New Law Effective January 2015 – California Family Code Section 218 Overrules Marriage of Boblitt and Allows Limited Automatic Reopening of Post-judgment Discovery in Family Law Proceedings

Effective January 1, 2015, Governor Jerry Brown signed into law emergency legislation, (responsive to the California case, Marriage of Boblitt¹) relating to discovery in family law post-judgment proceedings.

The legislation introduced a new Family Code Section, Section 218, which provides: “With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court. The date initially set for trial of the action specified in subdivision (a) of Section 2024.020 of the Code of Civil Procedure shall mean the date the postjudgment proceeding is set for hearing on the motion or any continuance thereof, or evidentiary trial, whichever is later.”  (Cal. Fam. Code § 218.)

Previously, Marriage of Boblitt, decided by the Court of Appeal of California, Third Appellate District, in February 2014, held that existing California law (including Code of Civil Procedure Section 2024.020, which applied to general civil cases) also applied to post-judgment proceedings in family law cases.  The state of the law per Boblitt was that absent an agreement from the opposing side or court order allowing the reopening of discovery, there was no right to post-judgment discovery.  This holding was problematic for family law practitioners, as it is often difficult to obtain the opposing party’s consent to reopen discovery, and expensive and time consuming (as well as uncertain as to the result) to obtain the court’s approval.

As attorneys who practice family law are aware, the matter is not necessarily over when the final Judgment is entered.  Child support and child custody orders are always modifiable based upon the best interest of the child.  (Cal. Fam. Code § 3022; see also Cal. Fam. Code §§ 3087 & 3088.) The court retains jurisdiction to modify spousal support orders based on a material change in circumstances, unless otherwise agreed.  (Cal. Fam. Code § 3651.)  Thus, a majority of family law cases result in orders that are subject to future modification.  There are also enforcement issues relating to one or both parties’ violation of the terms of the Judgment that frequently require post-judgment motions and discovery.

While the California Family Code contains a provision that allows for limited post-judgment discovery relating to the modification or termination of an order for child, family, or spousal support (Cal. Fam. Code, § 3660 et seq.), that provision only allows a party to request that the other party produce an Income and Expense Declaration (Judicial Council Form FL-150).  Both parties have a right to request and obtain this information once a year, for so long as support is owed.  (Cal. Fam. Code § 3664 (b).)   This Section of the Family Code does not require that a motion for modification or termination be pending.  However, other methods of discovery (interrogatories, demands for production of documents, depositions, etc.) may only be used if a motion for modification or termination of the support order is pending.   (Cal. Fam. Code § 3662.)

Under the newly enacted Family Code Section 218, discovery will reopen automatically upon the filing of a post-judgment motion as to the issues raised in the post-judgment pleadings currently before the court.  Given the arguably vague language of Family Code Section 218, it is highly probable that the issue of the proper scope of post-judgment discovery will continue to be debated.  (Counsel may disagree as to what precise issues are before the court.)  Exactly how this new Family Code section will be interpreted by the Courts and its overall effect on post-judgment family law matters remains to be seen.

¹  In re Marriage of Boblitt (2014) 223 Cal. App. 4th 1004, 167 Cal. Rptr. 3d 777, 2014 Cal. App. LEXIS 126, 2014 WL 495495 (Cal. App. 3d Dist. 2014).