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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


Nicole Garay and Matthew Garay

Case No: 1466451
Hearing Date: Tue May 13, 2014 10:30

Nature of Proceedings: Req. for Order: CS/SS/Atty Fees & Costs

This dissolution action was filed by mother on April 2 after 6 Ĺ years of marriage and 2 children; there is no response in my file; on 4/2 mother filed a RFO seeking child support (guideline) and spousal support ($1,285/mo) and attorney fees; that father be ordered to make payments of about $350/mo to Wells Fargo a/c #4931; that he be ordered to bring that overdrawn account (apparently by $347) current, and to immediately close that account.


Mother filed a financial declaration; she is unemployed; has a college degree; estimates father earns $6,250/mo; she has income of $100/mo from a onetime book illustration royalty; no liquid assets, and personal property valued at $2,500; paid her lawyer $395; reports 100% time share with her but also reports that mother and father will be able to mutually agree on a schedule; reports living expenses are $3,756/mo.


Mother submitted a DissoMaster proposal; assumes father earns $6,250/mo and has a 20% time share; mother takes both children as deductions (?); assumes they will file MFJ (?); guideline support is $3,126/mo (mother requests in her RFO guideline child support {$2,028] but not guideline spousal support [$1,029] but instead $1,285/mo).


Mediation Date


Family court Services report that mediation was held but no agreement reached. There is a report in the file that mother and father attended the P.E.A.C.E. class.


Fatherís Response to Dissolution Action


Father filed his response to the dissolution action on 4/25; he also seeks dissolution; reports the date of separation was 2/23/14; 6 Ĺ year marriage and two children ages 4 and 5 years; seeks joint legal and joint physical custody; seeks two week continuance of the 4/29 RFO hearing to 5/13.


Fatherís Response to RFO


Fatherís status report is that father was laid off his job and is seeking employment; will receive $450/wk in unemployment compensation; has received half of his severance pay and half will be paid to mother; paid mother $600 on 4/24.


Father filed his I&E on 5/6/14; reports his job ended 4/30/14; estimates motherís income at zero; has $1,345 in cash and does not fill in the questions on other liquid assets or other property; reports living expenses of $3,470/mo and nominal installment debt; paid his attorney $5,000 from credit card; time share is not yet established and father is seeking 50% visitation.


Father filed his proposed dissomaster calculation on 5/6/14; assumes 2 children with father having 20% visitation; mother imputed with minimum wage of $1,280/mo; father has $1,800/mo unemployment income; reports he assumed they are filing joint tax returns [albeit on his dissomaster he reported father filing SINGLE and mother filing HH]; proposes that father should pay $421/mo.


Motherís Reply


As to the issue of attorney fees reports mother has incurred $1,896 in fees and $498 in costs through 5/1/14; will incur another $3,500 to $5,000 to resolve remaining issues unless custody dispute arises (if so the fees are estimated at $25,000).


Mother filed her declaration on 5/9/14; has begun to look for work; that if she had minimum wage job it would be consumed by child care costs; is not working now; despite fatherís time share estimate (at 20%) he does not see them that much; he has declined visitation opportunities when given them; father does not have a car (motorcycle only); should sell it; father gave her $600 and $1,200; there is no documentation what his severance pay actually was; has $200 hospital bill that father has not paid; health insurance cut off on 5/1/14; asks for guideline support and father to pay Ĺ of unreimbursed medical and that father be ordered to obtain and maintain health insurance coverage if it is available to him at little or no cost; also asks for $2,500 to defray attorney fees.


Mother filed her P&Aís; reports father has not filed his 1419 documents; she does not seek a continuance because of that fact; father failed to submit any supporting documentation concerning his unemployment insurance benefits; that the unemployment benefits of $450/wk would amount to $1,950/mo [not the $1,800 reported by father; father multiplied $450/wk times 4 and that is incorrect arithmetic]; that the amount should be listed on the ďstate unemployment benefitsĒ line on the dissomaster; reports that although he claims to have used his credit card to pay his lawyer he credit card balance on his I&E is only $832; that he should have used his credit to care for his family obligations before paying for his lawyer; seeks $1,155/mo retroactive to 4/2/14 and $2,500 in fees.


Mother filed her proposed dissomaster; assumes 2 children; motherís income is zero [appears inconsistent with her I&E where she reported $1,200/yr for book illustrations); assumes fatherís income is $1,950/mo and puts it at ďother taxable incomeĒ [albeit the change is a nominal $4/mo]; reports father will file SINGLE and mother HH; she will release the exemption to father for 2014.


1. Total support is $1,107/mo retroactive to 4/2/14; I have assumed fatherís income is $1,950/mo; mother has $100/mo royalty; I have elected not to impute income to mother now; mother files SINGLE, father files HH; father will file SINGLE and mother HH; she will release the exemption to father for 2014. My dissomaster will be in the courtroom.   


2. Motherís request that father make payments of about $350/mo to Wells Fargo a/c #4931; that he be ordered to bring that overdrawn account (apparently by $347) current, and to immediately close that account is moot in light of fatherís declaration.


3. Each party will pay Ĺ of unreimbursed medical costs provided that any such bills are delivered to the other party, with a cover letter, within 30 days of receipt by mother.


4. Father is ordered to obtain and maintain health insurance coverage if it is available to him at little or no cost.


5. This case needs to be resolved; the Mandatory Settlement Conference date is 9/5/14 at 8:30 in Department 5; the Trial Call is at 11:30 am on 9/23/14 in this Department.


6. The Court will allow both parties the opportunity to revisit the spousal support set herein at such time as when there is persuasive and credible support for any change in the amount now set; BUT with that said, I will not permit either party to seek to change the spousal support now set retroactive to any date before a new motion is filed, even should the assumptions I have made today prove inaccurate.


7. Motherís request for $2,500 to defray attorney fees is currently denied; mother may renew the issue at trial or any other reasonable time when there is more available evidence to support an award for fees. The Court cannot make the following findings so that attorney fees can be awarded. The standard of proof regarding need-based fees is that the Court shall first make findings of whether fees and costs are appropriate; whether there is a disparity in access to funds, and whether one party is able to pay for both partiesí legal representation; that only if the Court makes a finding demonstrating disparity in access and ability to pay should the Court award fees.

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