In under the wire?

[FLMom]

Brief history:

State of FL. I am NCP, ex is CP. Original Final Judgment visitation split 50/50 visitation w/joint legal. OK until 2003 when ex moves 40 mins away and remarries.

Ex unilaterally changes visitation to standard. I file for modification of custody due to this and other issues. Lawyers (mine especially) file portions of the case only after numerous phone calls and proddings.

Hearing finally a year after move. Judge allows parties to figure it out before he does. Both parties agree to CP remaining as is, and visitation with NCP Wed-Fri one week and Thurs-Sun next. Parties also agree that NCP should carry all of children's insurance, do majority of driving, and pay CP CS.

Ex's lawyer was very adamant that IDO be done instead of direct payments, and ex's lawyer was instructed at that time to file the IDO.

Although lawyers were directed by the judge to get together and file these stipulated agreements they did not. Judge orders telephone conference four months later. Ex's lawyer is there, mine is not.

Ex's lawyer told judge that I had not paid any CS to CP. Six weeks prior to this conference I had begun giving CP bi-weekly payment of CS payments, of monthly CS amount, after direction from the court clerk on how to properly document.

In light of my attorney not joining the telephone conference ex's attorney asks that CS be ordered as agreed upon (lowered amount). Judge then finalizes order as modification of custody denied. Further ordered is CS. And that's it. Nothing of what was agreed upon was entered by ex's attorney.

Final clause of "Order on telephone case management conference" is:

"It appears that the petitioner has abandoned all other Motions or Requests for relief. Therefore, unless the petitioner shows cause in writing within ten days of this order that other matters remain to be resolved, all other motions or requests for relief by the petitioner shall be dismissed without further order."

I knew from the clerk's website that a judgement was ordered, but was told by the clerk's office that it was in the recording department and would not be available until today. Today was the final day of the ten day period. My lawyer was unavailable.

With the help of the courthouse law library and Family Law Assistance Program, I was able to look up in the Florida Procedural Guide what I think was the proper motion. I wrote it out and filed it with 25 minutes to spare. Here is the exact wording of what I filed:

"Petitioner's Motion to Alter or Amend Final Judgment

Comes now, the Petitioner, XXXXX, and requests the Court enter an order to alter or amend the final judgement and for grounds says:

1. Parties made certain stipulated agreements during the time of hearing July, 2004.

2. Petitioner requests additional time by the court to enter these agreements into the final judgement.

3. This request is entered within ten days of the final judgement.

4. Petitioner asks that these agreements be considered a parenting plan to further be entered into the final judgement.

Wherefore, the Petitioner respectfully reqeuests the Court to enter an order granting the motion to alter or amend the final judgement."

I will myself be filing Monday those things agreed upon as the basic "parenting plan".


Questions:

1. Did I file and word this motion properly?

2. Will it be held against me that I did not pay ex direct CS even though ex's lawyer argued and won the IDO and never filed it?

3. Can a judge be hacked off enough at an attorney (mine) that he would go against the stipulated agreement that he made notes on, although the notes aren't entered into the official record?

4. What wording do I use for the motion that I file on Monday for the parenting plan that was agreed upon and witnessed by the Court?

Thanks as always for your help.
FLMom

[FLMom]

PS--

Forgot to mention that the morning of the telephone conference and with assistance of the clerk of court, I faxed the Judge's assistant the receipts of what had been paid directly to CP by me. I did see these faxes in our file at the courthouse today.

Didn't know if that would make a difference. . . .

[socrateaser]

>Questions:
>
>1. Did I file and word this motion properly?

Well, not really. You're moving to amend a final judgment that hasn't been entered yet. What you really wanted to do was simply move to order the stipulated to parenting plan. Anyway, I would just get that into the court ASAP, and see what happens.
>
>2. Will it be held against me that I did not pay ex direct CS
>even though ex's lawyer argued and won the IDO and never filed
>it?

No, I don't see any legal reason for this to create a problem for you.

>
>3. Can a judge be hacked off enough at an attorney (mine) that
>he would go against the stipulated agreement that he made
>notes on, although the notes aren't entered into the official
>record?

It's up to you to allege that your attorney has totally failed to observe his/her duty to zealously advance the interests of his/her client. If you don't, then the judge certainly isn't gonna rock the boat -- he's an attorney, too.

>
>4. What wording do I use for the motion that I file on Monday
>for the parenting plan that was agreed upon and witnessed by
>the Court?

Comes now, Petitioner, YOURNAME, Pro Se, and hereby moves that the court order the attached parenting plan (Exhibit #1), on grounds that it was stipulated to by the parties, but not filed with the court, due to Petitioner's attorney's apparent unavailability.

In support of this motion, I, YOURNAME, declare:

1. That I am Petitioner in the above-entitled matter, and if called upon, I could testify to the matters set forth herein of my own personal knowledge.

2. (recite the relevant facts that show that the parenting plan was agreed to, and when, and the various reasons why it was not moved for order prior to now.)

