Law Specialist, certified by the California State Bar Board of Legal Specialization. She practices in Orange County, and has a family law litigation, transactional, mediation and appellate practice. Ms. Rogers is currently the ACFLS Associate Legislative Director, the State Bar Family Law Executive Committee Legislation Chair, and a Past Director of the Orange County Chapter of ACFLS. She serves as pro tem for Orange County Superior Court and has served as minor's counsel approved by Orange County Superior Court. She has also written and taught Family Law related MCLE programs. She can be reached at DRogers@DRFamilyLaw.com.

Motions are underutilized in family law. Attorneys often miss opportunities to educate the judicial officer, narrow issues, or eliminate the opposing party's evidence. Also, trial attorneys must do all they can to preserve the record and afford the judicial officer the chance to correct mistakes and legal errors, which may save the client the cost of an appeal. In formulating motions, ample opportunities exist to be creative and to think outside the box. Careful attention must be paid to timelines, which vary by motion. In addition, certain legal issues may only be raised by certain types of motions. This article will provide an overview of various types of motions that are available in family law cases.

Pre-trial motions

Do you want a different judge?

It's been said there are two kinds of lawyers: those who know the law and those who know the judge. A motion to disqualify a judicial officer, called a peremptory challenge (or, as known in the trade, "burning paper"), is available without any basis. However, a party must bring such a motion either to the assigned judge or to the presiding judge within fifteen days of the court's notice of assignment. Notice to all parties must be served no later than five days after making the motion. A party who has successfully appealed may also seek to disqualify a judicial officer, regardless of any prior challenge.¹

Was the action brought in the wrong court?

A motion to quash is a request for a threshold determination of jurisdiction, either subject matter or personal, alleging that California is not the proper forum because it is not the domicile of either party or the child for purposes of initiating a dissolution action. A party to the dissolution must have been a resident of California for six months immediately preceding the filing of an action to justify California jurisdiction, unless the case is an annulment or legal separation action, or the court is asserting temporary emergency jurisdiction.² In California, "domicile" and "residence" are treated in the same way.

Does the court have jurisdiction over the child?

The Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA") applies to cases involving minor children if there is a custodial action between two competing jurisdictions. The UCCJEA, at Family Code section 3400 et seq., has special rules concerning procedure. If the court has reason to believe that proceedings may be pending in another state, it shall stay the proceeding and communicate with the other court and determine which court shall assume jurisdiction.³The child must have been a resident of the state for six months immediately preceding the filing of the action or the application of forum non conveniens.⁴

A court may assume temporary emergency jurisdiction to make orders if the child has been abandoned or because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.⁵ However, a court cannot make a permanent child custody determination when the home state has not declined to exercise jurisdiction.⁶

When challenging jurisdiction, be careful not submit to jurisdiction by making a general appearance. As a practice, you and your pleadings should state you are "Specially Appearing"—in bold typeface and often. Do not make any requests for orders in the challenged jurisdiction, because you will have submitted to the court's jurisdiction. However, a party who has specially appeared may disqualify a judge hearing its motion to quash⁷ is not deemed to have made a general appearance.⁸

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Is there a threshold issue that should be heard early?

Often the bifurcation and resolution of a contested issue in the early stages of the dissolution action will expedite the process by narrowing the scope of issues for trial or resolve an important issue that is obstructing settlement. Whenever there is an issue that would benefit from a determination earlier than at the time of trial, take advantage of a motion to bifurcate and request a hearing on just that issue.⁹

Some issues subject to bifurcation are: 1) the validity of a premarital or postnuptial agreement, 2) the date of separation, 3) characterization or transmutation of an asset, 4) the date to use for valuation of assets, 5) the existence or value of business or professional goodwill, 6) establishing claims for reimbursement, and 7) the determination of one party's breach of fiduciary duty. Especially in the present state of the court system when family law attorneys are scrambling to obtain court time, bifurcation is a judicially economic way to get heard early and settle a threshold issue that may resolve the remainder of the case.

Does a party want to get divorced NOW?

Often there is an emotional benefit for an early termination of marital status. Sometimes a party simply wants to remarry. The court may, on noticed motion, sever and grant an early and separate trial on the issue of the dissolution of the parties' marriage, apart from other issues in the action. Only slight evidence is necessary to obtain bifurcation on status. However, there must be compelling reasons to oppose one. The statutory requirements are enumerated in Family Code section 2337. The parties' preliminary declarations of disclosure must be served prior to, or in conjunction, with the motion. Be aware that incomplete or insufficient preliminary declarations of disclosure are fatal to a motion to bifurcate status.

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