2013-11-6-Filedoc-Motion to Compel.pdf

8/14/2019 2013-11-6-Filedoc-Motion to Compel.pdf

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respondent by mail a NOTICE IN LIEU OF SUBPOENA TO COMPEL ATTENDANCE

BEFORE THE COURT AND TO BRING BOOKS, DOCUMENTS, AND OTHER THINGS for

the hearing set November 7, 2012. The tacit agreement was sealed by the respondents

documented full compliance with the discovery request. The above notice to compel disclosure

by the petitioner was for a hearing set specifically for issues of adjustment for support requested

by the petitioner in relief to the request for motion by the respondent which included a request

for an award of attorney fees. These are the very same circumstances under which the

respondent is requesting an order to compel in advance of the August 26, 2013 hearing on the

respondents request for attorney fees and the petitioner seeking relief by a downward adjustment

to his support obligation. The respondent contends that equity of circumstance and the prior

agreement to re-open discovery through petitioners request and the respondents performance

represents good cause to grant the motion to compel.

Good Cause #4: The respondents FIRST SET OF OF SPECIAL INTERROGATORIES

and DEMAND FOR PRODUCTION OF DOCUMENTS SET NUMBER ONE to the petitioner

were motivated by the pattern of chronic avoidance of required update and augmentation to

discovery required by Family Code 2102 and 720-721. The petitioner has submitted Income and

Expense Declarations that have contained false and inaccurate information and omitted required

information. The petitioner and petitioners counsel have refused to respond to letters and emails

by the respondent and respondents counsel seeking specific updates on community business

inventory, community real property, community business partnerships, community tax

obligations, community pension plan and spousal and child support payments. The petitioner has

failed to submit required documentation for disclosure as requested and required by the court.

The petitioner has provided the respondent with a Trial Brief and Final Disclosure that misstate

facts and omit required information and documentation to support claims. Specifically, therespondent sets forth the following examples of a refusal, incomplete and/or inaccurate

disclosure by the petitioner:

(1) Petitioners Preliminary Disclosure (EXHIBIT F)

________________________________________________________________MARRIAGE OF BOWERMAN - Page 7 of 15 - CASE NO. 455-922

NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, ANDCOMPEL PRODUCTION OF DOCUMENTS TO DEMAND OF PRODUCTION OF DOCUMENTS, MEMORANDUM

OF POINTS AND AUTHORITIES AND DECLARATION OF KAREN BOWERMAN, EXHIBITS


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a. Did not specify the use of $32,256.00 in community bank account at separation

b. Reported no cash in hand

c. Did not report community CEP Partnership established May 2011

d. Did not report MedAmerica Retirement Plan for CEP Physicians

e. Did not report Karens Camps & Cottages community antique business - est. 2007

f. Did not report receivables due as movie producers - Mercy Streets & Lay It Down

(2) Petitioners Income & Expense Declaration October 31, 2012 (EXHIBIT G)

a. Reported an average $27,000.00 disposable monthly income in excess of monthly

expenses per month for the preceding year yet reported no balance in savings or

checking accounts and no investments. The petitioners own filed document

indicates there is $324,000.00 ($27,000.00 x 12 months) unaccounted for cash

resources.

b. Did not include or list any pension plan withdrawals, payments or income from

Northwestern Mutual pension plan.

c. Did not include any listing of bonuses - later established to have been continuous part

of income since prior to and after date of separation (Court has now ordered

distribution of bonuses to respondent as of February 19, 2013)

d. Did not include all required pay stubs

e. Did not include two years of tax returns (W2/K1)

f. Did not list income from Sutter Memorial Emergency Medical Associates

* At November 7, 2012 hearing Judge ordered petitioner to bring ALL required income

information to next hearing (February 19, 2013) so the Judge could rule on financial

issue of respondents request for award of attorney fees and petitioners request for relief

to modify support (without filing a request for order). (3) Petitioners Income & Expense Declaration February 15, 2013 (EXHIBIT H)

a. Again, no listing of bonuses as income

b. Again, missing some required pay stubs





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c. Again, missing tax returns (W2/K1)

d. Again, did not list income from Sutter Memorial Medical Associates

e. Did not list distributions, payments nor income from community pension plan

* At February 19, 2013 hearing Judge could not rule to modify support stating the

petitioner had not provided the documentation as requested by the court.

