Court outcome

[DecentDad]

Hi Soc,

Per your prediction, biomom lost her OSC to strip me of my custodial time (and birthday with child) so that child could attend aunt's wedding.  Judge told her that he doesn't want to be bothered with weddings, graduations, parties, or any other petty issue outside of court orders.  I didn't get my attorney fees or sanctions.

On the 663 and 471 (or 473? I forget) motion to vacate judgment, judge did something weird.  Judge told my attorney that simply saying he objects to a judgment without specifically outlining objections isn't good enough, so judge denied my motion.

My attorney didn't remind the court that specific objections had been filed nor did he point out that my objections were outlined in my declaration for my motion-- he just said okay and we left.

Attorney is now saying he wants to meet with me to determine next approach (e.g., a motion for reconsideration, or OSC to modify support).  Meanwhile, he's still billing me for all his work (not that I've paid) to correct the judgment that was entered.

Attorney told me this morning-- in response to my letter I sent disputing fees-- that there's nothing on the record that his objections were untimely, hence he disagrees with my perspective.

Later today, on the record, judge informed him that the court doesn't have any specific objections about the judgment.

My attorney is still convinced that the judge is wrong on how the judgment was entered.

1.  If I were your client, what would be your next move on the judgment (i.e., court didn't explain why it deviated from guideline on child support in the absence of stipulated orders)?

2.  If I'm now paying health insurance for child, if biomom now has a boyfriend living in her home (i.e., may be contributing to expenses while biomom remains under-employed), and if I found evidence that biomom will be teaching a 3 weekend course in March at a college here-- is that all good enough for change of circumstance on child support?

DD

[socrateaser]

>1.  If I were your client, what would be your next move on the
>judgment (i.e., court didn't explain why it deviated from
>guideline on child support in the absence of stipulated
>orders)?

Well, my first move would be to apologize to you for being so stupid as to submit a motion for relief from judgment without stating the grounds, because that's brain dead! Then I would draft a new motion stating the grounds and submit it again.

>
>2.  If I'm now paying health insurance for child, if biomom
>now has a boyfriend living in her home (i.e., may be
>contributing to expenses while biomom remains under-employed),
>and if I found evidence that biomom will be teaching a 3
>weekend course in March at a college here-- is that all good
>enough for change of circumstance on child support?

CA law strongly disfavors considering the income of a new spouse or cohabiting partner in determining child support, except in extraordinary circumstances where the children would suffer extreme hardship were that income not considered. So this theory goes nowhere.

As for your ex teaching short courses, if you want to use that income to demonstrate her earning capacity, I'd say you should do it, but you may want to wait a while. If you do nothing, she may think it's safe to earn more and more, and then you can go after her when she has a more consistent earning track record.

[DecentDad]

It's as if court just ignored it all.  

Objections were originally filed (probably not timely, but that was never ruled), and the 663/473 pleadings specifically recounted the reasons for the objections.  The meat of what you advised on the 663 was in there too.

Today, judge simply said, "You stated an objection without specifying your objections, so motion denied."

I was dumbfounded.  It was a 5 second ruling.  I was disappointed that my attorney did nothing other than say, "Okay", but I guess once a judge has ruled, it does little to argue.

So... resubmit the same pleadings?!

[socrateaser]

I guess I'm not understanding you. A motion pleading generally has several parts:


1. Arequest for some kind of reasonably specific relief/order/award/etc., and a statement of the general legal theory upon which the relief should be based. I.e., Petitioner requests an order that Respondent stop stealing fizzy lifting drink on grounds that stealing fizzy lifting drink is not in the child's best interests.

2. The there should be a sworn Declaration/Affidavit stating material facts (with exhibits as necessary attached), that if proven to the court, would cause the court to grant the requested relief.

3. Then there should be a Memorandum of Points and Authorities that applies the legal theory stated in Part #1 of the motion, to the material facts of Part #2, analyzes the various "points" and cites the various "authorities," and argues for/against the court granting the requiested relief.

4. Finally, in most jurisdictions, it is common for a motion to have appended to it, a proposed order, that actually grants the specific relief requested, so that in the event that you carry your burden of persuasion, the judge can sign the order immediately, rather than telling one side or the other to prepare the order and then return it to the court for signature and entry into the court file.

5. The motion also has copies of the various exhibits referred to in Part #2, and a proof of service, but these are just details.

The above, regardless of whether the motion is made on one page or 20, and whether or not the motion has a pre-printed cover form or not, is what is required for a valid court motion.

