IN THE FOURTH DISTRICT COURT - PROVO UTAH COUNTY, STATE OF UTAH

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IN THE FOURTH DISTRICT COURT - PROVO

UTAH COUNTY, STATE OF UTAH

KAILIN WANG,

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:CASE NO. 194400718

PETITIONER,

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vs.

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CHRISTOFFER STANFORD THYGESEN.

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RESPONDENT.

: With Keyword Index

TELEPHONIC CONFERENCE

September 5, 2019

BEFORE

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APPEARANCES

For the Petitioner:

GRANT DICKINSON

Attorney at Law

For the Respondent:

MITCHELL OLSEN

Attorney at Law

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UTAH COUNTY, PROVO, UTAH; SEPTEMBER 5, 2019 HONORABLE THOMAS LOW

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(Transcriber’s note: Identification of speakers

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may not be accurate with the audio recordings.)

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PROCEEDINGS

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THE COURT: Okay. Well let's discuss the UCCJEA then,

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which is the basis for the stay. It looks like...well, let me just

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ask you, Mr. Olsen, do you have any basis to oppose a finding that

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Utah is the home state?

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MR. OLSEN: Your Honor, I think the only thing we've

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gotten, if you look at actually Miss Wang's objection to the

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Commissioner's recommendation, there is case law, the Meyeres case

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that does require the court to make an independent finding in terms

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of home state jurisdiction. And then we have our subsequent motions

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for inconvenient forum and unjustifiable acts that would go along

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with that. And then just so the court's aware, the attorneys in

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California have filed a notice of appeal on the court's finding of

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home state based upon some new evidence that they found, which was

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Ms. Wang had actually obtained a New York driver's license just

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three days before filing her petition here in Utah. So there's,

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there's a number of other issues that are still pending as it

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relates to home state and jurisdiction issues.

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THE COURT: I thought the commissioner...or the judge's ruling

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in California was based on the child's residence and not on Ms.

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Wang’s residence.

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MR. OLSEN: And that's what I think he did base it on, Your

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Honor, but that's now been upheld by the attorneys in California

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based upon some, what it was based on was whether or not Ms. Wang

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was actually a resident of Utah at the time she filed and that was

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part of our motion to dismiss as well.

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THE COURT: Yeah, that would go into a divorce action, I guess,

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that kind of an issue. But all right, Mr. Dickinson, anything you'd

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like to say about whether this court should exercise jurisdiction

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and lift the stay?

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MR. DICKINSON: No, I think...well I say no, but then it's

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just that I think the court's asking all the right questions. I

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know where the California court has ruled, and we've got to get

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some kind of order on at least some kind of merits somewhere

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instead of acting on this order. That really limits my client's

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parent time and puts an extreme burden on her as far as traveling

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to see the child.

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THE COURT: Anything else you want to say, Mr. Olsen?

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MR. OLSEN: No, I just think, Your Honor, that we do need to

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have some hearing to address our motions to dismiss before a

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temporary order is issued to ensure that this court does have

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jurisdiction and whether or not there's going to be an inconvenient

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forum finding or an unjustifiable act finding that's going to then

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require some form of communication between you and Judge Darwin,

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whoever the judge is in California that's now over those cases.

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THE COURT: Yeah. Well I'm first going to lift the stay. Clearly

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the parties have a need to have some access to some court somewhere.

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The California court is closed. I understand it's on appeal, but

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there haven't been any other orders issued either by an appellate

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court or any other court in California to stay, its efficacy or any

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other relief. And so the court, this court has to open its doors,

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bottom line. So the stay is lifted and if you'd like to prepare an

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order to that effect, Mr. Dickinson, you may. As to other issues,

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Mr. Olsen, if you want...if you think there's a sequence that needs

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to be addressed, any reason that can't be done with Commissioner

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Ito?

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MR. OLSEN: Your Honor, I think the only issue we've got is

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we've got...so Ms. Wang filed for objection to the recommendation

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in terms of jurisdiction. And I guess my question for you, the

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court, would be, would it be Commissioner Ito that would then be

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addressing anew...our motion to dismiss? Or because we've got an

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objection from Ms. Wang, is that now going to be heard before you?

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Just procedurally I guess we're trying to figure out where to go

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with this as it relates to the jurisdictional issue.

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THE COURT: Isn't the objection to the Commissioner's

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recommendation, Mr. Dickinson, about jurisdiction?

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MR. DICKINSON: Yes, sir, and I wasn't part of the hearings. I

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may not be as familiar with what the Commissioner rules at that

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time, but my understanding was she was objecting to the stay

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because she thought that Utah was the more appropriate jurisdiction.

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And that I think right now, I think the court's right. Even if Utah

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says hey, it's some kind of jurisdiction, whether it's temporary or

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permanent, may be determined later. But for right now we've got to

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have an open court somewhere and California is closed. The only

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other court is Utah.

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MR. DICKINSON: So I think right now we as to the motions to

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dismiss, I mean I don't know. I need to look through that a little

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bit more in detail and see what he, what their new arguments are on

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that issue. But I think the court could address those with

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Commissioner Ito, and I think ultimately no matter how Commissioner

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Ito rules on the temporary basis on jurisdiction, it would probably

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end up in your lap.

