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Polly Anna Cooper Bernardino 23835 Foxwood Court Valencia, California 91354 Superior Court of the State Of California County of Los Angeles, North Valley District Petitioner Polly Anna Cooper Bernardino vs. Respondent Danny Allen Bernardino ) ) ) ) ) ) ) ) ) ) Case No. PD 032 556 Reply Motion To Termination And Memorandum To Increase Support And Correct Up Support Numbers And Owed Arrears Dept.: K Hearing Date: 07-16-08 Time: 8:30 A.M. Hon.: Patricia Ito
MEMORANDUM OF POINTS & AUTHORITIES Issue: Spousal Support Increase – MARITAL STANDARD
Mr. Bernardino [hereafter “Mr.”], who moved, correctly recites the honorable court reminding Ms. Cooper Bernardino [hereafter “Miss”] of codified common sense, better known as the Gavron1 reminder, verbatim: Ms. Bernardino [Miss] [has a duty to] make reasonable goodfaith efforts to become self supporting.2 The first step in any competent total termination inquiry is clearly spelled out – the burden borne by Mr. to secure a total termination of support in a long term marriage involving
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teens that Miss alone 100% reality parents is heavy:
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In In re Marriage of Gavron 203 Cal.App.3d 705, 250 Cal.Rptr. 148 (1988)Blue book citation instruction controls all briefings in all courts in the United by Article 6’s plain language, “all state law to the contrary notwithstanding,” which means yellow book citations are not permitted. That is what “united and uniting” means by supremacy command. 2 11-20-06 (Date Partnership Formally ended), Honorable Judge Ito’s Final Dissolution, Page 15:7-8.
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"To obtain a [termination] modification of a previous spousal support order, the moving party must show a material change of circumstances since the time of the prior order."3 Coupled with Gavron4, Mr.’s burden is to identify and meet, with facts, some prima facie showing about some “gainful employment and/or vocational future skill failure” as or combined with a material change in relative financial parity circumstances in this kids partnership entitling him to a total termination. didn’t even attempt to meet his burden. Limply, in total, Mr.’s offensive move reads, verbatim: A) B) The court gave … [Miss] a Gavron warning informing her that she need to improve her[self] financial status. 45 [stet 44] years of age. She is a healthy female with skills and an ability to become financially selfsufficient. She also has accounting skills [citing zero] and some banking experience [as a mail clerk]. I believe [stet] my request to terminate spousal support on 11-15-08 is reasonable [stet]. Mr.
C)
On point A, sadly, Mr. again misleads the court about Miss’ gainful work and income accomplished since she left him over long term abuse/domestic violence in 2002: Ex 35 Declaration: Training, Employed & Income since 2002
Indeed, it is due solely to Miss’ drive and key timing in the bubble Real Estate Market success that Mr.’s owed relative
In re Marriage of Norvall, 192 Cal.App.3d 1047, 1060 (1987).
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In In re Marriage of Gavron 203 Cal.App.3d 705, 250 Cal.Rptr. 148 (1988). Blue book citations control all briefings in all courts in the United by Article 6’s plain language, “all state law to the contrary notwithstanding,” which means yellow book citations are not permitted. That is what “united and uniting” means by supremacy command.
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parity standard of living/spousal dipped from $3,068.00 (August 15, 2002) to $660.00 per month. On Mr.’s point B, Mr. correctly notes that Miss is now healthy and does know how to count – like everyone with a high school and an AA college degree. Again, this fact fronted as a
sloppy total termination knowing relative equal parity standard of income of about $150,000 per year is owed. It is not
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“reasonable” in light of the verified numbers, which do not lie and are already lodged.5 On Mr.’s point C, after saying nothing and again dodging the whole of Miss’ verified presentation on this exact point in her 01-17-08 (hereafter, “The 17th Papers”) hearing briefings, hereby incorporated by reference, the bald conclusion that “Mr. believes” something utterly fails any good faith spin for total termination in light of the facts. Gavron – Wholly Off Point Briefly, to clarify, on the way off base In re Marriage of Gavron point Mr. presented, the appellate issue & holding there was and is, verbatim:
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[W]hether the trial court abused its discretion in terminating spousal support to the 57-year-old wife based on the wife's failure to become gainfully employed or to seek vocational training. Because there was no showing of
Strangely, it appears that Mr. is suggesting that Miss seek a $10-$15 per hour 9-5 book-keeping or bank teller job in lieu of making more per year and having the flexibility to 100% parent the kids in the gainful up & down real estate field, which isn’t a matter of before this court.
