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

FAMILY LAW

Jill Tripi and David Tripi

Case No: 1418721
Hearing Date: Tue Oct 08, 2013 10:30

Nature of Proceedings: Req. for Order: CC

On 8/30/13 mother filed a Petition for Dissolution after about (TBD) years of marriage and two children; father has not filed a response to mother’s petition. However, father did file a RFO on 9/6; seeks child custody orders (seeks joint custody, children ages 2 and 6) and attaches forms 311 and 341; seeks equal time share (50-50) with custody exchange every 7 days; travel limits to the State of California, a holiday schedule; filed a declaration that gives the background from his perspective; notes that mother wants sole physical custody with alternating weekends; he wants alternating weeks. Father submitted a declaration from Mr. Miralles, his employer, supporting his request; he tells me that father will work out of Santa Barbara 100% of the time, effective immediately. On 9/23 mother filed her response; does not consent to father’s requests; filed her own 311 form; seeks 1st, 3rd and 5th weekends for father’s visitation from Friday at 5 to Sunday at 5 and every Wednesday from 3 to 6 pm; transportation to the visits provided by father and from the visits provided by mother; provides a form 341 (holidays); seeks joint legal custody; physical custody to mother; guideline child support and spousal support, attorney fees ($16,000). Property control of the Silkberry rental residence with the children; contends father travels extensively; contends she is not punishing father for his work schedule; claims father earns $350,000/yr. Mother submitted a declaration supporting her attorney fee request from her lawyer; reports mother has incurred $6,000 in fees and will need an additional $10,000. Mother has filed a financial declaration; reports she is 36 years old and has a B.S. Degree; reports no earnings or income at all; has $68,000 in cash and $11,000 in other liquid assets; all other property “unknown;” pays rent; no installment debt of note; has paid her attorney $7,500 so far; does not provide a time share % in her declaration; I did not see a proposed guideline calculation. Also on 9/23 mother filed her own RFO which duplicates her “response” and I assume it was filed through an abundance of caution. On 9/26 Family Court Services reports that the parents agreed to a temporary informal time share schedule to reach the hearing date scheduled; the issue as to what happens thereafter apparently is up to the Court. Father has filed a response to mother’s RFO; does not consent to mother’s requests; wants support calculated using his “base salary” and asks for consideration of all community obligations he is paying; he must maintain a presence in San Diego in order to keep his employment and continue to receive income; wants the court to retain jurisdiction over bonus issues to determine percentage of future bonus payable as to “child support” and as for “spousal support,” to retain jurisdiction over bonus payable as spousal support and cap on amount of bonus on which percentage, if any, might be applicable. Father reports there is insufficient time to adequately respond on the issue of his bonus income. Father did not file a financial declaration; instead he has supplied the declaration of his CPA; that declaration is informative and helpful, albeit a declaration from father is customarily needed; he states he has only $50,000 in liquid cash assets and suggests mother should pay her own attorney fees. The CPA reports father’s monthly earnings for dissomaster purposes is $17,150/mo which does not include bonus calculations; that father pays $295/mo in insurance premiums; assumes mother will claim the children as dependents; assumes equal time shares; reports that the earliest any order relating to the bonuses would be February 2014; there is little evidence to form a rational estimate of future bonuses upon which to make an Ostler/Smith calculation; has used only the cash flow to make his assumptions. On 10/4 mother filed a notice of intent to take oral testimony if the Court considers an equal custodial schedule. Father filed (on 10/4) a request that the court order an interim custodial plan pending the evidentiary hearing requested by him; reports his custodial time is at mother’s “whim;” no agreement was reached through mediation; an interim order is necessary; request that the court temporarily order a 2-2-3 custodial arrangement that would be effective 10/9/13. Rulings: 1. The parents shall have temporary joint physical and joint legal custody; but Mother shall have a greater time share until settlement or trial; father to have his time share on the 1st, 3rd and 5th weekends from Friday at 5 to Sunday at 5 and every Wednesday from 3 to 7 pm (beginning forthwith; I have not ignored mother’s suggestion to make the exchange at 6 pm); transportation to the visits will be provided by father and from the visits provided by mother. 