Kathryn M. Kelley and Brian D. Kelley
Case No: 16FL02764
Hearing Date: Tue Apr 23, 2019 10:30

Nature of Proceedings: Req. for Order: Property Control

Req. for Order: Property Control

Attorneys: Daniela Felix for Petitioner (“Kathryn”); Stephen Penner for Respondent (“Brian”)

Ruling:

1. The matter is continued to May 21; Brian’s Response to be filed by noon on May 15; Kathryn’s Reply due by noon on May 17.

2. With that said, the Court will point out this case was last on the Family Law Case Management Calendar on 9/26/18 when Kathryn appeared and indicated that they did not need to have the Court get involved; I replied that: “The Court is ready and willing to help resolve any outstanding issues and the parties merely need to put the matter back on calendar when they need the Court’s assistance. Off Calendar.” If trial dates had been set on 9/26, we would now be able to resolve all the issues rather than do it piece-meal. Trial dates will be set on May 21; please meet and confer and let the Court know what dates are acceptable.

Background:

On 3/25 Kathryn filed her RFO; seeks property control of 2008 Mountain Ave., Santa Barbara, CA 93101 (“the property”); also requests orders that:

(a) An Order that the property immediately be rented pending the resolution of these divorce proceedings: and

(b) An Order that she be in charge of the rental, finding tenants, collecting the rent and paying the mortgage.

She testifies via declaration that she filed her Petition for Dissolution of Marriage on November 1, 2016. Brian filed his response on January 31, 2019.

She testifies via declaration and the Court will only summarize: upon separation, she left their home, the property which is a jointly owned property; since she moved out, she has lived in four separate living arrangements, all rentals, with housemates; Brian has remained in the house; refuses to leave; the property has a rental unit; Brian collects the rent, which covers a substantial part of the mortgage; Brian was supposed to pay the small [sic] balance that remained on the mortgage; he has never shared any of the rents with her; on March 18, 2019, she learned that the loan payments on the property had not been made since December 31, 2018; the amount owed to bring the loan current is $4,711.96; when her attorney contacted Brian’s attorney regarding the two months of unpaid mortgage, Brian paid the outstanding amount; the two missed mortgage payments lowered her credit score by more than 100 points.

She testifies that Brian’s poor judgment continues to affect her; the condition of the jointly-owned home is deteriorating; yards are overgrown and dead, the floors are dirty, the patio littered with dog feces and the overall house is in general disarray; he has had renters living with him; renters did not take care of the room, or the bathroom they occupied; she has never gotten any of the rent the renters paid to Brian; fears that if Brian continues to stay in the property, it will result in major problems; she is not able to financially sustain this mortgage and her own living expenses moving forward; asks that Brian vacate the property immediately, so she can rent the property out; also she should be in charge of the rental, finding tenants, collecting the rent and paying the mortgage until the divorce is finalized and they know the outcome of the property ownership; the income that the rental will generate will cover the monthly mortgage payments and will result in a positive cash flow; she will split the rental income at 50% with Brian, after the monthly loan, property tax payments and maintenance costs are satisfied.

Response

Counsel for Brian previously filed Notice of Unavailability and so advising counsel; is unavailable until after May 13.

Reply

Counsel for Kathryn testifies she has not filed the instant RFO for an improper purpose, or for the purpose of harassing Brian or Mr. Penner; her client is simply trying to preserve the only remaining community property asset; always tries to accommodate opposing counsel’s schedule; it is very apparent that Brian will be well-represented during the RFO hearing by Mr. Purves, who has been handling this case for a few months now.

She testifies that after she filed the instant RFO, Mr. Purves and she have had discussions about stipulating to Brian’s move-out date; an April 10, 2019, email from Mr. Purves said he is still attempting to have a discussion with Brian which he expects to have soon; will be suggesting to him that he stipulate to move out of the house within a reasonable amount of time; will let her know as soon as he is able to speak with him.

The Court’s Conclusions

The Court notes this case was filed in 2016 and sat dormant for some time; it was on calendar at least 3 times for case management in 2017; the last time was in 9/2017 when the court took the matter off calendar at the invitation of Kathryn and told her the Court was ready and willing to help resolve any outstanding issues and the parties merely need to put the matter back on calendar when they need the Court’s assistance. It is clear the facts underlying this RFO have been known for a long time. The attorney of record is Mr. Penner and he is responsible for the management of the case insofar as the Court is concerned. This is an important issue and it should be managed by Mr. Penner. The case should be continued.