NO.

C071887
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

SUSAN C. FERRIS,
Appellant,
v.
DAVID M. FERRIS,
Respondent.


Appeal From the Sacramento Superior Court
Case No. 98FL05615

Hon. Matthew Gary, J udge Presiding
________________________________________
APPELLANTS OPENING BRIEF
________________________________________


J AMES BROSNAHAN* (SBN 34555) WILLIAM KENNEDY (SBN 61701)
KEVIN A. CALIA (SBN 227406) STEPHEN GOLDBERG (SBN 173499)
DEVON EDWARDS (SBN 264833) LEGAL SERVICES OF
MORRISON & FOERSTER LLP NORTHERN CALIFORNIA
425 Market Street 512 12th Street
San Francisco, CA 94105-2482 Sacramento, CA 95814
Tel: 415.268.7000 Tel: 916.551.2150
Fax: 415.268.7522 Fax: 916.551.2195
J Brosnahan@mofo.com bkennedy@lsnc.net


Attorneys for Appellant
SUSAN C. FERRIS

25

At the May 9, 2012 hearing, Susan requested that M not be moved to
the out-of-state lock-down facility. (CT 173-174.) Counsel could have
greatly aided in this effort. First, an attorney would have pointed out that,
because the custody order was a temporary order, the Superior Court was
required to enter an order restraining the person receiving custody from
removing the child from the state pending notice and a hearing on the order
seeking or modifying custody. (Cal. Fam. Code 3063.)
8
Second,
counsel would have understood that Susans goals would be best served by
regaining joint custody, and might have made a motion explicitly seeking to
modify the custody order, instead of asking the judge to do this at the
hearing. (RT 168:11-15.) Finally, an attorney would have argued that a
$2,500 sanction imposed an undue burden on an indigent mother who was
already ordered to pay over 70% of her income as child support. (CT 201,
202.)
An attorney also may have been able to negotiate with Davids
counsel, and come to an agreement. Or, if the two parties could not come
to an amicable agreement, the attorney could have written a forceful brief in
favor of having the court appoint counsel for M, as well as arguing that
pulling M from school and sending her to a lock-down facility was not in
Ms best-interest. Such a motion would have been bolstered by the
applicable statutory law, caselaw, and admissible facts, none of which were
presented by Susan on May 9. (RT 166:1-174:22.)

8
The no-contact and custody orders were ex parte temporary
custody orders under Family Code Section 3060 et seq., as they were
temporary orders setting custody which were ordered in the absence of an
agreement between Susan and David regarding custody. No final orders
modifying custody have been entered. (See Cal. Fam. Code 3048
[requiring that final custody orders comply with certain form and notice
requirements].)


NO. C071887
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

IN RE THE MARRIAGE OF
DAVID M. FERRIS AND SUSAN C. FERRIS
DAVID M. FERRIS,
Respondent,
v.
SUSAN C. FERRIS,
Appellant.


Appeal From the Sacramento Superior Court
Case No. 98FL05615

Hon. Matthew Gary, J udge Presiding
________________________________________
APPELLANTS REPLY BRIEF
________________________________________


J AMES BROSNAHAN* (SBN 34555) WILLIAM KENNEDY (SBN 61701)
KEVIN A. CALIA (SBN 227406) STEPHEN GOLDBERG (SBN 173499)
DEVON EDWARDS (SBN 264833) LEGAL SERVICES OF
ANDREW BERNICK (SBN 276115) NORTHERN CALIFORNIA
MORRISON & FOERSTER LLP 515 12th Street
425 Market Street Sacramento, CA 95814
San Francisco, CA 94105-2482 Tel: 916.551.2150
Tel: 415.268.7000 Fax: 916.551.2195
Fax: 415.268.7522 bkennedy@lsnc.net
J Brosnahan@mofo.com


Attorneys for Appellant
SUSAN C. FERRIS

6

Susan was unable to successfully juggle the roles of mother, advocate, and
witness.
Susan opposed Davids sending M out of state, but at the May 9,
2012 hearing on the subject, Susan was unable to provide case law,
statutory law, or admissible facts to explain why David should be
prohibited from sending M out of state. (RT 166, 174.) An attorney
representing Susan could have argued that because the custody order was
only a temporary order, the trial court was required to enter an order
restraining the person receiving custody from removing the child from the
state pending notice and a hearing on the order seeking or modifying
custody. (Cal. Fam. Code 3063.)
2
Although Susan orally requested a
change to the custody orders, permitting her to regain contact and custody
with her daughter (RT 168), she did not submit a motion or present any
legal argument, testimony, or evidence in support of her request to regain
custody of M or contact with M. (Ibid.) An attorney could have made a
written motion to change the temporary custody order and presented
testimony and evidence to bolster its chances of success. Either of these
measures could have made a significant difference in the proceedings
below regarding whether David was permitted to send M out of state and
whether the order prohibiting contact between Susan and M should remain
in effect.

doubt or at least harmless by clear and convincing evidence. (In re
James F., supra, 42 Cal.4th at p. 911, fn. 1.)
2
Under Family Code Section 3060 et seq., the no-contact and
custody orders entered by the trial court were ex parte temporary custody
orders because they were temporary orders setting custody which were
ordered in the absence of an agreement between Susan and David
regarding custody. No final orders modifying custody have been entered.
(See Cal. Fam. Code 3048 [requiring that final custody orders comply
with certain form and notice requirements].)