Final orders dragging out

[DecentDad]

Soc,

We had May 27, 2004 trial date.  Case settled in court hallway with agreement of final orders per Montenegro.  Parties signed a mess of stip papers, all handwritten additions, cross-outs, circling, etc of prior orders and new eval recommendations.

Opposing counsel was to draw up final orders and submit to court within 4 weeks.

First draft was unacceptable for a number of reasons, including information not contained in the signed stip, missing information from signed stip, ambiguous language not reasonably following intent of signed stip, and introduction of child support and preschool/school tuition payment that hadn't been contained in signed stip but were addressed in prior orders.

My attorney sat on my feedback for a couple weeks due to being in trial and vacation.

Parties sought/received continuance from court for submission of orders.  My attorney appeared for the continuance motion, I didn't know about it until I got his invoice last week.  I don't know the new continued deadline.

My attorney gave my feedback to opposing counsel a month ago, the day of the continuance motion.

Opposing counsel accommodated approx 25% of my feedback in a new draft.

New draft is still unacceptable to me.  I gave my feedback to my attorney 2 weeks ago.

I found out today that my attorney hasn't forwarded feedback to opposing counsel nor responded.  My attorney today said he wants to arrange a meeting between parties to resolve the issues.

Language I'm proposing seeks to reasonably spell out intent of our signed stip.  Emails from biomom already show her intent to exploit the ambiguity of her attorney's language (e.g., we each have two weeks vacation per agreement, but she's claimed that "2 nonconsecutive weeks" is the same as 336 hours that she can use in unlimited periods of time to wreak havoc on the normal parenting schedule-- some of her advised "vacations" are only 2 hours long to eliminate a couple months of my mid-week dinners).

An example of the reasonable language I've proposed -- to avoid the above described chaos-- is to simply change, "2 nonconsecutive weeks" to "2 nonconsecutive periods, each a week long".

New draft also still contains repeat of child support and tuition cost allocation.  There has been new evidence about biomom's finances since those original orders were set, so I can't sign these new orders without sacrificing ability to modify support subsequently.

To be clear, there was no discussion of child support or tuition costs in our May 2004 settlement.  Opposing counsel is just trying to lock in prior orders on it via the current draft.

Since appearing in court, I've incurred another $1500 in costs just on the stupid, futile dickering between attorneys.

Though each attorney walked away with a copy of the signed stip papers, it seems as though my attorney's office is not able to find our copy of it.  I know what I signed, but I got nothing to show for it right now.

1.  We're now two months past trial without orders.  At what point do the attorneys mutually give up on negotiating language and ask the court to decide?

2.  If we return to court, and if I can show that opposing counsel was introducing orders that weren't discussed in May 2004 nor in our May 2004 signed stip, any chance that I would recover fees if I show that everything I'm proposing is reasonable language based upon the signed stip?

3.  If I'm going to be arguing child support modification based upon biomom's admitted earning potential rather than actual earnings, does that have an impact on question #2?

4.  When parties can't agree to orders subsequent to a settlement, what relief is there?

Thanks,
DD

[socrateaser]

>1.  We're now two months past trial without orders.  At what
>point do the attorneys mutually give up on negotiating
>language and ask the court to decide?

Never. Your attorney will continue to attempt to settle until you tell him to stop. Negoitation earns money -- so does court, but with court, it all ends eventually.

>
>2.  If we return to court, and if I can show that opposing
>counsel was introducing orders that weren't discussed in May
>2004 nor in our May 2004 signed stip, any chance that I would
>recover fees if I show that everything I'm proposing is
>reasonable language based upon the signed stip?

Maybe, also a chance judge will put the temporary orders in and then order everything.

>
>3.  If I'm going to be arguing child support modification
>based upon biomom's admitted earning potential rather than
>actual earnings, does that have an impact on question #2?

We discussed this before. If you raise issues that you knew of before you compromised them in a subsequent order, then the other party can ask that you be estopped from asserting them, because they are res judicata (already decided). Your opponent may not object, but I wouldn't bet on it.

>
>4.  When parties can't agree to orders subsequent to a
>settlement, what relief is there?
>

Litigation. It's not as though the judge already ordered this stuff and you're just squabbling over the fomr of the order. You are still negotiating and the only "relief" is a trial and an order of the court.

[DecentDad]

Hi Soc,

Okay, thanks into that insight into this whole thing being an extension of settlement and negotiating, rather than orders subsequent to a ruling.

I didn't effectively ask what I meant about earning capacity.

I'd be arguing to recover fees on returning to court for our final settled orders because opposing counsel refuses to remove items that were never discussed in settlement.  I assume the court has discretion to award fees in a manner it believes serves equitable relief.

Barring settlement on new child support $$ (and I won't sign any stipulation restating old figures), my concurrent or immediate subsequent argument in court to modify child support will be based upon evidence showing earning capacity (not actual income).

1.  So I guess the bottom line question is, am I dreaming to think I can recover attorney fees based upon the earning capacity (not actual income) of a mother who has majority of timeshare with a child; regardless of how unreasonable the mother's being in proposed order language that doesn't jive with signed settlement documents?

2.  As child support was never raised in settlement, would it be a greater incentive for opposing side to settle it if I were to file an OSC to modify child support at this time?

Thanks, and sorry I wasn't clear initially on that question.

DD

[socrateaser]

>1.  So I guess the bottom line question is, am I dreaming to
>think I can recover attorney fees based upon the earning
>capacity (not actual income) of a mother who has majority of
>timeshare with a child; regardless of how unreasonable the
>mother's being in proposed order language that doesn't jive
>with signed settlement documents?

If you win your case and earning capacity is imputed, then you can get attorney fees for the cost of this victory. If you lose, then you won't.

>
>2.  As child support was never raised in settlement, would it
>be a greater incentive for opposing side to settle it if I
>were to file an OSC to modify child support at this time?

Depends on whether the other side believes that you can prove your case and the judge will not likely find that the child has some extraordinary circumstance that requires the mother to be home and not working.

[DecentDad]

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