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Hi Soc,

Reminder, I have four matters on calendar for May 24:

A) OSC to determine elementary school was continued from April 29

B) Clarify orders on Friday exchanges (due to biomom's decision to keep child home from preschool on Fridays and frustrate mid-day pick-up until later in the evening, her argument that preschool isn't "school", and her argument that "if no school" refers to child's attendance rather than school being in session or not)

C) Clarify orders on phone access (due to biomom's on-going refusal to allow phone contact under "No restrictions on phone access" that isn't specific enough to enforce)

D) Clarify orders on summer vacation (due to biomom's interpretation that "two weeks uninterrupted vacation" means she can split it up into however many vacation periods she wants totalling 14 days and/or 336 hours).


For elementary school selection, biomom timely served a responsive declaration and timely served a supplemental responsive declaration.

On the other three matters, I haven't received any response at all.  I've twice sent correspondence to opposing counsel, seeking to settle on my proposed language to clarify orders else for her to propose language that would similarly tighten them beyond question.


1.  Can you confirm my thought that deadline for responding on those matters is either 5 days (personal service) or 10 days (service by mail)?

2.  If there is no responsive declaration, have you experienced that it usually indicates a particular outcome if the moving party is requesting reasonable orders?

3.  If I'm not served timely (i.e., I guess yesterday was the deadline for personal service?), is it worth objecting (and would I do that prior to hearing via written objections, or at time of hearing orally)?

Thanks,
DD

Hi Soc,

Okay, I lost on my 19 counts of contempt, and I'm not sure why on most of them.

One of them, I got to argue pretty well, called a witness and myself.  This was on biomom's refusal to let me pick up daughter at preschool on Dec 17.  Orders state pick up is "after school or 5pm if no school".

Opposing attorney hammered everything on that count, including vague language.  Court was inclined to believe my case that biomom acted willfully, knew about the orders, indeed did what I claimed.  However, he bought opposing counsel's argument that the orders are too vague for contempt (i.e., biomom released daughter to me some time after school, but not AT THE END of school, as I argued).

On the phone access to daughter, judge said that I wasn't specific in the OSC for contempt and he was denying that portion altogether (i.e., all 18 counts).  He said something like the pleadings weren't appropriate for contempt.  I didn't get to introduce audio recordings of phone messages or my own personal testimony on it.

It really sounded like I lost all the phone call contempts due to some technical reason, not for lack of merit.

Opposing attorney did a 1118 in her closing arguments, and it sounded like judge granted it on the lost contempt charge (but other charges had already been dismissed).

Good news is that the judge said it's clear we need to clarify the orders on Friday exchanges, and I let him know that's already on calendar for next month.

I did two objections during cross, both sustained.  When I was on the stand testifying, and when my other witness was on the stand, opposing counsel was objecting every 20 seconds, 90% overruled.  After a few dozen objections, judge finally yelled at her, "Counsel, stop it!"  When she asked me to repeat something that she couldn't hear, judge told me to not repeat, that I spoke loudly enough and she should move on.

So other good news is that judge didn't seem irritated with me at all today.  He just ruled against me.

1.  What's a 1118?

2.  Any idea what went wrong on my contempt for phone calls?  As attachment to the Affadavit for Contempt for each of those 18 counts, I listed the date, time, phone numbers, and messages left on each attempt to reach my daughter, and I noted that biomom never called me back.  On the OSC for contempt, I noted "18 days in March and April '05" and noted continued on attachment.

3.  Can I go back and argue the same counts of contempt for the phone calls if I correct whatever problem I did, or is that like double jeopardy?

4.  I already have more than 5 more incidents of biomom refusing to let me talk with daughter, subsequent to filing for today's contempt.  Pressing my luck to immediately file another contempt?  But I just don't know what was wrong on my forms at this point.

Thanks,
DD

Hi Soc,

Prior attorney led me to believe biomom was personally served with judgment (i.e., just as he falsely led me to believe my objections were filed).

In preparing for the Friday contempt hearing, I'm not able to find any evidence (in my file) that prior attorney ever actually served her with this judgment.

I am able to show the following:

A) Subsequent to entry of judgment, biomom sent me two emails in which she refers to the current orders on other matters.

B) Biomom personally signed the settlement, which has exact clause on phone access as the judgment.

C) About a week into the two months of blocked phone access, I read aloud the judgment clause on phone access to biomom's voicemail, and I have audio recording of me doing that (recording has dial tone, digits dialed, biomom's voice in outgoing message, and my message with date and time also said aloud).

D) I sent approx 12 emails to biomom (after many of the days on which I couldn't reach daughter) advising her that she is violating the court orders, and asking for explanation.  She never responded.

E) Biomom was personally served with orders made prior to final judgment that likewise state parents shall have phone access to child (i.e., even if she was arguably unaware of the current orders, she was aware of prior orders for same and willfully violated them).

1.  Do you believe this meets the burden to demonstrate that biomom was aware of the order for unrestricted phone access?

2.  Else, any suggestions?

Thanks,
DD

Soc,

We have orders on summer vacation that aren't too tight because recall my attorney failed to timely object to their ambiguity (i.e., this one of the many problem clauses in our judgment):
--------------
Each party shall be entitled to two weeks of uninterrupted time with daughter... (irrelevant info about who picks first on odd/even years)... In 2004 and 2005, the weeks shall be nonconsecutive and shall not exceed 7 days including any regular custodial time.
--------------

If relevant to assess intent of the judgment, our signed settlement (preceding the entry of judgment based upon our settlement) says:
--------------
There shall be a two-week period during the summers of 2004 and 2005 during which each parent can be with daughter for the full two-week span.  (irrelevant information about who picks first)
--------------

The added line about splitting the weeks (in the judgment) came from biomom asking the court to rule that the two-week period should be split in half, as 2 weeks was too long for a preschooler.  The court so ruled.


Last year, biomom informed me in correspondence that she was allowed to take 336 hours of vacation (i.e., 2 weeks), and she advised notice of approx 20 vacations she intended to take, dissected into exact hours to cover only my custodial time.  She essentially tried to give herself 8 weeks total while only "using" 336 hours, each period split by a day or so (i.e., nonconsecutive).

