Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

FAMILY LAW
Claudia Moreno v. Akeem Wells-Nelson
Case No: 19FL01460
Hearing Date: Tue Nov 05, 2019 10:30

Nature of Proceedings: Req. for Order: Set Aside DVRO/Place Matter Back on Calendar – Status Hearing re Resuls of Mediation and to Make Permanent Orders if Mediation is Unsuccessful

Req. for Order: Set Aside DVRO/Place Matter Back on Calendar

Status Hearing to consider making permanent orders if mediation is unsuccessful

Attorneys:

Stacy Robinson for Petitioner [“mother”]

Guneet Kaur for Respondent [“father”]

Ruling:

1. The request for an evidentiary hearing is denied. Father had his day in court when he filed and submitted his declaration; the Court read and considered it; he cannot restart from the beginning after he finds he did not like the decision. If that were permitted, the Court would never be able to get through any calendar; everyone dissatisfied with the tentative would ask for an evidentiary hearing. On the other hand the Court understands that he did not have an opportunity to address the Court orally at the 8/20 hearing; the Court will vacate the decision to make the tentative the Court’s order previously made on 8/20 and will consider the “tentative” published for 8/20 the present tentative going into this hearing on November 5; father’s counsel is explicitly invited to argue why that tentative should not be the order of the Court and the Court will reserve its decision as to whether the tentative will stand until after his counsel has been heard. In the meantime all the temporary orders remain in full force and effect, as was the situation when the last order was made.

2. As for the status hearing [i.e. CMC] calendared for today to address when the current temporary orders, including physical and legal custody and time sharing, will be made “permanent,” the Court finds nothing currently filed; the Court has reviewed the status reports filed 9/24/19 [by father] and 9/25/19 [by mother] but they are not helpful on those issues. The Court also reviewed father’s RFO and mother’s response looking for help on that issue; nothing is included on when counsel want a trial date set. The Court is painfully aware that the DVRO format avoids filing a Petition to Establish Parental Rights but the legislature has permitted the process which makes scheduling “a trial” problematic. The Court orders that the Trial Date is set for January 28, 2020, and the MSC is set for 1/10/20; the Court reserves two days for trial.

Background

This case was filed in 7/2019; commenced with mother’s request for a DVRO; that process and format avoids having to file a Petition to Establish Parental Rights; a TRO was granted and filed 7/11 and set for hearing on 7/29/19; it protected mother with personal conduct orders and a 100-yard stay-away order that appears to directly include the two minor children; mother said she wanted child custody and visitation orders; mother was given property control of two cars registered to her; she was given access to father’s home in order to collect her personal property including but not limited to: her bed, clothes, TV and two side tables, the children’s toys, crib, books, movies and clothes.

The hearing was continued from 7/29 to 8/20 because father could not be served.

On August 19 father filed his 38 page response which the Court read and considered before the 8/20 tentative was posted; notably he did not ask for an evidentiary hearing. The fact that his present counsel now suggests he would have done differently is unwarranted and not persuasive.

This Court’s Orders

On 8/20 this Court entered orders that were extensive and thorough after having read everything including father’s response. It maintained the original TROs issues but specifically provided for brief and peaceful contact with the two children as required for court-ordered visitation of children. Parenting time was provided for father and it was going to be revisited on 10/1 after the planned mediation.

At the time of the 8/20 hearing and the Court’s extensive decisions, father substituted in counsel on 9/23.

CMC Status Report of 10/1/19

The status hearing, set for October 1, 2019, was continued by stipulation between the lawyers to November 5, 2019.

On 10/23 Mediation reports no agreement.

On 10/29 Father filed a RFO

He seeks to set aside an Order Re: DVTRO and put it on the Court’s Law and Motion calendar; set the hearing for 11/5; he explains in detail what and how the order was issued and what the timelines were; in summary he asks for an opportunity to present his case to the Court and allow the Court an opportunity to adjudicate over this matter on its merits.

Father’s lawyer submitted Points and Authorities that the Court has read; he contends that the fact that he failed to show up at the August 20, 2019, hearing was not due to his own carelessness or neglect, but rather based on the fact that one simple document, a notice of resetting of the matter, was mailed to the wrong address and not to him; his negligence in not realizing the fact that the court had a wrong address for him was not due to his own carelessness rather due to others, such as mother or mother’s attorney, who should have ensured they had his correct address; father relied upon others (clerks, the court) to receive information regarding the hearing(s); that relying on the information the professional(s) provided and the lack of being provided with the notice of resetting of the hearing, he failed to appear at the hearing on August 20, 2019, where he would have requested an evidentiary hearing to present his case; he should have every opportunity to litigate his case on the merits.

Response to Father’s RFO filed 10/29

Mother does not consent to the order requested; although she has not filed a declaration, her counsel provides Points and Authorities and reports that mother filed a DVRO against father on July 9, 2019; the Court granted a TRO on July 10, 2019, with a hearing date set for July 29, 2019; on July 17 and July 19, SBSO Deputies attempted personal service of the TRO and Notice of Hearing on father, but there was no response at his home; on July 23, SBSO Deputy DeLeo called father and father advised Deputy DeLeo that he would not accept service at this time. On July 24, Deputy DeLeo again attempted personal service on father, but according to the Declaration of Diligence prepared by SBSO, father continuously evaded service, and was not served.

Mother contends that father claims that if the DVRO is not set aside, irreparable harm will occur to himself and his children; but he does not explain how either he or his children are harmed by a DVRO that orders him to stay away from mother, a person with whom he admits to having an abusive and toxic relationship; he does not explain why or how the current custody orders are harmful to the children; in fact, in the three months since August 20, when the Court granted him visitation with his young sons, he has not once exercised his right to see his children; he does not address the harm that he may be inflicting upon his children by denying them access to their father, nor does he explain how it could possibility be in their best interest to not see their father for over three months; mother requests the Court exercise its liberal discretion and deny father’s Request to Set Aside the DVRO, as it was fairly adjudicated after considering his extensive written opposition; mother also requests the Court take into consideration father’s lack of accountability and misrepresentations, if not to support a denial of his Request to Set Aside, then as an impeachment of his character and his credibility as a witness at the evidentiary hearing he now demands.

The Court’s Conclusions

Father’s contention that he would have requested an evidentiary hearing at the 8/20 hearing is inconsistent and irreconcilable with the facts; indeed he filed a Response which the Court read and considered; he did not have a chance to argue that tentative; his counsel should be given a chance to argue the 8/20 tentative now.