by Dorie A. Rogers
Motions are underutilized in family law. Attorneys often miss opportunities to educate the judicial officer, to narrow issues, or to eliminate the opposing party’s evidence. Moreover, attorneys must preserve the trial court 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.
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. Cal. Civ. Proc. Code § 170.6 (West 2019).
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 unless the court is asserting temporary emergency jurisdiction. Cal. Fam. Code § 3424 (West 1999). In California, “domicile” and “residence” are treated in the same way.
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, starting at Family Code section 3400, has its own 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. Cal. Fam. Code § 3406 (West 1999). The 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. Cal. Fam. Code §§ 3402(g), 3407(c), 3427 (West 2000).
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. Cal. Fam. Code § 3424 (West 2000). However, a court cannot make a permanent child custody determination when the home state has not declined to exercise jurisdiction. In re Gino C., 224 Cal. App. 4th 959 (2014).
When challenging jurisdiction, be careful not to 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 that court’s jurisdiction. However, a party who has specially appeared may disqualify a judge who is hearing its motion to quash (Cal. Civ. Proc. Code § 170.6 (West 2011)) without being deemed to have made a general appearance. Loftin v. Superior Court, 19 Cal. App. 3d 577 (1971).
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 resolving an important issue that could obstruct settlement. Whenever there is an issue that would benefit from a determination earlier than the time of trial, take advantage of a motion to bifurcate and request a hearing on just that issue. Cal. Fam. Code § 2025 (West 1994); Cal. Rules of Court, rule 5.390 (West 2017).
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 the 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.
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.
If your client is elderly or infirm, bifurcation of marital status should be done. In the event a client dies after obtaining a judgment of dissolution of the marital status, the court still has jurisdiction over the remaining marital issues. Cal. Fam. Code § 2337(f) (West 2016).
Because family law is a civil action, the Civil Discovery Act applies. This article will not enumerate all of the specific civil discovery motions. However, it is crucial to understand which motions are available and to carefully calendar the strict timelines. Failure to comply with orders on motions to compel or to further compel production can result in not only monetary sanctions, but evidentiary and/or terminating sanctions as well. When requesting an order to compel production, ask for a specific date for the court to order the production. If the party fails, the next step is to file that motion for evidentiary and/or terminating sanctions.
A motion to strike a pleading (such as a Response to Petition for Dissolution of Marriage) is convenient when an opposing party has failed to serve their preliminary declaration of disclosure after a court order to do so based on an earlier motion to compel its service. Moreover, a motion can be brought to strike out any irrelevant, false, or improper matter in the pleading or responsive pleadings that fail to comply with a statute or a rule of court. Cal. Civ. Proc. Code § 436 (West 1983). For example, consider a situation where a motion to strike a child custody evaluator’s report failed to meet the legal standards in a move-away case because the expert asked both parties what they would do if the court denied the request to move. The use of that motion would result in striking all statements and recommendations that flowed from that information.
Motions in limine are largely underutilized by family law attorneys. No express authority exists for a motion in limine, but they are well recognized in practice and by case law for the motion. Clemens v. Am. Warranty Corp., 193 Cal. App. 3d 444, 451 (1987); Greer v. Buzgheia, 141 Cal. App. 4th 1150, 1156 (2006). Authority for motions in limine is found at California Rules of Court, rule 3.1112(f): “Notwithstanding (a), a motion in limine filed before or during trial need not be accompanied by a notice of hearing. The timing and place of the filing and service of the motion are at the discretion of the trial judge.” Most motions in limine are brought at the start of trial or hearing to exclude evidence.
A motion in limine is used to ask the court to exercise its discretion to exclude materials, statements, photos, media, or documents at trial. Such a motion may be brought pursuant to Evidence Code section 352 on the basis that such items are inadmissible or prejudicial. It can also be brought where the evidence a party is attempting to introduce was requested by the opposing party but never produced and then ends up on the party’s exhibit list for trial. The uses of motions in limine are not limited to these legal bases. They provide an opportunity to be creative and to make the court aware of legal issues that may arise in the case later. Even if the court denies such a motion, the attorney should still raise any relevant objections during trial and may move anew to exclude the evidence. Failure to object at trial will be treated as a waiver on that issue if the party later wishes to appeal.
