CA CA - Bob Harrod, 81, Orange County, 27 July 2009 - #12

[Oriah]

Just to clarify then, private SAR operations can be certified, but it's optional. And a private SAR team would be unlikely to go ahead with a search (on private or public ground) if the mps family refused help?

Whereas LE can go ahead with a search, with or without permission, but will always get a search warrant if it involves private property, for legal reasons?

With the private, paid-for SARs which are not certified and have questionable skills/training; do they ever mess up evidence? What a nightmare that would be. I'm not sure I think it's a good idea to allow that. It would be much better if there was a national certificate that everybody had to pass to get a licence, I would have thought.

Respectfully no, that's not quite right. I must have explained that very badly, my apologies!

 

[believe09]

Unrelated to SAR- I am having a difficult time posting case #: 30-2009-00297798 PR-TR-LJC which was initiated on 8/28/2009.

Can anyone else pull it up? Do we already have a doc up? I have a copy, but I think my computer no-likey uploading today for some reason.

:floorlaugh:

The doc I just put up?? How funny.

 

[believe09]

Thank you believe09 and anyone else concerned!!

'.....it stretches the imagination to argue that Bob would intend Fontelle to pay rent..'

Haven't we said that all along? If only they'd listened to us instead of going through all that legal process.

I dont believe they really thought they would be successful. Boy their attorneys wracked up some coinage however on another frivolous filing!! I suppose I might start to review the motivations of a legal team that would continue to churn this kind of stuff.....As we have discussed before the only people winning at this numbers game, other than AH, are the attorneys here. :banghead:

 

[believe09]

Thank you believe09 and anyone else concerned!!

'.....it stretches the imagination to argue that Bob would intend Fontelle to pay rent..'

Haven't we said that all along? If only they'd listened to us instead of going through all that legal process.

What got me was the "do over" nature of the requests when none of the circumstances had changed.

"Fontelle, by the same token, has the right to live in the home of her husband, who has mysteriously disappeared. There is no evidence that he deliberately abandoned his wife."

This judge gets it, I think. Maybe she even sees this for what it is...an attempt to drive Fontelle out of town.

 

[Oriah]

:floorlaugh:

The doc I just put up?? How funny.

You meanie!
I spent two hours trying to upload that. Weather here I think may be part of the issue connectivity? That or, uhh, possibly some sort of operator error....:lol:

At any rate- thank you, believe09!

 

[zwiebel]

Oh, Oriah, I was just thinking I really hope she's seen the doc and isn't taking my advice and shouting herself hoarse over her computer, I didn't realise it was the same one or I'd have said................but you have to admit, it was really funny.

ETA I can't wait till Cubby drops in and sees the document's here.

 

[Oriah]

What got me was the "do over" nature of the requests when none of the circumstances had changed.



This judge gets it, I think. Maybe she even sees this for what it is...an attempt to drive Fontelle out of town.

BBM: One of the things that strikes me about Mr. Harrod's case is that exact point. It's like groundhog day. Someone wants to keep re-writing history.

 

[zwiebel]

I really appreciate this judgement ( and not just because there's a distinctly Germanic name at the top of it) because it is very clear about the important things, imo;

Bob married Fontelle and therefore she is his wife, and there are absolutely no indications that Bob intended to put unusual strictures in place, such as his wife paying rent.

Bob has not been declared dead and so no-one administering his estate should be behaving as if he is.

Mrs Harrod has the absolute right to come and go in her home as she pleases, and visit her family whenever she wants to, and whenever they need her.

A legal settlement agreed by both parties is just that. trying to wriggle out of it afterwards - even when it's by legal means - just isn't on.

I have to say, I positively despise that, the fact Mrs Harrod spent 3 months away from home caring for a sick sister and welcoming a grandchild, was used as a reason why she does not 'deserve' to live in her marital home. To me, that smacks of an attempt to isolate her from her family (see them too much and you might lose your home).

Despicable. But if questions really must be asked about that falling income from Bob's estate, I think we should start with AH's debt first, then go on to PB's suspension of rental payments and then, probably, the amount of money spent so far on legal cases which have been lost.

 

[Oriah]

Oh, Oriah, I was just thinking I really hope she's seen the doc and isn't taking my advice and shouting herself hoarse over her computer, I didn't realise it was the same one or I'd have said................but you have to admit, it was really funny.

ETA I can't wait till Cubby drops in and sees the document's here.

I did shout at the computer a bit, lol. I was trying to beat anyone to posting and then...well, I guess I loss that race!
I'm a good loser though, and glad to have lost to believe.

Cubby will be thrilled.

It's a drop in the bucket really (imvho) but every drop counts in Mr. Harrod's case.

