Court entered wrong orders from 2005 - now what?

[DecentDad]

I went to the courthouse to review the file to see if my recent correspondence was in there and when it was received (i.e., before or after Nov 8 entry of orders), and also if I could find the original orders after hearing that OC claimed never got entered.

Records Dept showed that the file was up in the judge's department.  They ran a retrieval for it.  I had to call back to check on it.

Now, Records Dept told me that Judge's department reports back that the case file is lost.

So, I need to submit a case file search request.  Records Dept says that there are more than 100 search requests ahead of mine, it could be more than 30 days before they can get to mine.

Aside from being in a busy county, I'm at the main downtown courthouse.

1.  If I can't retrieve the file to ascertain if the original hearing already had orders entered (i.e., I submitted them to the court timely, back in June 2005), is that prejudicial in any way to me?

[socrateaser]

>New judge was not privvy to mom's May 2005 sworn declaration
>that she'll be moving.

Isn't it in the court file, attached to some pleading? If not, then if you have a copy of it, that's still admissible evidence, but it's not new evidence. It "is" "different" evidence, based on the fact that this item wasn't at issue until OC added it to the new order.

>New judge entered orders 18 months later on the matter,
>without a hearing, and clearly departing from what the hearing
>transcript shows as the ruling.

Transcript is evidence. Court can conceivably order differently, but not if it never gave you an opportunity to argue the issue on the merits, because the order would be based on no facts on the record.

>BTW, when OC wrote to him, she advised that I objected, and
>she provided the entire 28-page transcript without pointing
>out the specific reason for objection.  Unless one knows to
>look specifically in 3-pages of draft orders for a single
>substitution of the word "Petitioner" instead of "Respondent",
>at cursory review against the transcript, the orders probably
>looked fine.  But point a jurist to 8 lines on a single page,
>note the home restriction, and the problem is evident.  OC
>didn't do that.

Um...the question is, did you provide OC with a letter stating the specifics of your objection. If you did, then OC had a legal obligation under court rules to forward that letter to the court.

If you didn't write OC a letter, then you are SOL, because you had your opportunity to state your objection using the proper process and you waived it by failing to do so.

If OC had your letter and failed to forward it to the court, then that would be improper and you have grounds for reconsideration -- that reconsideration would be the letter not forwarded (different facts).

>Mother confirmed in email a few months ago that she'll still
>need to move at some point.

Evidence of a change in circumstance but not for reconsideration -- for a new motion to modify parenting.

>
>In summer 2006, Mother's attorney repeatedly contacted me to
>eliminate the distance restriction imposed by old judge's
>ruling.
>
>1.  Is mother's intent to move within a couple years, as
>declared in May 2005, "new and/or different" fact because the
>new judge was not made aware of that testimony when he signed
>OC's draft orders in Nov 2006?

Depends on whose at fault for not notifying the judge. If OC, then yes -- if you, then no.

>2.  I guess the bigger question is... which is the benchmark
>for "new or different" fact?  Is it from May 2005 (time of
>ruling), or Nov 2006 (entry of orders)?

Neither. "New or different" means facts not reasonably ascertainable using the tools of discovery prior to entry of judgment/order.
>
>3.  If I moved in July 2005 (after ruling) to be closer to
>selected school, is that a new and different fact relevant to
>the Nov 2006 entry of orders?

I don't know. The timeline is cloudy for me. Issue is whether this move was "at issue," between parties after the prior ruling.

You need to give me the entire timeline, i.e., who ruled what, and when, and what sort of order it was (final, temp, minute, oral, stip).

>
>4.  In May 2005 (time of ruling), child was not yet in
>elementary school.  There was no consistency concern.  In Nov
>2006 (entry of orders), child is in first grade.  Is that a
>different fact, given that consistency of enrollment creates a
>best interest issue?
>
>5.  Is all of this just confounded by a combination of A)
>entry of orders 18 months after hearing despite that situation
>has changed and other orders subsequently superceded it (but
>not anymore due to entry of orders from 18 months prior); B)
>entry of substantively wrong orders; and C) no hearing on any
>of it?  When faced with such a mess, how would an attorney
>convince a judge to clean this up?

Yes.

How to clean up? I dunno. First answer question about how you "objected" to the orders, because that may foreclose any discussion of reconsideration. Then, restate the timeline.

Ultimately, if you are screwed for reconsideration, you may just be able to file a new motion to modify on grounds that the other parent intends to move and the move will frustrate your ability to exercise custody.

>
>Keep in mind that OC is now gone, withdrawn as soon as these
>were entered.

Yes. This could be good for you, however it goes, because mother is gonna start having trouble finding alternative counsel and the court will wonder why lawyers are withdrawing so quickly. Usually, counsel never withdraws voluntarily, just in case something new comes up -- they want first shot at the next litigation fees.