For an OSC (order to show cause), the declaration frequently contains both the material facts, and the points and authorities, because this kind of hearing is tradionally requesting of enforcement of something that should be relatively obvious (although modernly, this is anything but the case, and OSC hearings are now as complex or more complex than "law and motion" hearings).

End of lesson.

Now then, if all of the above parts were present in your attorney's motion, then he did his job, and left wanting. If not, then your attorney screwed up and should be stomped by a fat lady wearing a black leather corset and six inch stilettos!

Come to think of it, that's what I'd like right about now (except for the fat part).

Later...

[DecentDad]

Yes, the motion had all those parts.

I had a declaration, attorney had a declaration, it referenced code as points and authorities, and relief sought was for the court to vacate the entered judgment and replace it with my proposed judgment that more accurately reflected the settlement.

The judge didn't even ask for arguments.  He simply made his announcement on denying it and then went to the other matter.

1.  So... game over, nothing else to do on the wrongly entered judgment?

2.  And... are you suggesting that my attorney is off the hook on the original negligence that allowed this judgment to be entered in that he attempted to clean it up?

3.  And... through no fault of my own, I'm now stuck with an above-guideline support amount to which I didn't stipulate, until I can demonstrate a change of circumstance?

DD

[socrateaser]

>1.  So... game over, nothing else to do on the wrongly entered
>judgment?

Take the judge at his word and resubmit the motion with specific objections.
>
>2.  And... are you suggesting that my attorney is off the hook
>on the original negligence that allowed this judgment to be
>entered in that he attempted to clean it up?

No. Something is up with the judge, but I'm not sure what, at the moment. He may just be trying to sweep you under the rug, cause he's tired of dealing with both you and your ex, now.

I'd want your attorney to explain why he thinks the judge brushed him off.

>3.  And... through no fault of my own, I'm now stuck with an
>above-guideline support amount to which I didn't stipulate,
>until I can demonstrate a change of circumstance?

Well, since your ex is teaching a short course, you can already show that, so this point is probably moot.

[DecentDad]

Perhaps relevant, judge had 32 matters on his docket today.

I think part of what diluted my motion is my attorney attempting to cover his butt.  Between the initial motion, the response, and my reply to biomom's response, there was more than 50 pages.

I'm questioning what a further meeting with my attorney would do.  He blows smoke, still adamantly denies any fault in this mess, talks all about strategy that never seems to pan out.  

He ain't produced results for me in forever (i.e., even winning the OSC against biomom today was based upon pleadings I wrote myself and instructed my attorney to file because I wasn't going to pay his office to do it).

I wouldn't keep giving the same surgeon many tries to correct an operation while I'm hemmoraging.  After the second time, I gotta wonder.

1.  So, are you thinking that if I did a short Motion to Reconsider the 663, making reference to the ruling today (i.e., via court transcript), and pointing out in the prior motion the specific objections that were outlined, that's the way to go?

2.  And... is it a simple enough thing to do effectively in pro per (biomom is pro per as well), and could it be to my benefit to lay blame on my attorney if need be?

3.  When you say "resubmit", are you saying to actually file a new motion under 663... but what impact does the 15 day deadline have (now long past)?

4.  My final thought is-- if I'm pro per, and if biomom is pro per, what would I really have to lose by just doing the motion to reconsider?!  If it wins, awesome.  If it fails, then I later fall back on a change of circumstances on support and child care (i.e., the latter is now in the judgment that I stipulated to $285 per month, which I never did).

Thanks for helping me keep you battin' 1.000 (I enjoyed your tuff love sermon, as deaf as the ears may be for which it was written).

Thanks, Soc.

DD

[socrateaser]

>1.  So, are you thinking that if I did a short Motion to
>Reconsider the 663, making reference to the ruling today
>(i.e., via court transcript), and pointing out in the prior
>motion the specific objections that were outlined, that's the
>way to go?

Yes, but be extremely deferential, i.e., "Respondent's motion was denied on a finding that no specific objections were referenced in the motion. However, the motion does, in fact, contain numerous specific objections that Respondent can only believe were inadvertantly overlooked by the court. Therefore, Respondent asks the court to withdraw it's denial, and re-examine Respondent's pleadings on the merits."

Etc., etc. etc.

>
>2.  And... is it a simple enough thing to do effectively in
>pro per (biomom is pro per as well), and could it be to my
>benefit to lay blame on my attorney if need be?

