Tentative Ruling

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

FAMILY LAW
Olga Garcia Aguayo and Victor Gamez Ibarra
Case No: 19FL02691
Hearing Date: Tue Mar 03, 2020 10:30

Nature of Proceedings: Req. for Order: Modification Child Custody/Visit/Attorney Fees/Property/Sanctions/Accounting of Community Funds

Petitioner’s Req. for Order: Modification Child Custody/Visit/Attorney Fees/Property/Sanctions/Accounting on Community Funds

Attorneys:

Gabriela Ferreira for Petitioner [“mother”];

Marcus Morales for Respondent [“father”]

Ruling:

1. At the outset the Court makes the observation that since there are experienced lawyers in this case, many of these issues should have been resolved by counsel; that would have precluded the necessity of the Court to have to read the extensive documentation presented and formulating a time consuming analysis and ruling.

2. Father’s objection to and request to strike mother’s Reply Brief is denied; father has adequately responded to all the issues that the Court has determined must be resolved today.

3. Mother’s request for sanctions for father’s breach of fiduciary duty is reserved until trial; there is insufficient testimony to make an informed decision on the issue.

4. Mother’s request for mismanaging community funds and for reimbursement for taking such large amount of funds without her knowledge and consent leaving her with nothing, is reserved until trial; there is insufficient testimony to make an informed decision on the issue.

5. Mother’s request for attorney fees and costs is reserved until trial; at this juncture there is insufficient testimony to make an informed decision on the issue.

6. Father’s request to make an order changing the visitation schedule is denied without prejudice; the request is premature because the Court finds the issues relating to holidays and overnights because the Parties have agreed to return to mediation on 4/17/2020 to address that very issue; mediation should be given a chance. Pending further order of court the Parents shall have custody of the child and be fully responsible for the child’s care and keeping (including homework and transportation to the child’s events) according to the following schedule. Father shall be responsible for the child every Tuesday, Thursday and Friday from 2:30 pm until 7:30 pm. Additionally, Father shall be responsible for the child every Saturday from 10:30 am until 6:00 pm. Transportation: The Father shall pick up the child from school or Mother’s residence at the start of this custody time and the return the child to Mother’s residence at the end of his custody time.

7. The Court will make no division of property or community funds until the time of trial.

8. Mother’s request that father pay half her rent and other bills is denied without prejudice.

8. Trial and MSC dates. The MSC is set for Friday July 31, 2020, and Trial Call is Tuesday, August 25, 2020.

9. The next CMC set for 4/7/20 is vacated. A final CMC is set for August 11, 2020, to discuss the status of the discovery plan.

Analysis:

This petition for dissolution was filed in 12/2019 by mother after 25 years of marriage; there are two adult children; now there is only one minor child, Derek DOB 6/22/11 [a special needs child]; at the time she filed the petition she was seeking sole legal and physical custody; father answered the petition in 12/2019; he seeks joint legal and physical custody and a visitation order.

Mediation: On 1/17/20 Family Court Services reported that in mediation a temporary agreement had been reached between the parties, pending the final disposition of this matter by further agreement of the parties or by the Court; a written Stipulation and Order will be presented by the parties to the Court for approval; apparently issues relating to holidays and overnights have not been fully resolved because the Parties have agreed to return to mediation on 4/17/2020.

Nevertheless the Court was presented with a Stipulation re Custody and Visitation which the Court signed on 1/24/20. It provides for joint custody and that the Parents shall have custody of the child and be fully responsible for the child’s care and keeping (including homework and transportation to the child’s events) according to the following schedule: Father shall be responsible for the child every Tuesday, Thursday and Friday from 2:30 pm until 7:30 pm. Additionally, Father shall be responsible for the child every Saturday from 10:30 am until 6:00 pm. Transportation: The Father shall pick up the child from school or Mother’s residence at the start of this custody time and the return the child to Mother’s residence at the end of his custody time.

On 1/30 mother filed a 45-page RFO seeking changes in “child custody [joint], visitation, attorney’s fees [$5,000] and costs [$5,000], property control, accounting of community funds, reimbursement of community funds, and sanctions for fiduciary breach of duty, etc.” The hearing was set for 3/3/20. The Court has read it all but summarizes here.

Mother testifies that visitation has been temporarily resolved as follows: father has Derek on Tuesdays and Thursdays after school until 7:30 p.m.; on Saturday from 9:00 am to 5:00 pm; and will pick up Derek from either school or mother’s house and return to her house.

She seeks an accounting; father has always been controlling; after separation she learned that bank accounts had been closed and that there were no funds left; they were all joint accounts; she had a horrific shock because her entire life savings and income were in those accounts. Reports total community funds taken by father was $96,665.80. He also has been sending money to Mexico and seeks an order that he reimburse her $68,827.21. Reports that the reimbursement she is requesting is one-half of the total of the community funds in the accounts is $386,573.92 as of March 30, 2018.

She is seeking that father pay half her rent and other bills, which she is struggling to pay in her current state. He took all her money and savings from which she could use to pay these expenses.

She is requesting that the Court enter orders for sanctions for his breach of fiduciary duty, for mismanaging community funds, for taking such large amount of funds without her knowledge and consent leaving her with nothing.

Request for fees and costs supported by declaration of counsel for mother.

