Andrews v. Andrews

Before the Court this day is a demurrer to the complaint.

Plaintiff and defendant were married for just over a decade.  By 2011, defendant (Erin) instituted divorce proceedings (11D009839).  A final judgment in the dissolution was entered on 09/20/12.  Both sides were represented by counsel.  In pertinent part, the judgment awarded the family residence to defendant (Erin).

In the present civil action, plaintiff (Steven) contends that he was orally promised a cut from the sale of the family residence.  There is no reference to this in the family court judgment, and Steven does not provide enough information in the complaint to determine if this was a post-judgment novation or something which should have been subsumed within the judgment.

Under well-established precedent, parties to dissolution proceeding are prohibited from engaging in “family law waged by other means” by filing separate civil actions arising from conduct that relates to divorce court orders.  Burkle v. Burkle (2006) 144 Cal.App.4th 387, 393; Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25-27.  In other words, family law cases should not be allowed to spill over into civil law.  Id; in accord, Askew v. Askew(1994) 22 Cal.App.4th 942, 965-966 [trial court erred in failing to dismiss husband’s civil action, which “sought to preempt the family law court from determining issues it already had jurisdiction to determine” and which “were the province of the family law court in the first place”].  Courts must examine the substance of the claim, rather than its mere title, to determine whether the issues are subsumed within issues pending before the family court.

Since the complaint on its face appear to conflict with the family court proceedings, the demurrer must be SUSTAINED with 20 days leave to amend.  Since plaintiff is incarcerated, defendant is ordered to give notice, and file proof of service thereof, within 10 days.