Family Law Civil Remedies Civil Procedure

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Appellate Court Notes

SC18942, SC18993, SC18994 - Perry v. Perry - Attorney appointed for a minor child cannot appeal the trial court’s award of only a portion of her fees w/o trial court permission. But that same attorney has personal...more

Does the settlor of a trust have standing to seek its enforcement in the courts?

As a general rule, any beneficiary of a trust would have standing to seek its enforcement in the courts. The Restatement (Third) of Trusts is sending mixed signals as to whether the settlor of a trust, qua settlor, would have...more

Appellate Court Reverses Retroactive Amicus Attorney Appointment

In a suit to modify the parent-child relationship, the Eleventh Court of Appeals has reversed a final order that significantly restricted a mother’s access to her children, thereby allowing the mother to pursue a new trial....more

Technical Rejection of Fee Claim Is Overruled By Court of Appeal

In Marriage of Sharples, 2014 DJDAR 823 (2014), the California Court of Appeal for the Fourth Appellate District overturned the outright rejection of a request for fees by the trial court. The judge rejected the fee claim on...more

Could it be that the Uniform Trust Code would effectively immunize the trustee of a revocable inter vivos trust from liability for...

Section 603 of the Uniform Trust Code provides that while a trust is revocable and the settlor has capacity to revoke the trust, rights of the beneficiaries, such as the equitable remaindermen, are subject to the control of,...more

Illinois Supreme Court Holds Custody Evaluator's Fees Not Court Costs Under Dismissal Statutes

On Thursday, the Illinois Supreme Court handed down its decision in In re Marriage of Tiballi, answering a question of potential importance to domestic relations practitioners: are the fees of a court-appointed psychologist...more

Spendthrift & Discretionary Trusts in Florida: Further Analysis of Berlinger v. Casselberry

In Berlinger v. Casselberry, Case No. 2D12-6470, 6 (Fla. 2d DCA Nov. 27, 2013), the Florida Second District Court of Appeal upheld a writ of garnishment issued by a trial court against the trustee of a discretionary trust...more

Sanctions for Retaining Non Admitted Co Counsel Are Not Proper

In Marriage of Bianco, the California Court of Appeal for the Fourth Appellate District overturned a sanctions award of attorney fees. The award was rendered in a family law dispute....more

Illinois Supreme Court Reaffirms Disgorgement of Advance Payment Retainers Under the Dissolution of Marriage Act

This morning, a unanimous Illinois Supreme Court strongly reaffirmed the "leveling the playing field" rules of the Marriage and Dissolution of Marriage Act in In re Marriage of Earlywine. The Act provides that a court can...more

Children as Witnesses in a Domestic Violence Dispute

In M.J.T. v. A.V.B., the New Jersey Appellate Division overturned the trial court’s entry of a Final Restraining Order (“FRO”) against the defendant. The only witness to the alleged incident of domestic violence was the...more

Legal Byte: Attorney Vacations & the Court’s Calendar

You need a vacation, but, other counsel is being difficult. What is the law? ...more

I was just served with a notice to appear at a hearing concerning a restraining order against me, what should I do?

If you have just been served a notice about a restraining order, you should read this post, and fast! Contact: George E. Bourguignon, Jr., Esq. Phone: (508) 769-1359 or (413) 746-8008 Email: ...more

Civility in the Practice of Law: PART THREE: CIVILITY BETWEEN LAWYERS AND JUDGES

The past two weeks I discussed the issues of civility between lawyers and civility between parties. If incivility exists between lawyers or between parties, this dynamic can be changed by a desire to do so; and either way,...more

A New Term in the U.S. Supreme Court: Cases to Watch

Earlier this month, the U.S. Supreme Court began a new term that is anticipated to include decisions on hot-button issues such as affirmative action, same-sex marriage and national security. The Court will also hear several...more

The trustee is not relieved of the duty to defend the trust just because the beneficiary happens to be getting divorced.

The trustee's primary allegiance is to the beneficiary, not to the non-beneficiary spouse or ex-spouse, unless the express terms of the trust provide otherwise. Thus, when there is marital discord, the trustee must suppress...more

Legal Byte: Can non-signatories be bound by an arbitration clause?

In California a person who is not a party to a contract containing a mandatory arbitration clause may still be compelled to arbitrate whether that non-signatory is a plaintiff or a defendant. ...more

Legal Byte: If you don’t raise an argument in the trial court, are you barred from raising it on appeal?

Legal Byte: If a trial lawyers does not raise all possible arguments on every issue in the trial court, are they barred on appeal as a matter of law? Maybe, maybe not. ...more

For Better or For Worse, Court Finds Joint 998 Offer To Husband and Wife Sufficient Basis For Expert Witness Fees and Costs Award

In Farag v. ArvinMeritor Inc., 2012 DJDAR 5206 (April 24, 20120), the California Court of Appeal for the Second Appellate District affirmed a post-judgment order denying plaintiffs’ motion to tax expert witness costs....more

BVI injunctions in aid of foreign divorce proceedings

Further to the series on interim remedies, Global Head of Litigation, Phillip Kite outlines the available options for injunctions in aid of foreign divorce proceedings. This area has expanded in recent years, in particular...more

Seventh Circuit Addresses International Custody Dispute Under International Convention

Norinder v. Fuentes, No. 10-2753 (7th Cir. 2011), is the rare case in federal court, and even rarer in the federal appellate system, to address custody issues. The Hague Convention on the Civil Aspects of International Child...more

Exemption From Criminal Liability Of Family Members For Certain Crimes

Article II Section 12 of the Constitution provides that the State shall protect and strengthen the family as a basic autonomous social institution. As a policy of the State, it is the duty of the State to fortify the union of...more

Finding of Implied Waiver of Fees Contained in Marital Settlement Agreement Trumps Fee Claims

In Marriage of Guilardi, 2011 DJDAR 16245 (2011), the California Court of Appeal for the Sixth Appellate District decided a fee petition related to so called pendente lite attorney fees. The fees were generated from the...more

Disclosure orders – A weapon to track and recover assets

Disclosure orders constitute a very important weapon for the tracking down and recovery of assets. As such, they are an important area in both the Commercial Court and the High Court, in the latter case because there seems to...more

Servicemembers Civil Relief Act as Applied to Child Support

A review of the general provisions of the SCRA and how they apply to child support cases....more

Attorney Properly Rejects Attorney Fee Arbitration Award by Filing a Small Claims Action

In Giorgianni v. Crowley, the California Court of Appeal for the Sixth District decided a novel question arising under the California Mandatory Fee Arbitration Act for attorney fees disputes. An attorney, John Crowley...more

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