Orders entered -- different from signed stip

[DecentDad]

Thanks for that info.

REGARDING OBJECTIONS TO PROPOSED JUDGMENT

On my objections to the proposed judgment (prior to entry of judgment)... attorney filed my objections 31 days after being served with proposed judgment from opposing counsel.

Per much correspondence (including fax confirmation records), my attorney knew I wanted to go back to modify support and knew I objected to a judgment that restated child support.  He sent same in correspondence to opposing counsel before OC filed the judgment.

I've now noted Rule 232 (e)... "The court may notify a party to prepare, serve and submit the proposed judgment to the court within 10 days. Any party affected by the judgment may, within 10 days after service of the proposed judgment, serve and file objections thereto."

I don't see anywhere that notes procedure on objecting to entry of judgment.


REGARDING POTENTIAL INJURY TO ME

I didn't want to stipulate to a new child support amount because (as we've discussed before per LaBass/Munsee), all the elements were in place to impute biomom's earning capacity, which would have reduced child support by up to $350/month.  All evidence precedes this entry of judgment.

My attorney, if he f'd up and we have a new starting date for change of circumstance on child support, has cost me this opportunity.


REGARDING DATE OF SERVICE OF NOTICE OF ENTRY OF JUDGMENT

I see that the clerk mailed Notice of Entry of Judgment to both attorneys on Oct 20, 2004.  The clerk signed (at the bottom of the form) "Clerk's certificate of mailing".

Opposing counsel did Proof of Service By Mail on October 22, 2004.


QUESTIONS

1.  Per Rule 232 (e), is it correct that my attorney erred by not filing my objections within 10 days of being served with the proposed judgment?

2.  I couldn't find a rule citing what you just provided.  Can you let me know what code/rule addresses objection to entered judgment within 10 days of notice of service?

3.  Which date applies for the 10 day count after Entry of Judgment?  Clerk's certificate of mailing, or OC's proof of service by mail?

4.  And... would it be 10 days plus 5 for service by mail?  If so, I still have time.  If not, I'm screwed.

5.  Based upon facts presented, am I looking at malpractice for attorney's failure to object timely to proposed judgment and/or entry of judgment?

DD

[DecentDad]

If biomom is continuously refusing to support her child (i.e., a violation of one of the most principal foundations on which CA child support guidelines are based), is that arguably a change of circumstance at any time?

I.e., if every new day that she refuses to work, she thumbs her nose at the state's expectation of her, is that a change of circumstance in the state's interest?

A different argument would be if she knew I was a negligent parent, and she stipulated to a custody arrangement, and I continued to be negligent in the same manner; wouldn't she have a change of circumstance due to that my SAME BEHAVIOR is freshly violating the state's interest each time it occurs?

If you buy that argument, and if you think a court would easily find "continued wilfull unemployment" a change of circumstance at any time, then it's potentially my saving grace.

[socrateaser]

What EXACTLY does the judgment state regarding child support?

[DecentDad]

CHILD SUPPORT

32.  Each of the parties are fully informed of his or her rights regarding child support.  The right to child support has not been assigned to the county and there is no application for public assistence pending.  These orders are entered into voluntarily and without coercion or duress.  The needs of the minor child will be adequately met by these orders and these orders are in the best interests of the minor child.

33.  Respondent is ordered to pay to Petitioner the sum of $701 per month child support, payable one half on the 1st and one half on the 15th of each month commencing June 1, 2004 and continuing until the minor child dies, marries, attains the age of 18 (or 19 if still enrolled full-time in high school) or until further order of court whichever occurs first.

33.  As additional child support, the Respondent shall pay $285 per month as a contribution to pre-school tuition and child care costs, this payment shall be made directly to the school or child care provider.

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

None of this was in our signed stipulation on which this judgment was based.  Opposing counsel served it on my attorney on Aug 10 (by mail), filed it with the court on Aug 16.  My attorney's office told me about the Aug 10 letter on Aug 18, and my attorney noticed an Ex Parte hearing but opposing counsel was on vacation as per prior notice of unavailability.  My attorney first filed objections on Sept 17.  Court entered judgment on Oct 20.

Paragraph 33 is based upon stipulated orders more than two years old.

Paragraph 34 is based upon a stipulation two years old but the original language was that I would pay half, up to $285 per month, of preschool tuition and/or necessary child care costs.  At that time, I didn't know that biomom would refuse to work year after year.

So???

Thanks,
DD

[socrateaser]

Move to vacate the existing judgment and for a new trial on the issue of support, on grounds that the existing support orders were neither stipulated to by the parties, nor were they awarded by the court based on the facts on the record. Furthermore, the court, by ordering preschool and daycare in favor of a parent who is neither employed nor undergoing job-related training/education, has deviated from the state guidelines without stating the court's reasons for doing so.

For this motion, the deadline is 15 days.

[DecentDad]

In your opinion, did the actions (or inaction) of my attorney contribute to this situation, and should I be expecting him to do it at his own cost?

I can't express enough how much I value you as an objective guide and commentator... it's lonely when working with an attorney who is at an information advantage and whose self-interest is to continue to bill me.

DD

[socrateaser]

>In your opinion, did the actions (or inaction) of my attorney
>contribute to this situation, and should I be expecting him to
>do it at his own cost?

There is no specific rule or statute governing the time for parties to object to an attorney prepared rendition of a stipulated judgment. Rule 232 concerns court-prepared judgments, only.

Rule 391 is the only rule that reflects timing on stips and that rule actually only concerns orders, not judgments, but courts routinely hold attorneys to the same time limit, i.e., 5 days to object. On your facts, opposing counsel was correct to file the judgment on 8/16, and 31 days to object is not timely, under any reasonable set of circumstances.

So, technically, you don't have a leg against opposing counsel, but you do against your own, assuming that the court was operating under Rule 391. There may be something in the local court rules, that I'm unaware of, so check that resource first before you get angry.