Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107
FAMILY LAW
Sara Huston and Jay Huston
Case No: 20FL00103
Hearing Date: Tue Mar 10, 2020 10:30
Nature of Proceedings: Req. for Order: Fees and Change of Venue
Req. for Order: Fees and Change of Venue
Attorneys:
Channe Coles for Petitioner (“mother”)
Marisa L Freese for Respondent (“father”)
Ruling: For the reasons set out below father’s motion to change venue is granted; father’s request for $5,000 in sanction-based fees is denied and mother’s request for $2,500 in sanction-based fees is denied.
Background
Mother filed this case in 1/2020; Petition for Dissolution after 23 years of marriage; DOS 1/2020; one minor child, Kayley, age 16; requests joint legal custody with physical custody to mother; visitation to father; spousal support; attorney fees; mother wants her former name restored, to wit:Sara Danielle Bacchilega.
Father filed his Response in 2/2020; reports it was a 16 year marriage; DOS 4/2013; agrees to joint legal custody with physical custody to mother; reports there are separate property assets primarily retirement; mother to pay her own fees.
Father’s RFO requesting a Change of Venue
On 2/6/20 father filed a request to change venue to San Diego County pursuant to CCP section 397(c) and (e). He also requests $5,000 in attorney fees pursuant to Family Code Section 271.
CCP 397, provides in part:
The court may, on motion, change the place of trial in the following cases: …
(c)When the convenience of witnesses and the ends of justice would be promoted by the change. …
(d) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of the commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of justice would be promoted by the change. If a motion to change the place of trial is made pursuant to this paragraph, the court may, prior to the determination of such motion, consider and determine motions for allowance of temporary spousal support, support of children, temporary restraining orders, attorneys’ fees, and costs, and make all necessary and proper orders in connection therewith.
CCP 271 provides
(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.
(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.
Father filed an extensive declaration that the Court has read; summarize here; he testifies that if this matter remains in Santa Barbara, he will not be able to fully participate; he and mother are the primary material witnesses in this matter; he is a 54-year-old 100% service-connected disabled Veteran; a paraplegic; confined to a wheelchair; suffers from severe neck pain and leg spasms caused by sitting in the chair for extend periods of time; pain is disabling; cannot drive when taking his medication; frequently required to attend doctor’s appointments; in the process of beginning a physical therapy program for neck and mobility; requires assistance with a service dog 24/7; trip from San Diego to Santa Barbara is roughly five hours each way in normal traffic; they have not lived together since 2013; made the regular trips during the first years of separation in order to maintain a relationship with children; in the past two years he has cut back on his visits to Kayley because of the severity of the pain and physical exhaustion; would not be able to competently testify following the drive up from San Diego; cannot take the medication if required to drive.
Mother suffers no such limitations; she is able bodied; only works two days per week as a nurse; he works full time Monday through Friday for the Department of the Navy; has been confined to a wheelchair for nearly 10 years; has tried to normalize his life; due to his physical limitations he would not be able to fully participate in this litigation if venue remains in Santa Barbara.
The issues before the court in a dissolution are child custody, visitation, support, date of separation and division of community assets; mother has requested joint legal custody and that she have sole physical custody of Kayley; child custody and visitation is not contested; he agrees to share joint legal custody and that mother have sole physical custody of Kayley; would have visitation as Kayley, mother, and he agree; Kayley is 16 years old; he would not force daughter to come to San Diego to visit unless she agrees to visit; this is the schedule they have followed for more than three years; would be happy to stipulate to mother’s request regarding custody.
He also testifies that the contested issues in this matter as they relate to support and property will be:
A. Date of Separation. The primary witnesses regarding this issue are the parties; possible other material witness could be adult daughter, who lives in Irvine, which is closer to San Diego County than to Santa Barbara.
B. Support: They are both W2 employees; he receives military retirements and disability; issues in this matter to be litigated would be mother’s earning capacity and effect of his disability on his ability to earn (sic). The material witnesses to address this issue would be the parties, his doctors all of whom are in San Diego County, and a Vocational Evaluator to evaluate Petitioner. (His Attorney has already contacted a Vocational Evaluator in San Diego.)
C. Property Issues: The material witnesses to address this issue would be the parties and depending on the finding regarding date of separation perhaps a forensic accountant to determine the community and separate portions of the retirement accounts. There are forensic accountants in San Diego who could perform the tracing.
Father testifies further that his Petition for Dissolution was filed in San Diego on December 18, 2019; his attorney was on vacation over the Christmas/New Year’s holidays from December 20, 2019, until January 2, 2020. On January 5, 2020, he contacted mother explaining he had filed and was trying to arrange service; did not want to embarrass her by having her served in public; she said, “thanks for giving me a heads up;” on January 6, 2020, he discussed with mother about her accepting services by Acknowledgment; she went silent; did not say she wanted to litigate in Santa Barbara; process server went out on January 15th and January 16th to attempt service; she was personally served on January 17th. On January 16th mother filed for Dissolution in Santa Barbara and had him served that evening.