Mother’s I&E

Filed 1/30; testifies she is self-employed as a housekeeper; earns $3,160/mo; estimates father’s income at $3,000/mo.; she reports no deductions and $3,500 in cash is only asset; lives with Derek and two adult sons but indicates there income is “unknown;” living expenses $3,100/mo. of which $100 is paid by others; paid her attorney $5,000.

The next CMC is on 4/7/20

Father’s I&E

Filed 2/7; he earns $1,512/mo. as a self-employed gardener; works 18 hours per week; estimates mother’s income at $3,160/mo.; lives with his brother whose income is “unknown;” (sic); living expenses $1,465/mo.; unaccountably does not fill in any of the blanks related to attorney fees.

Father’s 16-page Response filed 2/19

He does not consent to the visitation requested; instead he asks for a court order that he have visitation with Derek every Tuesday, Thursday, and Friday beginning at 2:30 pm until 7:30 pm and every Saturday beginning at 10:30 am until 6:00 pm. Additionally, that he have overnight visitation every other Friday beginning at 2:30 pm until Sunday at 6:00 pm.

He claims that mother’s Income and Expense Declaration indicates that she makes more than he; asks that the Court deny all her requests that he pay any of her bills; there is no description as to why he should pay half her rent; she makes more money than he and paid her attorney $5,000 in cash; mother works for cash and has large amounts of cash. Requests an order that provides no division of property or community funds until the time of trial; no monetary sanctions to be assessed against him; asks the Court to set an MSC for July and Trial Call in August.

Testifies that although mother contends that he controlled all finances during the marriage and did not give her access to bank accounts and that he forced her to give him her entire paycheck to place in the bank, the claims are false; she always preferred to cash her paychecks and keep the money herself; she still does not have a bank account because she prefers to keep her income as cash; that he did not breach any fiduciary duties because he informed her that he was going to close the bank accounts and she did not object; she was not left in the dark as she claims and was made aware of his decision to close the accounts; she made it clear she did not want any money, although she is also requesting to be reimbursed for the money he sent to his father in Mexico, she was informed that he was going to send money to his father as a gift and did not object.

Testifies that mother and he should pay their own attorney’s fees; she has the ability to pay her own attorney’s fees with her current income; her Income and Expense Declaration states that she has an average monthly income of $3,160; the extent of her finances is unknown as she does not have any bank accounts and does not file taxes; she was able to pay her attorney $5,000 so she clearly has the ability to pay her own fees; he gets paid $20 per hour; this is half of what she gets paid per hour; he does not have consistent hours as he is a self-employed gardener and just now returning to work after hernia surgery; has not been able to pay his own attorney.

Mother does not need an accounting; her attorney requested extensive discovery; he responded and provided all records showing how much money was in all his accounts and how he gifted the funds to his father; the accounting has already been provided.

Mother’s request for property control and payment of her bills that she made on FL-300 requests that he pay half of her rent and other bills; but her declaration does not explain why he should do so.

Mother’s Reply filed 2/26

Reiterates her requests: She seeks:

1) Accounting of Community Funds that were removed from Bank Accounts; and the funds transferred to Mexico;

2) Reimbursement of half of community funds that father took from bank accounts without her knowledge and consent. Total community funds amount to $386,573.92 as of March 30, 2018, and now are $0.00;

3) Requests sanctions against father for his breach of fiduciary duty, fraud and mismanagement of community funds and all other applicable sanctions, including attorney’s fees and costs; and

4) Awarding such other relief to her as the Court finds to be just, appropriate, and equitable.

Mother testifies that in father’s declaration he seeks overnight visitation with Derek; they agreed to a schedule and that it was to remain active until the next mediation or until further agreement or court order; next mediation is currently scheduled for April 17 at 8:30 am; she is requesting that the Court deny his request for overnight visitation at this time because it is not currently in Derek’s best interest.

She testifies she was able to pay $5,000 in attorney’s fees to her lawyer, out of her emergency funds that she built up over the last two years after she informed father that she would no longer give him all her income; she works really hard as a housekeeper all these years and she provided to the Court the information on all her income; it is outrageous that he has defrauded her and basically stole $386,573.92 from the Wells Fargo accounts; the money was their entire life savings. In his Responsive Declaration he falsely claims that she told him that she never wanted any of their community funds acquired over 25 years of hard work during their marriage; he also falsely claims that she has repeatedly told him this and never desired to access the Wells Fargo bank accounts because she had no interest in the funds. She believes that father is hiding all of the community property funds, a total of $386,573.92, in an attempt to keep it all for himself.

Supported by mother’s 14-page Points and Authorities filed 2/27.

Father’s objection to and request to strike mother’s Reply Brief

Father testifies that mother’s Reply was untimely served [served only four court days before the hearing for this matter]; was impermissible in format [Reply Declaration is nine pages in length; exceeds the five-page limit stated in CRC 5.111(a).]; Reply contains an impermissible new matter [mother raised for the first time the issue of Derek’s special needs and difficulty with change and transition]; requests that the Court sustain his objection to mother’s late filed Reply Brief and/or strike and ignore her Reply Brief when considering arguments on the instant motion.

Father’s objection to and request to strike mother’s Points and Authorities.

The objection and request is based upon the information shared with the Court above.

The Court’s Conclusions

The Court has considered everything submitted and will rule on the issues.