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Author Topic: motion for re-consideration  (Read 1572 times)

iamn00n3

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motion for re-consideration
« on: Jan 06, 2006, 09:26:19 AM »
I understand you read and respond to many posts a day so I will be breif and try to give you the short story to jog the memory.

My name is Eric and I live in the state of New Hampshire. My wife filed for divorce and a domestic violence restrainging order that alleged I commited acts which are absolutely untrue.

At the final hearing, I presented evidence and witnesses to the fact that I had never abused my wife or children, but still a finding of abuse was made. My wife lied utterly in her testimony, implicating two people of helping or "advising her' to file the petitions, and that one of them witnessed the bruising on her body.

Now to the reason for this post. I have submitted a motion for reconsideration to the court. In my motion i asked the court to:

1. allow for new testimony to be entered that was unavailable and/or unknown at the time of the final hearing.
2.admit testimony from witnesses claimed by petitioner to have direct knowledge or participation in her allegations of domestic violence/
3.admit evidence from witness claimed by petitioner to have direct knowledge or participation in her allegations of domestic violence.

under the why should the court make these orders i stated

1. temporary restraining order issued by this court prevented me from contacting witnesses
2. One witness was unknown to me at the time of the fnal hearing, she stepped forward and offered testimony afterwards.
3. witness has proof petitioner deliberately lied under oath at the final hearing.
4 witness can give testimony that I had no prior knowledge of at the time of the final hearing.
5. All of the above witnesses and evidence was beyond any reasonable ability of myself or this court to collect at the time of final hearing.

Now here's the thing, above is exactly what is on my motion but after submitting it I started to wonder if I shouldn't have written it differently.

So my questions to you Soc are as follows:

1. Should I have named the witnesses, described the details of what they would be testifying to?
2. Should I have included a request for a new hearing in this motion or will the court order a new hearing if they grant my motion?
3. Should I amend the motion, since the clerk informed me it is my right to dod so?
4. If you were opposing this motion how would you object to it?

My wife's attorney is very good and I fully expect to recieve an objection to it so I would like to amend the motion before that occurs.

As before thank you in advance for your very helpful advise.


socrateaser

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RE: motion for re-consideration
« Reply #1 on: Jan 06, 2006, 10:15:28 AM »
>So my questions to you Soc are as follows:
>
>1. Should I have named the witnesses, described the details of
>what they would be testifying to?

You should have included a copy of a sworn affidavit from each witness stating the facts that they intend to testify to at the hearing. There are two reasons for this: (1) the court will be forced to believe you and hold the hearing, and (2) if your witness changes his/her story on the witness stand, you can use the affidavit to impeach the witness' testimony, so as to not find yourself with an adversarial witness that you though was friendly, suddenly destroying your entire case.

The classic question that every trial attorney wants to ask a witness who's changed his/her testimony on the stand: "So, were you lying under oath then, or are you lying under oath now?"

Checkmate! Instant contempt and a jail sentence.

Frankly, you have a sizable problem, unless you can get those notarized affidavits immediately from the witnesses and submit them in a supplemental declaration of facts on your motion.

>2. Should I have included a request for a new hearing in this
>motion or will the court order a new hearing if they grant my
>motion?

Depends on local civil procedure. In some jurisdictions, you must ask for an oral hearing, in others the hearing is automatic. If yours is a jurisdiction that requires a request, then you'd better submit a supplemental motion and affidavit with your request, facts to support your new motion, and the witness' affidavits.

>3. Should I amend the motion, since the clerk informed me it
>is my right to dod so?

Be careful about what the clerk says. You're not amending the motion, you're supplimenting it.

>4. If you were opposing this motion how would you object to
>it?

I'd say that you had a full and fair opportunity to litigate these issues, and you failed to produce witnesses who you could have produced, because your attorney could have contact the witnesses, so as to avoid problems with the restraining order. As for a witness who you didn't know about, I would try to discount the exact evidence as irrelevant to the court's final decision on the order, and since you have yet to provide the court with any affidavit declaring what the witness will testify to that is new, then you haven't met your burden of producing new evidence, therefore the motion for reconsideration should be denied.
>
>My wife's attorney is very good and I fully expect to recieve
>an objection to it so I would like to amend the motion before
>that occurs.

An amendment completely replaces the existing motion. Make certain that the clerk knows that as a matter of law you have an unrestricted right to amend, because in most jurisdictions, you must ask permission of the court to amend, although the court is "supposed" to permit amendment freely. But, if the other party files their response before you file your amendment, then they will claim that their interests are prejudiced and they will want the amendment denied, or you to pay their reasonable attorney fees and costs for responding to a poorly prepared pleading (which I guarantee the court will grant).

However, if you merely supplement the existing motion, then this destroys the prejudice argument -- it just means that the other party gets to write a supplemental response.

 

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