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Topics - annemichellesdad

Pages: 12 3
1
Dear Socrateaser / Contempt?? Fraud??
« on: Oct 31, 2007, 03:43:56 PM »
The court order states that we shall each pay 1/2 of our child's health insurance premiums and uncovered medical expenses. As non-custodial parent, I include my half each month with child support.

I have recently found out on my own that the mother has not been paying the insurance premiums and that it has lapsed. Yet I have never been informed of any change in premium amounts and have continued to pay 1/2 of the last known premium amount. In other words, she's pocketing money intended to fulfill the order.

Obviously, fraud has occurred, as she is taking money intended for insurance premiums and using it for other purposes. However, is there contempt here too? That is to say, she is required to pay 1/2 of premiums, as well. And although I have, she has not.  Note that she did not, herself, cancel the insurance, but rather it was canceled after three months of non-payment.

Any other ideas?



2
Dear Socrateaser / Judicial misconduct??
« on: Oct 25, 2007, 08:01:51 AM »
Around here, the standard answer for legal questions is "hire an attorney". So, last week, I attempted to do just that. My goal was to get a judge recused for what I believe are actions and remarks demonstrating a clear and partial bias against me and in favor of the ex.

I went to three different attorneys and explained the case in detail to each of them. In the end, the cost was simply going to be too great to bear on top of what I'm already paying in support just to stay out of jail. (Yes, my ex is one of those who LOVES to file contempt charges when, for example, medical payments are not strictly paid in 30 days.)

Well, I just found out yesterday that one of these attorneys contacted the judge personally following our consultation and gave him a "heads up" about the impending effort to recuse. The judge in question not only accepted this information but solicited the attorney to provide him with a copy of my proposed motion.

It is my understanding that anything said by me to the attorney is privileged, even if he was not ultimately hired. If correct, than this attorney has made a serious breech of ethical standards. But what of the judge? Who is this to be reported to? What are the ramifications? What is the oversight for judges to which I may turn?

And yes, I do have evidence, but for prudence sake please let us not get into that issue at all right here for now.

Thanks



3
Dear Socrateaser / Vacate motion?
« on: Oct 17, 2007, 02:39:14 PM »
Dear Socrateaser

State of GA.

It has become routine for ex to accuse me of not paying support even though I send it every month without fail. A co-worker who is familiar with the matter volunteered to address and stamp each envelop and deliver it to the post office directly on my behalf. We even began recording this on video when it appeared that the checks were not being cashed after several months with the idea that, should she raise yet another contempt complaint, I might show that she was, in fact, lying to the court, and possibly put an end to this rubbish behavior.

Sure enough, in May of 2007, she filed a complaint alleging that I had failed to send support "from December 2007 through May of 2007", seeking back support and attorney fees. (Yes, she said Dec '07 instead of '06.) A hearing was held in September. Prior to the hearing, I put a stop-payment on all of the original checks and sent a single large payment to her attorney, filing a photocopy of it with the court. The check had cleared before the hearing date.

Prior to the hearing, her original complaint was never corrected or amended. I carried proof of the cleared check with me, along with a sworn affidavit from the individual who had deposited all of the earlier checks in the mail on my behalf. Seemed open and shut and I wondered why she was still insisting on the date. (No requests to her attorney for negotiations have EVER been answered.)

At the hearing, her attorney stood and claimed that payments from June through September had not been received. He further stated that there were uncovered medical expenses which I had not paid per order totaling about $200. I responded by first insisting that I had never been served with any complaint about non-payment of June through September support to which to prepare a defense, and that her pleading also said nothing about uncovered medical expenses, and that I had never been otherwise informed about such expenses.

The judge said "Well, the child needs the support" and then just turned to her attorney and, without seeing any evidence whatsoever, began adding up numbers. He issued an order right there (already prepared by her attorney... convenient) finding me in contempt of court for non-payment of support and uncovered medical expenses, and ordering me incarcerated until the amount was paid. Furthermore, he ordered that I pay $1500 in attorney fees. The order specifically states that I could purge the contempt by payment of the arrearage "plus $1500 for the cost of this action".

