Attorney - Motion for Correction of Error

[hoosierpapa4]

Soc, Indiana, post-divorce decree matters were started April of 2003, have an Order from the Court dated July 21st of this year, however it's riddled with error.  I have asked my attorney to "correct the errors".  We have until the 20th of August (30 days) from the date of the Order.

Some of the errors are:

There were four events which transpired which would have warranted a new child support worksheet during the almost 2.5 years that transpired since my original filing.

In the facts section of the Order, there is recognition that a subsequent child was born to me and my wife in 2004, yet there is no new worksheet reflecting this event.

The Court did emancipate one of my children, didn't do it from the date of my filing, but instead "picked at date" that is 4 months before the date of hearing the matter of emancipation - I understand that it's within her discretion to choose a date between the request and the ruling - I don't know if this is an abuse of discretion.  The matter of emancipation was delayed for hearing because of dilatory tactics, the opposing counsel asked for and received a continuance last year.

The incomes used are disproportionately skewed towards the X's benefit.  Instead of using W2 Gross incomes, the Magistrate used my income prior to the pre-tax deductions for things like my healthcare costs (it's like taking the w2 gross and adding what I paid for healthcare back in).  The Magistrate did not add the X's health care back to her W2 gross.  The Magistrate used incomes for the X that are clearly not supported by facts presented at trial (I have no idea where she came up with the X's income).

A modification of custody was requested via an agreed entry, whereby my "status" was changed from a "visitor" to being my sons Primary Custodian (231 overnights).  The Court ignored this change in circumstances.

The Magistrate did not create a new worksheet reflecting these changes of circumstances which would warrant a new child support obligation.

I have asked my attorney to correct the error.  Child Support does not reflect the current custodial arrangement, nor does the support calculated retroactively to the date of my first request (April of 2003).

The Court has given both parties until the 12th of August to calculate the negative arrearage created by the retroactive nature of the support awards (I am still paying about double what would be ordered through an IWO).  The Court has also ordered a new IWO.  The first IWO was a voluntary IWO, now one is ordered - without cause.

1) How can I compel my attorney to do what I have asked?

2) Since the very first thing that I have asked him to do for me was modify child support from April of 2003, and that has yet to be done correctly, can he refuse to represent me at this point?

3) I have pre-paid for services rendered up to and including what was estimated last year, it has taken more time and money than was estimated (no suprise here), can my attorney refuse to finish what was started when there is error with the Order presented?

4) This attorney has already missed dates by which a response was required in the past which cost me dearly.  He had indicated that he would "eat the cost", yet it appeared on my bill.  What can I do to point out that he is not acting in a timely manner in the best representation of his client?

5) All I want is what would be fairly calculated using the facts established at trial.  I would believe that a Motion for Correction of Error is warranted, if it's denied, I want my attorney to appeal it as everything testified to, submitted into evidence etc. supports a completely different outcome than what the Magistrate conclusions are.  Don't Magistrates have some sort of tenure, wouldn't she want this error corrected and not appealed?

Thanks in advance Soc.

[socrateaser]

>1) How can I compel my attorney to do what I have asked?

Challenging issues that are within the court's discretion are almost always a waste of time, because if the court disagrees, your only recourse is an appeal, which is almost always more expensive then the alternative of just living with the court's discretionary order. So, if your attorney objects to this, he/she's doing you a favor.

As for the issue of not using any real numbers to calculate support, that's a real error and it's harmful to the extent that it changes the amount that you may owe, so it's completely reasonable to ask for the change, unless that change will cost more in attorney fees than the change itself would accomplish.

Your recourse to the attorney is to explain what you want, and ask for him to explain why you should not get it, and if you're not satisfied, then ask him to do it anyway, or you will ask some other attorney to do it for you, and if you get it, then you will sue the first attorney for malpractice, and report him to the State disciplinary agency, on grounds that he didn't compentently represent your interests.

>2) Since the very first thing that I have asked him to do for
>me was modify child support from April of 2003, and that has
>yet to be done correctly, can he refuse to represent me at
>this point?

He can gain a permissive withdrawal if (1) it causes no material adverse effect on client's interests,(2)  client persists in using, or actually used, lawyer's services in criminal/fraudulent manner, (3) client's actions are repugnant or fundamentally unreasonable, (4) client fails substantially to fulfill obligation to lawyer after reasonable warning, (5) unreasonable financial burden on lawyer, or (6) good cause (something "more" than the attorney doesn't feel like dealing with you any longer.

In short, it's pretty easy to get out of the representation.

>
>3) I have pre-paid for services rendered up to and including
>what was estimated last year, it has taken more time and money
>than was estimated (no suprise here), can my attorney refuse
>to finish what was started when there is error with the Order
>presented?

See above.

>4) This attorney has already missed dates by which a response
>was required in the past which cost me dearly.  He had
>indicated that he would "eat the cost", yet it appeared on my
>bill.  What can I do to point out that he is not acting in a
>timely manner in the best representation of his client?

Write him a letter expressing dismay and asking if he would rather not continue on the case.
>
>5) All I want is what would be fairly calculated using the
>facts established at trial.  I would believe that a Motion for
>Correction of Error is warranted, if it's denied, I want my
>attorney to appeal it as everything testified to, submitted
>into evidence etc. supports a completely different outcome
>than what the Magistrate conclusions are.  Don't Magistrates
>have some sort of tenure, wouldn't she want this error
>corrected and not appealed?

It's a balancing act. Both the court and your attorney will roughly calculate the cost of winning/losing/appealing and decide whether it's in the interest of the parties/clients to let it go.

De minimis non curat lex -- the law does not deal in trifles. It all depends on whether you will ultimately save a substantial amount of money getting what you think is fair. If you won't, then who cares whether it's fair or not?