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February 2011 - The Reverse Request

by Commissioner Richard G. Vogl

It is not unusual to have a Responsive Declaration filed replying to an Order to Show Cause which asks for affirmative relief. This happens both in cases of an initial request for an order, or in an Order to Show Cause for Modification of an earlier order.

The Situation
Imagine that a fellow wants to have greater visitation with his children and files an OSC asking for: (1) the mandatory mediation of the parties in the Family Court Services Offices (on the fifth floor of the court at the Lamoreaux Justice Center); and (2) for more parental timesharing dates.

In the Responsive Declaration, the mother indicates that she does not agree with the request, and further asks the court to order: (1) that the father keep her informed where he is taking the children whenever he does have visitation timesharing; (2) that the court outline a specific holiday timeshare plan; (3) that father maintain a life insurance policy which would insure child support due for the child for the balance of the time period for which child support is due; (4) for an increase in child support; and for (5) an order that he pay a percentage of any income he earns over $5,000 per month. Neither party files any points and authorities.

The Question
May a Responsive Declaration make a request for the affirmative relief which the mother is seeking?

The Answer
Family Code §213 provides that: (a) In a hearing on an order to show cause, or on a modification thereof, or in a hearing on a motion, other than for contempt, the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration within the time set by statute or rules of court. (b) This section applies in any of the following proceedings: (1) A proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties. (2) A proceeding relating to a protective order described in Section 6218. (3) Any other proceeding in which there is at issue the visitation, custody, or support of a child.

There seems to be no authority that a court may rule on any different issue than those raised in the originating documents.

Points and Authorities?
California Rules of Court, Rule 313(a) requires the filing of points and authorities in support of all noticed motion. “The absence of the memorandum may be construed by the court as an admission that the motion or special demurrer is not meritorious and cause for its denial, and in the case of a demurrer, as a waiver of all grounds not supported.” (See Cal.Rules of Court, Rule 3.1113(a).) In the civil courts, a judicial officer will usually deny a motion filed without such a memorandum.

However, the law has specifically indicated that points and authorities are not mandated in regards to family law matters. California Rules of Court §5.118(a) provides that they are required only on a case by case basis.

But Wait, There’s More
So in our example, the question for the court will be whether or not the mother’s request that the father keep her informed as to where he is taking the children whenever he does have them is a question raised by the moving papers.

The father’s request is one of visitation. It has long been held that visitation is a form of custody. See Perry v. Superior Court, 108 C.A.3d 480 (1980), IRMO Jensen, 114 C.A.4th 587 (2003).

Thus, it would seem that the mother’s request in regards to knowing where the children are during their time with the father, and the establishment of a holiday schedule would be properly before the court.

In regards to a request for a court hearing to modify an earlier order, the law requires that there be some substantial change in circumstances. See Goto v. Goto, 52 Cal.2d 118 (1959); IRMO Carney, 24 C.3d 725 (1979); Burchard v. Garay, 42 Cal.3d 531 (1986); IRMO Lewin, 186 Cal.App.3d 1482 (1986); IRMO McLoren, 202 C.A.3d 108 (1988). The paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements See IRMO Burgess, 13 Cal.4th 25 (1996).

The parties must make their respective cases in their papers; whether to hold a hearing on a request for modification of custody or visitation is a matter left entirely to the discretion of the court. See IRMO Drake, 53 C.A.4th 1139 (1997).

Money Issues
The request by the mother, therefore, for both an increase in child support and for the father to maintain a life insurance policy to assure her receipt of child support would not be appropriately before the court. The policy of the law is to have the mother file her own request for a court hearing for this affirmative relief sought. She should pay the filing fee for such a hearing for this new issue.

The proceedings would have been complicated, of course, even if the court wanted to rule on the financial issues. If parties have an active file with the Department of Child Support Services, pursuant to Family Code §4251(a), a designated child support commissioner must hear all actions for an order to establish, modify, or enforce child (or spousal support) which was opened pursuant to Welfare and Institutions Code §11475.1.

A standing objection exists to any judicial officer hearing a financial issue who is not specifically designated as a child support commissioner. There is a standing request for any such matter to be heard in a child support department at the Lamoreaux Justice Center in the appropriate Department.

Best Practice?
Whenever relief is sought, an affirmative request should be filed in an Order to Show Cause pleading. Along with the documents should be a good declaration. In addition, counsel should take heed of the case of IRMO Heggie, 99 C.A.4th 28 (2002), footnote three, where the court stated: “We recognize that it is very common for family law practitioners to include argument in their declarations (we know it is done all the time, and we do not want to single out the trial lawyers in this regard), but it is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” 

Commissioner Richard G. Vogl serves on the Superior Court.


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