I had right of first selection last year, and after much stupid bantering in email with her, she finally conceded after I told her that unless she decided to take two weeks (i.e., a total of two periods), I'd consider changing my vacation to be a couple hours daily (i.e., 336 hours spread across 160 days), so that daughter could benefit from seeing me every day... then I encouraged her to quit being ridiculous.  She conceded.

This year, she has provided notice of taking four vacation periods, each one a total of 7 days including her regular custodial time; and each one alternates against her normal custodial weekends (i.e., a 4.5 day span).  Her proposal means that daughter would go 8 straight weeks without spending any weekends with me over the summer.

This year, in her advisory, biomom concludes, "Please do not create conflict.  Contact my attorney if you wish to create conflict."  A person following the rules wouldn't even think to say that.  It's like a little kid who suddenly says when a parent walks in the room, "I didn't do it."

I wrote back, giving her 48 hours to reconsider her interpretation of the orders.  Today was the deadline for her vacation notice to me.

1.  Is it clear that it is the intent that these orders to provide only two nonconsecutive periods of summer vacation, each up to 7 days including regular custodial time?

2.  On resolving... write a letter to her attorney, seeking stipulation that the orders are per my interpretation and what parents mutually exercised last year, and then file an OSC to Clarify?

3.  Beneficial to have this OSC to Clarify heard on the same date as the other one (to Clarify Friday exchanges)?  I still have time to file and serve if I do it this week.

Thanks,
DD

Soc,

Sorry for machine-gun postings; many clean-up issues going on at once with me right now.

So, recall the newest conflict over interpretation of orders if "school" encompasses preschool for the clause saying Friday exchange happens "after school", else "5pm if no school."

I mentioned I have four emails from biomom referring to "school" (i.e., preschool).

And, of course, for 8 months we both acted on Fridays as though preschool was "school" before biomom decided that it isn't "school" and she is suddenly following the "if no school" caveat by keeping daughter home from preschool on Fridays and insisting on 5pm exchange.

ANYWAY, it suddenly occurred to me that our Monday exchange orders are written that I bring daughter "to school", else biomom picks her up from my home at "8:45AM if no school".

Biomom has never picked up daughter at 8:45AM on Monday from my home.  I always take daughter to preschool on Monday.  There has yet to be any objection to this from biomom.

It would seem that she and her attorney must convince the court that on Mondays, we agree that preschool IS "school" but on Fridays, they think it is NOT "school."

Attorney didn't want to stipulate to anything other than changing the orders to make 5pm the permenant exchange time.  I already filed my OSC to Clarify on it, but left out that point about Monday vs Friday (i.e., realized it too late).

1.  If I raise that final point (Monday vs Friday) at the OSC, NOW would you imagine that I'm golden?

Thanks,
DD

Soc,

Okay, got sub of attorney form served by mail, dated April 13.

In it, she provides copy of correspondence dated April 13 to the judge, asking "I request that you postpone signing the Findings and Order After Hearing.  I wish to order the transcript from this hearing and have the opportunity to review it and make any relevant objections on behalf of my client."

This was in reference to the March 22 OSC to Modify Support, wherein judge imputed biomom's income and then plugged everything into the dissomaster.

I served Findings and Order After Hearing on biomom by mail on March 31.  I based my Findings and Order After Hearing specifically and TO THE LETTER from the Minute Order the clerk gave me.

Biomom advised me by email that she would notify me prior to April 8 if she had any objections.

Given that the orders are pretty straightforward (i.e., new CS amount to be paid and each parent pays half of childcare directly to provider), I wasn't expecting any objections and didn't rush to file the Findings and Order After Hearing five days after service.  I haven't filed them yet.

To be clear, neither biomom nor her attorney have raised any objections.  Attorney just wants the court to delay entry because she doesn't know if she has objections yet... and possibly re-argue the case, after the matter has already faced a ruling.

I was planning on writing a cover letter to the court stating no expected objections, because biomom never signed and returned the proposed Findings and Orders.  But I probably can't do that anymore.

1.  How to proceed?  Write letter to the court, asking that these Findings and Orders be entered (on such a straightforward matter) in that it's well past the period to object, that there are STILL no state objections, and that biomom herself stated her own deadline that has come and gone?


Thanks,
DD

Soc,

I previously wrote about school selection for starting kindergarten, and you gave me general terms of what I needed to show.

Mom wants private Catholic school.  I want public elementary school in mom's neighborhood (or secondly, public elementary in my neighborhood, which is also very good, but not as good as the other).

I've spent considerable time reviewing both her choice and my choice (including school tours, talking with administrators, etc).  Because her choice is private, there's not much objective evidence available about it.  It's clean, the teachers are nice, it seems like an okay place to go to school.

However, it doesn't seem to compare to the public elementary school in biomom's neighborhood.  On the public school, I can lay out the following:

A) It's top-ranked in LAUSD (among 700 schools), and one of top in the state, per API score.  Nearly 90% of its students are above average in the measured three Rs.

B) It's a demonstration site as a School for Advanced Studies, with involvement from members of the nearby UC campus.  Other principals come to this school to observe it.

C) It has separate classes for gifted students, beginning in grade 3.  "GATE" (Gifted and Talented Education) program typically doesn't offer entire classes, but this school is able to develop a large percentage of kids to meet GATE entrance requirements.  Half of its fourth grade is in GATE classes.

D) Duh, it's free.

E) It is integrated with STAR after-school program, which recently was recognized by US Dept of Education as being a model child-care program.  STAR is on-site at elementary schools as an extension of the day, with programs that include art, athletics, music, etc.  STAR costs only $365/month for 5 days after school through 6pm.

F) It's only 5 neighborhood blocks away from biomom's residence (i.e., child can walk to school with mom).  It's only 1 mile from my work.  (By comparison, the private school mom wants is 5 miles away).

G) Teachers have been there on average 12 years and are required to do continuining education for themselves every year per the principal's policy.

H) At least two (verified) of daughter's preschool classmates will be going to kindergarten here, including one with whom she has playdates.  Both attended her b-day party.