After a party has completed his or her presentation of evidence in a court trial, the other party, without waiving his or her right to offer evidence, may move for judgment. Cal. Civ. Proc. Code § 631.8 (West 1980). This is a useful tool for the litigant who continuously brings requests for an order to modify issues such as custody or spousal support without any evidence of a material change in circumstances. Let the other side present his or her case, and when he or she rests, move for judgment in favor of your client because of the moving party’s failure to meet the required burden of proof. This prevents you from having to try a case you’ve essentially already won.
Where an in pro per litigant continues to take a party back to court on frivolous requests, it may be appropriate to bring a motion to have the party declared a vexatious litigant so that he or she must obtain permission prior to filing any additional requests. Cal. Civ. Proc. Code § 391(b) (West 1994).
Appeals and writs are costly and lengthy. Use of motions after your hearing might save your client from a visit to the court of appeal. Although not a motion, it is also important to request a Statement of Decision. The request must be made within ten days after the court announces a tentative decision unless the trial is concluded within one calendar day, or in less than eight hours over more than one day, in which event the request must be made prior to the submission of the matter for decision. Cal. Civ. Proc. Code § 632 (West 2003).
The first opportunity for a motion may arise immediately after the court has made its tentative decision or oral ruling at the conclusion of the hearing. At that time, you may move for the court to enter an order different than the court’s tentative ruling, because the court’s tentative ruling is not binding. In re Marriage of Olson, 27 Cal. 3d 414 (1980); Cal. Rules of Court, rule 3.1590(b) (West 2016). This gives the court the opportunity to correct an order that is contrary to law prior to its entry of judgment or order after hearing. This type of motion should not be confused with a statutory motion for reconsideration after the formal ruling.
Even after a hearing or trial has been completed, additional opportunities exist to bring a motion. After entry of the order or judgment, the court may, upon motion of the injured party or its own motion, correct clerical mistakes in its judgment or orders entered so as to conform to the judgment or order directed, and may, on noticed motion of either party, set aside any void judgment or order. Cal. Civ. Proc. Code § 473(d) (West 1996). If you’re not sure if the court made a mistake, or do not understand some of the language in the court’s ruling, you can bring a motion for clarification of the court’s order or judgment. Although this motion is not authorized by any statute, it is permissible because the court has the inherent ability to reconsider and modify its own ruling, and this can be a useful tool to get the court to make slight alterations to the ruling that may benefit your client.
After a case is submitted, a party may move to reopen the case for further evidence. 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 166, p. 202. A motion to reopen evidence must be supported by a showing of good cause and due diligence. Id. Trial courts have broad discretion when deciding whether to reopen the evidence. Horning v. Shilberg, 130 Cal. App. 4th 197, 208 (2005). There is no specific statute of limitations on a motion to reopen.
A party may also bring a motion for reconsideration based upon new or different facts, circumstances, or law. However, unlike a motion to reopen, it must be brought within a tight statutory timeline of only ten days after service upon the party of written notice of entry of the order. Cal. Civ. Proc. Code § 1008 (West 2012). The motion is heard by the same judge or court that made the order who will reconsider the matter and has discretion to modify, amend, or revoke the prior order. If you are pursuing a reconsideration motion, be sure that it has a proper basis, as any violation of section 1008 may be punished as a contempt and with sanctions. Id. § 128.7.
A party can move for a new trial under specific circumstances that materially affected the party’s substantial rights. For family law purposes, these specific circumstances include irregularity in the court proceedings that prevented the party from having a fair trial; accident or surprise that ordinary prudence could not have guarded against; newly-discovered evidence that the party could not, with reasonable diligence, have discovered and produced at trial; insufficiency of the evidence to justify the decision; failure of the decision to comply with the law; or an error in law occurring at the trial and objected to by the party making the application. Cal. Civ. Proc. Code § 657 (West 1967).
The timelines are critical for this motion. A party must file and serve a notice of intention to move for new trial, designating the grounds upon which the motion will be made, within fifteen days of the mailing of notice of entry of judgment by the clerk or within 180 days after entry of judgment, whichever is earliest. The memorandum of points and authorities in support of the motion must be filed and served within ten days thereafter. Id. § 659; Cal. Rules of Court, rule 3.1600 (West 2007).
It is important to pay attention to the date set for hearing. If the motion is not heard within sixty days from the mailing of the notice of entry of judgment, or sixty days from service of written notice of entry of the judgment, whichever is earlier, it will be without further order of the court. Cal. Civ. Proc. Code § 660 (West 2019).
