Q: TRO Against Husband Was Not Served, But Husband Appeared To Hearing!
A Temporary Restraining Order (TRO) with a minor child was granted against the husband. The wife’s attorney notified him via email. To prevent a continuance, the husband requested to be served three times. Simultaneously, he obtained all TRO documents from the court. He filed and served his response. The wife filed a supplemental declaration in response of husband's response. The husband also participated in the DVRO mediation and the DVRO hearing. Since the wife’s notification, both parties have acted as if the husband had been served. Even though TRO could not been enforce, the husband adhered to TRO. What if the wife requests a continuance at the hearing due to lack of service? Can the husband ask the judge to deny her request?
A:
Under California law, when a Temporary Restraining Order (TRO) is granted, proper service is typically required for the order to be enforceable. However, in your case, where the husband has actively participated in the process despite not being formally served, the court may consider this as constructive service. This is because he has shown awareness of the TRO and has engaged with the legal proceedings accordingly.
If the wife requests a continuance due to lack of formal service, the husband can argue against this request. He can present the fact that he has actively responded to the TRO, thereby acknowledging its existence and terms. This active participation could be interpreted by the court as an implicit waiver of formal service.
Furthermore, the husband's adherence to the TRO's conditions and his engagement in mediation and the hearing further support his awareness and acknowledgement of the order. This could influence the judge's decision regarding the continuance, as the purpose of service – to notify the individual of the legal action and its requirements – has been fulfilled in practice.
It's important to present these arguments effectively to the court to advocate for proceeding without further delay. The judge's decision will ultimately depend on the specific circumstances and the discretion applied in the interest of justice and fairness to both parties.
A: You do not have to be served personally when, as here, you make a personal appearance in Court which has the legal effect of succumbing to the personal jurisdiction of the Court and waiving any rights you may have had to contest the Courts personal jurisdiction over you. You could have avoided that legal effect by filing the requisite pleadings to make a "special" appearance before filing your responsive declaration and announcing to the Court when your case is called that you are "specially" appearing.
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