 

[Cubby]

I just finished reading the minutes believe09 posted upthread.
Honestly, I find myself wondering when the judge is going to declare the co-conservators vexatious litigants. I'm amazed a judge hasn't yet.


CAL. CCP. CODE § 391 : California Code - Section 391

http://codes.lp.findlaw.com/cacode/CCP/3/2/3A/s391

 

[GrainneDhu]

Respectfully,
If a LE agency has working dogs of any type it matters a great deal where they are used- a public vs a private environment.
For example, it is legal (and very useful in court) when a LE K9 sniffs out some cocaine in a bag at an airport. But a LEO cannot enter a home with the same K9 if owner does not consent, without a SW, to sniff out the cocaine in a bathroom in home. kwim?

The same is true for HRD searches.

ETA: clarification

You are correct!

I was thinking in terms of a dog being used to search public areas, such as starting outside the victim's home. The family has no more right to refuse such a search than they have the right to demand the airport K9 be taken away. You're correct that the family does not have to give consent for a dog to start inside of the house and they don't have to turn over a scent item.

Of course, in my theory of what happened to Bob, a scent item would not be needed. The use of an HRD dog around the outside doors of the house is what would have yielded results at the time.

Tangential and not at all related: when I was flying with my service dog, he was attacked by an airport bomb dog who had a clueless handler. My dog was jumped from behind, there was no doubt about which dog was at fault. The really stupid thing was that the handler tried to blame my dog and was just about lynched by the mob of eyewitnesses! Really, if he hadn't backed down right quick, I think he would have been hurting.

Travelling with my service dog was like being entourage for a rock star. More people knew my dog's name than knew mine and it was pretty routine for people I had never met to say "isn't that <name of dog>? Would you mind if I petted him?" After 9/11, while the National Guard was in the airports, they were enchanted with him when I explained he was the long coated cousin of a Belgian Malinois. They were young, bored people and they loved to make a fuss over him. It was always kinda funny to see these heavily armed guys (and a few women) bending over him, giving him scritches in all his favourite spots and baby talking him.

I was flying 3 times a month in that year after 9/11 and got to know a lot of the National Guard people pretty well. It was downright surprising how many of them discovered it was time for their break as I was coming up through security with my dog. They'd go with me down to my gate and sit to pet my dog and talk to me for awhile... and then sadly drag themselves back to the security gate for more boring.

 

[GrainneDhu]

Just to clarify then, private SAR operations can be certified, but it's optional. And a private SAR team would be unlikely to go ahead with a search (on private or public ground) if the mps family refused help?

Whereas LE can go ahead with a search, with or without permission, but will always get a search warrant if it involves private property, for legal reasons?

With the private, paid-for SARs which are not certified and have questionable skills/training; do they ever mess up evidence? What a nightmare that would be. I'm not sure I think it's a good idea to allow that. It would be much better if there was a national certificate that everybody had to pass to get a licence, I would have thought.

Welcome to the US, zwiebel! Keep in mind that you're talking about a country where people cannot agree on whether there is a right to own machine guns (currently there is no right but there is a vociferous minority who wants it). After all, a machine gun does have a legitimate use if the owner is a hunter of the "spray and pray" school of hunting. Responsible hunters cringe at the thought of someone who needs more than two shots to bring down game (and even that second shot is a little iffy).

You are correct. Any search that involves LE going into private property has to be either a consent search or to be permitted by search warrant.

 

[believe09]

Here is a link to the Minute Order for the December 2012 Trial regarding rent etc.

LINK HERE

This link is going to change-Cubby pointed out to me that I put the document in the wrong thread. :blushing:

 

[believe09]

New link for the Minute Order:

LINK HERE

 

[zwiebel]

This link is going to change-Cubby pointed out to me that I put the document in the wrong thread. :blushing:

Do tell, where was it? I didn't notice.

 

[zwiebel]

Welcome to the US, zwiebel! Keep in mind that you're talking about a country where people cannot agree on whether there is a right to own machine guns (currently there is no right but there is a vociferous minority who wants it). After all, a machine gun does have a legitimate use if the owner is a hunter of the "spray and pray" school of hunting. Responsible hunters cringe at the thought of someone who needs more than two shots to bring down game (and even that second shot is a little iffy).

You are correct. Any search that involves LE going into private property has to be either a consent search or to be permitted by search warrant.

Oriah thought my confusion was a result of her 'bad' explaining, but of course it's not. It's just that you cannot overestimate how strange it is for a person brought up in a country where the rules are all set by central government, and are identical from one end of the country to the other, to understand the independance states and individuals have in the US. We are completely reliant on the state when it comes to health, accidents, missing persons, crime, SAR, murder. It doesn't always work though.

I'm still learning about the other way. Slowly.