I know the argument about kindergarten is often about which one closest to which parent... but here I'm saying that I WANT the one in biomom's neighborhood, and SHE wants one 5 miles away (i.e., up to 20 minutes on surface streets in LA traffic).


1.  Are all of the above relevant to provide to the court for making a decision?

2.  Are hand-outs (e.g., provided by the school to prospective parents) adequate evidence to demonstrate the above?

Thanks,
DD

Soc,

My ex is queen of subjectively interpreting orders and finding creative ways to defeat their intent.

Orders state that I pick up daughter "after school" on alternating Fridays, "or 5pm if no school."

For two months, biomom has informed me that she is keeping daughter home from preschool on Fridays "for family time" and I should pick up daughter from her home at normal school ending time.  As this is preschool, I don't get to make much of a stink in court.

Biomom doesn't like me interacting with the preschool, so that's her motivation.

Today, she informs me by email that she has retained a new attorney who tells her that if she keeps daughter from school on Friday, I must pick up daughter at 5pm, not at normal school let-out time.

School was ordered to be the exchange point on the recommendation of the custody evaluator.  Biomom has defeated that, simply by not taking daughter to school.

1.  Does the phrase "or 5pm if no school" reasonably mean "5pm only when school is not held" or "5pm if daughter doesn't attend school, regardless of whether it's held" ?

2.  Does the fact that biomom has been acting like it means "5pm only when school is not held" ever since orders were entered have any bearing on how a court will view her sudden new interpretation?

3.  Is it contempt if I go to pick up daughter at normal end of school time, and daughter isn't available either at school or biomom's home?

4.  How would you suggest I proceed on this, or respond to her?

Thanks,
DD

Hi,

I'm posting as a new thread the discussion about police reports introduced as evidence, because I think your answer to my next question could be valuable for more folks than just me.

I've heard time and time again that contempt is very difficult to prove.

I have a contempt hearing coming up with 19 alleged counts of contempt cited.

One is for refusing to release child at an exchange.

The other 18 are refusal to provide phone access between me and child.  We have court orders for "unrestricted phone access betwen the child and the parent with whom she isn't currently placed."

She started blocking phone access the day she was served with my OSC to Modify Support, and the favorable ruling for me didn't seem to help the phone situation.

I think I have an okay shot at showing refusal to comply with orders on the exchange.

However, I can't imagine there's much of a way to PROVE that I attempted to make phone contact with child on those 18 days AND that I never got through.

I have audio recordings of the voicemails I left for biomom on her home and cell phones, and they registered the dial tone, digits dialed, biomom's voice announcement, and the message I left (including me saying date and time aloud in my message).

I also sent her an email after each day I couldn't get through to daughter, noting time I called and left messages, advising that she is violating orders, and requesting an explanation.

But, I obviously can't show with clear and convincing evidence that biomom didn't pick up the phone later in the day, didn't return my calls, etc.

I imagine that the judge may have a sense of what's going on with the blocked phone calls, but that he won't be able to find for contempt due to my failure to truly prove I never talked with daughter on each of those days due solely to mother's willful actions.

1.  In your experience, are the contempt hearings in themselves valuable for long-term strategies (i.e., future modification requests)-- regardless of outcome of the contempt hearings-- if a reasonable person can conclude what's going on despite that the threshhold for proving contempt wasn't met?

2.  Else, if the threshhold for proving contempt is so high, what recourse do we have to deal with uncooperative parents who seem well-advised to know what violations of orders would be difficult to prove?

Thanks for your thoughts.

DD

Soc,

OK, I'm all set to effect personal service on the (new) contempt hearing date.  I've looked in CCP and found the outline for personal service on an attorney, but not an individual.

My neighbor has agreed to walk up to biomom and serve her this evening when biomom comes to pick up daughter from my residence.  He's seen her around for 2 years so can easily identify her.

Biomom always stands on the sidewalk 30 feet from my front door (i.e., per orders) several minutes before pick up time.  Daughter won't see the service, as she'll still be inside with me.

I told my neighbor to just walk down the sidewalk, say something nonchalantly like, "I've seen you around, you're A's mom, aren't you?" and then hand her the papers.

1.  What constitutes service if biomom refuses to take the papers?  Can neighbor drop them at her feet?

2.  I can easily set up a camcorder in an inconspicuous window to videotape (no audio) the attempt to serve.  The sidewalk is a public place, so no worries on secret videotape.  Worthwhile to do?

I've got to serve by tomorrow for the 21 day mark, hence my desire to know what I need to accomplish.

Thanks,
DD

Hi Soc,

I've got upcoming OSC for Contempt hearings on April 19.

The first OSC is for 9 counts of contempt.  I subsequently filed a second OSC (same hearing date) for 7 more counts of contempt.

Separately, my wife served both by mail, signed Proof of Service By Mail.

For extra evidence, she mailed them both with Delivery Confirmation.

The first was confirmed delivered via USPS website.

The second OSC was mailed March 23, and it was never confirmed delivered though it shows mail date of March 23 (i.e., via USPS website).  The package was never returned to me either (i.e., the envelope had my return address).

Biomom was on vacation from March 24 to March 28, and she likely had her mail on hold.  Then if she got it all in a wrapped bundle, perhaps the barcode was never scanned for actual delivery.  The USPS said this was a possibility.


Related to this hearing, I propounded Request for Admissions regarding the events in question.  At my OSC to Modify Support, biomom said that my admissions were unreasonable in that they asked her to admit to the contemptible actions, which she can't be forced to do (i.e., of the 20 items, perhaps one could be characterized as an actual confession).  She wanted the judge to rule that she didn't have to answer them, and the judge told her to file a motion about it, if she wanted.  She has yet to confer with me about it.

1.  Given that I have Proof of Service by Mail, do I need to worry about the second OSC never being confirmed delivered?

2.  Isn't the law very clear on Requests for Admissions that the response includes admit, deny, object, or don't know... and that parties must attempt to confer/resolve issues prior to approaching the court?

3.  Is pleading the fifth a reasonable objection for civil contempt?

Thanks!

Hi Soc,

Judge didn't order either of us to write up the orders.  He just said that I can pick up the minute orders from the clerk during break.

