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Messages - annemichellesdad

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11
Dear Socrateaser / Ruling on motion
« on: Mar 02, 2007, 05:35:24 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

12
Dear Socrateaser / RE: Child support fraud??
« on: Nov 14, 2006, 04:36:18 AM »
Thanks for the honesty.

No, I don't want to take anything to court that won't work. Just seems like the spirit of the statute is to keep the court informed so that it can make proper decisions, and that not doing so as ordered constitutes misrepresentation by fraud.

We're currently looking for anything that shows that the BM knew PRIOR to the submission of the financial affidavit that she would own the house on day after. Short of that evidence, this is a dead issue.

13
Dear Socrateaser / RE: Child support fraud??
« on: Nov 13, 2006, 07:29:00 PM »
>
>
>If so, you've got a pretty good case. If not, you're case
>ain't so good. It could still work, but it depends on the
>judge, and how GA case law specifically interprets this sort
>of "intrinsic" v. "extrinsic" fraud. Intrinsic fraud is not
>actionable, because you didn't investigate sufficiently.
>Extrinsic fraud, that you could not have discovered via
>discovery, is actionable. That's the general rule GA rules may
>vary considerably based on the case law.
>
>>

That's consistent with how the courts in GA have gone. The problem is that I have found no jurisprudence concerning the treatment of Domestic Relations Financial Affidavits.

This is what the GA Uniform Court Rules say about financial affidavits:

** BEGIN **

Every action for temporary or permanent child support, alimony, equitable division of property, modification of child support or alimony or attorneys fees shall be accompanied by an affidavit specifying the party's financial circumstances. The affidavit shall be served at the same time that the notice of interlocutory hearing is served. The opposing party shall make an affidavit regarding his or her financial circumstances and shall serve it upon opposing counsel at least five days prior to the interlocutory hearing. If the parties are ordered to participate in mediation at any time prior to trial, each shall serve the affidavit upon the other at least five days prior to the mediation. Each shall furnish the mediator with a copy at the time of the mediation.
 
Failure of any party to furnish the above affidavit, in the discretion of the court, may subject the offending party to the penalties of contempt and result in continuance of the hearing until such time as the required affidavit is furnished.
 
The affidavit shall be under oath and in substantially the following form (example follows).

** END **

Interesting here that the court clearly says that an affidavit is required for BOTH the temporary and the permanent hearing. In other words, it doesn't look like it's merely an "option" to provide an affidavit at BOTH hearings. And because of the clear requirement by the court, the litigants should have the good faith that the requirement of the court will be just as binding as a specific request for discovery. In fact, it would seem that opposing discovery would, under such circumstances, merely AUGMENT the requirement of the court rather than substitute for it.

In a way, such required financial affidavits represent a discovery of sorts by the courts. The scope is limited, but when there is misrepresentation within the scope of the court's demand, the party should not be able to benefit from their deception simply because the victimized party relied on the answers in good faith. Since the affidavit is ordered by the court, and made under oath, one should be able to presume that the facts within it are as faithfully and honestly represented as if they were discovery requested by opposition. Indeed, if these answers, basic as they may be, are any less accountable, then what is their purpose?

Furthermore, it is logical to suggest that the party failing to provide a second affidavit may still be represented under oath by the facts represented within the first affidavit. Thus, any failure to provide a second affidavit so as to include substantial changes in financial circumstances since the submission of the first should accordingly constitute a extrinsic misrepresentation of the facts. They have not merely failed to provide information which might affect the course of the trial, but have failed to comply with a specific demand by the court to provide such information to both the court and the opposing litigant.

1 - I don't want to try and stretch this idea too far, and I'm certainly looking for other evidence which shows that there was an intent to hide assets from the court. Nonetheless, in the absence of jurisprudence on the subject, how does the above argument sound?

14
Dear Socrateaser / RE: Child support fraud??
« on: Nov 14, 2006, 04:36:18 AM »
Thanks for the honesty.

No, I don't want to take anything to court that won't work. Just seems like the spirit of the statute is to keep the court informed so that it can make proper decisions, and that not doing so as ordered constitutes misrepresentation by fraud.

We're currently looking for anything that shows that the BM knew PRIOR to the submission of the financial affidavit that she would own the house on day after. Short of that evidence, this is a dead issue.

