Page 1
C.A. Finds Disentitlement Doctrine Applies Based on Non-Litigation Misconduct
Appeal from DVRO Is Dismissed in Case of Woman Who Committed Felony Abduction, Contests Court’s Jurisdiction Over Her
By a MetNews Staff Writer
|
|
|
ELEANOR BALLESTER mother/abductor |
A woman has no right to be heard in her appellate challenge to a restraining order imposed on her, Div. One of the Fourth District Court of Appeal has declared, invoking the doctrine of disentitlement based, atypically, on criminal misconduct on the part of the appellant rather than on actions or inaction directly in connection with the litigation.
Dismissal of the appeal was ordered in an unpublished opinion filed Wednesday, seemingly precluding a need to address the merits. The appeals court proceeded to do so anyway, saying that if it had not jettisoned the case, it would have affirmed.
Appellant Eleanor Leclair Ballester, as she is now known through a remarriage, was “Eleanor Martinette” when she filed for a dissolution of marriage in 2021. After the divorce judgment was entered on March 27, 2023, she had a domestic violence restraining order (“DVRO”) imposed on her based on findings that she had made false and defamatory allegations on Instagram concerning her ex-husband, Navy Lieutenant Commander/aviator Samuel Martinette.
Commissioner’s Findings
Those findings were made on June 21, 2023, by San Diego Superior Court Commissioner Leah Boucek. After that bench officer recused herself the following October, the proposed order was finalized on Dec. 19, 2023, by the then-supervising judge of the family courts, Michael T. Smyth (later the court’s presiding judge).
Earlier, Martinette had been awarded sole custody of the couple’s three children, with visitation rights for Ballester. Following issuance of the DVRO, Ballester fled to Florida with the children, was arrested there on April 1, 2024, was returned to California, and on Jan. 8, 2025, pled guilty to felony child abduction.
Acting Presiding Justice Truc T. Do authored Wednesday’s opinion. She noted that under the disentitlement doctrine, “an appellate court has the inherent power to dismiss (or stay) an appeal by a party that refuses to comply with a lower court order.”
2020 Opinion
She acknowledged that the doctrine is “most often applied where the appeal arises out of the very order (or orders) the party has disobeyed, the doctrine of disentitlement” but pointed to the 2020 opinion from Div. Seven of this district’s District Court of Appeal’s Div. Two In re E.M. There, Justice Richard Mosk (since deceased) observed that the doctrine “is not limited to cases in which the appellant is in violation of the order from which he or she appeals, but rather may also apply to cases in which the appellant has violated orders other than the one from which the appeal has been taken.”
He declared:
“We hold that under the doctrine of disentitlement, mother has forfeited her right to appeal from the juvenile court’s orders because she willfully left the jurisdiction with her children while the [dependency] petition was pending and, even though a warrant for her arrest had been recalled, her continued absence from the jurisdiction undermined and frustrated the juvenile court’s ability to implement the dependency law procedures intended to protect and benefit the interests of her children.”
Facts Recited
Do wrote:
“The record before us demonstrates that Eleanor has engaged in an unmitigated pattern of flagrantly violating court orders and obstructive tactics that began only one day after she filed her notice of appeal, and it has persisted for over a year during the pendency of her appeal. She abducted the children and concealed them from Samuel for nearly four months in violation of the law and the child custody orders, and her actions arguably constitute further disturbance of Samuel’s peace in violation of the [order] from which she has appealed. She has told the superior court in clear terms that it has no jurisdiction over her (or the parties’ children) in the family case. And she has continued in this contemptuous posture by refusing to comply with the court’s orders in the criminal case, which is but an outgrowth of her violations of orders in the family case….
“Less egregious conduct than Eleanor’s has resulted in appellate courts applying the disentitlement doctrine as the proper sanction.”
She commented:
“We have considered that enforcement of the family court’s child custody orders or the DVRO might not currently be a concern, given that Eleanor has been convicted of child abduction and the children presumably are safe in Samuel’s custody….But here, Eleanor has defiantly resisted the authority of the courts of California, asserting no court has jurisdiction or power over her….Under these circumstances, we conclude the balance of equitable concerns make dismissal a proper sanction.”
Merits Addressed
Do, in discussing Ballester’s contentions and finding each to lack merit, addressed the appellant’s argument that Boucek acted improperly in issuing rulings on June 21, 2023, based on her failure to disclose her “personal relationship” to the respondent. Ballester asserted that Boucek was close to Martinette—literally—residing five houses away from his abode.
Boucek, through her husband, had a connection to Martinette, Ballester maintained, alleging that the commissioner had discussed the case of Martinette v. Martinette with a neighbor and with a kindergarten teacher.
On Oct. 5, 2023, the commissioner recused herself to “further the interests of justice.”
That recusal, Do said, coming after the rulings, does not affect the validity of them. She wrote:
“Eleanor has made no attempt on appeal (nor in the trial court) to argue there is ‘good cause’ to set aside the Commissioner’s issuance of the DVRO, and we see none.”
The case is Eleanor M. v. Samuel M., D083833.
Other Litigation
Ballester has engaged in much other related litigation, including federal District Court actions.
On May 14, 2024, District Court Judge Ruth Bermudez Montenegro of the Southern District of California dismissed, without leave to amend, two actions—one naming 12 defendants and the other six—each contesting the DVRO. Montenegro pointed to the Rooker–Feldman Doctrine under which a District Court judge lacks subject matter jurisdiction over what amounts to an appeal of a state-court decision.
She noted that two of the defendants—Boucek and Smyth—enjoy judicial immunity. The other defendants, including Martinette, are not state actors and are therefore not subject to being sued for civil rights violations pursuant to 42 USC §1983.
That case is Ballester v. Boucek, 3:23-cv-1730.
On July 8, 2024, Montenegro dismissed with prejudice, in Ballester v. Finkbeiner, 3:24-cv-0454, five similar actions brought under §1983 challenging actions in the San Diego family law case.
District Court Judge Linda Lopez of the Southern District of California last April 28, in Ballester v. Martinez, 3:24-cv-1738, dismissed with prejudice Ballester’s petition for a writ of habeas corpus challenging her confinement in a county facility pending a hearing. On May 8, in Ballester v. Hallahan, 3:25-cv-568, the judge in like manner disposed of Ballester’s petition challenging the “the warrant and court actions” in the San Diego prosecution.
In both cases, Lopez cited the Younger Abstention Doctrine which, in general, bars federal interference in ongoing state proceedings.
Copyright 2025, Metropolitan News Company