Hope this is an easy question, but its a long history

[TwoBoys]

History:
This is for my Hs case - in state of Fl.  Never married to the mother, their son is 2.  When child was less than a year, he filed the motion to establish paternity, custody, visitation, and CS (Hed already been paying her but wanted everything legalized since visitation was a weapon by her standards).  Two days after being served, she moved 8 hours away, but remained in state.

Temporary hearing several months later awarded H with one week long visitation per month

She denied, filed contempt (has yet to be heard, hurricanes backed up our system like theres no tomorrow), and to get SOME visitation rather than none, he signed an agreement with her, however, the attorney we had sucked and wrote it so vague we can hardly enforce anything with it.  It does state the CS amoutn and that it will be done via income deduction order and sent through the state disbursement unit.

That was Aug 04.

Jan 05 had a case mgmt hearing, judge ordered the signed stipulation, and ordered both parties to a settlement conference to hammer out the details of the visitation agreement (which exact weekends, exchange times, etc).   Order also states anything not agreed by both parties in the settlement conference will be decided by the judge at final hearing, at which time all unresolved contempts will also be heard, and attorneys fees will be decided (Shes suing for $10k in attorneys fees).  We are now without an attorney.  Prior attorney sucked, and now we cant afford another one.

we tried several times (with your help!) to set the settlement conference with no luck.  Resulted in the other parties attorney writing a letter to H and the judge stating that he refused to do a telephone conference, refused to meet in person, and would only speak to my H in front of a judge regardless of the fact that the order stated a settlement conference is to take place prior to a final hearing.  

Shortly thereafter, Judge responded to attorney with a letter stating he WILL conduct the settlement conference via telephone if he has concerns or office policies preventing him from meeting a pro se client in person.  We received a copy of that letter appx two weeks ago.

Within a week, we sent a letter to the other attorney stating we would be available any day, at any time, 24/7 for a settlement conference, to please inform us within 2 business days of a date and time convenient for him and his client.

Around this time frame, we received a notice from the other atty for a hearing on attys fees.  He immediately cancelled it after realizing that it was specifically ordered in such a way that it was supposed to be addressed at the final hearing.

NOw, i should add:  to date, H has paid CS every single month.  He pays half on the 1st and half on the 15th which is when he gets paid.  IT is wired directly to her account so it is IN her account on those dates.  This was brought to the judges attention at the case mgmt hearing.  The other atty wants it all on the 1st, the judge stated the 1st and 15th was reasonable, but the parties should come to an agmt at the settlement conference, but made it clear there was nothing unreasonable about H wanting it split with his pay periods.

NOW...

Today... we received 3 letters from the other atty.  
First -  a motion to set an income deduction order.  One item in the motion stated H was habitually late, and continues to be severely late in payment of CS, as the reason for their request.  
Second - the income deduction order.  They are setting it up as we requested (semi monthly).  However, the order states that it will go directly to her, and not through the state.  It also states he will have 15 days to object, but only on the grounds that the amount is incorrect or the "true identity of the obligor" is incorrect.
Third - a notice for trial stating that they are ready for the matter to go to a non jury trial, requesting 3 hours.

Our concerns are:
They are asserting he is late, when in fact, he has paid CS every single month, unless they are counting his half that he pays on the 15th as late.  
They are requesting a hearing without first having the court ordered settlement conference.


Questions:
1.  Can we and should we respond to the motion and income deduction order?
2.  If so, do we respond item by item, in such a way that we agree to the income deduction order on a semi monthly basis, but requesting that it go through the state as the original order states?
3.  What do we do about the settlement conference not occuring?
4.  Since we are the petitioner, and they are the respondent, shouldnt H be the one setting it for trial?  

Any other comments or advice in regards to this would be helpful... were so baffled by the way this has been handled by the other atty.

I apologize for the lengthiness, I dont expect you to remember me each time with all the folks on here!

TwoBoys...

[socrateaser]

>Questions:
>1.  Can we and should we respond to the motion and income
>deduction order?

If the order is correct, then there's no real good reason to object to it, unless you want to oppose it on grounds that good cause has not been shown to support the change from direct payments. I'm guessing that the party requesting income deduction must prove that you haven't paid on time to get the change, and as you have not, you could file an objection and demonstrate that your opponent is willing to lie under oath in order to get what she wants.

However, without reading the actual statute regarding this objection, I can't say for sure that my proposed response is adequate (it would be in CA, but in other jurisdictions -- I dunno).

>2.  If so, do we respond item by item, in such a way that we
>agree to the income deduction order on a semi monthly basis,
>but requesting that it go through the state as the original
>order states?

I wouldn't be so quick to consent to having the order collected by the State and then directed to the obligee parent. Once you do this, then on any later modification, you will have to notify the state agency and allow them to investigate.

>3.  What do we do about the settlement conference not
>occuring?

The settlement conference is all about visitation times and dates, not about the amount of time or custody or how much support so I don't see a conflict, unless there are motions filed that try to force you to accept the other party's position regarding an issue expressly to be the subject of the settlement conference, then there's no reason to oppose the orders on those grounds.

>4.  Since we are the petitioner, and they are the respondent,
>shouldnt H be the one setting it for trial?  

No, either party can request a trial be set, but my impression is that the judge expected a settlement conference before this would occur. However, it's not necessarily a bad idea to get a trial date in advance of the settlement conference, because it forces you to try to settle by some future date certain.

>Any other comments or advice in regards to this would be
>helpful... were so baffled by the way this has been handled by
>the other atty.

Opposing counsel is an asshole, based on your description. I would continue to write him, only this time give him some express dates and times. Just keep doing this, and then if the trial date really gets close and he has done nothing, then file a motion for contempt against him personally. After all, he was ordered to have the settlement conference, so if he goes to trial without doing so, after repeated attempts on your part, then that is contempt. Maybe you can get the judge to sanction him in some amount, made payable to you.

[TwoBoys]

Thank you!

The order currently in place already states that all payments will be through income deduction order and will go through the state disbursement unit, H thinks it would be better b/c then there is a 3rd party with a record of his payments.  BUT, I will pass along your advice re: the state agency handling it.  In our state, they have a seperate disbursement unit set up from the Child Support Enforcement agency that only handles the forwarding of payments, which is why he is preferring that.

Nonetheless, I really appreciate the advice, and your last remarks re: contempt against opposing counsel is music to our ears.

We will follow your instructions re: the express dates & times until trial (no trial date is set as of now, Im sure it will be several months away).   Im hoping this also hurts his client in the sense that they are requesting we pay her legal fees, and this will be yet another example of them being unreasonable and not working with us on absolutely anything.

Thanks again Soc!!!

TwoBoys...