I Intend to File for Divorce in Joshua Tree - Do You Have Any Insights About the Judges and the Local Rules?

Family Law In Joshua Tree: Some Pointers and a Brief Overview

By: Michael C. Peterson, Esq.

I have had the pleasure of litigating and settling many family law cases in the Joshua Tree courthouse over the past five years (ranging from relatively low-cost amicable divorces to those involving considerable community property and debts or high conflict custody cases and move-away requests). Notwithstanding the headaches that can occasionally be caused by the current construction on the Twentynine Palms Highway and the ever-present state highway patrol unit watching for any traffic violation, large or small (I received a seatbelt ticket while pulling out of my parking stall in the courthouse parking lot), I look forward to attending and participating in hearings every time "JT" shows up on my calendar.

I want to share with you a few of my experiences and discuss some details and cautions of conducting family law proceedings 'up the hill.' Joshua Tree is situated in San Bernardino County, and the local rules of that county generally apply to family law proceedings - each County as their own, and you really need to become familiar with them in order to avoid mistakes and move your case to its conclusion efficiently. Generally, the folks who find themselves having to file in Joshua Tree based upon their town of residence live in Morongo, Yucca Valley, Twenty-Nine Palms, Landers - and obviously "JT" itself.

Judge Gafkowski and Department M4 in Joshua Tree

Over the past five years, I have seen two other judges come and then find themselves transferred to Victorville or Barstow. The current (and hopefully long time) bench officer, The Honorable Frank J. Gafkowski, is by far of my favorite jurist to occupy this seat. He is a U.S.C. college and law school graduate, who was admitted to practice in 1963! That is a long time in order to accumulate an intimidating amount of wisdom.

In my experience, Judge Gafkowski takes a reasoned and balanced approach to his judging. He is not one to be sucked into cul de sacs or be fooled by misstatements of the law, he takes care to review and consider the pleadings and other documents filed in all of his hearings, and he is patient and respectful to all the participants (even when, perhaps, such is not being given or reciprocated by the parties or their counsel). He is well-liked and respected among the family law legal professionals who regularly appear in his courtroom which is a pretty good measure of judicial success.

The other courtroom team members work well in concert with Judge Gafkowski. Robin, the Courtroom Clerk, is extremely helpful and kind. Gary, the Court Reporter, does an excellent job accurately providing a record of hearings - and he is now quite an old-timer (he and Mr. Arnold have known each other now for more than 20 years). Jeremy, a sheriff's deputy, keeps order in the courtroom and accounts for party attendance. As with any family law department, it is really important for you to pay attention to these folks and, for instance, avoid getting scolded for not muting your cell phone, chewing gum, or talking while the Judge is on the bench, and arguing with the other party. Obviously, this is common sense but keep in mind that those who staff any courtroom comprise a unit that, to one degree or another, likely shares information about the behavior and attitudes of the litigants. For heaven's sake (or just your own), be on your best behavior!

I appreciate that the regular hearing calendar in Joshua Tree is presently set for 9:00 a.m. - in comparison, our office also accepts cases in Blythe, and that courtroom opens its doors at 8:30 sharp, which means a two hour drive from the desert without getting ticketed by speeding by the radar Chippies (and aircraft) who patrol I-10 - oh, beware that drive! As with all courtrooms, you must arrive on time for your hearing.

Judge Gafkowski vigorously encourages settlement, often reminding the public that this or that matter would be best resolved by the parties/counsel as between themselves. This is a point we continually urge in our Enlightened Divorce Blog™. Trusting your fate to a stranger to decide is always a risky proposition, but it does take two willing parties to settle their dispute. The best judges are predictable and consistent in their rulings - at least for the lawyers who regularly appear before them, knowing a bench officer's perspectives and habits allows me to guide my clients much more effectively and to discourage throwing the dice (although, often, in order to protect our client's rights and maximize results I have no choice but present our case for the judge to decide - but that is never a reckless gamble). Fortunately, I honestly feel I can rely on a balanced and even sensitive ruling by this Judge - and there are other judges elsewhere as to whom I could not say this but, prudently, I won't name them in a Blog!

For example, I had a case several months ago where, about five years after a final Judgment was entered, the wife filed a Request for Order ("RFO") alleging the husband (my client) had not paid off his monetary equalization obligation to her of about $60,000. What she failed to inform the Court was that our client had, at the wife's request, duly paid her mortgage totaling about $1,000 per month. He also purchased tires and paid for other vehicle repair/maintenance for the wife's car totaling about $5,000 over the five year period. In total, the husband/client had paid a total of about $55,000 to third-parties for property awarded to the wife over the past five years. By the way, this is generally a bad idea (if you owe spousal or child support, or a property equalization, please pay the other party directly rather than making payments to others on their behalf - do not trust that they won't attempt to overreach sometime in the future when your post-marital relationship becomes strained once again!)

