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Much thanks! We'll try for the default, then!

One count is malicious prosecution. Another is for false imprisonment. The third is for a declaratory judgment for the recognition of parental rights in GA as established under administrative law and judgment in VA. (She claimed in one of maliciously prosecuted allegations that I had "voluntarily relinguished [my] parental rights". What?? Even if it were possible, I'd NEVER!!)

The county where it was filed is her own county of residence. The superior court of her own county should be able to excercise both personal and subject matter jurisdiction over the matter.

I've poured over every word looking for a "fatal flaw" which might justify no response, but simply can't find it. There's plenty of facts that she could ARGUE, but to not respond at all is bewildering.

The complaint 1) is in standard format, 2) details the parties to the action, 3) states jurisdiction, 4) alleges facts of wrongdoing and causes of action, 5) prayer for relief, summons, certificate of service, and verification. It was filed with the court clerk and served by the sheriff at her home.

Here is the statute regarding declaratory judgments:
Title 9, Chapter 4, Section 2 (9-4-2)
(a) In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
(b) In addition to the cases specified in subsection (a) of this Code section, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.
(c) Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.

>
>I don't know the facts concerning subject matter (the nature
>of the complaint) and personal jurisdiction (whether the court
>can fairly assert authority over the defendant), so I can't
>answer.
>
>You are quite the pro se litigator, I will give you that.

I have to be... this woman is addicted to litigation and keeps me busy! Every few months, she brings a civil action or criminal charge, and EVERY single one has either been dismissed by her voluntarily, by the judge, or by prosecutors! One time, after dismissing the a motion for contempt, she actually demanded that I pay her attorney fees! I figured that she needs to be on the defending side some time, or it will never stop! :)

State of GA

Forty-four days ago, I filed a lawsuit for damages against my ex.

It included:
1 - a verified complaint
2 - a summons (based on standard form provided by Georgia's court sysem)
3 - sherrif's acknowledgment of service (again, a form)

She was personally served by the sheriff just 2 days following its filing.

The documents have been checked and double-checked for accuracy.

As of today, I have received no response. State law permits me to file a motion for default judgment after 30 days if no response has been forthcoming. Before I do that, I want to stand back and look at the situation and see if there is something which I may be missing. She may or may not have an attorney. Her father has been involved as both plaintiff and defendant in 28 separate civil lawsuits in just 12 years and has always been pro se, and he may have counciled her to do the same. He also has a strong history of not responding to motions and not showing up for hearings. (He has lost more than he has won.)

ONE QUESTION:

Based on what I have said, do you readily see any pitfall into which my complaint may have fallen so as to not obligate her to respond in any way?

I understand that the issue of service and a summons is crucial to beginning each case and paid particular attention to these details. I just don't want to assume that she's willing to have a default judgment against her, and want to explore any avenues before filing it.

Sounds like the safest bet is to have her personally served with the same motion by process server. Since it has been five weeks since the original was filed with the court, do I need to voluntarily dismiss that motion and re-file, or  is the current motion ok to have served upon her. If so, one option might be to ALSO file a motion to show cause with the court and then have both motions served upon her simultaneously. How does this sound?

Much thanks!

>
>There is no default from a failure to appear on a motion to
>set aside. Depending on the jurisdiction, you must either (1)
>appear at the hearing and prove that the other party was
>personally served in compliance with law, and then argue your
>case, or (2) if you're in a jurisdiction where the court
>determines whether to hold oral argument on a matter, then if
>the court doesn't rule within about 5 days after the time to
>respond has passed, you can send a letter to the court and
>copy the other party, and ask that the judge rule based on the
>pleadings of the parties.
>


This makes sense. In fact, I found this in the locals rules after reading your response:

Rule 6.3. Hearing. Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict. However, oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled "Request for Oral Hearing," and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.

I need to MEMORIZE these local rules!


>And, you could still lose even if the other party doesn't
>appear.
>

Understandable. It's still within the court's discretion, and they're only going to treat the motion/pleading as if the facts as stated are true, but not necessarily if they have any legal merit, correct? That is, the judge isn't going to argue the defendant's case in their absence, but he still has to follow the law and render a sound judgment within his discretion.

>The best way to have this set aside is to get the other party
>to sign a stip agreeing to vacate the order.
>

My first choice, but not likely due to certain personality characteristics at work here. I have a witness who said that she intended to, but she really has no incentive to go through the trouble.


>
>A default judgment only occurs in a case where an initial
>petition or complaint is file to start the case, the
>complaint/petition and summons are served on the other party,
>and that party never answers/responds.
>
>In your case, this is post-judgment relief you are requesting,
>which must be on motion for an order to show cause, personally
>served on the other party. If you didn't do all that, then you
>haven't done anything, because your opponent has not had her
>procedural due process.
>

QUESTION 2:
Are you suggesting that the motion to vacate the judgment is worthless because it did not include a motion for an order to show cause, and that it must be served personally, and not merely by mail process? Or, can the motion to appear and show cause be served following the already-filed motion to vacate? I'm a bit confused here. If I'm reading this correctly, I must NOW file a motion to show cause on top of the the motion to vacate? (Dumb basic question: can a motion to show cause be filed separately and at any time from a pleading or motion?)


QUESTION 3:
What are the consequences of her not filing a response to my motion within the 30 time limit?

QUESTION 4:
As there was no motion to show cause included with the motion to vacate, was service by mail still most likely proper?

QUESTION 5:
Is the motion to show cause in this case the same as a motion for rule nisi? Or, is it different because it is a motion for post-judgment relief?



>Where there is a DV restraining order in place, the court will
>be extremely reluctant to set it aside, unless you can show
>that the other party had no reasonable fear of abuse at the
>time that the order was put in place, or that she no longer
>has any.
>

The keyphrase here is "no longer has any". She has consistently called, emailed, approached me, initiated socialization, etc. Thankfully, I kept the voice mails, text messages, and emails, as well as a diary of the conduct in which she displayed absolutely no fear. Her behavior has been observed publically.


 
>However, if the other party was personally served, and has not
>appeared in the case, that by itself suggests that they no
>longer fear you, so that could work in your favor.

She has only been served with the motion to vacate, and has not filed a response to it.

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!

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!

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!

Very helpful, Soc, much thanks!

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!