Father’s Arrears Handed to Him in Appellate Case

By | July 13, 2018

In any divorce situation, particularly those involving children, it’s ideal to reach a settlement as quickly as possible with minimal rancor. California family law  was written to promote settlement, and even allows spouses to recoup attorneys’ fees when opposing spouses intentionally frustrate the settlement process.

But a recent divorce case, the separation of Kelly and Russell Furie, which made its way to the California Court of Appeals, illustrates how contentious and complicated things can become when a spouse digs in and decides to fight. The case, thus far, has dragged on for eight years, and as you’ll see from the appellate court’s final decision, has given Russell little to celebrate.

This article was written to briefly discuss the appellate court’s decision regarding the marriage of Furie, and hopefully shed some light on the issues of custody, and the division of assets. Keep in mind, the case features many elements, all of which can’t be discussed in one short article. Feel free to view the case at this link.

If you’re dealing with your own divorce situation, or need to talk to a family attorney, contact our office so that we can discuss your case.

Appellate Judge

A Brief Background on the Case, and Stipulated Judgment

According to court documents, the Furies were wed in November of 1996 and had two children during their marriage. In 2009,Kelly sought to divorce, and a trial court granted the request within six months. While both parties waived spousal support, the stipulated judgment ordered the father to:

  • Maintain health insurance for the kids
  • Pay half of uninsured medical expenses
  • Pay $1,454 in monthly child support

The family home was awarded to Russell; however, Kelly and the children were allowed to live in the home until the youngest child’s 18thbirthday. Russell was ordered to maintain the home and pay the mortgage.

Each spouse was awarded various community assets, with Russell receiving all of his interests in KMF Investments Incorporated and RKF Investments Incorporated.

Things Go Sideways

Months after the stipulated judgment was issued, Russell moved out of the family home and purchased himself a condominium free and clear. Not long after, he failed to uphold his obligations under the stipulated judgement and defaulted on the family home’s mortgage. In 2011, Kelly requested a judge modify the court’s order and require the husband pay more support. At the hearing, Russell argued that he and his ex-wife had verbally agreed to a modified order after he gave her KMF Incorporated and its interests. He maintained that she in turn released him from his obligations to pay for the family home.

The judge denied Russell’s request for modification and ordered him to become current on the arrears house payments and to fork over an additional $4,709 monthly to cover the mortgage.

Russell subsequently filed a motion to once again argue that the KMF shares he gave his wife should entitle him to lower child custody payments. However, as the appellate court noted in its review, Russell’s argument suddenly changed. Russell now maintained that his ex had converted the KMF assets to cash, and he should be entitled to lower child support payments as a result. Once again, Russell’s request for modified payments was denied.

Russell filed more requests for reduced child support payment in the ensuing years, but the trial court repeatedly denied Russell’s requests to re-litigate based on the alleged conversion of KMF assets. On multiple occasions, the court awarded attorney’s fees to his ex-wife.

Husband Declares Bankruptcy

In March of 2013, Russell filed for bankruptcy. His ex filed a complaint alleging Russell fraudulently induced her to waive spousal support. The bankruptcy court entered judgment against Russell, finding that he defrauded Kelly. The court awarded her $452,064 in damages. The court also found that Russell’s child support obligations and attorney’s fees were non- dischargeable, which meant he still had to pay these debts under the terms of his bankruptcy ruling.

Kids’ Orthodontic Care Becomes Point of Contention

In September 2015, Kelly requested a modified child custody and visitation order. She maintained that Russell refused to reimburse her for half of the uninsured expenses on the children’s’ orthodontic care. The court ordered Russell to pay these expenses, as well as the money he owed on the family house mortgage. The court also gave Kelly sole custody over the children’s orthodontic care. This would indicate that she alone would be responsible for decisions in this area, and Russell wouldn’t be entitled to a say in the matter.

Husband Gets Appellate Court Smackdown

Russell finally got his chance to appeal the lower court’s rulings before the state appellate court, arguing the trial court made a number of errors against him. Among these presumed errors, Russell argued that the trial court abused its discretion in awarding the mother sole custody over the children’s orthodontic care.

In 2017, the appellate court issued its ruling, which disagreed with Russell. It argued that the appropriate standard for determining sole custody is based on the child’s best interest. The court stated in the simplest of terms, “Orthodontic care clearly falls into the best interests of the child standard.”

Russell also argued that the lower court made a mistake about the wealth he possessed. He maintained in his appellate argument that the bankruptcy court found he was not in control of a specific trust fund. Therefore, he argued, the trial court should have reduced his child support payments. But the appellate court disagreed with this assertion.

“[Russell] offers no factual or legal support for his assertion that the bankruptcy court found he was not in control of the Trust,” the Appellate Court wrote. “Neither has our review of the record disclosed such a finding.”

The appellate court further cited specific allegations the bankruptcy court made against Russell.

These included that Russell:

  • Concealed his condominium in a trust
  • Concealed his interest in RKF in a trust.
  •  Failed to disclose his interest in this trust in his bankruptcy filings.
  •  Fraudulently sold a check cashing company that was part of RKF Inc. to his father a year before he claimed bankruptcy.

Taking these facts into consideration, the appellate court stated that the lower court had not abused its discretion when it allowed Russell’s wife Kelly to reach this trust in order to satisfy the father’s child support obligations.

Finally, Russell attempted to argue that the trial court should be ordered to consider whether his ex-wife had converted the assets from KMF Incorporated. The appellate court noted that the trial court had considered this motion on multiple occasions, and in simple terms wrote, “Father’s request has been heard.”

The appellate court concluded its written decision by affirming the trial court’s original rulings and stating that Russell’s ex-wife Kelly was entitled to court costs on appeal.

What This Case Can Teach Those Going Through a Divorce

The marriage of Furie illustrates the extreme end of the family law experience. Most people won’t have the resources or stubbornness to drag a divorce case all the way to the court of appeals. But there are plenty of people who will forgo the opportunity to reach a reasonable settlement with a former spouse in an attempt to lash out at that their ex, or to satisfy a fragile ego, or even as the result of irrational fear. Sadly, there are spouses who are willing to use the family court system to lash out at an ex, even if it means the children suffer.

If you’re going through a divorce situation, hopefully your primary goal is to achieve the best settlement for you and your kids so that you can move through this rough patch in your lives. You may have concerns about what you are entitled to, or fears that your former spouse will attempt to take more than his or her fair share. This is where a good lawyer can be invaluable.

A good lawyer can help a person who’s decided to proceed with a divorce to understand the road that lies ahead. A good lawyer can also help protect a person who’s dealing with a difficult former spouse. Luckily, California law allows spouses to recover attorney’s fees, when the other side just won’t listen to reason.

If you have questions about anything discussed on this page, or another family law topic, contact the office of Jason Smith  to learn how we can make a difference for you.

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