1 - The ex presented not one single document or evidence at the hearing. No exhibits or affidavits... just the complaint. All of her claims were simply taken at word, while I offered documentation and affidavits. Does this fulfill the requirement of an "evidentiary hearing"?

2 - To speak in the vernacular, what's up with bringing a new laundry list of complaints to court without a chance to respond? I never heard a single word about uncovered medical expenses, and to this date don't even know what that money was for. No previous complaint. No proof of payment. Is this appropriate procedure? My protest in court over the matter was completely ignored.

3 - I may not be the brightest bulb on the Christmas tree, but it seems to me that the simultaneous order to pay attorney fees and to be incarcerated until such fees are paid constitutes both an absence of due process and an imprisonment for a debt... both of which are unconstitutional. There was no previous order for attorney fees for me to be in contempt of, and no opportunity to pay the attorney fees until after being incarcerated. I realize that this makes things very fast and convenient for the attorney to collect his fees, because who wants to be in jail? But geez, since when did we suspend Constitutional right for the sake of expediency? Am I making too big of a deal about this, or was this a gross violation of constitutional rights? Does it make the order invalid on its face?

4 - Many weeks prior to trial, I had requested discovery from the ex for documents relevant to her complaint, in addition to financial information in response to her request for attorney fees. In Georgia, the law REQUIRES a judge to "consider the financial situations of both parties" when attorney fees are requested in domestic matters. The filed and served request was ignored. A week prior to trial, I filed and served a Motion to Compel. It was never answered. The order mentions nothing of these outstanding matters or motion. Was an award of attorney fees at the time of trial beyond the discretion of the judge at that time?

5 - As mentioned earlier, her attorney drew up the order in advance, leaving blanks beside dollar signs until the judge filled them in. It seems as if little, if anything, is correct or lawful about the order, and the defects within it, such as the imprisonment for a debt, are un-amendable. Do any of the things I have described justify the vacating of the order?

Many thanks

4
Dear Socrateaser / Ruling on motion
« on: Mar 02, 2007, 07:35:24 AM »
State of GA.

GA law says that rulings on motions will be without oral hearing unless requested otherwise by either party. In my civil action for parental interference, defendant filed a motion to dismiss, and I promptly filed a response. My response was filed 3 1/2 months ago and we have heard nothing from the court. I requested that a jury trial be granted. I did NOT file for a rule nisi.

1 - I know the wheels of justice move slowly, but does this seem unusually long? And if so, is there anything I can do to get things moving?

2 - Defendant's motion was VERY weak. Of course, I expected the motion, but her attorney did not raise the strongest arguments I had anticipated. In fact, the only caselaw she provided was both misquoted AND misinterpreted. Can the judge dismiss the complaint on any basis not specifically raised in defendant's pleading (other than obvious problems such as jurisdictional issues, of which there are none)? I know the "text book" answer, but what happens in the "real world"?

Thank you

5
Dear Socrateaser / Child support fraud??
« on: Nov 13, 2006, 05:37:54 PM »
State of GA.

Temporary support hearing held in May of 2003. BM submitted a financial affidavit per statutory requirement in a child-support hearing. Sworn affidavit claimed only minimal assets, no house, an meager earnings.  Judge awarded temporary child support to BM.

Six months later, following a hearing, judge made a final order of child support.

Fast foward nearly three years...

I recently find out that the very morning following the temporary hearing in May 2003, BM's father transferred his marital home into BM's ownership (allegedly to avoid having it be a part of his own imminent divorce proceedings). House is valued at close to $400,000. Shortly thereafter, BM borrowed cash against the house as collateral in order to purchase a second home for herself.

BM never updated her financial affidavit to reflect ownership of the house prior to the November 2003 final support hearing.

Statute of limitations for fraud (including child support hearings) is THREE years in GA. (Yes, the statute of limitations is running out soon.)

