Chances of winning motion to set aside

[Spaceman1982]

So my ex filed a motion to set aside the December order. 2 days before the cut off. Stating she was never physically served. My at the time attorney had mailed her the motion to two addresses and I emailed her the week of the hearing. She didn't show to court in December but the judge said the mailing and even my email sufficed and ruled for her to have supervised visits and me sole. She even went to Donnas House in mid January to sign up for visits and they told her since she waited more than 30 days to sign up she had to see our judge to get reinstated for visits yet she has waited til now to file and says I won let her see the kids and I ignore her emails. I do ignore the when can I see my kids emails cause she knew the court said supervised and I didn't want to fight with her.

[Simplydad]

If the notices were sent certified mail there is very little she will be able to do.  You are require by law to serve her but if I am not mistaken you only have to do so at the address she states she resides at.   Ignoring the letter is not enough to say she was not served.

Did she file this motion with an attorney or pro se?

[Spaceman1982]

He mailed the motions to her last two address on legal file in the court. The attorney at the time filed two different certificates of mailing. I thought if the judge felt like she hadn't been served properly he wouldn't even hear the matter?

[Spaceman1982]

Also. It wasn't a default judgement that was entered. It was a order.

[Spaceman1982]

sorry  she filed pro se

[MixedBag]

you're right to worry.....because you simply never know.

I'm on the side that she won't be successful.

but come back and let us know -- by sharing experiences, we all learn.

[Simplydad]

The judge may very well throw it out but as Mixedbag said you never know.  She filed a motion so she will be able to get to court to attempt to argue the case.  To stop it I think you only simply need to file a motion to quash base on the fact she was properly served. 

[MixedBag]

File an ANSWER to her Motion.

[Simplydad]

File an ANSWER to her Motion.

Exactly....that is what I meant to say......thanks for simplifying it for me MB 

[Spaceman1982]

Will do!  I got ahold of the attorney from the December hearing and he is gonna see me today so we can go over what he did to serve her.

I admit I gotta make a habit of coming around here more than I do to share my experiences.

[MixedBag]

You should also be able to extract that information (well, maybe) from your file.

If two certified letters were sent out, that information might be in there.....and the addresses to which they were sent.

[Simplydad]

You definitely need to file a response to her motion.  The reason she has a hearing is because the courts do not have the information that she was actually served.  So you would definitely need to get copies of the certified receipts.  Once you do that her motion is moot.


Did she have an attorney during the original process?

[Spaceman1982]

The Nevada system is weird. An attorney filing a.certificate of mailing is legit here. I checked our dockets and he did file two certs of mail for the motion and two for the order. Both send to the last two address she had on file. Nevada also will give you a hearing regardless of merit to speak. The calendar clerk just files and time stamps it.  If it has or lacks merit the judge will tell you when he sees you. I have seen my judge literally throw a couple cases out as soon as they stepped to the podium stating unwarranted motion dismissed.

No she has no atterney now or never.

[Spaceman1982]

Ok so I met with the old attorney. The judge had done a bench order in March justifying attorney fees (for me) and had acknowledged at that hearing that my ex hadn't responded within 90 days of the December hearing. He reaffirmed service was proper and ordered the fees. He also acknowledged that if she had failed to respond in 90 days sole custody was permanent for me.

Attorney told me that Nevada has a 6 month total window to set aside. However 3 months is for whatever reason. Past 3 months you have to have fraud involved. I did ask cause I have read that "default" judgements tend to get thrown out with set aside motions. He told me however, these were not default judgements but orders.

Also you were right, the calendar gave her a time....but the motion has yet to be approved, and it looks like her motion won't even be granted.

[MixedBag]

OMG Nevada???  That was EX#3's and his EX's state of jurisdiction.  He took his case to the NV Supreme Court...

I've never ever seen a state that bent over backwards for her when she would miss deadlines, break rules of evidence, you name it.  It was HORRIBLE.

So good luck and keep us posted about the results.

(Jursidiction for EX#3 was Humboldt County.....Winnemucca, NV to be exact.  No one lives there anymore and talk about being out in the boonies....yuck!  His judge was not re-elected and is somewhere in Las Vegas practicing as a private attorney).

[Spaceman1982]

Wow! How long ago was that?!?

[MixedBag]

Let me think.....like from 1999 to 2006

[Spaceman1982]

Wow. My judge is pretty good. By the book.

So her motion went through and my old att read it. She states she was never served cuz we mailed it to xyz (which is her last known address on file) and she hasn't lived there for at least 12 months and in a email she sent me she told me she lived at zyx. (she did send me this email, however I turned the address over to child support and they told me that was NOT her address via post office mail return. Something that was discussed at the Dec hearing)

So basically, every paperwork tells people they must update addresses within 10 days of moving like every motion order whatever. So my att says it won't matter. He has protocol he follows when his clients do proceedings and he did what the State of Nevada mandates he does, which is mail it to her last legal address. Combined with the fact our judge had already closed the case two months ago, she's in for a rude awakening.

I asked my att how much to oppose and court appearance and he said he can charge me and write a opp for a unfounded claim (me and him have a report plus the hearing is to close to have had adequate time since we still have yet to be served) so he is gonna just do his appearance and go from there.