[socrateaser]

>Aside from being in a busy county, I'm at the main downtown
>courthouse.

So, you're probably in the busiest courthouse in the USA, except for maybe downtown Manhatten.

>1.  If I can't retrieve the file to ascertain if the original
>hearing already had orders entered (i.e., I submitted them to
>the court timely, back in June 2005), is that prejudicial in
>any way to me?

If there's no court record, then you can demand a hearing to "settle the record," and the parties can start assembling everything that they can find ($$$$) to offer to the court. You can also negotiate with the other party to stip to what the record is (which is what usually happens, because of the ridiculous expense).

The case file will be found. It's just sitting on someone's desk, and that someone is too busy to answer the request at the moment.

[DecentDad]

Okay, I'll try to be as brief as possible regarding the matter at hand.  Other matters, all initiated and lost by Petitioner, have had us in court four times in past 14 months, so there are a variety of orders floating around.

May 2005
OSC to select kindergarten school for Fall 2005.  Judge ruled that mom can pick it, mom can pay for it, and it must be within 10 miles of my home.  Judge ordered OC to draft the orders.

June 2005
OC drafted incorrect orders.  I objected with specific objection that the draft didn't conform to the ruling, i.e., 10 miles from MY home.  I never heard back.  I drafted correct orders and served on OC.  I never heard back.  Four weeks later, I submitted them to the court to be entered, advising that OC waived objections.  I don't know if they ever were entered.

July 2005
I moved to be closer to school biomom selected.

April 2006
Judge A retires, Judge B picks up the case.  Judge B has 3 years on the bench, 2.5 of them in the boonies.  He was a civil attorney prior. Google search results show he's been involved in CFLS type of seminars during past year.

July 2006
Judge B enters orders from a June 2006 OSC that was a review hearing from a May OSC that was continued from an April ex parte.  In his orders, he adds his own boilerplate language that was not addressed at the OSC, including "Parents jointly make education decisions."  OC never objected to the July 2006 orders entered.

August-October 2006
OC writes me and calls me several times, wanting to stip to the May 2005 ruling on school selection.  I express willingness to stip to it, rather than fight all over about it.  OC repeatedly proposes wrong language.  I send three response letters.  Two specifically advised OC that she's departing from the transcript on whose home must be within 10 miles of the school.

Late October 2006
OC writes to judge, asking to enter her version of Orders After Hearing for May 2005 OSC.  OC advises judge that I disagree on the clause about school selection (but provides no explanation as to the disagreement).  OC provides entire transcript of May 2005 OSC.  OC provides a copy of corespondence from me in which I only ask her to adhere to the transcript language on school selection.  OC does not provide my two other letters that instruct exactly where she is wrong.

Oct 30, 2006
I mail my letter to the court, explain why OC's draft is wrong.  I point court to specific lines in the transcript.  I suggest that OC is attempting to modify July 2006 orders.  I suggest that OC is willfully misrepresenting the ruling that was made.  I suggest that OC is showing disregard for due process.  I included copy of correspondence sent to Judge A in June 2005 and draft orders I prepared in June 2005.

Nov 8, 2006
OC's orders got entered.

Nov 15, 2006
I receive OC's service by mail of the entered orders.

Nov 15, 2006
I receive OC's service by mail of OC's withdrawl.  She was attorney #7 for Petitioner in less than 6 years.  Three withdrew, four were subbed out.

-------------------

All of that said... in the end, if the judge was truly in error and is interested in correcting what occurred, I should prevail on this.  If the judge is annoyed to be bothered with it, I imagine he'll easily find a way to kick me to the curb.  And... I have no control over which scenario I'm in.

Is that about the short of it?  If so, I think I have enough (trying to be respectful of your time), and I'll draft my motion to reconsider; unless you think there's a way I can lock this.

[socrateaser]

>Okay, I'll try to be as brief as possible regarding the
>matter at hand.  Other matters, all initiated and lost by
>Petitioner, have had us in court four times in past 14 months,
>so there are a variety of orders floating around.
>
>May 2005
>OSC to select kindergarten school for Fall 2005.  Judge ruled
>that mom can pick it, mom can pay for it, and it must be
>within 10 miles of my home.  Judge ordered OC to draft the
>orders.
>
>June 2005
>OC drafted incorrect orders.  I objected with specific
>objection that the draft didn't conform to the ruling, i.e.,
>10 miles from MY home.  I never heard back.  I drafted correct
>orders and served on OC.  I never heard back.  Four weeks
>later, I submitted them to the court to be entered, advising
>that OC waived objections.  I don't know if they ever were
>entered.