Father testifies that he will incur unnecessary attorney’s fees and costs of $5,000 to draft, file and litigate this motion; mother’s actions were deceptive and made for the purpose of circumventing his participation in this process; is requesting a contribution of $5,000 towards fees and costs as a sanction pursuant to Family Code Section 271.
The Motion is supported by Points and Authorities filed 2/6. They are extensive and the Court has read them.
The Motion is supported by the following documents that father’s attorney plans to lodge: Filed 2/6
Exhibit “A”: A true and correct copy of a letter from VA Medical Center dadated1/27/2020.
Exhibit “B”: A true and correct copy of San Diego County Dissolution, filed 12/18/2019.
Exhibit “C”: A true and correct copy of text messages between Petitioner and Respondent.
Exhibit “D”: A true and correct copy of emails between Petitioner and Respondent.
Exhibit “E”: A true and correct copy of two (2) Declaration of Due Diligence.
Exhibit “F”: A true and correct copy of Proof of Service of Summons, filed 1/23/2020.
Mother’s Opposition Declaration
Filed 2/6. The 51-page declaration is through; have read it all; summarize here; she does not consent to paying the fees requested; instead she requests sanction-based fees of $2,500 for having to respond; she adamantly believes venue is proper in Santa Barbara; in summary she contends that father is fully capable of litigating in Santa Barbara County, most of the witnesses reside in Santa Barbara County, including the party’s minor child, and father is the only identified witness who resides in San Diego County; she should be awarded $2,500 representing the reasonable costs of defending this motion; he has deceived this Court in bad faith by claiming that his status as a paraplegic inhibits his ability to travel; in fact, he travels extensively for work and pleasure; he also is misrepresenting to this Court that she purposefully avoided service.
Mother testifies that they were married on October 19, 1996; have two children together, Hannah (age 22) and Kayley (age 16); father works for the Department of the Navy and has been traveling extensively for work since 2013; he has not resided full time in their family home since 2013; they were living in a unique situation for years and had issues; it was not until January 5, 2020, that she knew of father’s desire to separate and divorce.
On January 5, 2020, she received a text message from father stating in pertinent part: “There’s no easy way to say this so I’m just going to say it. I saw a lawyer and filed for divorce ….you will be getting the paperwork this week. I told them NOT to serve the paperwork at your work and they agreed not to do that. I think that it would be silly to say we didn’t see this coming, I just feel like it is time.” Mother responded: “Ok, well thanks for giving me a heads up” and asked when I would be served. A few hours later, on January 5 at 8:18PM, she told father that he could serve her “whenever” on the following day because she would be home and not at work; on January 6, 2020, she received an email from father asking whether she would accept service by mail with an acknowledgment form; he also asked for her work schedule, presumably to avoid serving her at work; she responded and said she did not know and explained she was caught off guard by the whole thing; waited from January 6, 2020, until January 16, 2020, to be served with his Summons and Petition; nothing came; did not avoid service as he states because she did not know service was even being attempted.
Most of the witnesses live in Santa Barbara County; currently they agree on what custody and visitation should look like; however, father may change his mind; Kayley would be greatly inconvenienced if she were called into a San Diego County court.
The primary contested issues in our dissolution will be the date of separation, support, and property issues. Beverlee Bacchilega (her mother), Dan Bacchilega (her father), Katy Smith (her sister), and eldest daughter Hannah have knowledge of material facts that are relevant to these issues and would competently testify to those facts; mother, father, and sister all reside in Santa Barbara County; Hannah resides in Irvine; it will be equally as convenient or inconvenient to bring Hannah into a Santa Barbara court; she lives 136 miles from Santa Barbara and 85 miles from San Diego; father has not identified any nonparty witnesses.
Mother testifies that she does not disagree that father is a paraplegic and confined to a wheelchair; he takes medications and suffers in some ways as a paraplegic; but he travels extensively for work and pleasure and loves it; he is the type of person to not let his disability get in his way; is evident by the amount of traveling he does; she always admired and highly regarded his discipline, amazing efforts and fortitude in this regard; in the past 12 months, he has traveled at least 11 times for work and pleasure: to Japan, Korea, and Germany for work; Alabama; North Carolina; South Carolina; for several weeks; in April 2019, Kayley had a dance convention in Tahoe; a 9-hour drive away from San Diego; he drove from San Diego, picked Kayley up in Santa Barbara, and took her to Tahoe for her dance convention and drove Kayley back to Santa Barbara; he has been to Dodger Stadium; Virginia; Denver on his way to Ohio; Los Angeles; Cincinnati for work; had to switch service dogs because he needed a dog that could travel with him due to his extensive traveling schedule [was merely one year ago].