In a family law matter, a party may move to set aside an order or judgment using several different motions, depending on the specific grounds for set-aside. Some are set forth in the Code of Civil Procedure and some in the Family Code.
A party may move to vacate an order or judgment pursuant to Civil Procedure Code section 663 where there is an incorrect or erroneous legal basis to support the court’s decision that is not consistent with or supported by the facts and that materially affects the party’s substantial rights and entitles the party to a different judgment. Similar to a motion for new trial, a party intending to move to vacate the order or judgment must file and serve a notice of intention, designating the grounds upon which the motion will be made, within fifteen days of the mailing of notice of entry of judgment by the clerk or within 180 days after entry of judgment, whichever is earliest. The memorandum of points and authorities in support of the motion must be filed and served within ten days thereafter. Cal. Civ. Proc. Code § 663a(d) (West 1981).
Also similar to a motion for new trial, it is important to pay attention to the date set for hearing on a motion to vacate pursuant to Civil Procedure Code section 663. If the motion is not heard within sixty days from the mailing of the notice of entry of judgment, or sixty days from service of written notice of entry of the judgment, whichever is earlier, the motion will be denied without further order of the court. Cal. Civ. Proc. Code § 663a.
Where a judgment, dismissal, order, or other proceeding is taken against a party or his legal representative through mistake, inadvertence, surprise, or excusable neglect, the party may also move to seek relief under Civil Procedure Code section 473. Such a motion must be made within a reasonable time, but in no case exceeding six months after the judgment, dismissal, order, or other proceeding was “taken against him.”
Where a default or default judgment is entered against a client where service of a summons did not result in actual notice to a party in time to defend the action, he or she may move to set aside the default or default judgment and for leave to defend the action. Such a motion must be filed and served within a reasonable time, in no event exceeding the earlier of two years after entry of default or 180 days after service of written notice that a default or default judgment has been entered. Cal. Civ. Proc. Code § 473.5 (West 1990).
Motions to set aside may also be made under specific Family Code sections. Section 2405 provides for set-aside of a summary dissolution judgment for all matters except the status of the marriage upon proof the parties did not meet the requirements for summary dissolution of marriage at the time the petition was filed. Motions to set aside a judgment pursuant to Family Code section 2100, et seq., are based upon the requirements for full disclosure of all assets in which either party has an interest, regardless of its characterization.
Section 2107 provides for the set-aside of judgment for failure to comply with disclosure requirements. Sections 2120 through 2125 provide relief from a judgment or part of a judgment after the expiration of the six-month time limit of Civil Procedure Code section 473. The threshold requirement for any motion to set aside a judgment is whether “the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.” Cal. Fam. Code § 2121 (West 1993).
A motion alleging that actual fraud exists where the defrauded party was kept in ignorance or in some other manner—through no fault of the moving party—was fraudulently prevented from fully participating in the proceeding. A motion to set aside based on fraud must be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud. Cal. Family Code § 2122(a) (West 2002).
A court also has the inherent equitable power to set aside a judgment or other order for extrinsic fraud. In re Marriage of Thorne & Raccina, 203 Cal. App. 4th 492, 499 n.3, 500-501 (2012). A party may bring a motion to set aside a judgment based on perjury in either the preliminary or final declaration of disclosure or in a current Income and Expense Declaration. The motion must be brought within one year from the time the party discovered or should have discovered the perjury. Cal. Family Code § 2122(b).
A motion to set aside a judgment based upon duress or mental incapacity must be brought within two years after the date of entry of judgment. Id. §§ 2122(c), (d). Where there is a mistake of fact or law in a stipulated or uncontested judgment or a part of the judgment, a motion to set aside the judgment on that basis must be brought within one year. The mistake can be either mutual or unilateral. Id. § 2122(e).
When an attorney’s negligence forms the basis of the set-aside motion, that negligence is not imputed to the complaining party unless the party knew or should have known of the facts and failed to protect him- or herself. Id. § 2124. The Family Code also contains a specific statute to set aside a post-hearing support order, in whole or in part, for actual fraud, perjury, or lack of notice. Id. § 3691.
Familiarity with the different types of motions that are available in a family law case can be useful, cost-effective tools to obtain a desirable result for your clients. Your toolbox is bigger than you realize.
Dorie A. Rogers, CFLS, practices family law at the Law Offices of Dorie A. Rogers and is legislative co-director for the Association of Certified Family Law Specialists. She can be reached at firstname.lastname@example.org.