I did that, and the clerk went ahead and mailed the minute orders to me.

They adequately represent what was ordered as to child support, filing the dissomaster printout, split costs on childcare, split costs on unreimbursed medical/dental.

1.  Do I need to prepare the orders, or is having the minute order sufficient?

2.  Should I serve anything on mom (who was present at the hearing)?  Seems like the orders are all about my own liabilities, so it's not like I'd ever need proof of service on her.

Thanks,
DD

Hi Soc,

OSC to modify child support (downward) today was towards the successful end.

Judge agreed to impute biomom's gross income at $3750, which was at the low end of the range that I felt evidence supported.

He plugged in that it's 30/70 timeshare, per biomom's estimate.  Exact split (i.e., total hours per year, as I anally calculated one night, attributing all school time to biomom's responsibility) is 34.8/65.2.  Judge asked for any input about that, I told him that the actual # is 35% (per my I/E Declaration), he said that he's only required to make an approximate number, so he'll stick with 30%.

Then again, he deducted my entire health insurance contribution amount (i.e., for including my wife too), so that's a wash.

So, in the end, CS is reduced by $150/month, which'll add up over time.

On childcare, judge ruled that we must split it.  Biomom declared that she has friends watch our daughter, hence incurs no childcare.

I asked for orders for right of first refusal prior to requesting reimbursement for childcare.

Judge said that obviously we don't get along, that such orders would only result in future contempt or Ex Parte hearings, so he doesn't find such an order possible.

He did order that parties are to pay their half directly to the childcare provider, in attempt to placate me, I guess.

I'm concerned that biomom will coordinate with friends that they'll give her "free" childcare while billing me for my half.  To date, biomom has refused to share any details about any babysitters with me.


1.  Is it having my cake and eating it too if I expect childcare to only relate to income producing activities, when biomom was just imputed at a full-time income (i.e., I guess she could claim up to 40 hours weekly, regardless of her activity)?

2.  Is it reasonable to ask biomom to have childcare provider invoice me monthly, including tax ID or SSN (for my tax reporting), and have days/times itemized on the invoice?

3.  Daughter is currently in preschool.  Am I right to assume that this is "childcare" that remains split between parents?  Or do I already contribute to that as part of child support?

4.  I asked court if orders today were retroactive.  He said, yes, to service date.  So, do I deduct the overpayment of CS from my next CS payments until fulfilled?

Thanks for all your help!  Not a homerun today, but certainly at least a double rounding towards third (i.e., baseball, not softball)!  Or would you call this a homerun?  I just have high expectations.  :)

DD

Soc,

Biomom responded to my OSC to Modify Support, mostly argued about what a SOB I am and bad father.  Her only relevant argument against income imputation was Cheriton (which you've previously discredited, so I have that).

As most reasonable people (who are devoted parents) would be, I'm distressed by her constant, broken record allegations that have no foundation in truth and constantly say how I'm unfit, hostile, etc.

In her response this time, she writes that "he locks up child in a dark room, refusing even a night light."

In 2004, she recorded a conversation between her and our (then 3 year old) daughter, in which she led daughter through saying that I lock her up.  She gave audio recording to the custody evaluator.

A) After audio recording appeared, I immediately took and passed a polygraph saying I've never locked daughter in any room.  Biomom, in deposition about the polygraph results, charged that I'm so disturbed that I can beat a polygraph.

B) Custody evaluator (clinical psychologist) in his report concluded that the audio recording was a reflection of child engaged in imagination (e.g., on the recording, child says that a spider finds the key, unlocks the door, and they drive away together).  Evaluator noted that none of the interior doors in my home have locks.

C) In deposition, biomom previously said she wasn't sure if what daughter says is true, but she thinks that it is.  Now, in her responsive declaration, she's stating it as fact without any caveat.



1.  Any action I can take that will give biomom the message to knock off the constant allegations?

2.  Will court care about all those things at the OSC to Modify Support, or can I just say that her allegations - though unfounded - really have no relevance in the instant action?

Thanks,
DD

Hi Soc,

We have joint/joint (per court ruling) with me at 35% timeshare.

There are no orders specific to how educational decisions shall be determined.

Daughter starts kindergarten in the fall.  Biomom has enrolled daughter in private K-8 Catholic school, which I'm debating just going along with.  We have two excellent public schools from which to choose as well.

Biomom claims her family will pay tuition.

I believe biomom won't agree to any stipulation, given our history.

Even if I go along with it, I'm concerned about biomom's ability to follow-through... which could disrupt child's education or cause a school transfer early on (i.e., chaos not good for the child).

1.  Biomom quotes FC3083 saying that she gets to make the choice, regardless of my agreement.  I see nothing in 3083 that says such.  Is she correct?

2.  Would it be reasonable to seek orders stating that biomom is responsible for child's private tuition, and if child can no longer attend said private school, I will determine her school choice (i.e., to avoid another chaotic placement)?

3.  School says that baptism is required for admission.  They say that my daughter is scheduled for a baptism in June.  This is news to me.  Is biomom required to share such decision/activity?  We have no orders on religion (i.e., I'm Jewish, and daughter attends temple with us, which biomom said she supported during deposition).

4.  If I decided I'm really against this school, will court more likely assign one of the parents to make an education decision rather than picking a school for the parents?

Thanks,
DD

Hi Soc,

I filed OSC for Contempt after biomom went 10 days without answering her phone or returning my calls to speak to daughter.  

Phone access hadn't been a problem before.  This all started the same day that she was served with the OSC to Modify Support.

Our orders specifically say, "Parents shall have unrestricted phone access" between daughter and the parent with whom she is not with.

Per your advice, I recorded my messages (i.e., each recording captured dial tone, numbers dialed, her voicemail announcement in her voice, and my message including stated date/time and requesting a callback) for the last five of the days (i.e., I started when you mentioned doing that).

Hearing date is April 19.

Even after getting served with the contempt OSC, biomom has continued to block phone access.  Never answers her home or cell phones, and doesn't return my messages left.

I continue to record messages left and document it all.

I've sent several emails within past 2 weeks, documenting inability to reach daughter and asking for explanation.  No response.