Either the orders were entered or they weren't. When you never heard back, you should have filed a motion for entry of the order, so that you could get the court to address the orders and either enter them or deny them. Leaving this in limbo was incompetent (I'm treating you like an attorney, because if you were someone else's attorney and this happened to them, you would be in trouble with the state bar, and maybe sued for malpractice).

>
>July 2005
>I moved to be closer to school biomom selected.
>
>April 2006
>Judge A retires, Judge B picks up the case.  Judge B has 3
>years on the bench, 2.5 of them in the boonies.  He was a
>civil attorney prior. Google search results show he's been
>involved in CFLS type of seminars during past year.

Great. He's an ignernt idjit, trying to learn on the job.

>
>July 2006
>Judge B enters orders from a June 2006 OSC that was a review
>hearing from a May OSC that was continued from an April ex
>parte.  In his orders, he adds his own boilerplate language
>that was not addressed at the OSC, including "Parents jointly
>make education decisions."  OC never objected to the July 2006
>orders entered.

OK, so that changed the prior orders re ed decisions.

>
>August-October 2006
>OC writes me and calls me several times, wanting to stip to
>the May 2005 ruling on school selection.  I express
>willingness to stip to it, rather than fight all over about
>it.  OC repeatedly proposes wrong language.  I send three
>response letters.  Two specifically advised OC that she's
>departing from the transcript on whose home must be within 10
>miles of the school.
>
>Late October 2006
>OC writes to judge, asking to enter her version of Orders
>After Hearing for May 2005 OSC.  OC advises judge that I
>disagree on the clause about school selection (but provides no
>explanation as to the disagreement).  OC provides entire
>transcript of May 2005 OSC.  OC provides a copy of
>corespondence from me in which I only ask her to adhere to the
>transcript language on school selection.  OC does not provide
>my two other letters that instruct exactly where she is
>wrong.
>
>Oct 30, 2006
>I mail my letter to the court, explain why OC's draft is
>wrong.  I point court to specific lines in the transcript.  I
>suggest that OC is attempting to modify July 2006 orders.  I
>suggest that OC is willfully misrepresenting the ruling that
>was made.  I suggest that OC is showing disregard for due
>process.  I included copy of correspondence sent to Judge A in
>June 2005 and draft orders I prepared in June 2005.

Did you copy OC on this letter, and show a cc: in the letter so the court would know that it was copied to OC? If not, then the judge couldn't read it.

>
>Nov 8, 2006
>OC's orders got entered.
>
>Nov 15, 2006
>I receive OC's service by mail of the entered orders.
>
>Nov 15, 2006
>I receive OC's service by mail of OC's withdrawl.  She was
>attorney #7 for Petitioner in less than 6 years.  Three
>withdrew, four were subbed out.
>
>-------------------
>
>All of that said... in the end, if the judge was truly in
>error and is interested in correcting what occurred, I should
>prevail on this.  If the judge is annoyed to be bothered with
>it, I imagine he'll easily find a way to kick me to the curb.
>And... I have no control over which scenario I'm in.
>
>Is that about the short of it?  If so, I think I have enough
>(trying to be respectful of your time), and I'll draft my
>motion to reconsider; unless you think there's a way I can
>lock this.

From your notes, it appears that the judge was aware that there is a controversy about the location of schooling. I think the judge will just deny on grounds that the facts are not new or different.

Really hard to say without reading all of the correspondence that was sent to the court.

And, this new judge is not gonna be your friend, if only because he probably doesn't have a clue what he's doing. So if you embarass him, he'll sweep it under and try to make you look stupid for asking.

With that said, go ahead and draft the motion. If you want me to read it, email it and let me know when it's there. But, don't leave it to the last minute, cause I don't have much time to look at anything right now.

[DecentDad]

Thanks, I emailed you my draft, along with the letter I sent to the judge.

Yes, I cc'd OC and minor's counsel, and it indicates same on the letter I sent.

New judge was ONLY aware about the location controversy if he received/read my letter before entering OC's orders.  OC never informed him that the controvery was over location.  She just said it was about school selection.  IF he read my letter is the black box.

Yep, I understand that I don't control judge's receptiveness to this.  All I can do is all I can do.

Thanks

[DecentDad]

Ruling was made in May 2005.  Orders from that OSC were entered in Nov 2006.

Can you advise which of the following is new/different, for the purpose of reconsideration?  I really still don't know whether it's from the date of the hearing or the date of entry of orders (and I imagine that it's atypical for 18 months of time to transpire between the two).

1.  New orders on education decisions were entered July 2006, and no hearing was held to modify them.  But it's not new to the new judge who entered the Nov 2006, since the file would reflect the orders he entered in July.  So, he was aware when he signed in Nov 2006.  No?

