Writs / Appeals

 


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Marcus Family Law Center, PLC is at the forefront of all family law matters, including areas related to family law.

 

In the course of our representation of the client, we endeavor to guide the courts into making the right decision.  There are times when judges make mistakes.  Sometimes, the errors can be corrected with motions to reconsider, to renew, to set aside, to vacate, or to set new trial.  When those remedies fail or are unavailable, that is what Appeals and Petitions for Writ are for.

 

Petitions for Writ: These are expedited requests to the Appellate Court for immediate intervention in an ongoing lower court proceeding that is going wrong.  Examples of such a proceedings are as follows:

 

Writ of Mandamus:     Mother lived with teen-aged Daughter outside of California.  Father would have Daughter for summer visitation in California.  One summer, Father claimed that Daughter did not wish to return to her mom, and he filed a request for a temporary emergency order delaying Daughter’s return home pending a hearing.  Such temporary orders generally expire in 20 days.  The temporary order was granted, and a hearing was set.  Before the hearing was had, the judge erroneously granted an indefinite extension to the temporary order (so it would not expire) and then self-disqualified for personally knowing Father (who had worked in the courthouse).  Immediately thereafter, all other Superior Court judges in the county also disqualified themselves, because they knew Father too.  The case was not assigned to any other judge, and no further hearing was set.  Effectively, Father had been granted a change of custody without any hearing, and since summer was ending, Father proceeded to register Daughter for school in California.  Marcus Family Law Center, PLC intervened and Petitioned for a Writ of Mandamus.  In a matter of days, the Appellate Court ordered an immediate assignment of a judge from out-of-county and the setting of a timely hearing, which promptly occurred.  The end result was that Daughter returned home to her mother, a few days late for school.

 

Writ of Supersedeas:   As a form of punishment, the judge ordered Party-1 to pay Party-2 hundreds of thousands of dollars more than Party-1 had.  Party-2 immediately sought to collect on the order (though levies, liens, garnishments, and other means) to keep Party-1 from having sufficient funds to appeal or even survive.  Marcus Family Law Center, PLC intervened and Petitioned for a Writ of Supersedeas.  The Appellate Court granted the Writ, preventing all collection efforts pending resolution of the Appeal itself.  The Appeal was ultimately granted, and the order was reversed.

 

Appeals:          These are requests for review of final judgments and orders.  Marcus Family Law Center, PLC has been involved in a number of Appeals, and at any given time, we are likely to have a handful of Appellate cases pending.  In Marcus Family Law Center, PLC’s 40+ year history, the firm has been involved in more Appeals than would be practical to chronicle, including a number of published cases.  Some examples are:

 

In re Alexandria M, (2007) 156 Cal.App.4th 1088 (securing appointment of Joseph T. Tavano on appeal for briefing/argument, and handling all proceedings leading to and flowing from the Appeal): This was a particularly nuanced case addressing a juvenile court’s ruling rejecting the written agreement of the parties, as well as the interaction between juvenile and family courts;

 

In re EM, (2014) 228 Cal.App.4th 828: This case also involved the interplay between juvenile and family courts, as well as the impact on custody proceedings when a petition is filed to free children from the custody and control of a parent.  Not only was this firm materially involved in the Appeal, but successfully facilitated the confidential family court resolution that followed.

 

In re Marriage of Garcia (2017) 13 Cal.App.5th 1334: Not all cases are published.  The decision of the Appellate Court to publish a case often turns on whether the case presents new perspectives on the law.  In this case, Wife had filed for divorce (represented by other counsel) and requested spousal support, attorney fees, and division of the marital property.  Husband responded with a claim that the parties had never been married; that the marriage certificate had been a fraud (facilitated by Husband).  This led to dismissal of the divorce.  Wife then engaged Marcus Family Law Center, PLC and filed for nullity of the marriage on the basis of Husband’s claim that it had never existed (although Husband and Wife had filed joint tax returns for years, held insurance as a married couple, accumulated Social Security Benefits, and otherwise had behaved as husband and wife).  In the nullity action, Wife again requested spousal support, attorney fees, and division of the property as a “putative spouse.”  The trial court ruled in favor of Wife’s position, and Husband appealed, claiming Wife could not ask for the same thing in two different actions (the divorce and the nullity actions).  Husband argued that since the divorce had been dismissed, Wife had no rights.  Marcus Family Law Center, PLC was able to successfully defend Wife on appeal.

 

Marcus Family Law Center, PLC has engaged in appellate proceedings in both state and federal court (including international matters), with attorneys admitted to federal practice in the Southern District of California, the District of New Mexico, and the 9th Circuit Court of Appeals.