1 - Does the BM's failure to update her financial affidavit prior to the final hearing to reflect such a substantial asset constitute fraud by misrepresentation for which upon motion an order to set aside the judgment may be rendered?

2 - If fraud was committed and the judgment set aside, can attorney fees paid to BM as part of the original proceedings be recovered?

APPLICABLE STATUTES

Title 9, Chapter 11, Section 60
(d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon: (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant;

Title 13, Chapter 8, Section 12
"Fraud" means, in addition to its normal legal connotation, the following: a misrepresentation in any manner, whether intentionally false or arising from gross negligence, of a material fact; a promise or representation not made honestly and in good faith;

Title 11, Chapter 1, Section 201
(16) "Fault" means wrongful act, omission, or breach.


PS.

Background Only:  

Following the order of 11/03, BM's father continued to place other significant holdings in her name, including ownership of his real estate business and numerous personal land properties, as part of his effort to use BM as a "shield" for his assets.

Ironically, about one year following the final order of 11/03, BM actually brought an action for modifcation and attachment for FRAUD against ME, claiming that I had misrepresented my assets during the proceedings. She alleged that I had failed to reveal some $884,000 in stock. In reality, there had been a clerical error and my account was, for 24-hours, erroneously credited with an $884,000 stock purchase. In reality, the account had been empty for years! The motion was dismissed, of course.


6
Dear Socrateaser / Dismissal/ Burden of Proof
« on: Nov 09, 2006, 09:44:10 PM »
This is a followup to several posts I've had over the past few months. I filed for a declaratory judgment seeking recognition of my parental rights in GA as established in VA.

Quick background. Child was born and legitimated in the state of VA in 1997. We were both recognized as "fully equal guardians, with equal legal rights and equal legal powers in regards to [our] child." . Fast-forward to GA in 2000. Mommy decided to leave and take child with her. She says that child is illegitimate and that she has "all the rights". We co-parent voluntarily for about 2 1/2 years. Over the next six months, she begins withholding child. I file for an order of joint legal and physical custody. In her response, mother says that child is illegitimate and asks that the petition be dismissed.

There is no formal hearing. We meet in judges chambers (NEVER again!). Her attorney says case should be dropped because child is illegitimate. I show (as stated in my petition) that the child was FULLY legitimate in VA, and that federal law specifically requires all states to provide full faith and credit to determinations of paternity to all others states with the same force and effect as they enjoyed in their original state. Judge arrogantly states (verbatim): "I don't follow Virginia law. And I don't follow federal law."

(GA statute provides that stating the foreign law for which the litigant desires recognition in pleadings constitutes sufficient judicial notice for full recognition. Both VA and Fed laws were stated in the original pleading.)

There's no question that the child was legitimate in VA. The problem is having her recognized as such in GA. The pleadings of foreign law should have been sufficient. In addition, GA public policy expressly prohibits the "de-legitimation" of a legitimate child.

The hearing in chambers lasted about 90 seconds. The order states:

"Plaintiff contends that the child is legitimate and he brings this Petition to gain recognition of his rights by what he contends is Virginia law. The Court finds that the Plaintiff has not met his burden of proof and the Petition for Joint Custody is dismissed."

In response to my petition for declaratory judgment, respondent states:

"Plaintiff's Complaint is barred in whole or in part by the doctrine of res judicata due to the previous order entered on November 19, 2003, which dismissed Plaintiff's claims for custodial rights of the minor child based upon VA law. The Court found that Plaintiff had failed to meet his burden of proof for attaining custodial rights, based upon VA law, and dismissed his action. Plaintiff is now attempting to take a second bite at the apple in bringing this action against Defendent based upon his alleged custodial rights."  [END OF QUOTED RESPONSE]


Supreme Court Rule 67.03 states:

"Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." The general rule is . . . that "a dismissal without prejudice is not a final judgment," and, therefore, cannot be appealed." In a case of a dismissal without prejudice, a plaintiff typically can cure the dismissal by filing another suit in the same court; hence, a dismissal without prejudice is not a final judgment for purposes of appeal. In most instances, a dismissal without prejudice does not constitute an adjudication on the merits."