2.  Original ruling was 10 miles from my home, which prevented mother's ability to frustrate my exercise of custody (though the original judge never said this was the exact reason, but that's the only possible explanation).  There was never any hearing or ruling to change it to be from mother's home.  (I have no evidence that she even INTENDS to go beyond 10 miles from my home).  HOWEVER - the new judge had the transcript in his possession when he entered the orders, so how would this be NEW information (unless he admits that he didn't bother to read it, which ain't gonna happen)?!

3.  I submitted orders to be entered in June 2005, since OC did not.  I don't know why this is relevant as new or different information.  Why is it relevant?

Finally,

4.  If/when I get access to the case file, and IF I see that my original orders WERE entered (I don't know whether they were or not, since I never looked at the file)... what happens if that knowledge occurs AFTER I file the motion but before it's heard?

[socrateaser]

>1.  New orders on education decisions were entered July 2006,
>and no hearing was held to modify them.  But it's not new to
>the new judge who entered the Nov 2006, since the file would
>reflect the orders he entered in July.  So, he was aware when
>he signed in Nov 2006.  No?

Yes. Not new or different.

>
>2.  Original ruling was 10 miles from my home, which prevented
>mother's ability to frustrate my exercise of custody (though
>the original judge never said this was the exact reason, but
>that's the only possible explanation).  There was never any
>hearing or ruling to change it to be from mother's home.  (I
>have no evidence that she even INTENDS to go beyond 10 miles
>from my home).  HOWEVER - the new judge had the transcript in
>his possession when he entered the orders, so how would this
>be NEW information (unless he admits that he didn't bother to
>read it, which ain't gonna happen)?!

Yes. Not new or different.

>
>3.  I submitted orders to be entered in June 2005, since OC
>did not.  I don't know why this is relevant as new or
>different information.  Why is it relevant?

If the orders had been entered then the judge would have been much less likely to modify them re residence. Other than that, the only thing that's relevant is that the orders apparently vanished. Not that you can do anything about it, but it's damn weird.

>
>Finally,
>
>4.  If/when I get access to the case file, and IF I see that
>my original orders WERE entered (I don't know whether they
>were or not, since I never looked at the file)... what happens
>if that knowledge occurs AFTER I file the motion but before
>it's heard?

OC could argue that the file is public record and the existence or absence of the orders as filed would provide constructive notice, so either way, you will be expected to know the status of the contents of the file.

The new or different evidence would be your knowledge that the other parent intends to move shortly, which could be grounds to change the order to 10 miles from your residence again. Other than that, I think you'll be stuck with the orders you've got, and you'll have to wait until she actually shows signs of moving to start a motion to clarify re parenting, because of the impending move.

[DecentDad]

>OC could argue that the file is public record and the
>existence or absence of the orders as filed would provide
>constructive notice, so either way, you will be expected to
>know the status of the contents of the file.

Remember, OC is gone.  Mother would have to retain new counsel.

In my correspondence to OC (and OC provided copy of the letter to the court), I indicated that the court already entered my orders in 2005.  I figured I was either protecting myself, or I was simply wrong.

So what I'm hearing is... all it takes is a sleazy attorney and an incompetent judge, and there's no means to get orders to actually reflect a ruling?!

I mean, what if it was a visitation schedule, where OC decided to deviate from a ruling and it got entered?  Court could just ignore a motion to correct because there's no new evidence??

[socrateaser]

>So what I'm hearing is... all it takes is a sleazy attorney
>and an incompetent judge, and there's no means to get orders
>to actually reflect a ruling?!

Well, you could appeal on grounds of abuse of discretion, but it's probably not worth it.

You're being penalized for not being a lawyer -- simple as that. The judge simply will never take your arguments as seriously as someone who is a member of the California Bar.

If you want to get on an even footing with your opponent, you have two choices -- hire an attorney to represent you, or graduate law school and pass the bar exam.

>I mean, what if it was a visitation schedule, where OC decided
>to deviate from a ruling and it got entered?  Court could just
>ignore a motion to correct because there's no new evidence??

You aren't asserting an "error." OC gave the judge your objection and the judge ignored it. That wasn't a clerical error -- it was deliberate action on the judge's part.

The fact that OC has withdraw certainly gives you an opporunity to try to slip a new order in, because if your new opponent is your ex, then you both have equal status with the court.

You might want to discuss the matter with your ex and ask her to stip to it, and if she refuses, that you will be forced to seek reconsideration or appeal and that this could cost her a huge amount of dough. Maybe she'll buckle and give you what you want.

I wouldn't put your request in writing, though. If it got back to the judge that you were trying to leverage an appeal against your ex, the judge would never give you an inch in any future action.