Orders entered -- different from signed stip

[DecentDad]

Soc,

I found out today that the orders were entered from opposing counsel's proposed judgment.

I had filed objections that noted the proposed judgment had substantial changes in places from the signed stip at time of trial.

Among objections:

A.  In the signed stip, there was no agreement on the child support figure and school cost cited in proposed judgment.  Objection noted that the figures opposing counsel proposed were from 2002, and relevant circumstances had changed.  To be clear, the signed stip never mentioned child support at all.

B.  Vacation language had changed from the signed stip.  Stip language made it clear that the vacation weeks were week-long "periods".  Proposed language changed it to total time.  This change allows biomom to split up total time into hours, and decimate the regularity of the custodial schedule.  I provided an exhibit of an email wherein she outlined 20+ dates throughout the year with her "vacations" ranging from 2 hours and up.

On vacation, biomom's idiocy (i.e., attempting to use "two week-long vacation periods" by hourly distribution to give herself a total of 3 months of vacation) occurred AFTER we signed the stip (for which she would have been in contempt) but BEFORE orders were entered (for which she technically has "2 weeks of vacation time").

Questions...

1.  How does this court make orders on CS and ignore that there is no agreement to veer from guideline on child support?

2.  Before arguing an OSC to modify child support, do we first have to go through a motion to set aside the new orders on CS, based upon fraud by opposing counsel that an agreement had been reached?

3.  If I entered evidence into my objections to outline biomom's intent (i.e., her emails) to exploit the proposed language that's different from the signed stip-- and the court obviously didn't care about my objections-- do I have a leg to stand-on to now move to modify the judgment to the actual vacation language we signed?

4.  What other avenues should I be pursuing, if any, on these two issues?

Thanks,
DD

[socrateaser]

>1.  How does this court make orders on CS and ignore that
>there is no agreement to veer from guideline on child
>support?

If the order substantially deviates from guidelines and the attached dissomaster, and the court did not state the reason for the deviation, then you can move for reconsideration, and simultaneously file an appeal. However, I doubt this, because no CA judge will deviate from guideline support and not provide a written explanation -- only one deviation from guideline support has every survived an appeal (Marriage of Hall). If you are arguing that the circumstances have changed now, then file a new motion to modify support on those grounds and submit a new financial disclosure and supporting affidavit.

>
>2.  Before arguing an OSC to modify child support, do we first
>have to go through a motion to set aside the new orders on CS,
>based upon fraud by opposing counsel that an agreement had
>been reached?

If you signed the stip, then you reached an agreement. If the order does not substantially follow the terms of the stip, then move for a correction order.

>3.  If I entered evidence into my objections to outline
>biomom's intent (i.e., her emails) to exploit the proposed
>language that's different from the signed stip-- and the court
>obviously didn't care about my objections-- do I have a leg to
>stand-on to now move to modify the judgment to the actual
>vacation language we signed?

Either the judge didn't read your objections (rubber stamp), or he/she didn't think much of them. You need to pretend to be the judge for a minute and read the documents objectively, before you start a new fight.

>
>4.  What other avenues should I be pursuing, if any, on these
>two issues?

I think you need to concentrate on the kid and moving forward with your life now, at least with regard to custody. For the CS issue, you can always move for a new mod if you can show materially changed circumstances.

[DecentDad]

Soc,

I don't think I clearly described the situation.  Note that I'm not trying to modify custody issues-- I'm just bewildered why I've suddenly got a judgment entered that is different from what I signed.  Biomom had a problem with some of the language, and her attorney unilaterally changed it to favor her.  Attorney also changed language on many other clauses that didn't change substance, and I didn't object to those.

Child support wasn't addressed AT ALL in our 2004 stip.  I signed it and still agree to the language of it.  However, since CS and childcare costs split weren't in it, I didn't agree to these new amounts (i.e., I anticipated going back to modify CS after custody was settled).

Child support was last stipulated in 2002.  Circumstances have changed since then.  A guideline amount today would be different from the 2002 stip.

In his 2004 proposed judgment, opposing counsel unilaterally inserted a restatement of the 2002 stip amounts.  No discussion, no agreement.

I objected due to no agreement on restating the same CS amount due to a change in circumstances.

Judge signed the proposed agreement, regardless.  No reason provided for deviating from guideline.

I have plenty of evidence showing change of circumstance from the 2002 stipulated CS (i.e., increase in my custodial time, evidence about biomom's earning capacity).  

I have ZERO evidence showing change of circumstance regarding CS since last week (i.e., when judgment was entered).

All I want to do IS move on.  But locking in an amount greater than guideline, and handing biomom amended vacation language that lets her wreak havoc in our future... part of wanting to move on is to give the future the best shot at financial health and minimal chaos.