The equalization provision in these parties' Judgment called for $60,000 in cash payments to the wife, so technically the husband had not complied and she decided to seize upon this to try to extract more. However, case law provides for court discretion in terms of non-conforming support payments (e.g. buying groceries at the support-recipiant's request rather than tendering a cash payment) to be credited as against alleged support arrears when it is equitable to do so, so I argued that the same principle should apply to nonconforming equalization payments for monies paid to third parties by the husband for property under the wife's exclusive use and control. With interest at 10%, the remaining amount due to the wife from my client/husband was about $12,000 with my Executioner program (which calculates legal interest on unpaid installments).

The wife's gripe was that she lost the residence to another claimant to the property. The parties' son and his wife (herein "the daughter-in-law") had been placed on title during the client/husband's and the wife's marriage for credit purposes (to build up the kids' credit) with the verbal agreement of all four parties that the wife and my client/husband be restored to legal title upon their request. So when the son and daughter-in-law divorced after my client/husband and the wife's divorce occurred, the stink hit the fan. The daughter-in-law took the position that the legal title to the residence in her and the son's name was a gift to her, with no recognition to the payments for wife's benefit. As such, the wife was in a pretty good position because she arguably did not get the benefit of the bargains she made both in terms of the Judgment (e.g. getting the residence property and the equalization of $60,000) and in terms of her request that my client pay the mortgage directly rather than to her (who presumably would have paid the mortgage directly). I also would have argued that she got the benefit of living rent-free in the residence for almost five years, and should she have rented a residence her costs would have been commensurate with the mortgage payments my client made to the bank.

I knew that if Judge Gafkowski agreed with my reasoning, then my client's best case scenario was still owing about $12,000, and his worst case scenario would be owing the entire $60,000 (plus interest over five years which would have totaled about $75,000 including principle) - big hit! So I worked hard with opposing counsel to reach a settlement, and we came very close in terms of figures but couldn't quite close a deal. When I walked into Department M4, the first words from Judge Gafkowski's were that he strongly recommended both parties to come to an agreement because neither might like his ruling. I put the hearing on second call, went back to negotiations, and we finally arrived at a $20,000 settlement, without my client paying for the wife's attorney's fees which was a major concern because he was so much better off financially over all.

I found Judge Gafkowski's timely prodding in this matter to be extremely helpful. It was just the right push at just the right moment; some judges don't remind the parties of their risks. Judge Gafkowski helped the parties both realize they needed to become more flexible and reasonable, or bear the risk of getting a result he or she really didn't like. This kind of involvement is what a good, experienced bench officer in my opinion does. Family law outcomes are rarely all in favor of one party or the other, but people get so emotionally transfixed that they fail to appreciate any point of view but their own.

Ex Parte Domestic Violence Procedures in Joshua Tree

A quick word about some differences in the way Joshua Tree handles family law matters: In the Indio family law courtrooms (where most of our cases are situated), ex parte motions are generally ruled on in chambers, and it is fair to state that the exception is when the court allows argument that influences the chambers decision. With Domestic Violence Temporary Restraining Order ("DVTRO") requests (another form of an ex parte motion) in Indio, they are always decided in chambers based on the moving papers, without any oral argument the morning of the hearing.

In Joshua Tree, it is the opposite: a DVTRO filing will necessarily trigger an argument and live testimony hearing for the next morning on the 8:30 a.m. calendar. So if you are filing for a DVTRO, be ready to go the next day.

Despite there being an immediate live witness hearing (i.e., you will be testifying so prepare for that) set for the day after a DVTRO filing, in my experience Judge Gafkowski will grant a DVTRO so long as a prima facie case is made out by the presenter (i.e. evidence of a legally cognizable "abuse" under Fam. C. section 6200, et seq.). On the other hand, I have heard him say that his intent in granting a DVTRO on a particular case is to give the parties some breathing space and then let the alleged victim decide if a 'permanent' restraining order is really required. I agree with this philosophy and approach because: (1) a lot of times some breathing space of three weeks or so is all some people need to end the problems that caused a party to resort to the courthouse, (2) the consequences of a 'permanent' restraining order are tremendous and include a legal presumption of a loss of any custody of children of the relationship, supervised visitation for only several hours per week, and the loss of constitutional rights including severe weapon's restrictions, and (3) there are therefore very strong incentives to kind of trump up domestic violence allegations in order to gain child custody and spousal support advantages.

Local court rules for Joshua Tree's (and San Bernardino County) can be found at http://www.sbcourt.org/Portals/0/Documents/PDF/Forms%20and%20Rules/rulesofcourt.pdf. Ex parte procedures are at rules 710 to 749, and family law rules are found at 1510 to 1521.

Family law and divorce is a highly specialized area of the law. Representing yourself can be a really bad idea, but sometimes finances dictate you have no practical choice. At the Law Offices of Thurman W. Arnold we really do try to come up with user friendly fee arrangements, including writing off charges where we reasonably can. Possibly I might be of value to you.

By the way, if you perceive you may be dealing with a difficult judge, Mr. Arnold has published some pointers that may be of value to you as a self-represented party. While we don't so classify Judge Gafkowski, it wouldn't hurt for you to click the preceding link whether you are appearing before him or any other judicial officer!

As always, good luck out there!

Author: Michael C. Peterson, Esq.

Law Firm of Thurman W. Arnold III CFLS