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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

Venessa Kay and Raymond Tischer

Case No: 1417779
Hearing Date: Tue Dec 17, 2013 10:30

Nature of Proceedings: Req. for Order: Reconsideration/Vacating/Mod of SS/Atty Fees Order

This case was just decided on 10/29/13; the Court set spousal support at $1,402/mo and provided attorney fees of $4,000 on account. Father’s response was never considered because he filed it on 10/25 which was much too late; among other things it never gave mother a chance for a reply. The Court assumed father’s income was $7,500/mo in setting support. On 11/18 father filed a voluminous motion for reconsideration; now the Court is invited to do everything all over again. Father seeks reconsideration based upon CCP §1008 [any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law]; alternatively requests modification pursuant to F.C. §2120(b) [it occasionally happens that the division of property or the award of support, whether made as a result of agreement or trial, is inequitable when made due to the nondisclosure or other misconduct of one of the parties] and 2122 [set aside a Judgment for: Actual fraud; Perjury; Duress; Mental incapacity; Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100)]. He also seeks sanction-based attorney fees [F.C. §271] based upon wife’s nondisclosure of income, assets, and self-employment business ventures and based on her ability to pay such an award from assets and income. Husband claims here that his mental and emotional health has caused him severe depression and he was unable to assist his attorney in providing a timely response to wife’s requests for spousal support and attorney fees. Additionally he contends wife has failed to disclose income and assets from various sources in her RFO seeking temporary support and fees. On 12/3 wife filed her response; points out that the RFO was filed on 6/27 and served on 7/3; it was originally set for hearing on 8/20; it was continued to 10/29 as an accommodation to husband and his counsel; no response was filed until 10/25 at 1:30 pm which was an extremely untimely response; the Court entered its Order and ignored the untimely response; that husband even now has not served his Local Rule 1419 disclosures and without that information wife cannot adequately defend a motion for reconsideration; that the Court set temporary support based upon husband’s 2011 income tax return and it was the only document available to wife as husband failed to answer discovery prior to the hearing despite being served in August 2013; that husband served his responses to discovery after the hearing and produced his 2012 tax return which reported gross earnings of $71,000 or $6,000/mo; his bank deposits from 9/2012 through 9/2013 total $106,000 or $8,900/mo; that his back up medical support documents allegedly justifying the delayed filing of his response are not authenticated. Wife claims there is no merit to the demand for reconsideration or sanction-based attorney fees. On 12/10/13 husband filed his reply; seeks reconsideration based upon incorrect assumptions predicated on inaccurate income and asset figures for both himself and for wife (i.e. that the Court assumed his income was too high and wife’s income was too low); that his monthly income is $5,000 [not the $7,500/mo attributed by the Court]; that he admits the supporting documents were not authenticated but seeks permission to call the medical providers as witnesses during the actual hearing of this matter pursuant to Evidence Code sections 403 and 702; requests that the Court consider the letters as evidence of the facts stated in the interim; that wife has not provided information regarding her income from her Microscopy business; her income from Trivita Sales; her income from her “counseling” endeavors; claims he cannot pay the Court-ordered support or fees; that wife holds, in her name alone, Oregon real property worth $150,000; claims it is in fact community real property and the sale of this property should be considered as a means of allowing each of them access to immediate funds. Rulings: 1. Husband’s motion for reconsideration is denied. Temporary support hearings are extremely common and there are very competent attorneys involved in this case. This case has been improperly turned into a discovery dispute wherein husband squarely places the blame for not being prepared on his emotional distress and his wife’s perjury. It may turn out there is substance to his claims and if so, the Court is certain that he will find the evidence to support it. But at this junction there is not persuasive evidence to justify any reconsideration of what has been ordered. If the Courts were to delay in making temporary support and attorney fees decisions based upon the kind of claims made here, no temporary orders would be made. 2. Additionally, husband has not submitted a proposed guideline calculation about what the support should be; he simply has complained wife has not been truthful; he complains of fraud, duress, and his mental inability to comply; but he does not recognize that temporary support is based upon the information the Court can glean from the information available. If husband was unprepared to timely submit a response after the very long delay in getting to the hearing, he could have sought relief by seeking a continuance for further delay; he elected not to do that. 3. But with all that said, wife too has her right to finally secure a decision on the merits of her request. The Court has approached the issues here after carefully reading all the controversial claims made by husband about why he should not have to pay his temporary support and the attorney fees ordered. If the Court were to embrace his requests based upon these documents, the temporary support matters would spiral totally out of control. 4. When the Court said husband had his remedies, indeed he does. This case needs to be tried; he will get a full opportunity to present all of his claims; so will wife; that’s what trials are all about. If wife has committed fraud or perjury or any of the other claims husband now asserts are proven, the Court has a lot of arrows in its quiver. But this comment is not meant to suggest the Court will retroactively review the support now set or the requirement husband make those payments or the payment of the attorney fees. 5. This Petition for dissolution was filed in June 2013 after less than 9 years of marriage and no children; as a general rule it was a short marriage; the case should not be overly complicated for good lawyers; the trial date is May 27, 2014, at 11:30 a.m. in this Department; the mandatory settlement conference date is May 9, 2014, at 8 am in Department 5; the case needs resolution within a year of the date it was filed. 6. The Court has not ignored husband’s request for a Statement of Decision; I am not certain one is required here but this will have to suffice. I have not ignored his request for sanction-based fees, but I find no merit in that request. I have not ignored his request to consider the letters from medical providers pending a hearing when they would be called as witnesses; such a request is rejected as being an improper waste of judicial resources when reasonable alternatives are available to the party submitting the “declarations.”