 

[zwiebel]

I&#8217;ve transcribed the document so we can have it on the thread. I have reduced everyone&#8217;s names to initials, including the judge and attorney&#8217;s &#8211; if this is not the form, I&#8217;m sorry! I&#8217;d never pick a fight with judges and attorneys. Fellow posters, please feel free to quote and bold anything you think deserves it. I can see quite a few examples myself.

Superior Court of California
County of Orange
Lamoreaux Justice Centre

Minute order

Date: 12/20/2012 Time: 11.39 am Dept L72
Judicial officer presiding: MFS
Clerk: AB
Reporter/ERM: None
Bailiff/Court attendant: None

Case No: 30-2009-00297798-PR-TR-LJC Case init date: 08/28/2009
Case Title: Harrod-Trust
Case Category: Probate Case Type: Trust proceedings

Event ID/Document ID: 71623872
Event Type: Under submission ruling

Appearances

CD: 4/5/12

On December 5, 2012, trial went forward on the petition of PSB and RDB for an Order Directing FH (hereinafter &#8216;F&#8217;, no disrespect intended) to Pay Rent for the Use and Possession of Property Located at Carnation Drive, Placentia, California, and in the Alternative Reduce the Spousal Support as a Result of Free Rent on the Conservatorship Matter (petition filed April 5, 2012). The trial lasted less than a day, indeed, less than half a day, and the parties thus are not entitled to a statement of decision. CCP section 632.

Subsequent Trust Petition filed by PSB and RDB is denied:

Discussion

A Settlement agreement entered into in April of 2010 (&#8220;SA&#8221;-Exhibit 2) resolved the 8/28/09 Petition of these petitioners to be appointed successor trustees of the Harrod Family Trust (&#8220;HFT&#8221;-Exhibit 1). Objections were filed 3/1/10. On 8/27/09, Petitioners filed a petition to be appointed conservators of the estate of Robert Harrod (&#8220;Bob&#8221. F filed objections on 10/19/09. The matter was mediated before retired Judge AG. In consideration of the terms recited in the SA, F withdrew her objections to both petitions. The Trustees rely on the phrase &#8220;until further court orders&#8221; as it applies to the spousal support (3e), to suggest that it is modifiable. This is not an unreasonable interpretation. The question, however, is whether the spousal support amount should be modified due to a change in circumstances since the order was made. Nothing has changed that was not in existence when the SA was made.

The petitioners/trustees/conservators agreed to pay support of $3580 per month to F as spousal support from the Conservatorship estate. Petitioners argue that support was set based on F&#8217;s estimated cost of living in Orange County, including cost of renting a home comparable to the Carnation Drive property, and that &#8220;it was intended that the Objector would either pay rent or vacate the Carnation Drive property which is the asset of the Survivor&#8217;s Trust.&#8221; (See Paragraph 6 of Petition). Fair Rental Market value of the property is $2450 per month, but the co-trustees have agreed to a lower rent of $2000 &#8220;to avoid the expense of finding another renter and the issue of collecting rent.&#8221; (See paragraph 8 of petition). The prayer for relief asks that the Court order rent deducted from spousal support and paid to the Survivor Trust from the Conservatorship account. The trustees ask, alternatively, that spousal support be adjusted downward &#8220;due to free rent and free use of the residence&#8221;, in the related conservatorship matter. The problem with this is that is seeks to modify the support stated in the SA based on facts presumably known by the parties at the time they entered into the SA, which contains a clear integration cause. These facts are not recited in the SA.

The only mention of rent in the SA is as to PB (6a). Otherwise, the SA is silent as to rent, if any, to be paid by F, or to be used as an offset as to the negotiated amount of support. The SA is also silent re use of the property. It was known at the time, presumably, that F was living in the property and not paying rent. Disputes over the interpretation of the SA are to be heard by Judge G (paragraph 16).

The objections

The objections filed June 4, 2012 describe F as &#8220;the surviving spouse of Robert M Harrod&#8221; and &#8220;a pretermitted spouse.&#8221; (Paragraph 1 of Objections). Objector argues that this court is precluded from hearing the matter because of the settlement agreement reached by the parties and filed with the court. The court disagrees and overrules this objection.

Objection 2 states that F is a pretermitted spouse who retains the right to reside rent free. There is no evidence Bob has died, so F is not a pretermitted spouse. However, the trust does provide that bob, as surviving settler, shall have the right to occupy the family residence free of rent. Harrod Family Trust (&#8220;HFT&#8221 section 7.15 (a). While it is true that he is missing, Bob is still the surviving settler of the Trust and is entitled to live in the house rent free. F argues that as Bob&#8217;s lawful spouse, she is owed an obligation of support under Family Code section 4301, and entitled to live in the house rent free. While the couple only lived together a month before Robert went missing, they are still married. Until proven or presumed dead, Bob is presumed to be alive, and legally married to F.

