Family Law Tentative Rulings

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6732 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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1. 24FL00261, Thomas v Ceja

Motion to Reconsider DENIED.  As explained below, the moving party fails to present new facts, law, or circumstances that were not previously considered.

Facts

            Petitioner originally filed this action as a request for domestic violence restraining order (“DVRO”) against Respondent on February 9, 2024, alleging that Respondent was her boyfriend and father of her three minor children (the “Children”).  Respondent filed opposition on February 13, 2024.  The court issued a temporary DVRO against Respondent that day and then issued a DVRO after hearing on March 5, 2024, protecting Petitioner and the Children,

            The Sonoma County Department of Child Support Services (“DCSS”) filed a complaint and substitution of payee for child support from Respondent on March 18, 2024. 

            On April 22, 2024, the court issued a first amended DVRO and made orders allowing Respondent visitation time with the Children.    

            DCSS filed a first supplemental complaint on May 7, 2024, alleging that the parties filed a voluntary declaration of parentage, and sought an order that Respondent pay monthly child support of $1,657 based on his income of $4,737 per month and Petitioner’s income of $3,718 per month, along with related orders.

            Respondent filed his answer to the complaint regarding parental obligations on May 14, 2024.  In that answer, he states he is the father of the Children but disagrees with the support order and income set forth in the DCSS complaint. 

            DCSS filed a motion for judgment regarding child support, health care, and related orders for the Children.  It sought an order that Respondent pay monthly child support of $1,976 effective June 1, 2024.

            Respondent was initially self-represented but attorney Colleen O’Neal (“O’Neal”) substituted in as counsel for Respondent, and filed an amended substitution form on October 8, 2024.

            At a hearing on December 18, 2024, all parties were present.  Respondent sought an order to make his visitation period unsupervised while DCSS sought monthly child support payments of $1,812.00.  Respondent opposed the child support amount.  The court ordered Respondent to pay child support of $1,812.00 per month starting June 1, 2024, plus one half of reasonable uninsured health-care costs for the Children and one half of the employment or education related childcare costs for the Children.

Motion

            Respondent moves the court to reconsider the order for child support pursuant to Code of Civil Procedure section 1008.  He asks the court to reduce the payments to $0.00 until he pays off his excessive tax debt or set his gross monthly income at $2,900.10 or set the matter for a new evidentiary hearing to allow him to complete his 2024 taxes and provide new evidence which he obtained just before the December 18, 2024 hearing, or reconsider the decision based on the new evidence. 

            DCSS and Petitioner both oppose this motion.  They contend that Respondent has failed to demonstrate new facts, law, or circumstances because he is repeating arguments and assertions already made at the underlying hearing.      

Applicable Authority

            According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code (“Fam. Code”) §210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”).  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022 (discovery); In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911 (discussing the applicability of Code of Civil Procedure §473 when a party seeks relief from orders in family proceedings).

            Any party affected by an order may apply to the same judge or court that made the order to reconsider the matter and modify, amend, or revoke the prior order.  CCP §1008(a).

            The motion for reconsideration must be brought within 10 days of the service of notice of the entry of order.  Code of Civil Procedure (“CCP”) § 1008.   The deadline is extended under the provisions of CCP section 1013.  Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, 203.  CCP section 1013 extends the deadline by 5 calendar days where service is by mail or 2 calendar days where service is by express mail. 

A party seeking reconsideration must first demonstrate new facts, law, or circumstances that were not previously considered.  CCP §1008(a); Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 692.  The moving party must also provide an adequate explanation why the new information was not provided earlier.  Garcia, supra; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.  The need for an explanation is a requirement for due diligence.  Gilberd.       

Mere lack of a chance to make oral argument is not a valid basis for a motion for reconsideration.  Garcia, 691; Gilberd, 1500.  In addition, decisions such as Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, at 829, and Pender v. Radin (1994) 23 Cal.App.4th 1807, at 1811-1812, ruled that information was “new” since it was subsequently obtained through discovery and could not reasonably have been provided earlier.

The court notes that Petitioner relies on In Marriage of Herr (2009) 174 Cal.App.4th 1463, at 1470-1471, for the proposition that it is improper to admit and consider new evidence on reconsideration, but this is inapposite.  In that action, the court had decided on its own that it had made an error based on the evidence already provided.  It then decided to “reconsider” the decision by granting a new trial where each party could produce evidence.  The court of appeal reversed, determining that because of the nature, context, and basis of the decision to reconsider, the court should simply have made a new decision on the original evidence, not allow the parties to redo the trial entirely. 

Timeliness

The motion is timely.  As explained above, the motion must be brought within ten days of service of notice of the entry of the order.  Respondent filed and served this motion six days after the order was actually entered and filed. 