15
Dear Socrateaser / RE: Child support fraud??
« on: Nov 13, 2006, 07:29:00 PM »
>
>
>If so, you've got a pretty good case. If not, you're case
>ain't so good. It could still work, but it depends on the
>judge, and how GA case law specifically interprets this sort
>of "intrinsic" v. "extrinsic" fraud. Intrinsic fraud is not
>actionable, because you didn't investigate sufficiently.
>Extrinsic fraud, that you could not have discovered via
>discovery, is actionable. That's the general rule GA rules may
>vary considerably based on the case law.
>
>>

That's consistent with how the courts in GA have gone. The problem is that I have found no jurisprudence concerning the treatment of Domestic Relations Financial Affidavits.

This is what the GA Uniform Court Rules say about financial affidavits:

** BEGIN **

Every action for temporary or permanent child support, alimony, equitable division of property, modification of child support or alimony or attorneys fees shall be accompanied by an affidavit specifying the party's financial circumstances. The affidavit shall be served at the same time that the notice of interlocutory hearing is served. The opposing party shall make an affidavit regarding his or her financial circumstances and shall serve it upon opposing counsel at least five days prior to the interlocutory hearing. If the parties are ordered to participate in mediation at any time prior to trial, each shall serve the affidavit upon the other at least five days prior to the mediation. Each shall furnish the mediator with a copy at the time of the mediation.
 
Failure of any party to furnish the above affidavit, in the discretion of the court, may subject the offending party to the penalties of contempt and result in continuance of the hearing until such time as the required affidavit is furnished.
 
The affidavit shall be under oath and in substantially the following form (example follows).

** END **

Interesting here that the court clearly says that an affidavit is required for BOTH the temporary and the permanent hearing. In other words, it doesn't look like it's merely an "option" to provide an affidavit at BOTH hearings. And because of the clear requirement by the court, the litigants should have the good faith that the requirement of the court will be just as binding as a specific request for discovery. In fact, it would seem that opposing discovery would, under such circumstances, merely AUGMENT the requirement of the court rather than substitute for it.

In a way, such required financial affidavits represent a discovery of sorts by the courts. The scope is limited, but when there is misrepresentation within the scope of the court's demand, the party should not be able to benefit from their deception simply because the victimized party relied on the answers in good faith. Since the affidavit is ordered by the court, and made under oath, one should be able to presume that the facts within it are as faithfully and honestly represented as if they were discovery requested by opposition. Indeed, if these answers, basic as they may be, are any less accountable, then what is their purpose?

Furthermore, it is logical to suggest that the party failing to provide a second affidavit may still be represented under oath by the facts represented within the first affidavit. Thus, any failure to provide a second affidavit so as to include substantial changes in financial circumstances since the submission of the first should accordingly constitute a extrinsic misrepresentation of the facts. They have not merely failed to provide information which might affect the course of the trial, but have failed to comply with a specific demand by the court to provide such information to both the court and the opposing litigant.

1 - I don't want to try and stretch this idea too far, and I'm certainly looking for other evidence which shows that there was an intent to hide assets from the court. Nonetheless, in the absence of jurisprudence on the subject, how does the above argument sound?

16
Dear Socrateaser / Child support fraud??
« on: Nov 13, 2006, 03:37:54 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.


17
Dear Socrateaser / Dismissal/ Burden of Proof
« on: Nov 09, 2006, 07:44:10 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!




18
Dear Socrateaser / Just one more question :)
« on: Nov 08, 2006, 07:16:20 AM »
Thank you for all you help. Just one more quick question.

I realize that, generally, you must be granted leave by motion to file an amendment to an original pleading, unless no response to the original pleading was forthcoming, allowing the plaintiff to file an amendment without having to file the motion to do so first. An amendment may, I understand, add to, delete, or alter parts of the original complaint, while adhering to the fundamental nature of it.

THE QUESTION:
Once the amendment is filed, does the defendant who failed or refused to respond to the original complaint then have an opportunity to respond to the entire lawsuit? Or, may they only respond to the issues brought forward in or altered by the amendment?

On the one hand, they seem to have forfeited their opportunity to respond to the initial complaints. On the other, the filing of the amendment seems also to keep all of the issues open for challenge.

Thank you again! :)


>Attorney fees to defend against a malicious pros are
>"out-of-pocket"/compensatory, because they arose not in the
>present action, but as part of the injury caused by the
>defendant.
>
>You're actually lucky that your ex didn't respond. Most courts
>won't allow an amendment of damages to include a different
>class of damages not originally pled (general, special,
>punitive).
>
>But, since you never pled any specific damages, you're
>probably ok, either way.

19
Dear Socrateaser / RE: No response
« on: Nov 07, 2006, 11:42:41 AM »
I had a feeling that an amendment might be in order if she did not respond.