Objection 3 states that Bob intended his wife to live rent free. The language of the HFT clearly shows an intent that the surviving spouse be provided with a residence. Bob is the surviving spouse as to his first wife Georgia, the other settler (and mother of the petitioners). While F is not a &#8220;surviving spouse&#8221; as to the HFT , or as to Bob ( since Bob has not been declared dead) it stretches the imagination to argue that Bob would intend F to pay rent while he is alive, albeit missing.

The Reply to Objections filed 7/13/12 states that the spousal support was agreed upon &#8220;without the Petitioners having knowledge of the full extent of the Estate, rather than that the assets of the HFT&#8230;..would be income producing.&#8221; They say objector&#8217;s right to live in the residence and right to live there rent free was never addressed. They say the support was &#8220;based upon Objector&#8217;s proposed needs based on a standard of living in Orange County&#8221; and that F&#8217;s standard of living in Missouri set her needs at less than $1000 per month, which were being met through her SSI of $1140 per month. They state an &#8220;understanding&#8221; that F doesn&#8217;t reside in the residence many months of the year, and the home &#8220;sits unoccupied while it could and should be generating income in the form of rent for the HFT.&#8221; Exhibit 4 is a letter from Petitioners&#8217;/Trustees&#8217; attorney demanding rent and it is dated a year after the SA. It states &#8220;As you can recall the spousal support to Mrs Harrod was based on her ability to live and rent in the Orange County area&#8221;.

Undisputed Facts

Twelve Undisputed Facts (&#8220;UF&#8221 listed in the joint pretrial statement were accepted by the Court and won&#8217;t be repeated in their entirety herein. The UF establish that F&#8217;s monthly income apart from the $3850 support from the Trust is $1260. Additional stipulations were stated orally on the record, as follows;

1: Gross monthly income of the conservatorship estate is $4811 per month

2: Monthly income of the conservatorship estate has gone down due to the suspension of Bob&#8217;s social security and pension payments. The Court is not informed as to when this decrease occurred, and in fact, it is not stated in the petition as one of the &#8220;changed circumstances&#8221; factors.

3: Monthly expenses of the conservatorship estate are $5400 per month (excluding attorney fees or conservator fees). Thus there is a monthly shortfall of $589.

4: F&#8217;s monthly expenses are $1875 per month.

5: This calendar year &#8211; 2012 &#8211; F lived outside California for a period of 3 months due to the birth of a granddaughter and the prolonged illness of her sister.

6: F&#8217;s family resides in Missouri.

Petitioners argue that they have an obligation to make the property income producing. F, by the same token, has the right to live in the home of her husband, who has mysteriously disappeared. There is no evidence that he deliberately abandoned his wife. Probate Code section 2420 requires the conservator of an estate to apply income of the estate to the support of the conservatee and any persons the conservatee is liable to support. F&#8217;s monthly expenses are $1875 and her income is $1260 plus the amount received pursuant to the SA, $3580. Presumably, this was taken into account when the support was agreed in the SA. Now petitioners seek to, in effect, reduce that support by an offset for rent. They have not met their burden of proof.

Copy of minute order mailed to:
Attorney IS
Attorney ACG
Attorney EA
Attorney JL

 

[Cubby]

Interesting how the above minutes mention nothing about the monthly mortgage the grandson AH defaulted on with regards to the $589 monthly shortfall. I'm certain the mortgage note, should they have sought to collect it would have covered their monthly shortfall several times over.

 

[believe09]

Hopefully, at least after 1/16 that is, the agreement between AH and his aunts will shed some light on why it was beneficial to not pursue him.

2: Monthly income of the conservatorship estate has gone down due to the suspension of Bob&#8217;s social security and pension payments. The Court is not informed as to when this decrease occurred, and in fact, it is not stated in the petition as one of the &#8220;changed circumstances&#8221; factors.

One of the actual changed circumstances is that 3200 or so dollars are not contributing to the assets of the trust. Are the co conservators renting Windflower and collecting 3200.00 from the tenant? Are they collecting any money?

I am sure that is accurately reflected somewhere and will be included in the next audit.

 

[Cubby]

2: Monthly income of the conservatorship estate has gone down due to the suspension of Bob&#8217;s social security and pension payments. The Court is not informed as to when this decrease occurred, and in fact, it is not stated in the petition as one of the &#8220;changed circumstances&#8221; factors.

Interesting. After re-reading the above, it sounds like the social security and pension payments were suspended prior to the settlement agreement reached in April of 2010. What, were they sand bagging objections for future harassment of Mrs. Harrod?

Add me to the list of persons interested in learning how it was beneficial to not pursue collection of the grandson's defaulted mortgage of, what, 3200 per month? I'm very much looking forward to discovering how that was beneficial.