Maria de Lourdes Melgoza Fernandez RFO, Death during a dissolution. Court fails to file a notice of entry of dismissal, Department 2J

Maria deLourdes Melgoaza Fernandez filed an RFO for see item#8. The relevant RFO is listed below. Judge Wells ordered the action abated after a judgment was set aside.

The judicial council has made mandatory dismissal forms available which apply in certain cases ( http://www.courts.ca.gov/partners/documents/dismiss_case_instr.pdf  ).  These forms include a Notice of Dismissal of the action on a mandatory judicial council form (http://www.courts.ca.gov/documents/civ120.pdf).

The court routinely uses the CV 110 forms to dismiss RFO’s and OSC in family law without adhering to the mandatory judicial council intent of dismissing an entire case with this form. Parties are instructed by the senior clerk of the court to dismiss their RFO in family law cases with the CIV 110 forms based on the instructions of Judge Wells who acts as the supervising family law judge in the Indio division of the Riverside Superior Court. Clerks cannot provide legal advise in any case as to how a form should be used in a family law case.  The court would have dismissed this case in any case based on a mandatory settlement hearing that was already scheduled for November.

These are the same clerks that fail to notify a Presiding Judge of a disqualification against a judge, after being notified by a party; as instructed by the judicial council.

A marriage may be legally dissolved in California, restoring spouses to “single” status (Ca Fam § 2300), only by (a) the death of one of the parties; (b) a judgment of marriage dissolution; or (c) a judgment of nullity of marriage. [Ca Fam § 310; see Jurcoane v. Super.Ct. (People), supra, 93 Cal.App.4th at 896-900, 113 Cal.Rptr.2d at 491-494–marital testimonial privileges (Ca Evid §§ 970-973) applied despite no “viable” marriage (parties had no contact for 17 years) where spouses had never divorced]

When either party dies their death dissolves their marriage or domestic partnership as a matter of law. [Ca Fam § 310(a); see also Ca Fam §§ 298.5(c), 299.3(a)] Consequently, if a party dies after a dissolution of marriage or domestic partnership or a legal separation is filed but before there is a entry of judgment terminating their marital or domestic partnership status; this will abate the proceeding and the court will lose all further jurisdiction with respect to marital/domestic partnership status, as well as all other as yet un-adjudicated issues raised by the pleadings. This includes property rights, support, custody, attorney fees and costs. [Marriage of Shayman (1973) 35 Cal.App.3d 648, 651, 111 Cal.Rptr. 11, 13; see Estate of Blair (1988) 199 Cal.App.3d 161, 166-167, 244 Cal.Rptr. 627, 630–family court’s jurisdiction to divide spouses’ joint tenancy property as presumptive community property abated by spouse’s intervening death before marital status judgment]

However, where marital status has been bifurcated (decided separately from property, child custody and support issues, or spousal support) the proper procedure is to substitute the personal representative of the deceased party’s estate or, if none, the decedent’s successor in interest, as a party to the still-pending action (Ca Civ Pro §§ 377.31, 377.32, 377.41). Once this is done, the court will have the ability to issue orders as to the reserved issues. [Marriage of Hilke (1992) 4 Cal.4th 215, 220, 14 Cal.Rptr.2d 371, 374-375–spouse’s death after bifurcated disso judgment does not abate family court’s jurisdiction to decide reserved property issues under Ca Fam CP principles; see Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151, 62 Cal.Rptr.2d 466, 474-475 (citing text)–Wife’s post-judgment child support modification action properly continued after her death through her executors and trustees of trust set up to care for her disabled adult son]

 

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By San Bernardino and Riverside Superior Court News Posted in Uncategorized

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