Family Law Questions? Ask a Family Lawyer Online.
I just was served a subpoena (State of California/Alameda County)for my presence and documentation for my corporation (whom employs my husband). The subpoena states: "Upon information and belief, it is alleged that the witness is the wife of the petitioner and that they own and or share financial assets. The witness is listed as owner of a "Corporation", which Petitioner alleges is his employer and his source of income." "the items requested are necessary to determine Petitioner's income for purposes of calculating child support." I have been running businesses since I was 17 years old. I have FREE ENTERPRISE IN MY BLOOD. I feel that because I married a man with a previous marriage/child/divorce, now my right to free enterprise and enjoy the fruits of my labor is being threatened. What can I do to be able to exercise my right to free enterprise? Is there anything I can do?
paperwork states: "The personal attendance of the witness and and the production of the original records are required by this subpoena"
Actually, you need to look at the subpoena - it should be called "Deposition Subpoena" or "Trial Subpoena". If it just says that it is a Subpoena for Personal Appearance, look at where the subpoena has you going. If it's a lawyer's office, it's a deposition subpoeana; if it's a Court, it's probably a trial subpoena.
I wanted to let you know that I am thinking over your situation to see if there's any way the subpoena can be quashed.
Let me get some additional information from you:
1. I was served by the "District Attorney" office at my front door (the business card says the position of the individual is an INSPECTOR INVESTIGATIVE DIVISION)--Hand delivery.
2. I was served this morning at about 10:25a PST (02/01/2010)
3. The hearing date is this Wednesday 02/03/2010 at 8:30 a.m. PST
First of all, you do need to appear at this hearing as subpoenaed. However, I don't think that you need to produce the documents requested. This is why:
California Code of Civil Procedure §1987 states:
(a) Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code [which apply to government employees and law enforcement], the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one day's attendance there. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The service may be made by any person. If service is to be made on a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of those persons cannot be located with reasonable diligence, service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is 12 years of age or older. If the minor is alleged to come within the description of Section 300, 601, or 602 of the Welfare and Institutions Code and the minor is not in the custody of a parent or guardian, regardless of the age of the minor, service also shall be made upon the designated agent for service of process at the county child welfare department or the probation department under whose jurisdiction the minor has been placed.
(b) In the case of the production of a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person, the service of a subpoena upon any such witness is not required if written notice requesting the witness to attend before a court, or at a trial of an issue therein, with the time and place thereof, is served upon the attorney of that party or person. The notice shall be served at least 10 days before the time required for attendance unless the court prescribes a shorter time. If entitled thereto, the witness, upon demand, shall be paid witness fees and mileage before being required to testify. The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court.
(c) If the notice specified in subdivision (b) is served at least 20 days before the time required for attendance, or within any shorter period of time as the court may order, it may include a request that the party or person bring with him or her books, documents or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control. Within five days thereafter, or any other time period as the court may allow, the party or person of whom the request is made may serve written objections to the request or any part thereof, with a statement of grounds. Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to whichobjection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions. The procedure of this subdivision is alternative to the procedure provided by Sections 1985 and 1987.5 in the cases herein provided for, and no subpoena duces tecum shall be required.
Subject to this subdivision, the notice provided in this subdivision shall have the same effect as is provided in subdivision (b) as to a notice for attendance of that party or person.
So, unless the Court ordered that you could be asked to bring those documents, they did not comply with the Code of Civil Procedure with respect to the documents. Don't assume that because a subpoena was issued, the Court made the order; most subpoenas are actually issued and signed by an attorney, not the Court.
What laws are there that allow me to stand up for myself and say: "I didn't bring the docs you requested because you are not the court-You are the child support attorney for Alameda County"? What would a child support attoney's next step be without me submitting my corporate documentation?
The Code of Civil Procedure, as I set forth above, is the law that allows you not to produce documents at trial.
However, I am concerned that if the Judge did issue an order allowing the attorney to late serve the subpoena for personal appearance and records, you would not know. If the Court did issue an order, it should be in the Court's files; but because of the recent budgetary cuts in the State of California, updating court files is really behind. That means if the order is there, you can count on it having been made; but if it is not there, it may have been issued recently and the files don't reflect it.
To be very safe, you could bring your records and a copy with you to the Court and leave them in your car. The reason you need to bring a copy is that if the Court wants to have some or all of it submitted as evidence, you'll want to have another set to keep.
If you do end up having to testify about what happened and why, and use your records, your explanation - which you provided me in your first post - is compelling. You have a very good reason for what you did to separate the assets, and why. You should emphasize that the business was your separate property before marriage; and that putting your husband's name on the business was not a gift, but something to appease his ego, as you said above.
Clarification: I launched this business after being married for just one and a half year (and while being 6 months pregnant I might add). From a legal standpoint, would you still find (the real reason *see first post* and notes) my reason for closing down the first company and launching the new company independent of my spouse-compelling? Or is there something else for me to consider and communicate to the judge?
I'm very much at a loss for what the view points and concerns of family law reps (case workers, attorney, judges) are. Why do child support reps have such venom? It seems to me that the goal is just that the dad work and pay child support. With my husband's case it seems that some other agenda is involved. Not necessarily the interest of the children.
Thank you for the clarification. If you opened the business after 18 months of marriage, it is community property unless your husband agreed otherwise. The problem with this is that the Courts might see your shutting down the business and reopening another as an attempt to assist your husband in avoiding his child support obligations.
What is going to be more compelling to that particular Court is the fact that you were unable to provide for your own children because of the garnishment on the business accounts and wages.
It's really hard to know why these particular people are behaving so venomously. If the people at the Courts who are handling this matter have been doing this for a while, they may just be treating you like the majority of people that end up in that Court - people who don't pay child support for any children.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).