Petitioner does argue that the motion is untimely because a motion for reconsideration may not be filed after a final judgment is entered but relies on law in civil litigation, rather than family law, applicable to final judgments rather than family-law proceedings.  In family law proceedings, unlike civil proceedings, litigation on issues such as child support remain ongoing and adjustable, even after judgments on those or other issues have been entered and family law contains many instances of litigation which may occur post-judgment.  See, e.g., Fam. Code §§215, 218 (governing post-judgment proceedings and discovery in family matters); Marriage of Wells (1988) 206 Cal.App. 3d 1434, at 1439 (courts may alter support awards based on changed circumstances).   

Same Judge or Court

As noted above, ordinarily, a motion for reconsideration must be heard by the “same judge or court” that made the original order.  CCP § 1008.  Although normally a trial judge may not reconsider and overturn another trial judge’s order, “an exception to this rule applies where the judge who made the initial ruling is unavailable.”  Williamson v. Mazda Motor of America, Inc. (2012) 212 Cal.App.4^th 449, 454-455; see also Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4^th 1355, 1362, and International Ins. Co. v. Sup.Ct. (1998) 62 Cal.App.4^th 784, 786.

No party raises this issue, although the judicial officer hearing this motion is not the one who made the underlying order.  However, the judicial officer who made the underlying order is no longer a Family Law judicial officer  and is accordingly no longer available. 

Basis for Reconsideration: New Facts, Law, or Circumstances

The moving party’s initial burden, as explained above, is to demonstrate new facts, law, or circumstances which may trigger reconsideration.  The opposing parties strongly contest this issue. 

Respondent contends that he now has several pieces of new evidence not provided at the hearing.  Most of these he contends demonstrate his claimed heavy tax debt and errors in his tax filings which were the fault of his prior tax preparer.  One part of the evidence consists of tax documents which he obtained from the Internal Revenue Service (“IRS”) five days before the hearing but which Respondent failed to bring to the hearing because of the anxiety and stresses of this litigation and of preparing for visitation with the Children.  The second part is a letter from the California Franchise Tax Board (“FTB”) which he received after the hearing and which shows the tax debt which he owes to the FTB.  Third, he mentions a post-hearing communication from his prior tax preparer.  Finally, he contends that he had, at the time of this motion, only two one-day jobs scheduled for January 2025 with none for the following months. 

Respondent does demonstrate some potentially valid basis for finding that his failure to present it was not a result of his own lack of diligence.  However, that is not enough.  The evidence does not amount to new facts, law, or circumstances sufficient to trigger reconsideration. 

The tax documents are new evidence but they are only evidence of issues, information, facts, and circumstances which Respondent already presented at the underlying hearing.  By his own admission in this motion, at the underlying hearing he informed the court of the tax information and his claimed tax debt.  As DCSS points out, Respondent filed his responsive pleading on September 12, 2024, already raising the tax issues more than three months before the underlying hearing.  Respondent’s mention of a post-hearing communication appears to be of no import whatsoever because he claims that the tax preparer merely made incorrect assertions in that communication, about information which he already knew prior to the hearing, and by the time of his visit to the ORS office several days before the hearing.  Again, Respondent himself indicates that any material information he already possessed by the time of the hearing, where he made all of the same claims and arguments regarding his taxes. 

There is no dispute that the evidence now presented is merely additional evidence of facts, circumstances, and claims which were actively presented and argued at the hearing.  Some of the “new” evidence also is immaterial.  His evidence on specific jobs he has “lined up” is also not new.  He does not show that it is any different from before the hearing while it is inherently part of his assertion, already made at the underlying hearing, that his income is variable and seasonal.  It is nothing more than a specific instance in one period of time of the basic information and context of his variable income which he already presented to the court.  He therefore presents no new facts, law, or circumstances which support the request for reconsideration. 

            Otherwise, Respondent simply raises arguments and issues which are not new but merely an effort to reargue the issues and arguments and in fact this repetition of the prior arguments makes up the majority of the motion.  He reiterates his arguments about his seasonal, fluctuating business income and issues regarding the visitation schedule and the need for him to be able to support a stable home and transportation.  There is no dispute that these are not new issues and accordingly there is no basis for the court to revisit them.

Basis for Altering the Decision

Respondent, even if what he now presents were considered to be new facts, law, or circumstances, also fails to demonstrate that the evidence warrants an alteration in the decision.  Given that the court already considered the basic information presented, Respondent fails to demonstrate how evidence of his tax burden necessarily alters the analysis or would support his requested orders.  It could be a basis in the court’s discretion to make a change but certainly does not compel a different outcome, much less the orders which he actually requests. 

Conclusion

            The court finds no basis for reconsideration because Respondent has presented no new facts, law, or circumstances.  Even if the evidence he now presents was sufficient to warrant reconsideration, it does not support, much less require, a different outcome.  The court DENIES the motion.

            The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing party shall inform the preparing party of objections as to form, if any, or whether the form of the order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.