Dear Reader:
I apologize for not providing updated materials on new and interesting topics involving California divorce for some moons, on our Enlightened Divorce Blog™. I've just been too preoccupied with the daily grind. But once in awhile something tweaks me from my Blog inactivity - like the scenario discussed in this article on a recent case - and drives me to send out a voice-call because I had to figure things out from scratch and I felt the need to help others to not get stuck in similar cul-de-sacs, when I realize I've maybe found the escape. This Blog article is on an obscure question, and I'd say don't read further unless you found yourself here because you have a venue change or a venue transfer issue. It is just food for thought.
People may file a divorce action in one county within California based upon their town of residency (or a child's residency), and then later one party may move to another location, for a whole host of reasons. This Blog does not addresse UCCJEA (Uniform Child Custody and Enforcement Jurisdiction Act) child custody circumstances. It is directed instead to the circumstances of parties of whatever gender who are married, who are struggling over property division and spousal support issues. Mike Peterson of our firm has addressed UCCJEA issues in other Blogs.
Custody and visitation issues aside, what will happen if one or both parties relocate to another jurisdiction, before the case is final and one party seeks to transfer the proceedings to a county and.or city that better suits their convenience over that of the other party, and particularly one who has moved out of state? This can be a big-time issue in terms of the costs of litigation, and the balance of power between divorce litigants. Imagine (if you can), that you've hired the lawyer of your dreams, but that you cannot afford that attorney's fees if they are forced to drive a hundred or more miles from where the case was initiallly filed. In my experience, sadly, power is abused by most parties (and/or their attorneys) whenever it militates in one sides favor, or the other.
With regard to transfer motions, either intra-county in large jurisdictions or between counties themselves, here are some thoughts about how to oppose a motion by the other side to transfer a case. I am riffing about a case that was filed in one California county initially filed (Riverside County) by my client, who has since moved away to another state, before the property divison and support rights between the parties was finalized.
The following is excerpted from our Points and Authorities filed in the case in opposition to the husband's motion to transfer the case from where it was filed, and he responded initially, to a place that now favors his convenience. He resides in Los Angeles Country, while the Wife lived primarily in Palm Springs when the case was filed over a year ago. Husband, at the time he filed his Response to the divorce Petition, did not argue or file any motion that the case should then be transferred to the Los Angeles courts. Recently she sold her local home and moved to Idaho.
Instead of H having contended the case should be transferred to his local courthouse based upon his primary residence address there, now 18 months into the case and after the parties agreed to sell the Palm Springs' residence and our client moved to Idaho, he wants to transfer the case from Indio to Chatsworth, L..A. County. Perhaps understandably. Neither party now lives in Riverside county. From our point of view, this would place Wife at a huge disadvantage because she would have to hire a new attorney in Los Angeles, and she would also need to hire a new forensic accountant to deal with business related issues who would not have to travel to L.A. after we'd retained some one local at the inception of the case, when no objection was then made by Husband to the case being heard in the Indio District of the Riverside County Superior Court. BTW, she is 65 and he is 71 years of age, and claims he is in poor health.
Opposing counsel filed a motion that (possibly) incorrectly assumes and argues that venue can be transferred at any time, and especially now that our client no longer lives in Riverside County (or California for that matter), based upon her client's convenience as a resident of Los Angeles County. I will come back and clean this Blog up in time, but in case someone else out there right now is facing a Motion to Change (Transfer) Venue in the middle of a pending divorce proceeding, here is how you would oppose it.
Bottom line: Parties to a divorce can only seek to transfer a case on the grounds of the witness convenience, before or when they filed their Response to the divorce Petition, or after a Judgment has been entered (for enforcement or other reasons, which often involved continuing disputes about children), within California where both parties have moved from that venue, but they cannot do so after the Respondent has appeared in the Petitioner's chosen jurisdiction, until the proceedings have concluded.
Respondent has filed an RFO to transfer the pending proceedings to Chatsworth Division of the Los Angeles County Superior Court on the grounds specified in Code of Civil Procedure Section 397(c) and (e), and upon Section 397.5.
1. Respondent’s motion cannot be granted as a matter of statutory law.
Proper venue, although it may be waived, is prescribed exclusively by statute (Code of Civil Procedure Section 392, et seq.); and so are the reasons for which venue may be transferred. Courts have no authority to create judicial exceptions to the statutes. See Forster v. Superior Court (1992) 11 Cal.App.4th 782, 789.
Section 396b establishes the “wrong court” ground for a motion to transfer, and specifically requires a motion be made by a respondent “at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, ..., and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court,....” [Italics added]. Here, in filing his Response and not contesting venue or seeking a transfer for the reasons that he outlines in his declaration and Points and Authorities (that he was free to assert early last year), he has waived those grounds. Moreover; Respondent has never contended that Indio Branch of the Riverside County Superior Court was the “wrong” venue.