1.  Would motion to correct judgment be appropriate now?

DD

[socrateaser]

>1.  Would motion to correct judgment be appropriate now?

Well, I dunno. The following is the rule for the findings and order after hearing. Tell me whether you and opposing counsel adhered to the rule, and if not, how not:

Rule 391. Preparation of order
(a) [Prevailing party to prepare] Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion shall, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court's order. Within five days after the mailing or delivery, the other party shall notify the prevailing party as to whether or not the proposed order is so approved. The opposing party shall state any reasons for disapproval. Failure to notify the prevailing party within the time required shall be deemed an approval.

Code of Civil Procedure section 1013, relating to service of papers by mail, does not apply to this rule.

(b) [Submission of proposed order to court] The prevailing party shall, upon expiration of the five-day period provided for approval, promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received.

(c) [Failure of prevailing party to prepare form] If the prevailing party fails to prepare and submit a proposed order as required by (a) and (b) above, any other party may do so.

(d) [Motion unopposed] This rule shall not apply if the motion was unopposed and a proposed order was submitted with the moving papers, unless otherwise ordered by the court.

[DecentDad]

Hi,

This was a settlement at time of trial (i.e., final judgment per Montenegro).  Opposing counsel (Petitioner) said on record that he'd prepare it and have it to the court in a month.

OC provided proposed judgment on June 17 (after settlement of May 24, 2004).

Within 24 hours, I gave my attorney feedback via fax (i.e., I have fax record).  I discovered that my attorney didn't forward it for approx 10 days, due partly to his office's inefficiency and a week vacation.

I only discovered much of the following due to going through my file:

Both attorneys appeared at and supported a continuance on the deadline the judgment was to be provided to court.  I subsequently discovered this when I was billed for it.

Opposing counsel responded to issues by addressing a couple in the judgment and ignoring the rest.

My attorney proposed a meeting among parties to resolve.  OC disagreed. Attorneys met alone on Aug 2 and didn't resolve issues.

OC wrote letter to my attorney on Aug 10, (incorrectly) stating that there is now agreement between parties, and saying if he didn't hear back by Aug 16, he'd file it.  OC provided notice of unavailability for last half of August.  My attorney was unavailable on Aug 16-17.

My attorney's office contacted me on Aug 16, saying we had a deadline of that day (i.e., I was unaware they had sat on it for a week).  I told the admin person to tell OC there's no agreement on judgment due to it not following stip.  OC filed it anyway on Aug 16, along with copy of the Aug 10 letter.  OC never provided any summary of objections to the court.

My attorney filed my own proposed judgment on Aug 23.  Mine more closely conforms to the signed stip.

We went to Aug 30 hearing on court's own motion to sanction OC for failing to provide judgment.

The court's motion was moot on Aug 30, obviously, and my attorney told the court that it has two judgments to consider.  Court stated that my attorney failed to follow code on noting objections to a proposed judgment, that there's a reason for such process.  My attorney thanked him and we left.

My attorney felt that judge was mistaken on not considering an alternate judgment, in that the court hadn't made a ruling in this case.

On Aug 30, I provided my objections to my attorney.  His office didn't file them until Sept 17 (i.e., 31 days after initial filing date of proposed judgment, but service was via mail).

My attorney gave notice of unavailability from Sept 17 to Oct 17.

On October 20, court entered the judgment.  It made no mention of my objections.  The proposed judgment fraudulently represents a stipulated CS amount from the May 2004 settlement (i.e., the court was informed via proposed judgment that parties stipulated to it, when that wasn't the case-- the signed stip proves it).  The court may not have mentioned the deviation from guideline due to how OC represented the CS amount as being agreeable between parties.

On October 26, my attorney's office told me about the judgment.

So, based upon CCP clauses you cited, both attorneys screwed up.  Also, court may have had discretion to consider my proposed judgment because OC didn't provide proposed orders within 5 days (though he did subsequent to that, prior to my proposed judgment).

Where do I go from here?  All I'm trying to accomplish is to get the signed stip into orders-- not some bastardized version of it or with new orders to which I never agreed.

Thanks
DD

[DecentDad]

"...(b) A stipulation for judgment must include disposition of all matters subject to the court's jurisdiction for which a party seeks adjudication or an explicit reservation of jurisdiction over any matter not proposed for disposition at that time. A stipulation for judgment constitutes a written agreement between the parties as to all matters covered by the stipulation."

Questions on this:

Because my stipulation for judgment did not mention child support (i.e., which was ordered 3 years prior), would it mean that neither party sought adjudication on it "at that time"?

Or would opposing counsel have a sound argument that failing to explicitly reserve jurisdiction over child support in the stipulation implied consent to restate pre-existing child support orders?

