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Author Topic: Vacate motion?  (Read 4318 times)

annemichellesdad

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Vacate motion?
« on: Oct 17, 2007, 01:39:14 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


MixedBag

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RE: Vacate motion?
« Reply #1 on: Oct 17, 2007, 03:36:18 PM »
motion for reconsideration maybe???

or

appeal?

don't know family law procedures in GA.....and you probably should ask an attorney how to proceed.

Soc -- isn't here anymore.

olanna

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Motion for reconsideration is a great place to start
« Reply #2 on: Oct 17, 2007, 10:41:07 PM »
and ask for a new judge.

Also, have a wage garnishment order set in place. Have your CS taken straight from your check...then no more lies on your ex's part.

And hire an atty.

annemichellesdad

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RE: Motion for reconsideration is a great place to start
« Reply #3 on: Oct 18, 2007, 10:38:04 AM »
The reason that I thought a motion to vacate was appropriate is because such motions address orders which are invalid on their face. In this case, the order finds me in contempt for non-payment of attorney fees for which their had never been an order of which to be in contempt for non-payment in the first place.

In other words, the order is non-amendable. The defect is on its face, and not merely a matter for reconsideration.

olanna

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RE: Motion for reconsideration is a great place to start
« Reply #4 on: Oct 18, 2007, 12:06:28 PM »
Do you know how to file that? I don't know, but I have doubts that a judge is going to go against another judges order. I believe I would hire an atty.

And another thing to remember...motions to vacate are usually given because the formatting is incorrect or the person failed the right forms and it has very LITTLE to do with the actual content in the order.


gemini3

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RE: Vacate motion?
« Reply #5 on: Oct 24, 2007, 04:17:20 AM »
Whether or not they justify vacating the order is up to the judge.  I don't know GA procedure, but in VA all parties must agree to vacating the order (including her atty).

If it were me, I would file the motion to vacate, but I would also hire an attorney.  The way I see it, I'd rather pay for my own attorney than hers.

Good luck

 

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