In the absence of the “wrong” venue ground addressed in Section 396b, Respondent could have filed a Section 397 application for the court to transfer the case on the discretionary grounds set forth therein. Once again, Respondent failed to make a timely application under Section 397 when he filed his Response, and so waived his right to attempt to do so before judgment is rendered in these proceedings.
Section 397 motions must also be made at the outset of the proceedings.
There is no statutory authority, in family law or civil proceedings, to transfer venue mid-stream during the proceedings prior to entry of judgment (see discussion concerning Section 397.5, below, which only addresses post-judgment transfer motions). That Section 397 only applies at the inception of a case and upon service is obvious from the language of the statute, which states in pertinent part: “The court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court [i.e., where the Petition is filed in the wrong venue]. (b) When there is reason to believe that an impartial trial cannot be had therein. (c) When the convenience of witnesses and the ends of just would be promoted by the change. (d) When from any cause there is no judge of the court qualified to act. (e) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of just would be promoted thereby....”
2. Code of Civil Procedure Section 397.5 only applies to post-judgment modification or enforcement proceedings. Hogoboom & King, TRG: Family Law, at section 4:138 (“Another statute, applicable in dissolution, legal separation and nullity proceedings, permits a venue change to either party’s county or residence in postjudgment ... proceedings when it appears that both petitioner and respondent have moved from the county rendering the judgment and ‘the ends of justice and the convenience of the parties would be promoted by that change.’”) [Italics in orig]. Section 397.5 has no application to a proceeding in which judgment has not yet been rendered.
3. As a separate ground for objection, had the motion been timely it could not have been granted because Respondent failed to deposit the clerk’s costs and fees, as is explicitly mandated by Section 399, which states in pertinent part:
“.... If the transfer is sought on any ground specified in subdivision (b), (c), or (3) of Section 397, the costs and fees of the transfer, and of filing papers in the court to which the transfer is ordered, shall be paid at the time the notice of motion is filed by the party making the motion for the transfer....” [Italics added].
The reason for this rule is stated in Hogoboom & King, supra, section 3:578, as follows: “To avoid any delay if the motion is granted, defendant is required to post in advance (when filing the motion) the clerk’s costs and fees for transferring the action.” They point out that this rule also applies to motions made on the other statutory grounds, including Section 397.5. (Id., at section 5:562 and 562.1)
4. Respondent has not met the requirements of Section 397 in any event.
Assuming a motion is timely, the burden is on the moving party to establish whatever facts are needed to justify transfer. This requires declarations containing admissible evidence. To the extent that Respondent’s motion is based, as he states, on the convenience of witnesses and the ends of justice, under Section 397(c) Respondent has failed to make a proper and sufficient showing of the grounds for the transfer by competent and admissible evidence. Section 397(c) only addresses the convenience of third-party witnesses. Wrin v. Ohlandt (1931) 213 Cal. 158, 160.
A declaration supporting a motion to transfer a case on the grounds of witness convenience and the ends of justice must be supported by an extensive factual showing that includes at a minimum (a) the names of each nonparty witness; (b) the substance of their expected testimony; (c) whether the witness has been deposed or has given a statement regarding the facts of the case; (d) the reasons why it would be “inconvenient” for the witness to appear locally; (e) the reasons why the “ends of justice” would be promoted by the transfer to a different county. Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16-17; Peiser v. Mettler, supra, at 607. Respondent has failed to address any of these required showings or to identify any witnesses at all, and on that basis the motion, had it been timely, must also be denied.
Under extraordinary circumstances and assuming a proper motion, the court may consider the convenience of a party under Section 397(c), but this is limited to cases where a party is extremely ill or feeble so that travel to a distant county would endanger his or her heath. See Simonian v. Simonian (1950) 97 Cal.App.2nd 68, 69. Here, Respondent has failed to allege anything beyond conclusions in his supporting declaration without the requisite contentions, AND he is not now entitled to bootstrap additional facts to which the Petitioner cannot respond in any Reply Declaration to this Motion. E.g., Peiser v. Mettler (1958) 50 Cal.2d 594, 607.
CONCLUSION
Respondent’s motion should be denied as a matter of law. Even had he filed a timely motion to transfer, his application would have failed to meet his burden for the reasons stated herein.
If you found this article through an Internet search, you or your client are presently dealing with this issue. There is an assumption out there among family law attorneys that if both parties move out of the county, or particular venue, during the pendency of the action that a change of venue must be granted to suit the convenience of the party who remains. This is not the law, but your trial judge may rule otherwise anyway.
An appeal may be your only remedy, but I thought you should know....
As always, good luck out there! And pigeon kisses!
TWA