Proper to file Motion to Reconsider and OSC to Modify at same time?

[DecentDad]

Hi Soc,

I know you said you wanted to think about it, so I'm a waitin' on any further thoughts you may have.  My file deadline is this Friday (to make a 10 day window).

I'm wondering if I file the Motion to Reconsider concurrently with an OSC to Modify Child Support would be improper or not.

I'm thinking this approach because:

A) I'm past my 60 days since judgment was entered, so no appeal, right?  So a judge with an ego may just as easily deny my motion to reconsider, no?  Or would the judge even care about the 60 day point?

B) If I offer my OSC to Modify Support at the same time, with an argument for change of circumstance that meets minimum threshhold, perhaps it gives the judge a way out to deny the motion to reconsider but then immediately look at a new support order via my OSC?

C) If Motion to Reconsider is granted, then I've got my OSC right there for ruling (i.e., including imputation for biomom's income), and change of circumstance is no longer an issue.

D) Once I file OSC to Modify Support, I can propound discovery to get further evidence (e.g., 2003 tax return) that would lock in change of circumstance for use in my Reply.

Thoughts?

DD

[socrateaser]

>A) I'm past my 60 days since judgment was entered, so no
>appeal, right?  So a judge with an ego may just as easily deny
>my motion to reconsider, no?  Or would the judge even care
>about the 60 day point?

You have 30 days after notice of denial of the motion for reconsideration or new trial is denied, to file an appeal.

>
>B) If I offer my OSC to Modify Support at the same time, with
>an argument for change of circumstance that meets minimum
>threshhold, perhaps it gives the judge a way out to deny the
>motion to reconsider but then immediately look at a new
>support order via my OSC?

I don't think that your judge is looking for a "way out." I think your judge wants you to shut up and go away now.

>
>C) If Motion to Reconsider is granted, then I've got my OSC
>right there for ruling (i.e., including imputation for
>biomom's income), and change of circumstance is no longer an
>issue.

Based on what you've already posted, I'm now of the opinion that your only move is an appeal. The judge ignored the law and blew you off, so it's either appeal or a new motion on new evidence.

[DecentDad]

Thanks for that.

But clarification?

Your first paragraph says appeal is appropriate after denial of motion for reconsideration or new trial.  I filed a Set Aside under 663 and 473, sought relief to enter my version of the judgment.  Didn't move for a new trial.  Haven't yet moved for reconsideration.

Then at the end, you conclude that appeal is the likely best move at this point.

1.  Is it appropriate to appeal without moving to reconsider, or did you mean that I'd have to appeal if motion to reconsider didn't work?

2.  You mentioned "or a new motion with new evidence"... What new motion would be appropriate (now 90 days past entry of judgment and 5 days after denial of 663 motion)?  New evidence would include multiple items of correspondence from me to my attorney (including a fax transmission confirmation report) instructing him to object... which we know he didn't do timely.

Thanks, Soc.

DD

[socrateaser]

>1.  Is it appropriate to appeal without moving to reconsider,
>or did you mean that I'd have to appeal if motion to
>reconsider didn't work?

All I meant was that if you move to set aside the judgment, which you did, then you get an extra 30 days from the date of the denial of that motion to appeal.

>
>2.  You mentioned "or a new motion with new evidence"... What
>new motion would be appropriate (now 90 days past entry of
>judgment and 5 days after denial of 663 motion)?  New evidence
>would include multiple items of correspondence from me to my
>attorney (including a fax transmission confirmation report)
>instructing him to object... which we know he didn't do
>timely.

I meant a new motion to modify support based upon whatever change in circumstances you intend to allege.