1.  For the additional instances that occurred after filing date, would I file some supplemental attachment to the original Affadavit of Facts Constituting Contempt, or is it enough just to bring it all to court and tell judge that day that problem has continued?

2.  If prudent to file a supplemental attachment, what would be my deadline?  21 days out or 5 days out?

Thanks,
DD

Soc,

Okay, got the OSC filed and served.  Laid out everything beautifully, let my entire argument rest on her own deposition about self-reported talent in teaching, experience, education, professionalism, and earning capacity.

So, I pissed her off apparently.

Over the past several days, she's suddenly decided to cut my phone contact with my daughter.  We've got court orders for unrestricted phone access.  No question - contempt - but provable?

Also, she's decided to refuse to let daughter join me for "Dad's Art Night" at preschool next week.  This is a bid annual shindig that they play up at the school, kids and fathers doing art and getting messy all together.  Kids expect it, fathers expect it.  School invites grandfathers or uncles for kids who don't have fathers available.

Dad's Art Night falls on her custodial time.  We have court orders that parents may both attend "educational appointments", but not anything about special events.

Finally, about once a year, I've got to try to reschedule/shift my custodial time due to day travel or working a bit late.  Feb 23 was biomom's birthday, and I happened to have day travel that would interfere with my dinner custodial time with daughter.

Re Feb 23, I sent email last week, suggesting biomom just take the dinner for her b-day.  No response.  I sent email the morning of Feb 22, saying I'll need to pick up daughter an hour late on Feb 23 and I couldn't find other arrangements to pick up daughter at 5pm (normal), so if she doesn't want the entire eve, I'll need to pick up daughter at 6pm... I asked for a response within 24 hours, else I assume we'll do 6pm.  No response.

Petitioner sent me an email about another matter at 5:09pm on Feb 23, so I know she read her email.  At 5:15pm (right after I deplaned), I tried to call to verify, no answer.  At 5:20pm on Feb 23, she wrote an email saying that daughter has been waiting for 20 minutes for me, so she's going to assume I'm waiving the dinner period with her.  At 6pm, I showed up to pick up daughter, not home.  I left 8 messages the eve of Feb 23 to make sure daughter knew I hadn't forgotten her... no answer nor returned call.

Regarding Feb 23, I was willing to give it up, obviously.  I'm disturbed that biomom apparently used it to poison daughter.

1.  How do I document the no phone calls?  Worth filing a contempt if it continues (even if judge just warns her, given the "he said she said" nature of it)?  Recall that I also have a prior contempt issue (refusing to release child to me from preschool at holiday time) that I never filed yet but do have a police report for.

2.  How best to document and use the obvious bad faith and acting against child's best interest in her decision to prevent daughter from attending Dad's Art Night?  Not worthy of an Ex Parte application to let daughter attend, is it (unless for strategic purpose to showcase her bad faith)?

3.  Re the Feb 23 incident... we have orders saying parents won't involve child in any dispute.  Orders say we'll communicate civilly and respectfully.  Do biomom's actions on Feb 23 arguably violate either of those?  Else, how to document the obvious bad faith and calculating misrepresentation she showed to let daughter believe I simply didn't show up?

Thanks,
DD

Hi Soc,

So I ended up filing a motion to reconsider while pro per with regard to the above-guideline child support and order of childcare with no finding of need.  It was heard today.

Judge started out saying he appreciates my position, but he has to tell me that regardless of what my attorney told me (i.e., per my pleadings), my attorney never filed any objections to the judgment at any time... it wasn't an issue of timeliness so much as simply an absence of any objections.

He then said that I should just file an OSC to modify support and childcare, so he's not sure why I filed this motion to reconsider.

I explained my concern about having difficulty demonstrating change of circumstance from the time the judgment was entered, versus the ease of showing a change from 2002 when I truly stipulated to these figures.

He said that he doesn't need me to show a change of circumstance, that I just need to file the OSC, and he'll run the numbers and issue new orders... he makes no guarantee that I'll like or dislike the outcome, but he'll run the numbers.

He suggested we go down to mediation today to stip on new figures that he can sign, so we be done with this.  I told him that Petitioner only works four hours per week, so we'd need to review evidence for earning capacity.  He responded, okay, you know what you're doing, so just file the OSC.

I told him that if he's telling me I don't need to meet the threshold for change of circumstance in order to have him consider an OSC to modify support, I'm happy today.  He said, great, we're done, motion denied.

So... cool.  On record.  That hump now done.  Thanks for your guidance on those issues.

Two questions.

1.  On my OSC, is it an actual accompanying motion to impute Petitioner's income?  Or just note in "Additional relief requested" on the OSC form something like "Impute Petitioner's earning capacity up to $X,000" and attach my declaration, along with Points and Authorities, on why she should be imputed.

2.  I sent my prior attorney correspondence requesting a reply by Feb 11 (including the language you previously suggested), and I enclosed a check for what I felt reflected the competent work part of the outstanding debt.  Today, he sent me my rights to ask for arbitration (but I don't have any complaint from him).  Any point in telling him about what the judge said on record today (i.e., that my attorney never filed any objections)?  Or next move?

Thanks, Soc!  I'm chipping away bit by bit, making progress bit by bit.  Just gotta accept that it all takes time.  But I resolved more in one silly little hearing than my attorney did in 8 months.   :)

DD

Soc,

Per orders, we have joint/joint.  Orders don't specify how major decisions are to be made.

Biomom, who claims she only makes $200 per month and who went Chapter 7 bankrupt in 2004, is wanting to enroll daughter in private elementary school for kindergarten this fall.

Given that biomom has no money, and that I'm repaying $50k of debt due to attorney/evaluator costs, private school ain't an option.

I asked her to outline her proposal for paying the $15k tuition.  She refuses to address it.  Her fashion is to ignore reality, do what she wants, and expect others to swoop in and fund/support her.

If we were lacking for good public schools, I'd see private school as a necessity.

However, the public elementary school for biomom's neighborhood is in top 10 percentile in state for API score.  I downloaded state data for API scores.  For API, that school is in the top 1% of all 2,000 public schools in L.A. County.  In LAUSD, it's #3 out of 600 schools.