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a material change of circumstances since the court's prior support order, the court did abuse its discretion. We reverse. Here, Unlike Gavron, Miss has been and continues to be gainfully employed since the partnership dissolution. Unlike Gavron, Miss
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did secure vocational real estate agent training and currently
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works at Pinnacle as such.
Moreover, Miss, forecasting the ups
& down cycles in the Real Estate Market, has secured and currently attends specialized private vocational training in another field – again responsibly planning for a self supporting future. Moreover, here, unlike Gavron, Miss alone parents, full
time, two 100% dependent teens fathered by Mr. And here, unlike Gavron, the long term standard of living partnership at issue has only been formally terminated for less than two years. Mr.
knows all of the above, but never-the-less, again by un-clever omissions, verified and signed off on hollow and irrelevant conclusions to the contrary. Shifting, about support, exactly the opposite of Mr.’s offensive move was spelled out in The 17th Papers, which squarely militates in favor of an increase in light of the guiding rules
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and which Miss now formally moves for in line with the relative parity standard of living for the acknowledged 90% parent. The Material Changes In Circumstances
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The key "change of circumstances" to be considered in now increasing Miss‟ support includes all factors affecting Miss’ 90% ordered parenting need and Mr.s‟ ability to pay.6 Need Factor First, owing in large part to Miss fronting this court’s recognized & owed 30% of Mr.‟s financial necessities duties and parenting job time across all of 2007, which Mr. has failed to
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reimburse a single penny of, Miss has her family home up for sale because it is being foreclosed on and taken by Mr. John Vella (EMC) and Mr. Angelo Mozilo (Countrywide). Ex 36 07-07-08 For Sale 23835 Foxwood Ct. MLS Report Ex 37 06-24-08 Foreclosure by Bear Stearns EMC Proof Mr., on the other hand, who keeps his overhead artificially inflated by living alone 100% of the time in a big three bedroom, who dines out often and who never misses an in or out of town teenage girl softball game vacation is in no such financial condition owing to the down turn in the Real Estate Market. Second, owing in part to Mr.’s consistent contempt of this court’s real simple owed kids bills order and $669.00 increased support order, Miss’ & her kids’ 100% home is up for sale.7
In re Marriage of Morrison, 20 Cal.3d 437 (1978). See facts contained in “Motion for Contempt” filed concurrently herewith.
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Third, owing in part to the honorable court’s human oversight in its January 17, 2008 “disso-master” under support calculation, Miss’ kid’s home is being taken - called foreclosure - and is and has been formally up for sale. details in motion filed concurrently herewith. Relative Ability Factor To bring into relatively equal parity the standard of See
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living of the 90% parent with the 10% parent requires a simple
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view of both sources relative income numbers already presented
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and verified in The 17th Papers.
To bring those numbers 100%
current, in the past six months Miss has earned exactly the
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following from exactly the following gainful employment sources:
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A)
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$ 11,003 $ 3,472 $ 160 $ 16,830 $ 31,465
Real Estate gainful earnings; Second Job at Velocity gainful earnings; Third Contract Job With Producer W. Baker; & Total Dollars (C & SP) From Mr. 10%. Gross Total – Calendar Year 2008
B)
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C)
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D)
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Here, by reference to Mr.’s 2007 verified numbers, which do
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not account for Mr.’s annual raise, insurance and retirement,
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e.g., which Mr. has and Miss does not, Mr. has netted about:
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$ 58,170 (The 10% Parent after deducting C & SP Support)
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The gap to be equalized here, in favor of Miss - the
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ordered 90% recognized parent - for January – June „08 is about:
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$58,170 – [$34,565 -3,000 SRAR Bus Ex] = $26,605
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Summary of Pleading - 6
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To bring the 90% parent income to relative equal standard of living parity with the 10% parent income, by simple math, means cutting that number in half and ordering it garnished without delay from Mr.’s weekly pay-check. Setting the Amount & Duration Of Support In This Long Term Partnership To assist with the equitable calculus here, California Family Code §4320 instructs that when a court determines the
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amount and duration of permanent spousal support they would have to weigh twelve identified factors, which include in key part: (l) (g) [F]actors the court determines are just and equitable; The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party; The age and health of the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party where the court finds documented evidence of a history of domestic violence, as defined in Section 6211, against the supported party by the supporting party; The immediate and specific tax consequences to each party; The balance of the hardships to each party; and The goal that the supported party shall be selfsupporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
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(h)
(i) (j) (k)
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(l)
Any other factors the court determines are just and equitable.