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

Other matter, in re Marr of Kaufman (1980), trial court corrected its judgment two years later due to error between stipulation signed and judgment entered.  The error was attributed to attorney's failure to notice the difference (i.e., not applicable to me), but the reviewing court also noted the trial court's clerical error in that it was the trial court's intent to accurately make the signed stipulation into entered judgment, and the oversight was not judicial in nature... hence the trial court had the discretion to correct its error when the error was brought to its attention.

Would that apply to my situation?

Thanks,
DD

[socrateaser]

>Because my stipulation for judgment did not mention child
>support (i.e., which was ordered 3 years prior), would it mean
>that neither party sought adjudication on it "at that time"?

No, whether you sought adjudication of a question depends on a party requesting relief in a petition/motion/OSC, not on whether it is dealt with in a judgment.

Not sure why this is relevant to your circumstances.

>
>Or would opposing counsel have a sound argument that failing
>to explicitly reserve jurisdiction over child support in the
>stipulation implied consent to restate pre-existing child
>support orders?

If no new support order was sought, and none was granted, then the previous orders are still in force, and your material change of circumstance burden arises after the date of entry of the order currently in force.

>Would that apply to my situation?

Maybe. From the facts that you've posted, I'd say that you need to tell your attorney that you want that order changed to reflect the stip and that you don't care how he achieves it, but you're not paying for it,  because he didn't do his job in a lawyerlike manner.

[DecentDad]

.

[DecentDad]

Hi Soc,

I met with my attorney yesterday eve.  The facts are as I outlined to you in the posts in this thread.

My attorney is offended at the insinuation he didn't handle this well.  He thinks he did everything right.  He emphasized that he filed his objections with the court in a "timely" manner (i.e., I'm not sure of the rule, but it was filed 31 days after opposing counsel filed proposed judgment).  He finds it immaterial that he didn't reply to opposing counsel to state opposition to the final version of the proposed judgment that OC subsequently filed.

At this point, he's indeed suggesting that we do a motion to reconsider, followed by an OSC to modify support.  It'll be at his hourly rate, of course.

All he had to do was get the settlement made into a judgment.  After dropping $4k on his office over the past few months to have this outcome, I'm questioning his continued representation of me.

In a nutshell, the October 20, 2004 judgment makes reference to child support figures that were stipulated in 2002, but are no part of the May 2004 settlement at time of trial (i.e., simply reviewing the signed stipulation in 2004 will show this, along with my objections filed with the court).

My goal is to come back at some point and modify support using evidence gathered prior to the October 20, 2004 judgment.

1.  Do I have a limited time period in which I must file a motion to have the court correct the error, reconsider it, etc?

2.  On the other hand, if I were to do nothing now, wait a while and file the OSC to modify support, include evidence showing change of circumstance since the parties last truly stipulated to it (i.e., 2002), and include evidence showing that child support was NOT stipulated in 2004... would that single OSC demonstrate that the measure for change of circumstance is really 2002 and not 2004?

3.  Would it do any good to write to opposing counsel at this point, state that we did not stipulate to child support in 2004, ask for opposing counsel to resolve it and allow pre-existing orders continue, and cc the court?

4.  Any other suggestions to make sure I preserve my opportunity to modify child support based upon the 2002 orders, and not have the Oct 20, 2004 benchmark be the measure for change of circumstance?

Thanks,
DD

[socrateaser]

>1.  Do I have a limited time period in which I must file a
>motion to have the court correct the error, reconsider it,
>etc?

10 calendar days from date of service of notice of entry of judgment. I'll bet you're time has expired already.

>
>2.  On the other hand, if I were to do nothing now, wait a
>while and file the OSC to modify support, include evidence
>showing change of circumstance since the parties last truly
>stipulated to it (i.e., 2002), and include evidence showing
>that child support was NOT stipulated in 2004... would that
>single OSC demonstrate that the measure for change of
>circumstance is really 2002 and not 2004?

Evidence of a material change in circumstances re child support must arise after the date of entry of the last child support order. If your recent judgment did not award or deny support, then the prior order's entry date remains the relevant date for the change. Otherwise, the new order/judgment date of entry takes precedence.

>3.  Would it do any good to write to opposing counsel at this
>point, state that we did not stipulate to child support in
>2004, ask for opposing counsel to resolve it and allow
>pre-existing orders continue, and cc the court?

Why would you want opposing counsel to "resolve" the support issue for you? I think you need to rephrase your question.

>
>4.  Any other suggestions to make sure I preserve my
>opportunity to modify child support based upon the 2002
>orders, and not have the Oct 20, 2004 benchmark be the measure
>for change of circumstance?

Nothing comes to mind.