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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2510
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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My husbands attorney has filed a CIV-110 to dismiss our Dissolution

Customer Question

My husband's attorney has filed a CIV-110 to dismiss our Dissolution of Marriage and DVTRO. His attorney just sent us an email that said they kicked it back and we now need to file a stipulation..Why would they kick it back?
Submitted: 5 years ago.
Category: Family Law
Expert:  S. Kincaid replied 5 years ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

These are usually refused because of some technical error on the form.
And usually when it is returned, there is a cover page explaining why. Can you ask the attorney to send you the form that was rejected and the reject page (if any).

Steven Kincaid :

The kinds of things that are usually technical errors would include misspellings of either party's name. Lack of signatures by the parties, or dates on the signatures that are prior to some other action that took place on the case.

Steven Kincaid :

Also, if there are two cases (divorce and the DVTRO), you would need two dismissal forms. If the attorney tried to put two cases on one form, it would be rejected.

Steven Kincaid :

Also, DVTRO's cannot be dismissed with that kind of form in some counties because you need to have a hearing to dismiss a DVTRO. The judge wants to be sure that the victim wants the DVTRO dismissed and is not being pressured by the person who is restrained.

Steven Kincaid :

Is there any other information I can provide for you?


Steven I live in Santa Clara County I have asked the his attorney to tell me why they kicked it back. All they said was that the court kicked it back and we needed to file a Stipulation. Which confuses me if you are saying that some judges want a hearing. Here is my fear my husbands attorney is a family friend. There were never any police charges no Domestic Violence. The allegations were either false or do not fall under Domestic Violence. I never feared the order actually being granted. When my husband had me served after two weeks of talking we signed a stipulation before our court hearing stating that the hearing would be continued for 90 days. The case involves DVTRO and also Dissolution of Marriage. The reason why he served me was because I was taking prescribed Norco for over two years due to surgies that I had and he felt that our children were in danger with me driving them around and in my care alone. I would not listen to him. Again the attorney being a family friend had the judge her brother in law sign the DVTRO. My husband and I came to anagreement that if I were to get off Norco then he would dismiss the case. Our orginal hearing in the stipulation was suppose to be Nov. 3rd. When my husband and I reconcilled and were going through paperwork we noticed a DV-130 whch stated the Orders wouldbe dismissed on January 17th, with a new court date on the same day. I questioned his attorney why that happened and she said not to worry as a restraining order is never permanent. Now that we want to dismiss the entire case espically the DVTRO or DTRO whichever it is , which she tells my husband he is stupid and should keep the orders to ensure my sobriety she says that she won't let him dismiss the case with prejudice because when I relapse he should be able to bring this case up again in court. However I never responded and I do not agree with the DVTRO. Having said that is it possible that she did in fact get the order of protection and did not continue it in temporary status as she was suppose and now that she got the order doesn




doesn't want to give up the power that she has or my husband. I have told her that if she doesn't file with prejudice then I will need to file my response to accompany the case. She has said fine she will see me in court and we can have it dismissed then and she hopes I don't get arrested January is a long way off. My husband and I want this to all just go away. How does he fire her so we can dismiss this ourselves and also how would we dismiss thiscase I think the CV-110 will dismiss our Dissolution of Marriage but how do we dismiss the Restraining Order...also can you answer questions regarding Malpractice and if you think I may have a case

Steven Kincaid :

If your husband wants to fire his attorney, he has every right to do so. He would require her to sign a "Substitution of Attorney" which would then be signed by your husband and filed with the Court.

Steven Kincaid :

Here are instructions for terminating a restraining order. The forms are available on the court website and at the courthouse.

Steven Kincaid :

On the Order to Show Cause and on the Application for Order to Show Cause, where you fill in what orders you are requesting, you would say something to the effect that you want the case dismissed with prejudice. Your husband must file it and serve you. You would both then appear in court to dismiss the case.

Steven Kincaid :

Unfortunately, I have no expertise in malpractice so cannot advise you in that area.

Steven Kincaid :

Is there any other information I can provide?




CASE NO.: 1-11-FL159102



APJ: Hon. William Elfving

Dept: 74

Date: January 17, 2012 at 1:30 p.m.

Petitioner, MARC CHURNIN, (hereinafter "Father"), by and through his attorney of record, MORENO FAMILY LAW FIRM, and Respondent (hereinafter "Wife"), in propria persona, hereby stipulate and agree as follows:


A. Petitioner agrees to immediately withdraw the current request for a Domestic Violence Restraining Order which was originally granted on August 8, 2011 and extended by Stipulation and Order filed August 17, 2011 for the purpose of facilitating a global settlement agreement with Respondent on all pending issues. This agreement is made with prejudice based upon Respondent having enrolled in a drug rehabilitation program and her continued conduct of being clean and sober. However, if either party is


B. The OSC on January 17, 2012 at 1:30 p.m. in D74 is hereby DISMISSED without prejudice.

C. The Case Management Conference on December 6, 2011 shall be taken off calendar.

D. The Petition for Dissolution filed August 5, 2011 is hereby DISMISSED without prejudice.

This agreement may be signed in counterpart and facsimile signatures shall have the same force and effect as originals.

required to seek protective orders in the future, they shall not be estopped from testifying or bringing forth evidence of the facts alleged in the current proceeding.


