Tentative Rulings – Family Law Dept. 23

03-07-25 L&M Tentative Rulings

1. 23FL00504, Sullivan Dissolution

Petitioner’s Request for Order filed on November 22, 2024, is GRANTED in part and RESERVED in part.  Petitioner is seeking an order that Respondent’s portion of the proceeds from the sale of the family residence remain in Petitioner’s attorney’s trust account pending conclusion of the criminal and civil action filed against Respondent as a source from which any restitution or civil damages may be paid in the event Respondent is convicted and ordered to pay restitution or found liable in the civil action. The Court makes no determination about the outcomes of either of those pending actions at this time. Pursuant to Family Code section 2603.5, “the court may, if there is judgment for civil damages for an act of domestic violence perpetrated by one spouse against the other spouse, enforce that judgment against the abusive spouse’s share of the community property, if a proceeding for dissolution of marriage or legal separation is of the parties is pending prior to the entry of final judgment.”  In this action, a Domestic Violence Restraining Order was entered against Respondent on January 2, 2024, Petitioner and her children, who were Respondent’s stepchildren, are Protected Parties in the restraining order. One of Respondent’s stepchildren is also the alleged victim in the pending criminal action.  The Domestic Violence Restraining Order was issued based upon the same allegations alleged in the criminal and civil complaints.  The court GRANTS Petitioner’s request to hold Respondent’s share of the house sale proceeds, whatever amount that is determined to be, in the attorney trust account pending the outcome of the criminal and civil actions against Respondent.

Petitioner further requests that Respondent’s share of the agreed upon sale of the Tesla in the amount of $9,027.95 and his share of the sale of the camper in the amount of $14,000 be applied to the debt repayment he was ordered to pay monthly in the amount of $3,400 “until this order ends.”  This order was entered on 1/2/24 and terminates on 1/2/29.  This request is GRANTED.  Petitioner shall provide an accounting to Respondent’s counsel for the months covered by these funds and any other payments previously made.  Said accounting shall be provided within 10 days of entry of this order. 

Petitioner is seeking an anticipatory order that in the event Respondent is convicted in the criminal action currently pending against him or found to be civilly liable in the pending civil action, that any criminal restitution or civil liability be characterized as his separate property debt.  The Court is RESERVING on this issue for two reasons.  First, both the criminal and civil actions are still pending and there has not been any finding of guilt or liability in either case at this time.  Second, the Court does not believe that it would be required to restate the law about the characterization of any liability being the separate liability of the spouse who perpetrated the act in the event there was a finding of criminal guilt or civil liability wherein the spouse and a family member are the named victims of the offense.  In an abundance of caution, the Court is reserving jurisdiction on that issue in the event it is necessary to make that determination upon conclusion of the criminal or civil case.

Petitioner’s counsel is ordered to prepare the Findings and Order after hearing within 10 days of March 7, 2025.        

2. 24FL00007, Myerson Legal Separation

Respondent’s Request for Hearing and Application to Set Aside Support Order Under Family Code Section 3691 is GRANTED.  The court acknowledges that Respondent’s request fails to comply with Family Code Section 3691(c)(1) in that the request for set aside did not include a proposed responsive pleading to the Request for Order filed by Petitioner on September 23, 2024.  This is a shortcoming that can be corrected without prejudice to the Petitioner. The Proof of Service attached to Petitioner’s Request for Order contains information that supports Respondent’s assertion that he did not receive actual notice of the hearing originally scheduled on November 21, 2024.  The Proof of Service attached to the moving papers indicates that the motion was mailed to Respondent’s counsel at his business address and in that section of the Proof of Service counsel’s e-mail address contains his name and appears to be his accurate e-mail address.  The Proof of Service “BY ELECTRONIC MAIL” is also checked and includes two details that are concerning as he was served by electronic mail at an e-mail address that does not appear to be his correct e-mail address.  Additionally, the Proof of Service indicates that the documents were transmitted electronically on 9/23/24 at 6:15 p.m.  The documents were not electronically filed by the court until 9/23/24 at 6:50 p.m., which supports Respondent’s representation that he was served with a prepared motion that did not yet include the date, time or location of the hearing.  Accordingly, the request to set aside the support order entered on November 21, 2024, pursuant to Family Code Section 3691(c)(1) is granted.  Respondent is given 10 days from the entry of this order on March 7, 2025, to file a Responsive Declaration to the Request for Order filed on September 23, 2024.  The Request for Order filed on September 23, 2024, shall be set for hearing on March 27, 2025, at 1:30 in Department 23.  Both parties are hereby ordered to serve and file current Income and Expense Declarations by March 17, 2025.