In my neighborhood, the public elementary school is also in top 10 percentile in the state for API score, but not as stellar as the one in biomom's neighborhood.  However, there is also a magnet school in my district that opens a lottery April 15 for fall kindergarten, and residents of the district are weighted more heavily.

I'd hope daughter could attend either the public school near biomom, or the magnet school near me.

Child doesn't have special needs, btw.

1.  If biomom refuses to discuss a reasonable plan for kindergarten, should I just move forward with registering daughter in my district for kindergarten and trying to get her into the magnet school (i.e., and perhaps let that be a back-up if biomom's plan inevitably fails)?

2.  It's idiocy to ask the court to get involved, but given the vagueness of the orders-- is it reasonable to outline the above to the court, and ask the court to decide?  Or better approach to outline the above and ask the court to give me the decision-making on education?


Thanks,
DD

Hi Soc,

Recall that my attorney (recently dropped) had been billing me all along for his work to correct his failure to object to proposed judgment in a timely manner.  I've disputed each bill in writing per the terms of our retainer agreement, but never heard back.  Just watched the amount owed increase every month.

According to his office, I owe him $8k+, the vast majority of it clearly for his work to fix his error.

On bill disputes, retainer reads, "Unless you furnish our office a written objection to any bill or statement within 15 days from and after the date thereof, that bill or statement shall be deemed to be totally acceptable to you."

Retainer doesn't mention time period for attorney to address bill dispute.

ARBITRATION CLAUSE
There's a section entitled "Binding arbitration of disputes" that pretty much outlines that "any disputes between us" involving interpretation of the retainer agreement, fee disputes, performance of the attorney (including theories of malpractice, negligence, breach of contract, fraud, and breach of fiduciary duty) "shall be submitted to binding arbitration in L.A. County before a retired CA Superior Court Judge" following CCP 1282 and 1286.

There's a paragraph at the end of the Arbitration clause of the retainer that says the law firm has advised that I have a right to consult another attorney before signing the retainer, and that I DO or DO NOT desire to consult someone else.  That checkbox is left blank (i.e., I didn't sign either one).

On the first page of the retainer, it also says, "You will note that this Agreement contains a clause which provides that any dispute will be resolved by way of binding arbitration."

All of that said, nowhere in the retainer does it expressly say I am informed about and waiving my rights to bring action against my attorney in the event of malpractice.

SUBSEQUENT PROCEEDINGS CLAUSE
There's a clause that specifies that any proceedings subsequent to the judgment or order (i.e., that occurs after the law matter upon which the retainer is based) requires "separate negotiation and shall be subject to a separate written agreement."

1.  Am I screwed even considering the possibility of malpractice?  My damages would be additional attorney fees (i.e., his) and higher-than-guideline child support for months on end until remedied.

2.  Does the Subsequent Proceedings clause nullify the terms of the retainer agreement made before judgment, in that parties agreed a "separate written agreement" "must be" negotiated separately?  I.e., in that I didn't drop him until several months after the judgment was entered, it put us into the "Subsequent proceedings" period, and we never fulfilled the terms of the retainer by separately negotiating new terms (e.g., perhaps given that he had erred, I wouldn't have newly agreed to arbitration).

Thanks for your perspective,
DD

Hi Soc,

Got a few questions about the discovery process for when I go back to modify support and childcare.

I'm mostly going after a few admissions about her current work schedule (show change of circumstance and show childcare isn't needed), checking account statements, 2003 tax return (probably much different than the $200/month she declared to the court), and who has given/loaned her money (and how much).

1.  In post-judgment, is discovery still allowed?

2.  If so, would I need an upcoming relevant hearing on calendar (e.g., an OSC to modify support)?

3.  If I get my OSC on calendar to modify support (I'll put it out a couple months), and I propound discovery on the same day as filing... can I use my Reply as a place to introduce any new evidence to seal my arguments (likely also to counter her response)?

4.  I propounded discovery in 2003 with admissions, interrogatories, and production of documents (each was called Set 1).  Would this round now be called "Set 2"?

5.   Is this excessive for an OSC to modify support?  I feel if she were forthright with her finances, such discovery wouldn't be necessary.

Thanks,
DD

Soc,

Thanks very much for your replies on my issue.  Will ponder and decide.

You mentioned to another poster that final orders wholly replace all other orders unless final orders contain a clause like "all other orders remain in effect."

I just want to confirm that.

E.g., if 2003 orders state that my ex and I can record each other without need for consent, and if 2004 final orders (per Montenegro) doesn't mention it nor mention that prior orders remain in force, then that 2003 order is no longer in force?

Thanks,
DD

Hi Soc,

I know you said you wanted to think about it, so I'm a waitin' on any further thoughts you may have.  My file deadline is this Friday (to make a 10 day window).

I'm wondering if I file the Motion to Reconsider concurrently with an OSC to Modify Child Support would be improper or not.

I'm thinking this approach because:

A) I'm past my 60 days since judgment was entered, so no appeal, right?  So a judge with an ego may just as easily deny my motion to reconsider, no?  Or would the judge even care about the 60 day point?

B) If I offer my OSC to Modify Support at the same time, with an argument for change of circumstance that meets minimum threshhold, perhaps it gives the judge a way out to deny the motion to reconsider but then immediately look at a new support order via my OSC?

C) If Motion to Reconsider is granted, then I've got my OSC right there for ruling (i.e., including imputation for biomom's income), and change of circumstance is no longer an issue.

D) Once I file OSC to Modify Support, I can propound discovery to get further evidence (e.g., 2003 tax return) that would lock in change of circumstance for use in my Reply.

Thoughts?

DD

Hi Soc,

Per your prediction, biomom lost her OSC to strip me of my custodial time (and birthday with child) so that child could attend aunt's wedding.  Judge told her that he doesn't want to be bothered with weddings, graduations, parties, or any other petty issue outside of court orders.  I didn't get my attorney fees or sanctions.

On the 663 and 471 (or 473? I forget) motion to vacate judgment, judge did something weird.  Judge told my attorney that simply saying he objects to a judgment without specifically outlining objections isn't good enough, so judge denied my motion.

