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socrateaser
socrateaser, Attorney
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Update... 1) Respondent filed her FL-120 on June 14. 2)I

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Update...

1) Respondent filed her FL-120 on June 14.

2)I filed FL-300, asking for a motion to strike because I hadn't yet been served FL-120 and no proof of that service had been filed, on June 24.

3) I served respondent with FL-300 and FL-320 on June 24.

4) I filed FL-330, Proof of Personal Service of FL-300 and FL-320, on June 25.

5) Respondent served me with her FL-120, by mail, on July 01.

Questions...

1) When I filed the Motion to Strike, I was given a court date of July 30, and now don't know if I should appear since FL-120 was subsequently served on me

2) Respondent has not provided me with any financial disclosure documents. How long does she have to do so? Should I check to see if she filed FL-141?

3) Respondent used our former home address, where I now reside alone, on her FL-120 even though she filed the FL-120 on June 14 and on it listed our date of separation as April 12.

4) Respondent is still having her mail delivered to our former home address, and has now left the state for an undetermined amount of time without leaving me an address where she can be reached.

So...I'm wondering what to do about not having received financial disclosures, respondent not giving the court her correct address thereby making it impossible for me to serve her, and what to about the July 30 date for the hearing on the Motion to Strike.

Thanks for all your help!
Appear at the hearing and move to strike. Respondent's response was not served in compliance with Family Code 2020, and you are therefore entitled to a default, after the response is struck from the record.

Hope this helps.
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Customer: replied 4 years ago.

OK, so I served her with the petition and summons on 5/21 and 30 days later was 6/20. So even though she filed her FL-120 on 6/14, since I didn't receive in until 7/1 she was not in compliance. Is this my rationale?


 


Should I mention the financial disclosures and the address issues at the hearing? If granted a default, are there forms I need to file that day before leaving court?


 


No need to hope, you always help!

There's actually a problem with the law. So, you may have trouble getting a default.

The actual law states: "A responsive pleading, if any, shall be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons." Family Code 2020.

However, Cal. R. Ct. Rule 5.62(a), provides: "Except as provided in Code of Civil Procedure section 418.10, a respondent or defendant is deemed to have appeared in a proceeding when he or she files: (1) A response or answer."

The Code and the Rule are in conflict, because the law expressly requires that a copy of the response must be served on the petitioner within 30 days -- but the Rule does not require service.

It is well established that the California Judicial Council cannot make rules that violate statutory law. See Elkins v. Superior Court (2007) 63 Cal.Rptr.3d 483, 492. So, you can argue that Fam. Code 2020 expressly requires that service must be made upon you within the 30-day deadline, to avoid a default. And, you can use Elkins as your precedent case law, and ask the court to rule that the respondent is in fact in default, despite Rule 5.62(a)(1).

And, then, I suggest that you may receive a classic display of Family Court judge apologetics, as the court attempts to explain to you that you do not understand the law. It should be quite interesting to see how the court explains this inconsistency away, as if it were obvious. It's definitely not obvious, and in my view the law clearly requires that the court strike respondent's pleading and enter a default.

Anyway, the choice is yours. If you don't want to try the motion, then you can take the motion off calender and move ahead with the case as a contested dissolution of marriage action.

Hope this helps.
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Customer: replied 4 years ago.

It sounds like Rule 5.62(a)(1) covers respondent's appearance, but not respondent's responsibility to serve petitioner as described in Family Code 2020...


 


how will my choice of whether or not to try the motion affect how, where, or when the lack of respondent's financial disclosures and failure to furnish a current address comes into play?

The motion to strike affects only your right to obtain a default. It will either succeed or fail.

Moving forward, if the other party does not have a current address of record with the court, then when you serve them at that address, they are served, even if they don't actually receive any of your paperwork. This would give you the opportunity to file any motion you wish, and request a trial. Ultimately, if the other party doesn't fix their address problem, then you could literally try the entire case without that party, and obtain a judgment in your favor.

You can file a motion to compel discovery, and if the other party doesn't appear, then that would give you grounds for something called a "termination sanction," which is an order ending the dissolution and awarding you judgment.

 

You may want to ask the court to order the other party to provide their current address of record, when you appear at the motion to strike hearing. That would get you on track -- but, it would also make your case more difficult to prosecute.

 

Choice is yours.

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Customer: replied 4 years ago.

I've discovered that there are certain items, e.g. initial petition and summons, that San Diego County requires be served in person. Service by mail is unacceptable.

Customer: replied 4 years ago.

It's unlikely that respondent will return to CA to attend the trial of the Motion to Strike on July 30. Is her absence likely to have any bearing on the outcome?

Forslund v. Forslund (1964) 225 Cal. App. 2d 476, 486 (An answer to a complaint may be served by mail). An "answer" in a regular civil action is the same as a "response" in a family court action. So, this is a nonissue, and you cannot argue it as grounds to avoid the court's attempt to prefer Rule 5.62(a) to Family Code 2020.

The best argument is simply that FC 2020 is unambiguous on its face, and it requires service upon the petitioner within 30 days. Therefore, Rule 5.62(a) cannot be used to avoid a default, because the rule is in direct conflict with the Family Code.

Respondent's failure to appear at the hearing, will not, by itself, permit a different ruling by the judge. But, it will mean that there will be no counterargument. My experience is that family court judges frequently impose their own arguments, so I can't say what may happen. Again, you have nothing to lose and everything to gain by pursuing the motion to strike.

Hope this helps.







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Customer: replied 4 years ago.

I went to court today, and found that Respondent never filed a Proof of Service regarding my (late) receipt of her FL-120 before she left the state. So, unless I'm asked directly if I've received the FL-120, my statement in the FL-300 of having not received it would appear to the court to still be accurate.


 


Should this have an effect on how I approach the hearing on Motion to Strike?


 


To date I've still not received any income or financial disclosure docs from the Respondent, nor has a change of address been filed. I'm curious as to how much of this the court will tolerate before I'm allowed to go forward with a default.


 


Thanks!

Should this have an effect on how I approach the hearing on Motion to Strike?

A: I don't see any reason to change the argument from the one I described in my previous answer. The court will either enforce FC 2020 as written, or find that the Judicial Council Rule 5.62(a) is applicable, despite its conflict with FC 2020. If the former, then the court will strike the response, and you can move forward with a default. Otherwise, the court will find that the respondent has appeared, in which case, you will have to go through the entire adversarial dissolution process. Assuming your spouse has vanished, then you could do this in a fairly short timespan, by asking the court to set the matter for trial, and filing the relevant declaration re declaration of disclosure form. But, you'll still have to go through the process, because if there's no default, then there is no option other than to settle with the other party, or have a trial -- if necessary, in absentia (no opposing party present).

To date I've still not received any income or financial disclosure docs from the Respondent, nor has a change of address been filed. I'm curious as to how much of this the court will tolerate before I'm allowed to go forward with a default.

 

A: Depending upon the outcome of the motion to strike, the court will either enter a default, or require you to take the matter to trial. There is no discretion for the court to enter a default, once the respondent appears on the court record.

 

Hope this helps.

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