1a - The order does not specify that it is dismissed with prejudice. Seen in this light, and considering Supreme Court Rule 67.03, does the above order seem to be a final order subject to res judicata, serving as a bar in any way to future litigation? Or, is it dismissed without prejudice?

1b - Seems to me that "failure to meet a burden of proof" constitutes a dismissal of the petition, but not one of the merits of the action itself. Thus, a dismissal on the basis for such a failure would not automatically preclude a plaintiff from reasserting the claim based upon new factual allegations. Correct?

2a - The Order says the request for joint custody is dismissed. It does not, in my view, order that the child is illegitimate, but rather that the proof of legitimacy as a PRE-CONDITION to petitioning for custody was simply not met. So what is it really saying? (Or, if it's truly not appealable, does it really matter?)

2b - My original complaint was merely one for joint physical and legal custody in response to the separation of the mother and I. The paternity action in VA is protected under the principle of res judicata. Has the judge here actually adjudicated (or "re-adjudicated") the paternity issue? Or I am just reading something into it which isn't there? If so, what are the implications?

3 - Eventually, obviously, I want to petition for custody. But right now, I need the declaratory judgment for recognition of my parental rights. How does this order seem to affect a potential petition for declaratory judgment?



About a year following these proceedings, the mother brought a support modification against me. Although she voluntarily dismissed the action, she still (???) demanded attorney fees. During mediation, I acquesced in return that our child be recognized as legitimate. She agreed. The SIGNED mediation statement, written by her attorney, says: "Both parties recognize the legitimacy of their child as established in the state of Virginia at the time of her birth."  However, when her attorney prepared the order, he included the dismissal, and he included the part where I agree to pay half the fees, but he omitted the agreed upon condition of the recognition of legitimacy. He was supposed to send me a copy for inspection before going to the judge. He did not. The judge signed it not even knowing of the agreed-upon condition.

5 - In pursuit of recognition of my parental rights, is this document worth the paper it's printed on in some way? :) That is, while it's not an order of any type, can it be used in ANY way useful as evidence?

I ask all of these things because I KNOW that the mother is going to vehemently DISPUTE and FIGHT and attempt by me to exercise or obtain recognition of parental rights. She once suggested that her attorney told her that, according to the original final order (above), I have "no rights", and that the issue can never be re-litigated (due to res judicata). Naturally, I'm not depending upon her for legal advise, but I can use her statement as a defense to prepare for.

Much thanks!




7
Dear Socrateaser / Motion for Default Judgment
« on: Oct 30, 2006, 08:13:01 AM »
State of GA. More than 5 weeks ago, I filed a motion for the vacating/termination of a non-violent protective order obtained by my ex on the grounds that 1) the charges she brought against me which were the basis of the order had been dismissed in my favor, and 2) she had, herself, vititiated and undermined the order by consistently contacting me, approaching me, and soliciting me to do the same.

As of today, no response has been filed to my motion. It is now 7 days overdue. This leads me to believe that she does not intend to file a response. In fact, she had mentioned at one point during the summer that she may file the motion herself. However, as she lives a hundred miles away, it would be an inconvenience for her. So, the distance, along with her apparant indifference to the order at this point may be what has caused her not to respond.

1) Would it be prudent at this time to submit a Motion for Default Judgment? (I understand that SOME jurisdictions have a request form to submit, so I'll need to check on which is necessary in this case should this be the route to go.)

2) I'm not asking you to be a mind reader, but is there a prevailing attitude or pattern among judges to grant default judgments when the other party doesn't respond or show up to court?

3) Any other insights I should be aware of in a case such as this?

Thank you very much. Your help is always appreciated even when it is not the answer we want to hear!


