¡Viva La Fiesta! - Santa Barbara County Bar Association

When a Stop Sign
Means Stop
By he r B Fo x
As legal professionals, we are all trained to analyze,
deconstruct, and argue. Sometimes, however, there
is a time to stop (see, e.g., former President Clinton
Herb
parsing over the meaning of the word “is”). And sometimes,
the meaning of a court’s order is like a stop sign: it requires
no explanation.
That’s the actual holding of a recently published opinion
written by Presiding Justice Arthur
gilbert in an appeal from a family court
order issued by Santa Barbara Superior
Court Judge Thomas Anderle restraining
Wife from interfering with Husband’s
custodial time.
Back in 2007, Husband sought the restraining
order, alleging that Wife was interfering
with his custodial time. Husband
complained that Wife told their children
that he won at trial because he lied on
the stand; that the parties do not have to follow the court’s
custody or school placement orders; and that he obtained
joint custody only to reduce his child support obligation.
After an evidentiary hearing, Judge Anderle granted
the relief sought by Husband, finding that Wife “has approached
the decision of this Court as though it was only
a ‘work in progress.’ It is not. Father’s contention that Wife
has attempted to alienate the children by her actions, words
and demeanor appears to this Court to be accurate.”
But the matter did not end there, and Husband eventually
filed a contempt against Wife, alleging that she was
violating the restraining order, and Wife then sought to
vacate the order. Wife appealed the trial court’s denial of
the motion to vacate.
Wife argued, inter alia, that the order was unenforceable
because the word “interfere” was vague and ambiguous,
and that the order violated her right to free speech.
The Court of Appeal disagreed, finding the word “interfere”
to be an “ordinary English word” that has never been
held ambiguous.
As to the free speech claim, the Court noted that the
“. . . In family law cases,
courts have the power to
restrict speech to promote
the welfare of the children.”
August 2010 21
Appellate Brief
order does not prohibit
Wife from speaking to
everyone “about everything
relating to Husband.
It only prohibits speech
that interferes with the
custody order. In family
law cases, courts have the
power to restrict speech to
promote the welfare of the
children.”
And lest there be any
doubt about the Court of
Appeal’s displeasure with
Fox
Wife, the Opinion concludes
with a zinger: “Unfortunately,
Wife’s conduct
gave the trial judge cause to be conspicuously tautological
and categorically pedagogical. Let there
be no doubt, Wife must stop interfering
with the custody order.”
The case is In re Marriage of Hartmann,
case number B215917 (2010 WL
2510383), decided on June 23, 2010. vanessa
Kirker represented the appellant;
Robert Walmsley and Marlea Jarrette
represented the respondent. Appellant
has filed a Petition for Rehearing that
remained pending as this issue of Santa
Barbara Lawyer went to press.
Herb Fox has been a Certified Appellate Law Specialist since
1996. He can be contacted at www.SantaBarbaraAppeals.com.