SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNIFIED FAMILY COURT
DONALD PAUL HOWERTON,
Petitioner
VS.
KYLE LEE TEMPEL,
Respondent
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Case Number: FDI-19-792134
Hearing Date: February 13, 2020
Hearing Time: 9:00 AM
Department: 403
Presiding: SHARON M. REARDON
REQUEST FOR ORDER RE: PAYMENT OF MORTGAGE ON COMMUNITY PROPERTY
RESIDENCE TO AVOID FORECLOSURE
TENTATIVE RULING
Having read and considered the pleadings, declarations, and other evidence submitted in this matter, the Court makes the following findings and orders:
1) Respondent’s request for temporary exclusive use, possession, and control of the residence located at 175 Brewster St. San Francisco, CA is DENIED.
2) Respondent states that his income is $2,000 per month, which represents the net rental income from the Palm Springs rental property. His Income and Expense Declaration shows that he is currently earning $0 in wages and $0 in state disability. Petitioner has not presented the Court with any argument that Respondent has the ability or opportunity to be earning more than what he has claimed (and Respondent states that he is currently on medical leave from his job, a claim that Petitioner has not disputed). Petitioner states Respondent is actually receiving $8,600 in net rental income from the Palm Springs, and attaches a bank statement to support his claim, but does not provide an accounting showing how the $8,600 figure was calculated. It also appears that the parties have an opportunity to apply for a Hardship Application to reduce the monthly mortgage payments. Therefore, Respondent’s request that Petitioner continue to pay the monthly mortgage payments is GRANTED. The Court’s jurisdiction over any reimbursement claims arising from or to reallocate these payments is reserved
3) Petitioner’s request that the Court order the parties to cooperate with their CPA to file amended tax returns for 2017 and 2018 so that Petitioner may make a Hardship Application with the mortgage lender for the Brewster St. residence is GRANTED. The parties shall immediately provide to their CPA any and all documentation or take any other steps necessary to file the amended tax returns and shall respond to any requests or questions by their CPA within 12 hours of receiving such request or question.
4) Under Family Code section 2108, this Court may only order the liquidation of a community asset if said order is necessary to avoid unreasonable market or investment risks and if the moving party has served his or her declaration of disclosure. There is no declaration regarding service of Petitioner’s Preliminary Declaration of Disclosure on file. Also, Petitioner has stated that the home is not currently in foreclosure and states that a Hardship Application will allow the mortgage payments to be reduced and / or stay foreclosure proceedings. For these reasons, Petitioner’s request that the Brewster St. residence be listed and sold immediately is DENIED.
5) The parties seem to agree that, while the Brewster St. residence is not currently in foreclosure, foreclosure is looming and imminent, creating a situation that needs immediate resolution. It also appears that the parties were not able to resolve this situation through what appear to be good faith meet and confer efforts. In this context, the Court finds no bad faith or grounds for awarding sanctions to either side under Family Code section 271. The Court also does not find that Respondent filed the ex parte Request for Order frivolously or with the sole purpose of harassing Petitioner during a time when Petitioner’s counsel was unavailable. Therefore, Respondent’s request for Family Code section 271 sanctions in the amount of $2,500 is DENIED and Petitioner’s request for Family Code section 271 sanctions in the amount of $7,200 is DENIED.
6) On the Court’s own motion, a Mandatory Settlement Conference is set on May 1, 2020 at 9:00 AM in Dept. 404. The parties are ordered to comply with California Rule of Court, rule 3.1380.
7) Respondent’s counsel shall prepare the order.
8) Preparation of Order: If you are directed by the court to prepare the order after hearing – within 10 calendar days of the hearing you must either:
(a) Serve the proposed order to the other party/counsel for approval, and follow the procedures set forth in CA Rules of Court, Rule 5.125(c), or
(b) If the other party did not appear or the matter was uncontested, submit the proposed order after hearing directly to the court. Failure to submit the order fter hearing within 10 days may allow the other party to prepare a proposed order and submit it to the court in accordance with CA Rules of Court, Rule 5.125(d).