4) Petitioners Income & Expense Declaration June 21, 2013 (EXHIBIT I)

a) Lists same amount hours worked but 20% lower monthly income as February15, 2013

Income & Expense Declaration (35 Hrs = $18,105 gross June 21, 2013 / 35 Hrs =

$22,766 gross February, 2013). A letter submitted by the petitioner, with his

declaration for the February 17, 2013 hearing, from Derrick Fong at CEP (employer)

states the petitioner earns more than $170.00 per hour. The June 21, 2013 Income &

Expense Declaration indicates an hourly rate of approximately $130.00 per hour.

b) There is no listing of payments, withdrawals, distributions nor income from the

community pension plan. Yet the petitioners trial brief submitted to the respondent on

June 24, 2013 clearly indicates withdrawals and payments to the petitioner of nearly

$400,000.00 from the community pension plan between April and May 2013

c) Again, there is no listing of bonuses on line 5c, yet there is an April 2013 pay stub

clearly indicating a bonus was paid.

d) Again, there is no listing of income from Sutter Memorial Emergency Medical

Associates for the year.

e) Again, no tax returns attached - No tax records from 2011 nor 2012 to substantiate any

claims of income by the petitioner. No quarterly filings, No W2 , no K1.

(5) Petitioners Final Disclosure June 21, 2013 (EXHIBIT J)

a) The petitioner lists the CEP Partnership as Separate Property however existingdisclosure indicates CEP began paying the Bowerman community in May 2011 prior

to the July 2011 separation date. Further, if the petitioner is making a claim that the

CEP business opportunity is separate property after the date of separation then the





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custody evaluation was by mothers request is clear perjury and misstatement of

material fact to defraud the respondent of $4,500.00 on a signed document sent through

the US Mail.

g) Petitioner requests credits of $40,086.00 for his storage cost of concealed business

inventory in violation of ATROS and FAM Code 2102 (3) (b) - admitting the violation.

h) In item 24.3 petitioner names co-conspirators in moving and concealing business

inventory and then request reimbursements of $1,600.00 he paid them to violate the

court order of August 21, 2013 and ATROs.

i) Petitioner requests reimbursement of $40,618 from respondent for a Take Charge

America Loan Consolidation that the petitioner reported a balance of only $27,067.00

in his preliminary disclosure of November 21, 2011 - contradicting the Billing

Statement of 11/18/2011 from Take Charge America indicating a balance of $2,918.00

(6) Petitioners Trial Brief - June 24, 2013 trial (EXHIBIT K)

a The petitioner sets forth an accounting of the use of funds he improperly and without

notice nor consent withdrew from the community pension plan account, Northwestern

#0597. Under item # 12.3 the petitioner indicates he used a total of $366,735.00

pay various personal non-community tax debts* (See Declaration of Karen

Bowerman herein). The petitioner has provided no documentation nor evidence that

the funds improperly withdrawn from the community pension plan were used to pay

taxes or any other debt, separate or claimed to be community.

b) The petitioner further indicates that he paid a 2009 IRS Tax debt of $103,935.00 from

non-pension resources. This is problematic in two regards; First, the June 20, 2013

Income and Expense Declaration filed by the petitioner does not indicate availability

of sufficient funds to make that payment. The petitioners Preliminary Disclosureindicates an IRS 2009 Tax Debt of only $58,806.00 as of 4/27/2011 - three months

prior to separation. Subsequent IRS statements indicate the 2009 IRS tax debt was

closer to $45,000.00 at the time it was paid on April 29, 2013. (EXHIBIT L)





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Documents

2013-11-6-Filedoc-Motion to Compel.pdf