Father worked for the Department of the Navy for years; has a high security clearance; has a concealed weapons permit; approved by the Navy and presumably obtained for his job; he has been on the same medications for years the Navy is aware of his condition, the medications he is taking, and his concealed permit; despite father’s condition and required medication intake, the Navy has found it to be a sound decision to provide him with a high security clearance and require him to travel extensively for work.
She testifies that father has made numerous misrepresentations and has outright misled this Court in an effort to persuade this Court that it should not retain jurisdiction and to obtain unwarranted attorney’s fees; his statements that she “went silent” after he told her he filed for divorce are untrue; he has purposely withheld from this Court his ability to travel and love for travel; she has incurred attorney’s fees in defending his motion which was based on false statements and misleading remarks; requests an award of attorney’s fees in the amount of $2,500.
Mother’s Points and Authorities
Filed 2/6; the 11-page document is thorough and helpful; have read it all; summarize it here; the convenience of witnesses would not be promoted by a change of venue because four nonparty percipient witnesses reside in Santa Barbara County and one nonparty percipient witness resides in Orange County; the court should find that the “convenience” to father as a witness does not outweigh the “convenience” to all nonparty percipient witnesses; the Court should not consider the “convenience” to father as a party to this matter because his status as a paraplegic is not extraordinary under the circumstances; the ends of justice would be served by denying the motion mother has offered compelling evidence to refute father’s contentions that he would physically be unable to litigate here in Santa Barbara, suffer physical and emotional hardship, and that she filed in Santa Barbara County for the sole purpose of limiting his ability to litigate; additionally mother should be awarded attorney’s fees in defending his motion because it was based on misleading and false statements.
Father’s I&E
Filed 2/27. Average earnings over last 12 months is about $10,000/mo.; Military Disability $6,800/mo.; one time inheritance in last 12 months of $54,000; mandatory retirement $223/mo. and insurance premiums of $104/mo.; cash $4,000 but unaccountably does not fill in the blanks for other liquid assets or all other property; living expenses $5,000; modest installment debt of $15,000; paid his attorney $4,500; does not reflect any time share with Kayley. He pays some of mother’s monthly expenses which include: Mortgage $3,155, HOA $422, car loan $577, fixed rate loan $1,315 and home insurance $49.
Father’s Reply
Filed 3/3; testifies that they have been separated for nearly seven years; appears to be mother’s position, between Monday January 6th and January 16th, while he was waiting for her to agree to Acknowledged Service, and tried to have her served twice, that she was in such a hurry to get divorced that she innocently filed in Santa Barbara and had him served the very same day. The next day, January 17th, she retained Counsel.
Testifies that mother tries portraying him as having some great love for travel; he must occasionally travel for work; mother’s claim that he made 11 trips in the course of the last year is not true; most of the trips he made were flights for work; the government makes significant accommodations made for him; normally flies first class; not confined to a limited space; can take his medication; three of the claimed 11 trips did not happen.
If he must travel to Santa Barbara, he will be in a great deal of pain following the trip; will not be able to give his best testimony under the circumstances; would be unjust for him to suffer, when mother would suffer no such pain, if she were to litigate in San Diego; would be unjust for mother to benefit from her tactic of having him served while pretending to work with him to move the case forward in San Diego.
Father’s Reply supported by his attorney’s declaration of fees and costs.
Filed 3/3. Testifies that father has incurred $3,640 in fees and costs through 2/6/20; amount does not include the finalized fees for preparation of this Fee Declaration, Draft Reply Declaration, travel to Santa Barbara for hearing, attend Court hearing in Santa Barbara, or the preparation, filing and service of additional documents relating thereto.
Analysis
Father’s motion should be granted; the Court finds pursuant to CCP §397 (d) the ends of justice would be promoted by a change of venue; he is seriously disabled; travel would be more difficult for him than it would be for mother; additionally the case would have litigated in San Diego but for mother’s decision to file in Santa Barbara even though she knew father had filed in San Diego and was seeking to have her served; the Court notes although mother secured service first, father’s Petition for Dissolution was filed first. The CCP 271 sanction-based fees should be denied; the Court does not think the argument here is so outrageous as to call for such sanctions; each side makes a good argument albeit father’s argument preponderates; additionally the court must take into consideration all evidence concerning the parties’ incomes, assets, and liabilities; mother has not filed an I&E and father’s I&E leaves out some necessary fact specific information. The Court has considered but rejected the idea that it can, prior to the determination of such motion, consider and determine motions for allowance of temporary spousal support, support of children, temporary restraining orders, attorneys’ fees, and costs, and make all necessary and proper orders in connection therewith. San Diego can make those decisions. Father will pay any necessary fee for the transfer and take whatever additional steps needed to get the venue change.