3. etc...o

I declare, under penalty of perjury, under the laws of the State of Florida, that the foregoing is true and correct:


By: ___________
YOURNAME
Petitioner, Pro Se
Address
City, State Zip
Contactfone

PS: I don't know what process is required to get a hearing on this motion. In some states, a calendar date is required when you file any motion, in others you must specifically request a hearing or the matter will be decided without one.

[FLMom]

So I didn't completely blow it. Whew.

Spoke with ex today. Feel that his lawyer intentionally
left out stipulated agreements knowing that I would
file and the process would begin again. Time==$$.
I will file the motion on Monday and if we can agree
to a true "parenting plan" file it at a later date.

You're da best!

[socrateaser]

Put "Dated, this ________ day of _________, 2004" above your signature line.

Duh!

[FLMom]

MOTION TO ORDER STIPULATED AGREEMENT

Comes now, XXX, Pro Se, and hereby moves that the court order the details of the attached parenting plan (Exhibit 1), on grounds that it was stipulated to by both parties, but not filed with the court due to the Petitioner's attorney's apparent unavailability.

In support of this motion, I, XXX, declare:

1. That I am petitioner in the above titled matter, and if called upon, I could testify to the matters set forth herein of my own personal knowledge.

2. Prior to the Court hearing evidence presented and ruling, on July 19, 2004, both parties made stipulated agreements in the presence of the Honorable Judge XXX. Attorneys for Plaintiff and Respondent were requested by the Court at that time to jointly write these agreements and enter them into the court records.

3. Plaintiff's attorney remained unavailable and further did not attend the telephone conference on November 17, 2004.

4. At that time it was Ordered and Adjudged that the Supplemental Petition to Modify Custody be denied. Further Ordered and Adjudged was the Petitioner shall pay child support in the amount of $225.00 per month beginning July, 2004. All child support arrearages prior to July, 2004 were waived.

5. The Final Order did not include any stipulated agreements.

6. Both Petitioner and Respondent have agreed with and abided by the visitation schedule set forth in the agreement. Both parties have agreed that pick up and drop off times on school nights should be 6pm instead of 8pm as stated July 19, 2004.

7. At the time of agreements being reached on July 19, 2004, Respondent's attorney requested child support payments be made under an Income Deduction Order. As the Order was not finalized no Income Deduction Order was able to be arranged. On October 17, 2004 Plaintiff began making bi-weekly support payments in the monthly amount directly to Respondent, and payments at this time are current through October 31, 2004.

I declare, under penalty of perjury, under the laws of the State of Florida, that the foregoing is true and correct.

XXX

[FLMom]

NM

[socrateaser]

Questions for you.

1. These "stipulations" that you allege, were they agreed to on the record in open court, but never reduced to writing?

If they weren't, then there was no "stipulation." It was just "negotiating."

And, if so, then you are not moving to enter a stipulated agreement, rather you are moving for an order modifying or establishing a parenting plan, and your argument for this must be based on your showing how this serves the child's best interests.

2. Why exactly has your attorney been unavailable? Attorneys screw up for sure, but they rarely miss a scheduled hearing, and if they do, the judge will typically kick their ass.

So, what's the "rest of the story?"

[FLMom]

We went to court in July with all of our witnesses lined up in
the hallway. Following the formalities the Judge held up our
folder and said that it was pretty thin, and that he liked to see
them that way. Said he was going to go get some coffee and
return some phone calls and give us a chance one last time to
decide things on their own before he did.

After two hours of negotitations, with the Judge sitting there sipping coffee, we announced to him that we had come
to some mutual decisions that covered all of the disagreements.
Respondent's attorney read them out, a few additions were made,
and the Judge made notes on this and repeated everything back.

A court reporter was present for the entire afternoon, entering
the opening words, the Judge's direction of trying to work it out,
and entered the agreement.

My attorney has been a problem from the start. This latest period
after the hearing has been the worst.

He moved offices and said he has been out of touch because of that
and "another case". Voice mail is always full, and when a message
is left it isn't returned. I finally found him at his new office this past
week, unannounced. He was contrite and apologized for not getting
back to me.

My attorney said that the 10 day response period was when the Order became available in the file, not the day it was actually filed.
We set a meeting time for this coming Monday to go over the Order together.

I knew that the final order had been filed because I saw it on the clerk's website over the Thanksgiving weekend. I went to the clerk's office Monday and was told that the Order had been filed but was still in the recording department and to come back on Friday. When I went back on Friday and read the Order it said that said "unless Petitioner responds within 10 days", and it was day 10, I filed the new Order to Amend myself.

At the time of my unannounced visit my lawyer did not tell me that he hadn't shown at the telephone conference. Just said that he and the other lawyer were in the process of "working it out". That's when I told him that the Order had been filed and the case closed. His words, "That's news to me!".

If I thought I could sue him and win I would. At least a report to the bar association.

