Metropolitan News-Enterprise


Tuesday, October 4, 2016


Page 3


Parties Can’t Compel Court to Decide a Matter ‘De Novo’—C.A.


By a MetNews Staff Writer


A clause in a marital settlement agreement that the amount of child support the father was obligated to pay would be determined “de novo” in any hearing on a motion for modification was not binding on the court, the Fourth District’s Court of Appeal has held.

Modification was sought by businessman Richard Cohen, who earns about $500,000 a year. The amount of support he was to pay was set by the parties at a level higher than that provided for in the statutory guidelines.

In determining the matter “de novo,” he argued, the court was obliged to lower the amount of the payments conform to the guidelines.

Writing for Div. Three, Justice William W. Bedsworth said  in an opinion filed Sept. 7, was certified for partial publication yesterday:

“The law does not allow litigants to agree to what are in effect ‘temporary’ judgments, revisable at will.”

He went on to explain:

“We dare say no family lawyer is unaware of the rule requiring a change of circumstances before a support order may be modified….

“The reason for the change of circumstances rule is the doctrine of res judicata.”

The jurist quoted a 1933 California Supreme Court opinion which said, borrowing language from a 1914 treatise:

“Authority to modify the allowance, however, does not include the right to alter the award upon the state of case existing when the decree was entered, or to review the action of the chancellor therein.  The parties had their day in court, with the right of appeal if the decree was deemed erroneous, and it cannot be supposed that it was intended that the court should sit in review of its own decrees, or that the same or some succeeding chancellor presiding in the same court should, after the lapse of indefinite time, have power to reverse, alter or modify a decree for alimony upon the facts existing at the time of its entry.”

Bedsworth remarked:

“…Richard [Cohen]’s reliance on the “de novo” clause is untenable.  His position would reduce family law orders and judgments to mere temporary placeholders in contravention of res judicata.”

The former husband also sought elimination of his obligation to pay spousal support, an issue dealt with in an portion of the opinion that remained unpublished. Bedsworth noted that Family Code §4337 “provides that spousal support will automatically terminate ‘[e]xcept as otherwise agreed by the parties in writing.’ ”

He pointed out that the parties had, in fact, agreed that in writing that spousal support would continue if the new husband made less than $400,000 a year, and he does.

The case is In re the Marriage of Cohen, G052058.


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