8
Dear Socrateaser / Declaratory judgment
« on: Oct 22, 2006, 12:54:35 PM »
Dear Soc,

The issue here is a motion for declaratory judgment in the state of GA in order to have parental status and rights as established in another state by means of administration judgment enforcable in the forum state. The mother was a party to the administrative action in the birth state; she does not deny that I am the father, but she denies that the administrative action in the birth state legitimated our child. Legally, she in incorrect, but her contention, along with the absence of an ENFORCABLE ORDER within the state of GA, creates a question of law answerable by declaratory judgment.

(NOTE: GA statute clearly recognizes both administrative and judicial or have I missed something? judgments of paternity from all other states, requiring that they be afforded full legal weight and effect as they enjoyed in their original state. However, the statute doesn't provided any particular PROCEDURE (short of declaratory judgment) by which administrative judgments are recognized with full faith and credit in an "enforcable" form. )

I have prepared the motion, citing the applicable laws from the original state, and submitting proper notification for recognition of foreign law.
 
1 - The mother is, obviously, the defendant in this declaratory judgment action. And yet, as such, isn't the action effectively opening the issue of paternity and parental rights for RELITIGATION?

2 - It seems almost like splitting hairs, but in cases of actual controversey in which a declaratory judgment is sought, how can I avoid allowing the issue to become relitigated?

3 - I'm going to try and answer this question myself and suggest that when seeking a declaratory judgment, FACTS themselves are not litigated, but rather only the LEGAL EFFECT as applied to those facts. For example, the fact that both the mother and I performed the administrative act regarding paternity could not litigated unless the defendant claimed that it was the result of fraud or mistake. However, we may both argue our legal theories as to what the legal effect is in regards to having performed the act. Does this sound correct?

_________________________

Finally, I probably should file an amendment to my original pleading. At the time I filed it, I alleged that the defendant committed a wrong-doing (withholding our child) from time X to time Y. However, since the time of the original pleading, the defendant has commenced her harmful acts and they are ongoing. I cant get into court later, seeking relief, and expect the judge to recognize any request for relief from a cause of action that is different than what appears in my pleading.

1. I hope this question isn't too vague, but what elements are necessary to amend a complaint to reflect the resumption and continued nature of the allegation?


Much thanks!

9
Dear Socrateaser / Questions regarding financial affidavit
« on: Oct 18, 2006, 11:12:29 AM »
Hello Soc.

These questions regard the submission of financial affidavits in regards to child support proceedings. The state is Georgia.

On the morning of May 13, 2003, the mother and I appeared in court together for our first child support hearing (her petition). She had also asked for attorneys fee. At the time, she lived with her father and stepmother.Moments before the judge walked in, she handed me a financial affidavit. I had submitted one to her some 4 weeks earlier. The judge reviewed both affidavits. A temporary order was granted that day, ordering me to pay her $300 per month plus half insurance. After another hearing three months later, the unchanged final order was entered. (He did NOT award attorney fees.)

Eighteen months later, mother filed for contempt against me alleging that I had not paid CS for three months. Again, she was seeking attorney fees in addition to the alleged arrearage. We went to court and, in CHAMBERS, I presented three envelopes to the judge, all postmarked, showing that the checks had indeed been mailed but had been RETURNED TO SENDER because she had taken the child and moved away and her forwarding service with the post office had expired. She had failed to inform either me or the court of her new address. (She had continued to arrange pickups/dropoffs at the old house in order to maintain a ruse that she had not moved.) I was prepared to hand over the checks to her immediately and call it quits, but she didn't want to back down on the attorney fees, claiming that she wasn't responsible for the postal service's mistakes. Personally, I found that argument absurd, but I was genuinely trying to foster amicable relations in a deteriorating relationship for the sake of our child. I told the judge that I would AGREE to pay half of her attorney fees in the action as a gesture of good will. The amount that I paid to her was $750. During these proceedings neither of us submitted a financial affidavit. My financial situation had not changed since the proceedings eighteen months earlier, and I assumed hers had not, as well, especially since she had not changed employment.