My attorney didn't remind the court that specific objections had been filed nor did he point out that my objections were outlined in my declaration for my motion-- he just said okay and we left.

Attorney is now saying he wants to meet with me to determine next approach (e.g., a motion for reconsideration, or OSC to modify support).  Meanwhile, he's still billing me for all his work (not that I've paid) to correct the judgment that was entered.

Attorney told me this morning-- in response to my letter I sent disputing fees-- that there's nothing on the record that his objections were untimely, hence he disagrees with my perspective.

Later today, on the record, judge informed him that the court doesn't have any specific objections about the judgment.

My attorney is still convinced that the judge is wrong on how the judgment was entered.

1.  If I were your client, what would be your next move on the judgment (i.e., court didn't explain why it deviated from guideline on child support in the absence of stipulated orders)?

2.  If I'm now paying health insurance for child, if biomom now has a boyfriend living in her home (i.e., may be contributing to expenses while biomom remains under-employed), and if I found evidence that biomom will be teaching a 3 weekend course in March at a college here-- is that all good enough for change of circumstance on child support?

DD

Hi Soc,

In 2001, upon separation, I moved into home #1, a private guest house on someone's lot.  A year later, homeowner was cited for having an illegal residence on her property (i.e., unbenownst to me) because the guest house was built without proper permits.

As a result, in 2002, I moved into home #2, an apartment.

In 2003, I got married and we moved into home #3 (current one), a single family home.  We've been planning to stay in this home until we were ready to buy our own in the same neighborhood (planning on approx 2007/08 to purchase).

All three of these homes have been appropriate for young daughter-- she's had a private bedroom in each one.

Current landlord recently apologetically informed me that at the end of our 2-year lease in spring 2005 (at which point it goes to month-to-month), he's going to sell the house and needs us out.  He's willing to write whatever note/affadavit we want (he knows of my custody situation) stating that we wanted to sign another long-term lease with him but that he's unable to do so.  Though he offered to sell to us without listing it, we can't afford to purchase anything at this time.

We're intending to sign a 3 year lease with our next landlord.  We've just been trying to find some calm and stability for us (and daughter) in our home.

Biomom has previously made an issue out of what she calls my frequent moving, since she's lived in the same place since 2001.  Against her, she has a small one-bedroom apt into which she's recently moved a man.

1.  If I'm intending to move to modify the parenting schedule within a year or so, does any of the above have a true impact on it?

2.  Does the above outline someone who frequently moves?  It's frequent in my eyes (when looking at my past), but I have no idea if it's frequent by a court's standard.

DD

Soc,

Attorney continues to bill me for all his work to correct the bad judgment.  I haven't been paying any of it (i.e., I paid everything else, but not what is his fault).

Can you give me your feedback on the following?  It's my most assertive bill dispute to date.  Do you think this starts a war I don't need until after attorney fixes things... or would it light a fire under him to fix it (i.e., to cover his butt)?

Per our retainer agreement, bill disputes must be in writing within 15 days, else fees are presumed valid.  His office has yet to respond to the three letters I've sent in past several months.

Thanks,
DD


------------------------

Dear Mr. Attorney,

This correspondence serves as a bill dispute for the invoice dated December 15, 2004.  I have yet to receive a response to my prior written bill disputes, per our retainer contract.

Please note that my account was paid in full in June 2004, having paid your office a sum approaching ((my daughter's future college education)).  All outstanding charges on my account have come since that time.  It's difficult to accept that I should pay any of the outstanding fees on my account for the reasons outlined as follows:

* Your office did not expeditiously respond to opposing counsel's draft judgments, despite my requests to do so (i.e., per facsimile transmissions from me, with confirmation of successful transmission).

* Your office moved for and/or appeared at a continuance in late June without advising me of such decision.  I presume this was because your office did not respond to opposing counsel in a timely manner to his initially proposed judgment despite my prompt feedback to you.

* Your office informed me of opposing counsel's final judgment draft 8 days after it was sent to your office.  Your office failed to object to the proposed judgment within the 5 days outlined in trial rules, and your office was aware (via prior correspondence from me) that the proposed judgment contained unacceptable clauses.

* In court on August 30, the judge advised you that I should file objections for the proposed judgment filed.  I provided your office with my objections on August 30.  Your office waited 3 more weeks and then filed my objections 32 days after opposing counsel filed his proposed judgment with the court.

* I haven't been able to modify child support due to the judgment that was entered arguably as a result of neglect within your office to object in a timely manner to a proposed judgment.  As a result, I have been paying far over guideline amount month after month.  This is a financial blow I've been willing to tolerate thus far, expecting that your office will absorb the costs of correcting the consequences of how it has handled the entry of judgment in my case.

* Your office advised me to incur fees in preparation to modify child support, with no basis in change of circumstance for the judgment filed with the court.  Because of this, the child support pleadings were never filed.  Such work product has had no benefit to me and was only pursued on the understanding it would come before the court and likely reduce my child support obligation.

I'm hopeful that your office will be able to correct its neglect in failing to vigorously object to opposing counsel's unacceptable draft judgment in a timely manner.  To date, I have not filed a complaint nor pursued any other remedy.  I understand that errors can happen and that no malice was involved—I'm confident your office will correct the consequences of an error it made.

If my perspective is not a reasonable one, please let me know.

Sincerely,

Hi Soc,

You may or may not recall that my ex wanted me to give up a weekend so daughter could be a flower girl at her aunt's wedding.  That weekend fell through, apparently, and the wedding was rescheduled.  Biomom has 26 weekends during her custodial time, half of spring break, Xmas week... plenty of opportunities to advise her sister when daughter will be available.

Biomom wrote me email around a month ago, advising me that they wanted to reschedule the wedding for Feb 12 weekend, acknowledging that it was my birthday during it and it was my custodial weekend as well, but that daughter is to be a flower girl.

My wife (gotta love her) has been planning something for my birthday, including my daughter.  I advised biomom that I was unable to accommodate her request.

Relevant factors:

A) Per court orders, it's my custodial weekend with daughter.

B) Our court orders specify that child is to be with each parent from 10am to 5pm on that parent's birthday (called a "special day" in the orders).