. . and that is. . . . the REST of the story. . . . .(gotta love Paul Harvey)

[socrateaser]

MOTION TO ORDER STIPULATED AGREEMENT

Comes now, Petitioner, XXX, Pro Se, and hereby moves that the court order the attached parenting plan (Exhibit 1), on grounds that its terms and conditions were previously stipulated to in open court by both parties, but the stipulations were never reduced to writing or filed with the court due to Petitioner's attorney's consistent unavailability.

In support of this motion, I, XXX, declare:

1. That I am petitioner in the above titled matter, and if called upon, I could testify to the matters set forth herein of my own personal knowledge.

2. On, July 19, 2004, Respondent and I stipulated in open court to resolution of certain parenting issues, the court entered those stipulations into the minutes, and ordered the parties' attorneys to reduce these stipulations to writing.

3. For reasons that I do not understand, none of these stipulations were ever reduced to writing -- nor were they ever presented to the court, due to my attorney's consistent failure to represent me.

4. The attached parenting plan (Exhibit #1) represents my rendition of the previously referenced stipulations of the parties, and both Respondent and myself have regularly and routinely adhered to the terms and conditions contained in the plan as I have set them out for the court's review and approval.

5. For all of the foregoing reasons, I hereby request that the court order the parenting plan as attached.

I declare, under penalty of perjury, under the laws of the State of Florida, that the foregoing is true and correct.

Dated, this ____ day of _____, 2004,

By:______________
YOURNAME
Petitioner, Pro se
STREET
CITY, STATE ZIP
CONTACTFONE

[FLMom]

I'll file it tomorrow and see what happens. I'll ask when I file
whether I need to ask for a hearing or not. The clerk's office
here is extremely helpful.

Thank you for all of your time this weekend. I'll update when I
get word.

[FLMom]

Late night information from my daughter on Sunday changed things entirely. Daughter states that ex is now definitely divorcing new wife and "we'll be moving after Christmas, but I don't know where yet".

Had originally planned to file Order you helped with early Monday afternoon and keep meeting with lawyer mid-afternoon. Decided during day to hear out whatever explanations he might have then file Order if meeting did not have an acceptable outcome.

Lawyer states that he found out another trial of his was upped and attempted to reschedule the telephone conference but was suprised that it had gone on without him. Also states "mailbox rule", saying that the Final Judgment really wasn't final on Friday because due to the "mailbox rule" he had an additional 3-5 days to file and things would still be OK. That's when I handed him a copy of the order I filed the previous Friday, and told him that the case had been listed as reopened in any case.

We are meeting again this Friday, and he assures me that he and the other lawyer will have ALL entered into the Final Judgment by Thursday at the latest.

So, combining the two events, daughter's news and the case now reopened, I made a decision. A lawyer that already has my retainer money is better than me going pro se anyday in the event that my ex decides to flee the area with our children. The devil you know is better than the devil you don't. I could plunk another retainer down and end up with one worse than this. He does take care of things, my gas costs will just be higher from continually going by his office to make sure everything is happening when it should be.

Final Order should be FULLY written and in place by this Friday. If not, I still have the Order you helped me write and I WILL be at the courthouse this Friday before 5pm.

Thank you again for all of your help,
FLMom

[FLMom]

First off, I wanted to say thank you very much for all that you have helped me with thus far.

I really like our Judge. You said in an earlier post that it was up to me to prove that my atty had not supported my best interest and as the Judge was an atty himself he probably wouldn't want to rock the boat. Turns out maybe me just having to file anything on my own was enough to make the Judge sit up and take interest.

He rocked it. I think he nudged my atty.

(Sidenote- Final Order is written, because I went to my atty's office and watched him not only write it, but then call ex's atty and fax it over. Ex's atty wanted to add a few sentences but other than that it's finis.)

I received in the mail the answer to my last minute dash motion I filed that Friday when I couldn't find my atty. The Judge states:

Order on Petitioner's Motion to Alter or Amend Final Judgment

1. This Motion is denied, without prejudice to refile.

2. Petitioner is represented by counsel and the motion is not a proper pleading. Petitioner, through counsel, has additional ten days from the date of this order to show cause why her requests for relief should not be dismissed.

Question:
1. Does this look to you like the Judge is acknowledging that the attys should get this done, like yesterday?

2. As it is obvious that I botched properly writing the whole motion, have you ever seen a Judge grant additional time even when it's obvious the person hasn't a clue what they're doing?

Thanks Again,
FLMom

[socrateaser]

>Question:
>1. Does this look to you like the Judge is acknowledging that
>the attys should get this done, like yesterday?

Yep. Judge recognizes that your motion doesn't really address the issues, i.e., claiming "certain" issues does not provide sufficient evidence of cause for leave to amend. If judge wanted to get rid of you, he would have dismissed "with prejudice" (barring refiling)

>2. As it is obvious that I botched properly writing the whole
>motion, have you ever seen a Judge grant additional time even
>when it's obvious the person hasn't a clue what they're
>doing?

Yes, as part of the requirements of receiving federal matching dollars for child support enforcements, the State courts must give family law pro se litigants broad latitude in interpreting their pleadings in order to ensure substantial justice.