What if delivery confirmation never confirms?!

[DecentDad]

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!

[socrateaser]

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

Hate to tell ya this buddy, but notice of an OSC for contempt must be by PERSONAL SERVICE. Service by mail is insufficient. So, based on your posted facts, at the moment, your opponent can just ignore you and your hearing entirely.

>
>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?

She can simply state that she pleads the Fifth Amendment. If she doesn't respond that usually means that she is admitting guilt, but the court will not find this at a contempt hearing, because she's entitled to exercise her Fifth Amendment Privileges at trial.

Your only out is if a question is not likely to lead to admission of a criminal act, and you're only gonna find that out at the hearing when the judge rules.

Think logically for a second -- have you ever seen a criminal trial on TV where anyone discussed "requests or admissions?" That's because the DA never requests them, because the response will be "I take the Fifth Amendment."

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

All CA contempt hearings are quasi-criminal. There are no civil contempt hearings, so she can plead the Fifth.

[DecentDad]

Damn, I didn't know personal service was required (I now see it at the end of the information pages on the form).  There's $70 in filing fees down the drain.  But, better now than standing before the judge.

Just as a long shot, if she stated on record (i.e., at an earlier hearing) that there's an upcoming contempt hearing (hence the request for admissions), any dice with that?

1.  So... would you recommend just waiting to see if she responds (this Friday is deadline), and if she does, she's acknowledging service?  Otherwise, take it off calendar and re-file it with personal service?

Much of the contempt is about prohibiting phone contact, tossed in with refusing to release daughter at an exchange.

In admissions, it's mostly about whether she received my voicemails (i.e., date by date) trying to reach daughter.  If she denies, I've got all my audio recordings.

It also lays out that phone contact was fine until the day that she was served with OSC to Modify Support (then all phone contact got blocked for 5 weeks).

Another admission notes that she never advised me of any concerns about my phone calls with daughter (i.e., ruling out reasonable explanation for her behavior).

There's one admission worded, "At no time during (time period of contempt) did YOU observe daughter talking with ME on phone."

That would be an indirect admission of guilt.  All the others lay the foundation for motivation (i.e., and her acknowledging my attempts to reach daughter).

2.  But it's sounding like I shouldn't press the matter if I don't get a response to the admissions?

Oy vey.  These technical things are what kill me in pro per.  I can lay out and support an argument okay, but all the dotted i's and crossed t's stuff that you attorneys have in your brain... killin' me!

Thanks,
DD

[socrateaser]

>1.  So... would you recommend just waiting to see if she
>responds (this Friday is deadline), and if she does, she's
>acknowledging service?  Otherwise, take it off calendar and
>re-file it with personal service?

Just ask the clerk to reset the hearing dates, because you were unable to effect service in time. Maybe you can avoid another fee.

Any statement that can reasonably lead to evidence of criminal culpability is objectionable as privileged under the Fifth Amendment. You're wasting your time.

>2.  But it's sounding like I shouldn't press the matter if I
>don't get a response to the admissions?

Riiiight. If you get an answer to ANY question, then she's WAIVED her Fifth Amendment privilege and then ALL of the questions are on the table, so you can force her to answer at the hearing. But, I wouldn't count on her answering you on paper.

This is why contempts are hard to prove. You need evidence beyond all reasonable doubt and your opponent doesn't have to help you obtain it.

[DecentDad]

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