Again, on 01-17-08, the court correctly observed, verbatim: “[Dad’s] Sports can be a luxury, as opposed to, you know, eating and having a roof [and utilities] over your head.”8 And, in response, Miss agreed, saying, verbatim: “That‟s just it.”9 Court Retains Power To Order Owed Arrears California law specifically states that "Except upon written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration." Cal. Fam. Code §4336(a).10 Here Long Term Partnership (Marriage) Presumptions Trigger Oddly, Mr., citing no germane fact and no rule to fuse to it, asks the court to apply some “exception” form of a short
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1/17/08 Hearing Official Transcripts pg. 8:11-12. Id Pg 8:13.
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Retaining Jurisdiction: in this aspect means the courts ability to reexamine its' initial order of spousal support, modify it, extend its' duration, or reissue it. Long Duration: Any marriage that is longer than Ten-years is presumed "lengthy." However, under limited circumstances even shorter marriages may be deemed "lengthy." The courts have discretion to determine--without the aid of a presumption -- that shorter marriages are "lengthy." See Marriage of Heistermann (1991) 234 Cal.App.3d 1195 - retention of jurisdiction rule "can, under proper circumstances, apply equally to a medium length marriage" (8year, 11-month marriage).
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term marriage standard to this concretely long term partnership of thirteen years. The California Family Code, as well as several recent appellate cases, emphasize that even in long-term marriages (10 years or more), the supported spouse has a duty to become selfsupporting within a reasonable period of time. First, in cases where the duration of the marriage is less
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than ten years, a supported spouse is typically expected to be self-supporting within half the length of the marriage. That
expectation or burden is obviously inapplicable here; even if it was, the burden is placed squarely in Mr.’s court to make some prima facie showing to support total termination, which he chose not to do here. Second, about work, as a reminder, Miss is a 100% full time active parent, unlike Mr. Both kids live with Miss 100% of the time - period. Third, about work, Miss in addition to working real estate, Miss took on a Sales position at Velocity to make ends come closer to meeting. See Ex 38 03-02-08 Velocity Contract & Pay Stub
That 10 – 12 hr. per day job did not work out owing to
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Miss’s kids parenting job and other conflicts.
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Fourth, about work, Miss secured and completed another contract job in the production field with a producer Mr. William Baker. Ex 39 4-18-08 EX 40 3-17-08 King of the Capital pay check stub. Realty Executives Closing Statement
Fifth, about work, Miss has been engaged in both private tutoring and other long term work projects, brief samples of
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which are attached for confirmation, more of which are available on request: Ex 41 A, B, C, D plus dabs - More proof is available on request. a) 03-25-08 b) 4-23-08 b) 4-16-08 c) 4-11-08 Enron – Justice Harmon Disclosures Currency Conversion, Fee Antitrust Qui Tam Gavel Consulting Letter to Justice Freeh Letter Justice Friot - Qui Tam
Contrary to Mr.’s innuendo, Miss works around the clock. Miss does not take sporting game vacations, like they did together during their marriage and like Mr. continues to do. Miss has been and continues to shoulder both Mr.’s parenting job and big income earner job. Miss chose to invest in herself,
after a deeply abusive 13 year marriage, which psychologist proof is available for in-camera review, on request. Some tame
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examples of that abuse, ongoing, are noted here:
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EX 42 10-25-08 - Danny’s Drive By Stalking Appearance EX 43 5-01-08 - Danny’s Drive By Stalking Cash’s House 4/28
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EX 44 3-04-08 EX 45 EX 46 5-14-08 EX 47 6-14-08 EX 48 EX 49
- Danny’s DRUG PHOTO response to Kids Med Bills - Danny’s NAKED MAN response to Kids Med Bills – Danny Stalking Drive By & 30 Phone calls - Danny’s Drive By Stalking – Calling me Cunt - RESTRAINING Danny ORDER #1 Of #2 - Police Report Threatening Phone Calls
It is the relatively equal standard of living established
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during the marriage and continuing during the raising of a minor child that the court is respectfully requested to evaluate in reviewing this increase in support modification and order for owed arrears request. Ex 50 Ex 51 05-16-08 Danny Complains about Polly‟s Velocity Job Arrears – First Owed Is First Satisfied Conclusion Based on the above facts and rules, in light of the relatively equal parity in income standard of living in a long term marriage involving a minor or minors and changed circumstances, Miss respectfully requests an both an increase in owed support and an order for owed arrears. Respectfully Submitted, Dated this July 8, 2008 By:________________________________ Polly Anna Cooper Bernardino
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