Months later, she filed yet another contempt charge (groundless... she's just addicted to litigation) and asked for attorney fees.  At this point, I viewed her conduct as simply harassment, so I decided to at least not make it easy for her. In Georgia, attorney fees are discretionary, and as such, the person asking for them is subject to financial discovery. Accordingly, I submitted a lengthy discovery request for bank records, credit card statements, and all sorts of things. To my surprise, rather than retaliate, she dismissed the motion altogether.

About six months later, I bumped into her stepmother in public one day and we small talked. During that time, I learned that she was divorcing my ex's father. We stayed in touch after that by email, keeping each other informed about our cases.

A few months ago, her stepmother and I bumped into each other and public and started talking. Naturally, we talked about our respective cases. As we talked, however, we started seeing some things which caused us concern. She had filed for divorce on May 3, about ten days prior to my initial hearing. Between the 5th and the 13th, there were six separate attempts to serve him at his home (where, at the time, my ex also lived). Again, my hearing was on the 13th. On the morning of May 14th, he transferred all of the marital property, including the house, to my ex. He also transferred all stock in his privately held real estate corporation to her.  As a result of these transfers, Ed was able to appear in court and claim that he had no assets whatsoever (except an old car, clothes, and a computer).  Just hours after transferring these assets, he was finally successfully served.


1 - Was my ex under an obligation to inform the court (and me) of her substantially changed financial circumstances, which occured less than 24 hours subsequent to the temporary support hearing and three months prior the hearing in which a final order was issued?

2 - If so, were we each under continued obligation to during the contempt proceeding to keep the court and each other informed? Neither of us specifically requested any discovery. Again, I assumed her financial status had not changed.

3 - Had I known that her financial situation had so SUBSTANTIALLY changed, I may not have AGREED to pay half of her attorney fees. Does her failure to inform me and the court of these substantial changes in her financial status since the last time she submitted an affidavit constitute FRAUD? And, as such, are there grounds for demanding that they be returned?

I should point out that in the divorce hearing between her father and stepmother, the judge actually declared the corporation ILLEGITIMATE, saying that it clearly existed purely for the purpose of maintaining his own personal expenses. I am unsure how that affects my ex as sole shareholder, but thought it worthy of mention. The house, however, is still in her name (and actually up for sale at the moment) and is valued at around $400,000.

Other things of note which may or may not be relevant: 1) My ex, acting as Chief Financial Officer of the corporation, wrote checks to her father from the corporate over a period of two years (and during her contempt proceedings) totalling hundreds of thousands of dollars. On them, they allege that the purpose of the check is for a "loan repayment", yet no record has been produced in the divorce proceedings discovery reflecting any loans from him to the corporation. 2) The account reflects no other activity whatsoever except the annual corporate renewel and filing fee to the Secretary of State's office. 3) Although she is admitted by her father as the corporation's "sole shareholder", the corporation (or her father) has not filed an income tax return since 1993. Thus, it is difficult to ascertain the true financial worth or activity of the corporation. 4) The stepmother has filed a lis pendens on the house

Clearly, this is a case of two people attempting to conceal assets from two different court proceedings. Thus, any other insights you may offer would be appreciated!

Thank you!



10
Dear Socrateaser / Unusual question
« on: Oct 13, 2006, 12:15:36 PM »
Hello Soc... I know that this is an unusual question, so PLEASE be gentle on me!

During an unrelated domestic case with the same defendant, incriminating statements were made in the judge's chambers that are material to this new case. No court reporter was present... just my attorney, the pro se defendant, and the judge.

1 - Can a judge serve as a WITNESS in another court in a different county and on a different case (civil damages)?

2 - Are statements made in chambers by either an attorney, a pro se litigant, or a judge "priviledged" in any way?

3 - IF a judge can serve as a witness, naturally one would want them to do so voluntarily. If they didn't wish to, do they enjoy any particular "immunities" from subpoena (as they enjoy immunity from prosecution).

Again, I understand this question may seem a bit naive. They are extremely unusual circumstances, however, and it's probably not an issue that gets raised every day! I can honestly say, though, that the statements made in chambers are VITAL to the case at hand.

Thanks!
 

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