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MR. DICKINSON: But as to temporary orders as for right now,

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we need a court that's open. So whether it be temporary emergency

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jurisdiction or permanent home state jurisdiction, I think we've

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got to do something. And then we can, you know, worry about

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permanent jurisdiction as we kind of work through the other part of

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the process.

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THE COURT: I think you maybe misapprehended the question. The

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question was, the objection filed by your client previously, I

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think with Mr. Steve Christiansen, and also I think there's a pro

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se filing out there. Are those rendered moot by the court's lifting

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the stay right now?

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MR. DICKINSON: I think that they are, yeah. I think that they

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are because if the stay is lifted then we can proceed with our

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temporary orders. That's all we're seeking to do at this time.

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THE COURT: So back to you then, Mr. Olsen. Sounds like what we

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need to do is allow the Commissioner to hear your evidence and make

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a recommendation both regarding a motion to dismiss and regarding

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temporary orders regarding jurisdiction. If she feels uncomfortable

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making recommendations on any of those issues, I'm happy to If any

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discuss that with her. of you are uncomfortable with having her

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make recommendations on those issues, I'm happy to listen to you.

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But under the rule we're allowed to delegate pretty much any motion

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and that was the court's intention. That was the path previously.

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Commissioner Patton had stayed the issue on the motion to dismiss

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and other things, and so I think that's just where it should go

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back again as to Commissioner Ito unless you have different

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feelings, Mr. Olsen, that you think might be well supported.

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MR. OLSEN: Your Honor, my only, I guess my only response to

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that would be in terms of...and maybe this is a question for

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Commissioner Ito, is prior to her making any sort of temporary

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order finding, I think we need to have a jurisdictional issue order

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first. And I think as Mr. Dickinson said, I think regardless of

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what Commissioner Ito finds on the motion to dismiss and on the

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jurisdictional issue that there's going to be an objection from one

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party or the other. That's going to get back to you, and then we're

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still going to have this temporary order floating. I'm just

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wondering, for judicial economy, is it best to take the

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jurisdictional issue before you first prior to any sort of

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temporary order hearing to make sure that we're just not doing one

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thing and having to go back and start over again as it relates to

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the temporary orders?

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THE COURT: Mr. Dickinson?

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MR. DICKINSON: Oh, I guess you know my concern, Your Honor,

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is just your schedule compared to Commissioner Ito's schedule. I

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just want to get in somewhere where we can actually present some

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argument and some facts as to who should have temporary custody and

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what the temporary parenting orders should be. So that I would

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imagine the Commissioner's schedule is going to be a little bit

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more flexible than Your Honor's, but that's my concern is getting

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an order sooner rather than later.

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THE COURT: Okay.

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MR. OLSEN: But then if I could just address that. I mean we do

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have an actual order coming out of California where the California

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clerk of court took emergency jurisdiction under the UCCJEA. And

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based upon evidence and findings, they've awarded Ms. Wang

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parent time. And just so the court's aware too, they've got a four

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day trial scheduled towards the end of October that's going to

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specifically address some of the concerns that Commissioner Patton

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had found originally as it relates to credibility and some of the

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things that Ms. Wang was allegedly doing. Those same concerns were

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found by Judge Darwin and the subsequent Judge in California. So

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there is a temporary order that's in place based upon evidence and

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findings from the court. And so I know Mr. Dickinson wants

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[crosstalk 00:08:59] to deal with the temporary order.

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THE COURT: No, I understand.

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MR. DICKINSON: It was done without any input from my clients.

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THE COURT: Okay. Yeah, I understand that there is a temporary

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order in place and it's remaining in place per the California order

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until Utah takes up the matter. So yeah, I understand.

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THE COURT: Well, this isn't...the motion on jurisdiction isn't

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a motion that has to go to a judge. And so in response to MR.

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OLSEN's concerns, I think what I would say is what I anticipated

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seeing is Commissioner Ito making determinations on jurisdiction.

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And if she recommends a finding of jurisdiction, then she would

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also then proceed to make recommendations regarding temporary

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orders.

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THE COURT: If she doesn't make a recommendation finding

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jurisdiction, then she would not proceed on the temporary orders.

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But I think she could do both at the same time. I don't see why she

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has to have one hearing for one thing, have that objected to, come

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to me, and then go back again. I think she can address it all in a

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single hearing. So that's what I'd like to see happen. I think it's

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more expeditious. It gets it done quicker.

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THE COURT: I think you already have a hearing scheduled before

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Commissioner Ito. I see there's a motion to continue that maybe it

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was scheduled without the input of Mr. Thygesen's counsel, but

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that's also an issue I think that can be resolved there with

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Commissioner Ito. Is that satisfactory, Mr. Olsen? Maybe not

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exactly how you wanted it, but does that address the concern or the

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issue?

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MR. OLSEN: No, and I understand that. And I don't think, Your

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Honor, at this point in time, there is an actual hearing. I think

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Commissioner Ito had taken that hearing off the calendar based our

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telephone call with her, and so I think we'd need to get something

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back on the calendar with Commissioner Ito.

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THE COURT: Oh, okay. I didn't see that. Just Looking through

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the docket, I saw it was still scheduled for the September 16th,

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