Filing complaint & court order

[autandwynnie]

Hi Soc!


The defendent was never served with the complaint to have a chance to present a defense & there were things that were not true in the complaint, yet the judge signed off on it.

There was also an affidavit that was notorized but not stamped by the clerk, so unsure if that was even seen by the judge as it contradicted what was in the complaint.

The complaint & the order have the same date & time stamp by the clerk.

1. Can an attorney take a complaint to the judge along with the order typed out by said attorney, have him sign the order right then & then file both with the clerk?  

2. What actions can be taken against the attorney and/or judge?

Thank you so much for your time!

[socrateaser]

>1. Can an attorney take a complaint to the judge along with
>the order typed out by said attorney, have him sign the order
>right then & then file both with the clerk?  

And affidavit doesn't need to be stamped, if it's part of a motion or complaint. It merely needs to be referenced in the motion/complaint.

In order for the judge to issue a contempt order, the defendant must be served, and proof of service must be filed in the court record. So, look in the court record and see if there is a proof of service.

Whether or not you were served with the order/notice to appear for the contempt hearing, you can file a motion to set aside and for a new hearing on grounds of fraud, mistake, inadvertance, unfair surprise (which includes insufficient service).

However, if you just don't believe that you were served, for example, because the process server saw you asked your name and tried to hand you documents, but you turned and walked away, and the server just dropped them at your feet or your front door, but you never picked them up -- then you were served, and if you didn't pick up the docs and appear at the hearing, that's tough -- you lose.

Finally, if you are describing an order to appear and show cause (aka OSC), then the court can absolutely sign that, after which you must be served, and then you will have notice of the upcoming hearing, at which time you are entitled to defend yourself from the contempt.

Your facts are vague, so it's hard for me to tell what's up. The likelihood that a judge just signed an order finding you in contempt without providing you a hearing is near zero. You're either not telling me something, or you're not understanding where you are in the overall process.

>
>2. What actions can be taken against the attorney and/or
>judge?

Depends on what's really going on here. If the judge really did issue a contempt order against you without a hearing, that would violate constitutional due process and you could probably sue the judge personally for violating your civil rights.

I seriously doubt that this is what's happened.

[autandwynnie]

I'm sorry for being so vague.  

It was for a "divorce from bed & board" complaint which also involved custody, child support, property, etc.  

I was never served, but the judge signed the order on the same day as the complaint was brought to him, the complaint was not filed with the clerk to be served to me prior to the judge signing the order.  

I was served with the complaint & the order 5 days after the judge signed the order.

1. What I don't understand is why I wasn't served with the complaint & given a chance to tell my side before he signed the order?

2. All that the order addressed was the custody & possession of the house, none of the other things, so does that mean that the divorce from bed & board, along with the other things that were not addressed were not granted?

Thanks again!

[socrateaser]

>1. What I don't understand is why I wasn't served with the
>complaint & given a chance to tell my side before he signed
>the order?

What you are describing is a complaint for divorce accompanied by temporary orders for custody and possession of the house. You are entitled to a hearing on the temporary order. In your jurisdiciton, you may have to request that hearing, but if you do, the judge must give you an opportunity to explain why the order should be set aside, or something else ordered in its place.

>2. All that the order addressed was the custody & possession
>of the house, none of the other things, so does that mean that
>the divorce from bed & board, along with the other things that
>were not addressed were not granted?

Whatever was granted is temporary until the final judgment/decree of divorce is issued. However, if you don't request a hearing, then what has been temporarily ordered, will very likely be what is permanently ordered.

If there is a house and kids involved, I strongly recommend you hire an attorney. You're gonna get your butt beat otherwise.