The attorney fees I requested were not to compensate for the tort action, but rather the fees accrued in defense of her malicious prosecution accusation. I spent $2500 on an attorney defending myself last year. Several months after being successfully defended, I wrote to her attorney requesting that she pay at least HALF of those fees, since her charge was obviously frivilous and malicious, and, of course, terminated in my favor. No response, of course.

>
>Well, you seem to have finally identified the reason why your
>ex never answered your complaint.
>
>Legal Damages 101.
>
>Malicious Prosecution and False Imprisonment are tort actions.
>Damages in such cases must be foreseeable, unavoidable,
>causal, and CERTAIN.
>
>In short, you must plead for a specific amount of money in
>your complaint or your judgment will grant you only nominal
>damages.
>
>On your count for declaratory relief, you're not asking for
>damages, so you won't get any.
>
>As for attorney fees, they are not allowed in a tort action,
>unless your case acts to provide a benefit for the entire
>public (called the "private attorney-general doctrine"). Also,
>you can't get attorney fees unless you have an attorney (or
>you are an attorney and you are charging for the reasonable
>cost of your own legal services, which you would have
>otherwise had to pay an attorney for, had you not been an
>attorney).
>
>In short, what you will win on your default -- is nothing
>($1.00 USD is the standard "nominal" damage award).
>
>>2 -  Should the motion for default judgment address the
>issue
>>of amounts in any way?
>
>You need to amend the complaint and plead a specific damage
>amount, and serve it on the defendant. Example:
>
>"Wherefore, plaintiff prays for general damages in the amount
>of $________,"
>
>General damages are damages intended to make the plaintiff
>whole, i.e., to compensate for the pain and suffering which
>defendant caused plaintiff.
>
>You could also pray for special damages, but you must
>specifically request them. Example: "Plaintiff further prays
>for special damages in the amount of $______ to recover for
>lost work occuring during plaintiff's incarceration."
>
>Special damages are damages for injuries sustained that are a
>natural consequence of the injury suffered, and which were
>reasonably foreseeable in advance.
>
>Incidental damages are actual out-of-pocket costs (a species
>of compensatory), resulting from the injury, which should be
>pled separately, although, as they are the easiest to prove,
>they can usually be dumped into the compensatory damage award,
>unless they're really big (e.g., cost of posting bail, impound
>fees, ambulance/ER room charges in personal injury action,
>etc.).
>
>Finally, you could also plead for punitive damages where
>defendant's actions are intentional, willful and malicious.
>False imprisonment and malicious pros are both intentional
>torts, so punitives are allowed, but in some jurisdictions you
>must file a motion to plead punitive damages, showing good
>cause as to why court should punish the defendant, rather than
>plead for punitives in the complaint itself.

Yes, GA is such a jurisidiction in which punitive damages must be plead in a separate motion. In fact, I've heard of cases being overturned in which punitive damages were awarded when requests were made in the original pleading rather than a separate motion. (I guess attorneys make mistakes, too!) Georgia has also placed a cap on punitive damages of $275, and 75% of any such punitive award goes to GA's own general treasury.

>
>Also, some jurisdictions place limits on punitives, and there
>are constitutional limits created by the due process clause,
>which essentially says that punitives more than something
>between 3 and 10 times compensatory damages violate the
>defendant's right to be free from arbitrary, capricious and
>unfair government action.
>
>So, it's back to the drawing board.

Yep, I didn't go through all the trouble to collect only the $2500!

20
Dear Socrateaser / RE: No response
« on: Nov 07, 2006, 06:19:40 AM »
I've given it more time for a response, and one hasn't been forthcoming, so I'm going to go ahead with a motion for default judgment. Her father seems to be doing the same thing with a divorce, so maybe he's counciled her in that direction... it's kind of a habit for him. I thought for a while maybe she had an attorney and he had found some fatal flaw in the lawsuit that would not require her to answer, but she's done some things lately which clearly suggest she doesn't have an attorney at all.

However, I have two questions about the motion for default judgment. The original complaint consisted of several counts. One of the stated requests for relief was for reimbursement of attorney fees for my defense of her claim which was dismissed (economic damages). For that, I requested an actual dollar amount, and provided an exhibit showing the amount. However, I also requested non-economic damages "in an amount to be determined at trial". A jury trial was requested.

1 - If there's no trial, and no jury to decide upon the damages, how will these damages be decided?

2 -  Should the motion for default judgment address the issue of amounts in any way?

Thank you!

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