Date: _____________ _____________________________________

MARC CHURNIN, Petitioner

Date: _____________ _____________________________________

MARILYN E. MORENO, Attorney for Petitioner

Date: _____________ _____________________________________


[Notary Acknowledgment attached]



Date: _____________ ______________________________




I hit enter by mistake..I read your response and that is exactly what I thought that we needed to have a hearing to have it dismissed whether it is a DVTRO or Restraining Order. As I have said before the court kicked back the CIV-110. My husbands attorney said that we needed to sign this stipulation to dismiss the case..she is saying that she changed it to what I wanted with prejudice however when I read the Stipulation it doesn't appear that way it seems as though they put in a bunch of fancy words but he still could if he needed to bring the allegations up again in a court of law. Questions on the stipulation, one it states my husband as father and me as wife does that matter. The first stipulation was not filed on August 17th as she indicated it was filed on August 31st. Would this stipulation actually dismiss the Restraining Order when she filed it or would we have to wait for our hearing date of January 17th. I just want to make sure that his attorney again being a family friend is not playing games with me meaning my husband and I think that she filed it immediately and it is going to dismissed and later find out that it was not filed until our hearing date of January 17th. I feel like she would do that because she thinks he is stupid for wanting to dismiss the order now and should keep the orders until January to ensure my sobriety..I am also concerned because everywhere I have read and also the information you have given states that a judge has to dismiss the case and can only do that by a hearing..if that is true then she would have us sign and file the stipulation for our next court in January to dismiss the Restraining Order..Again I just want to make sure that I am doing the right thing to get this case dismissed quickly as I am living back home and have been for a month and I get conflicting information one being his attorney in that the stipulation can dismiss the entire case which also includes Dissolution of Marriage, and then several saying what you have which is to file a motion to vacate the restraining order whether it be temporary or an order of protection..Thanks so much Steven I know this is a lot here but honestly you have been the only one that even looked at the county I live in and the laws forms thecourt have been a life saver!!

S. Kincaid and other Family Law Specialists are ready to help you
Expert:  S. Kincaid replied 5 years ago.

What I've read does not indicate a dismissal with prejudice, but simply a withdraw of a petition and a dismissal of two cases (and explicitly says "without" prejudice in three places.) Furthermore, the language in the order regarding your obtaining substance abuse treatment could be used in further proceedings to show that you were at fault - and could persuade a judge to grant a DVTRO if there is an allegation that you relapsed. Perhaps the dismissal was kicked back because the lawyer added language similar to this in the stipulated dismissal. You might ask for a copy of that dismissal to see if she added any language.


The main problem with this is that she is dismissing two cases with one stipulation. I assume that your DVTRO case and your dissolution case have two separate cause numbers (I have never seen it any other way) in which case you need one dismissal for the DVTRO case and one for the dissolution case. If you file this in the dissolution case, the DVTRO under a separate case number XXXXX NOT be dismissed.


You should assumed nothing has been dismissed until you get a conformed copy of the dismissal order with the judge's signature (or stamp signature). In my experience, non DVTRO cases (including dissolution cases) can be dismissed by the clerk by agreement of all the parties. You would submit the stipulation and the court would process it when s/he could. It can take months. DVTRO cases are different and a hearing needs to be set. You MUST follow the procedures in the link above to dismiss the DVTRO.


It really does not matter that the stipulation calls your husband "father" and you "wife" as long as it is clear who is who. Also, the first of the date filing should be corrected, although it would probably not cause a problem if nobody caught the error.


Glad to know the information I've provided has been helpful! Let me know if you have further questions.

S. Kincaid and other Family Law Specialists are ready to help you
Customer: replied 5 years ago.

You rock!! You have been provided so much information and detail I can't thank you enough..First the DVTRO and the Dissolution have the same case number and I have asked that I get a copy of the dismissal. However is it possible that they would not dismiss the case with a CIV-110 because that is not the correct way to dismiss the DVTRO? I am still confused as to why his attorney wants to file a stipulation and not the way you have indicated with your provided link in a previous answer. I would think that she wants to file the stipulation because it almost ensures that the DVTRO stays in effect until the expiration date of January 17th our next court hearing and it is dismissed on January 17th. Tell me if I am correct or not here but by filing the stipulation that does not give us a new court date to dismiss the DVTRO I think what I am reading is he needs to file a motion to dimiss have me served and we both go into court to have it dismissed. Also if he fires his attorney and he files the paperwork for dismissal do we have to put in all the stuff about rehab..I am concened about this an how it appears in the court. Reason being is yes I did get help in getting off a prescribed amount of Norco which is a Narcotic, however there were allegations that I was abusing alcohol and illegal drugs..however that is not true I did take drug tests and the only thing ever found in my system was prescribed Norco not over the limit..hope this makes sense, I am disgusted with his attorney again even more so because she is a family friend and she thinks I am stupid and will just sign anything, when I as served she told me in writng that if I contacted my children she would have me arrested..which was a lie because that order was never granted I was allowed to talk to my children amongst other things she has done. The DVTRO was given only because the judge is her brother in law..Do you think that since they typed in there that it was August 17th that the stipulation was signed and the expiration date of the DV-130 states January 17th have anything in common, as I am still confused as to this on the stipulation is states that it is a DVTRO however a DV-130 was granted does that mean that it still can be in temporary status..