2. Mother has ample liquid assets to pay her own fees for now, albeit the Court specifically reserves the right to allocate or apportion fees and costs at trial. 3. Guideline child support is set at $3,078; guideline spousal support is set at $3,478/mo; I have assumed father has the children 30% of the time and mother has them 70%: For father I have assumed income of $17,150/mo and insurance premiums of $295/mo; For mother I have assumed no income; father will take the children as deductions, mother to cooperate with regard to the documentation; my guideline calculations will be available in the Courtroom. 4. Total support is $6,556/mo; both spousal support and child support are retroactive to October 1, 2013 and payable on the first of each month. 5. Mr. Gray’s comments about the bonuses make sense at this juncture, albeit I do not consider the issues he raises as so problematical; I am concerned about a decision being made about the bonuses before the Court has a chance to be involved; thus father shall make no “decisions” about any bonuses until there is a written agreement between the parties or further Court order; additionally, any and all communications he has about past or future bonuses must be shared with mother’s counsel within 48 hours of receipt; if necessary the Court will approve a protective order. 6. Mother is given the following work-hardening order: Family code section 4330 provides that the recipient of spousal support should make reasonable efforts to assist in providing for her support needs, taking into account the particular circumstances considered by the Court pursuant to section 4320. Marriage of Gavron (1988) 203 Cal. App. 3d 705. Wife cannot be penalized now by the Court reducing support because of an apparent lack of judicial foresight in not forcing her to focus on the drastic legal and financial consequences of the then-unrevealed expectation that she become self-sufficient. 7. Mother shall have exclusive property control of the Silkberry rental residence. 8. This case needs to be tried; the case is set for trial on April 29, 2014, at 11:30; the mandatory settlement conference is set for April 4, 2014, at 8:30; I have reserved 4 days for trial; father’s 2013 income tax return to be filed by April 1, 2014 and shared with mother’s counsel. 9. The following temporary holiday schedule is set: Holiday Every Year Even years Odd years January 1 (noon to 5 pm) Mother Father Martin Luther King Day Father Mother Lincoln’s Birthday Mother Father President’s Day (weekend) Mother Father Spring Break (1st half) Mother Father Spring Break (2nd half) Mother Father Mother’s Day (9 am to 5 pm) Mother Memorial Day (weekend) Father Mother Father’s Day (9 am to 5 pm) Father July 4th (9 am to 5 pm) Mother Father Labor Day (weekend) Father Mother Columbus Day (weekend) Mother Father Halloween Mother Father Veteran’s Day (weekend) Mother Father Thanksgiving Day (9 am to 5 pm) Mother Father Thanksgiving (weekend) Mother Father Winter Break (first half) Father Mother Winter Break (second half) Mother Father New Years Eve (noon to 5 pm) Father Mother Child’s birthday (noon to 5 pm) Father Mother Mother’s birthday (noon to 5 pm) Mother Father’s birthday (noon to 5 pm) Father Any three-day weekend not specified above will be spent with the parent who would normally have that weekend. Summer vacation will be divided equally (i.e. 50-50) with father and mother having the children every other week. Each parent must notify the other parent in writing of their vacation plans a minimum of 60 days in advance and provide the other parent with a basic itinerary that includes dates of leaving and returning, destinations, flight information, and telephone numbers for emergency purposes; the other parent has 15 days to respond if there is a problem with the schedule; any vacation outside California requires prior written consent of the other parent or a Court order. Father’s time share is calculated: 26 weekends from Friday at 5 to Sunday at 6 = 1,248 hrs or 52 days; mid-week 52 times from 3 pm to 7 pm = 208 hrs or 9 days; summer = 36 days; holidays = 14 days; TOTALS 110/365 = 30%