Patricia Stone-Damen and Michael Benjamin Damen
Case No: 16FL02161
Hearing Date: Tue Jun 11, 2019 10:30

Nature of Proceedings: Req. for Order: Sanctions and Return of Photos and Videos

Req. for Order: Sanctions and Return of Photos and Videos

Attorneys: Guneet Kaur for Plaintiff (“mother”); Respondent (“father”) in pro per

Ruling: DENIED

Analysis

Mother filed her 28 page RFO on 5/8; includes Exhibits A-E; have read it all but will summarize here; mother testifies she is requesting that the Court order father to immediately relinquish the children’s baby and childhood photos, and videos in his possession or control maintained in any and all of the following formats: 1) print format including the negatives (the “photo/video boxes”) and 2) digitized pre-separation photos and videos that are on father’s computer(s), mobile phone, or other portable storage devices (“digital photos and videos”); also requests that father be ordered to pay the sum of $2,500 in sanctions for his conduct that has frustrated settlement of this issue without the Court’s intervention for over three years now.

Mother testifies that this matter came before this very Court on June 6, 2017 (pre-trial), June 7, 8, 9, and 14, 2017; a Judgment dated September 26, 2017, was entered by the Court; requests that the Court take Judicial Notice of this Judgment (that request is granted).

Mother’s counsel’s declaration related to sanction-based attorney fees under Family Code Section 271

Filed 5/8; testifies that father acknowledged that mother has a right to the photos and videos but still refused to provide mother with them.

Father’s Response

It is 17 pages long; the Court has read it all but will summarize here; contends that there is no legal authority for the common sense proposition that the community’s pre-digital family photos and videos should be copied, with the cost split by the parties, so that each spouse can have their own copy.

Father objects to sanction-based attorney fees.

Mother’s Reply

Filed 6/4/19; 12 pages long; read it all; summarize here; emphasizes that she be allowed to have what she already has the legal right to: community property in the form of my children’s baby and childhood photos and videos; specifically she is seeking that she be allowed to retain possession of the children’s videos and photos for a timeframe that is much less than that which father has had the opportunity to maintain the photos in his exclusive possession; that father has had possession since 2015; mother is requesting that she be allowed an opportunity to have the photos and videos for two years so that she can literally view, select, and flip through the thousands of photos maintained in the 30 plus boxes containing hard copies of the photos she carefully organized throughout the marriage in order to do what she has been denied the opportunity to do since 2015; after the two year period, she is requesting that the photo/video boxes be divided equitably between the parties; that she will retain possession of the first-half (chronologically by date) and father will receive the latter half (chronologically by date.)

As for sanctioned-based fees she testifies that father is a seasoned family law attorney himself; he does not have the need to hire counsel and can represent himself; he does not have to spend thousands of dollars on request(s) to enforce his rights; that mother has to retain counsel so she can obtain possession of her own children’s baby and childhood photos and videos; there is no incentive for father to ever cooperate.

Mother’s Memorandum of Points and Authorities

Filed 6/4; extensive and thorough; points out that the since section 271 is a sanction-based request and punishes behavior, a party making a request under this code section need not show a “need” for the fees and costs; sanctioning father would not create an unreasonable financial burden since he is an experienced family law attorney who has been representing himself and has not had to spend money on legal fees.

The Court’s Conclusions

The Court has no jurisdiction to address the issue.

Family Code section 2550 provides

“Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally.” (Emphasis added by the Court)

In the Court’s 19 page Statement of Decision crafted in 2017 after considering the objections of both sides, the Court considered a very long list of issues raised during trial, including some 36 items such as claims for dog expenses, residence waste, mother’s Epstein reimbursement claim, etc-etc. There was no claim made related to a community property interest in children’s photographs and the Court did not reserve jurisdiction over the issue. There has been no written agreement of the parties or an oral stipulation to now divide this community property. It is very clear that this was not a “missed” or “after-discovered” asset of the marriage.

Thus the Court has no jurisdiction to consider the matter. Indeed, if a Court were required to resolve such issues after trial and a written Statement of Decision and Judgment, there would never be a time or date when the alleged division of community property was an issue put to rest. (Family code section 2550; Mueller vs Walker (1985) 167 Cal.App.3d 600).

Sanction-based fees under such circumstances are not available.