Jan Whitworth and John Whitworth
Case No: 1044316
Hearing Date: Tue Apr 09, 2019 10:30

Nature of Proceedings: Req. for Order: Property Control/Financial Responsibility/Sanctions

Req. for Order: Property Control/Financial Responsibility/ Sanctions

Attorneys: for Petitioner (“Janis”) Matthew C. Moore; for Respondent (“John”) Donald L. Briggs.

Rulings:

1. Janis is granted exclusive possession and control of the real property located at 2336 Emerald Circle in the Cloisters neighborhood of Morro Bay CA (“Cloisters”). John shall take down any rental advertisements relating to the property and deliver all keys for the property to Janis by the close of business on Wednesday April 10, 2019. John shall not go on to the property after April 10, 2019.

2. John shall sign appropriate title transfer documents to transfer his interest in Cloisters as follows:

(a) Within two court days of this order, Janis shall prepare and present to John’s attorney the appropriate deeds and forms necessary to effectuate the title transfer.

(b) Within three court days of presentation, John shall either sign and return the documents or meet and confer to resolve any concerns that may arise with regard to the form of the deeds and forms. If such concerns arise, the parties shall promptly cooperate in good faith to address them to their mutual satisfaction.

(c) Janis shall record and otherwise file the title documents with the County of San Luis Obispo, and other relevant authorities, within two court days of John’s signature.

3. If John fails to sign the necessary transfer documents, the Santa Barbara Superior Court Clerk shall act as elisor and sign on his behalf.

4. John shall remain financially responsible for Cloisters, and pay all costs associated with it, including mortgage, taxes, past tenant’s cleaning deposit refunds, utilities, and maintenance costs, incurred through the date of recordation of the final transfer deeds and documents, at which time Janis shall become financially responsible for all carrying costs.

5. Janis shall sign appropriate title transfer documents to transfer her interest in John’s Atascadero home and the vintage silver Porsche as follows:

(a) Within two court days of this order, John shall prepare and present to Janis’ attorney the appropriate deeds and forms necessary to effectuate the title transfer.

(b) Within three court days of presentation, Janis shall either sign and return the documents or meet and confer to resolve any concerns that may arise with regard to the form of the deeds and forms. If such concerns arise, the parties shall promptly cooperate in good faith to address them to their mutual satisfaction.

(c) John shall record and otherwise file the title documents with the County of San Luis Obispo, and other relevant authorities, within two court days of Janis’ signature.

6. If Janis fails to sign the necessary transfer documents, the Santa Barbara Superior Court shall act as elisor and sign on her behalf. If the appointment of an elisor becomes necessary, Jan shall pay all attorneys’ fees incurred by John in association with the process of using an elisor to sign in her stead.

7. The Court finds that the timing provision in the parties’ judgment pertaining to Janis’ 12-month deadline to refinance Cloisters to take John off the mortgage means that Janis has 12 months from the receipt of the proceeds of sale of the parties’ Montecito residence to refinance John off of the Cloisters mortgage.

8. Janis’ request that John pay sanctions-based attorneys’ fees of $1,500 to Janis because of his failure to cooperate with the provisions of the Judgment is denied.

9. John shall specifically cover his portion of the Cloisters property taxes and return the former tenants’ rental deposit to them. John shall pay an amount toward the tax bill consistent with its orders about his possession. So for example, if John releases Cloisters to Janis as of May 1, 2019, he shall pay the January through April amortized taxes of $2,316 by April 10. Janis will pay the rest. If John fails to timely make the payment, John shall pay any penalties associated with the late payment.

10. John’s position that he has been hesitant to deed the Cloisters property to Janis as long as he remains on the mortgage, and that he is not at all convinced that she will attempt to remove him from the mortgage and that he would also like to see proof that Janis has complied with another term of the Marital Settlement Agreement which states that she will give the Main Street in Morro Bay to Chad outright in her Will/Estate Plan, have all been considered but rejected.

11. John’s position that he is not objecting to Janis taking over management and control of the Cloisters property, but that he objects to providing ongoing support to this property which was awarded to Janis in the parties’ Marital Settlement Agreement has been considered but rejected; the Court finds Janis’ position on the issue persuasive.

12. Janis is ordered to refrain from withdrawing money from any of John’s bank accounts, including the Corps Classic Chase bank account unless expressly authorized by an order of this Court.

13. John’s request with respect to the parties Montecito home, that: (a) The property be listed for sale herewith; (b) That Marco Farrell be the listing agent for a term of not less than six months; (c) That the real estate commission not exceed 5%; (d) That Marco Farrell be given access to tour the property within the next five days; (e) That Janis cooperate with the showing of the property at all reasonable times; (f) That the Court reserve jurisdiction to make any orders concerning the listing or sale of the property that Janis and John cannot agree on, have all been considered but rejected.

14. John’s request that Janis be ordered to pay sanction-based attorneys’ fees of $1,500 to John is denied.

15. The next logical step toward resolving this matter is to put Palmdale on the market. The Cloisters transaction was taken out of order. The updated Palmdale listing agreement has been provided to John. If he will not sign it, Janis shall file an updated RFO to list Palmdale for sale.

16. Attorney fees. The standard of proof regarding need-based fees is that the Court shall first make findings of whether fees and costs are appropriate; whether there is a disparity in access to funds, and whether one party is able to pay for both parties’ legal representation; that only if the Court makes a finding demonstrating disparity in access and ability to pay should the Court award fees. (Family Code section 2030.) The standard of proof regarding sanction-based fees is that the Court shall first make findings of whether sanctions are appropriate; if so the Court should then make findings as to what amount of money is reasonable as sanctions. The Court finds that neither such fees nor such costs are appropriate here.

Background/Analysis

This is a voluminous filing; the Court has read it all. The Court found that Janis’ declarations were persuasive.