C) Our court orders specify that each parent is to consult with the other parent, and before scheduling any activities for the child during the other parent's custodial time, there must be agreement.

D) Our court orders specify that in the event of conflict between custodial, vacation, holiday, and/or special days, holidays and special days shall prevail.

E) In 2003, by email biomom denied my vacation time (i.e., our orders at the time allowed each parent to deny vacation based upon "a conflict") because my vacation was the day before biomom's birthday, and she had made family plans for her birthday.

F) Nothing in the orders gives biomom any authority or flexibility to request vacation outside of summer months.

So, biomom filed an OSC this week, seeking the court to issue orders that would take child 400 miles away for the Feb 12 weekend.  Biomom essentially argues (despite all existing orders) that aunt's (second) wedding is more important than father's birthday.

I'm dealing with a self-entitled person who has attempted to change orders on her whim many times a year.  If she was reasonable and cooperative-- without that history-- my perspective would be much different.  Total accommodation she's given me in 3.5 years is exactly zero.

I don't want to "reward" her into thinking that all she has to do to bully me in conceding to her scheduling whims is to file an OSC.

1.  Is there any judge who is actually going to ignore all existing orders and rule that an aunt's (second) wedding is more important than family plans made for a father's birthday during father's court-ordered special day that also occurs during father's court-ordered custodial time?

2.  Biomom claims to have purchased plane tickets already for daughter.  Is she in contempt for scheduling it for daughter during my custodial time, without first getting agreement from me?  According to order language, she is.

3.  Reasonable for me to ask for attorney fees to respond to this?

4.  Expecting your typical candor, any other thoughts?  

Thanks,
DD

Hi Soc,

Orders read that on Fridays, child is with me "from after school" or at 5pm "if no school."

Orders read that "Exchanges shall be at school where appropriate."

Today, my daughter's preschool let out a few hours early after a holiday program the kids did.  To avoid confrontation at school, I emailed biomom previously to advise her I'll be taking daughter home from preschool today upon its end.  She wrote back, disputing it, saying that I had to wait until the normal time that school ends, that she wouldn't let me take child from school.  I wrote back, advising that I hope she doesn't force a scene at the school, and if she violates orders, I'll need to get police report of it.

I videotaped my daughter's performance, happened to have the camera, and turned it on when biomom approached the post-program party in the kids' clasroom.  I asked her where daughter's stuff was.  She again said that I'm not taking daughter home.  I told her what orders say, that she's in contempt.  She said she's not.

When daughter entered classroom, biomom rushed over, grabbed her, said something.  Daughter said, "But I want to stay for the party."

I greeted daughter.  When daughter went to get cookies, I again asked biomom if she intends to stop me from taking daughter.  She affirmed.

All of the preceding was on videotape.  I made nice with the teachers, took off, and filed a police report.  Police didn't do anything but file report.  Police called her, claim that biomom told them I had to wait until 1:15pm per another agreement (no such thing exists).

I went to biomom's house and picked her up at 1:15pm.

1.  Because I didn't physically try to grab daughter at preschool and leave with her (not wanting a literal tug of war), did I waive the preschool pick-up?  Or is it enough that biomom's words made it clear she would not release custody?

2.  In itself, it's petty to go to court over losing 3 hours.  The bigger picture is the constant crap biomom pulls, and this is the cleanest contempt opportunity I've had.  Worth filing contempt (i.e., to add to overall pattern)?

Thanks, Soc.  Got another pregunta I'll post separately.

DD

Hi Soc,

The court sealed the evaluation report at time of trial.

I'm wondering what this means in terms of my ability to make reference to various things the evaluator reported.  I understand that it/s probably just for the protection of the parties' privacy, but I'm not sure if that report is now off-limits to raise again.

1.  In new pleadings/declarations, can I make reference to positive things about my parenting that the evaluator reported?

2.  In new pleadings/declarations, can I make reference to negative things about the other parent?

3.  If settlement at time of trial didn't incorporate evaluator's recommendations for future modifications (i.e., beyond the present), could I make reference to those recommendations as relevant when the time comes for future modifications (i.e., not changing custody, but modifying the parenting plan over time)?

Thanks,
DD

Hi Soc,

Hope your turkey day was a good one.

Update on my pending hearing scheduled Dec 6...

I had initially suggested to my attorney (in correspondence) to vacate the judgment in part, under 663, solely on the aspects that dealt with child support.   For reasons not discussed with me prior to him filing my motion, my attorney moved to set aside the entire judgment and enter the proposed judgment he had me file after petitioner filed hers.

In this instant motion, points in support were for 663 and 473, though my attorney's declaration admitted no neglect nor blame (i.e., recall my previous posts that he was far from timely on filing objections).  He insists that he was timely on everything in his declaration, and it's all opposing counsel's fault for not sticking to the settlement.

Petitioner (opposing side) went pro per right before I filed this.  Her response arrived... she's obviously got someone helping her in her pro per status.

Her points against 473 are focused on my attorney being "asleep at the wheel", and not objecting in a timely manner.  Given that my attorney's declaration doesn't state excusable neglect, and that he had opportunity to see the proposed judgment before it was filed (i.e., he sat on it for a week), there's not much surprise or neglect that was admitted on my side.

Her points against 663 is that the court received a proposed judgment, received filed objections before entering the judgment, and hence the  court must have considered all sides before entering the judgment.

Her explanation for including new orders on child support based upon a 2 year old stipluation are 1) it was "simply convenient" to restate them, and 2) including child support is required in a judgment on child custody.  She argues that the court merely entered orders that were already stipulated to in 2002 with neither side moving to modify it in 2 years (and I suddenly want to because I'm so litigious).

If it matters, I wasn't personally informed about the proposed judgment and its subsequent filing until 8 days after my attorney received it (and sat on it).

I have emails between Petitioner and I, me asking her to keep the judgment conformed to the settlement so we can avoid a return to court, and she refused.

1.  Does it matter if petitioner (now in pro per) was aware that I personally had provided her with objections to her proposed judgment well before her attorney filed it, even if my attorney didn't advise her attorney?  

2.  In your opinion, based upon how I paraphrased, is there any meat to her response?

3.  Anything important to include a reply?

DD