JM v. WT involves the dismissal of a temporary restraining order.
JM filed a request for a restraining order against WT. Before the hearing for the permanent restraining order was issued, JM filed a written request for a continuance, because he could not serve WT in a timely manner before the hearing. JM also had just learned that a surgery for him would be scheduled just before the hearing which would prevent him from appearing at the scheduled hearing.
The court dismissed the restraining order with prejudice stating that the most recent time of abuse had happened ten months earlier and noted that any requests for continuance should be made by ex parte application. JM appealed the dismissal.
The court of appeal reversed the family court’s decision and ordered the family court to re-issue the restraining order. The appellate court stated that traditionally Family Code section 245(b) allowed a hearing to be continued based on the failure to serve the restraining order in a timely manner.
FC 245(b): Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing or orally at the hearing. The court may also grant a continuance on its own motion.
If you need legal advice and are looking for a family law lawyer in Orange County to address a restraining order issue or a divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.
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