You can't go in pro per until you fire your attorney. Whether you can do it yourself is your call to make.
>
>3.  When you say "resubmit", are you saying to actually file a
>new motion under 663... but what impact does the 15 day
>deadline have (now long past)?

No, ask for reconsideration.

>
>4.  My final thought is-- if I'm pro per, and if biomom is pro
>per, what would I really have to lose by just doing the motion
>to reconsider?!  If it wins, awesome.  If it fails, then I
>later fall back on a change of circumstances on support and
>child care (i.e., the latter is now in the judgment that I
>stipulated to $285 per month, which I never did).

Correct. Just be careful not to PO the judge, cause he just gave your ex a small spanking and we want to keep her on her heels. You may be better off just waiting six months or so and then filing a new motion to modify.

[DecentDad]

I'm noting in CCP 1008 that a new fact, circumstance, etc., must accompany a Motion to Reconsider.  

Hence, I reference a piece of correspondence (down below) that I know exists but wasn't previously used as an exhibit.  It states staunch objections to a draft judgment that immediately preceded the submitted one (i.e., the submitted one didn't change in substance), so Petitioner was aware of the objections, even though they came a week before her final proposed draft.

If going the path of waiting to modify support-- I'm just concerned that the judge will say, "Dude, I see that you yourself stipulated to $285 per month in childcare, and you stipulated to $701 per month in support; and I really don't think all that much has changed in your circumstances (e.g., this income of Petitioner's is only temporary for a month) so you're stuck with the agreement you made!"

But if judgment is vacated in part to exclude child support and childcare, it throws the threshhold back to 2002 (from previous existing orders), and change of circumstance is a no-brainer from that time due to my increase in custodial time.

Feedback on the following?  It'll get accompanied by my affadavit.


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

RESPONDENT'S MOTION FOR RECONSIDERATION OF RULING TO DENY RESPONDENT'S MOTION TO VACATE JUDGMENT

I. INTRODUCTION
Respondent brought this motion to vacate the entered judgment (in full or part), under § 663(1) of the Code of Civil Procedure, because the judgment deviates from California state guideline on child support and makes an order for additional support contribution for child care without finding any need for such.

Respondent never stipulated that temporary orders for support made in 2002 would be entered into a final judgment in 2004.  Though aware of Respondent's objections, Petitioner deceived the court into believing that parties had newly stipulated to child support and childcare as part of the final judgment.  

Well before the judgment was entered, on August 30, 2004 the court instructed Respondent to file his objections.  Respondent filed objections with the court on September 17, 2004.  On October 20, 2004, the court entered the judgment without a finding on Respondent's objections.

On January 12, 2005, this court denied respondent's motion to vacate the judgment.  Respondent's motion was denied on a finding that no specific objections had been presented to the court.  However, the motion does, in fact, reference numerous specific objections that Respondent can only believe were inadvertently overlooked by the court.  

On January 17, 2005, Respondent discovered further evidence that Petitioner was well aware of Respondent's objections to particular clauses contained in the draft judgment that Petitioner unilaterally inserted with no regard for what the settlement actually contained.  Petitioner subsequently deceived the court into believing the judgment was in agreement between parties.

II. ARGUMENT

A. Standard For Review of Motion for Reconsideration.

Code of Civil Procedure §1008(a) provides that within 10 days of service of written notice of entry of an order, any party affected thereby may make application for reconsideration of the matter to the court or judge that made the order and that the order be modified, amended, or revoked. Such application shall be based upon new or different facts, circumstances, or law, and shall be supported by affidavit specifying what application was made, when made and to what judge, the order which was entered and the nature of the new or different facts, circumstances or law which are relied upon by the moving party. Therefore, "a motion made in accordance with section 1008 must include reference to new or different facts, circumstances, or law before the earlier order may be reconsidered." Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96; Wilson v. Science Applications International Corp. (1997) 52 Cal.App.4th 1025, 1032.

Additionally, the motion must be heard by the trial judge who entered the order, and it must be accompanied by an explanation for the failure to bring the information to the court's attention earlier. Wilson, supra, p. 1032.

B. Respondent Presents New Evidence to Support His Motion for Reconsideration of the Ruling to Deny Respondent's Motion to Vacate the Judgment

On January 17, 2005, Respondent substituted out his former attorney so that he now acts in pro per.  On the same day, Respondent retrieved his file from his former attorney.

On January 17, 2005, Respondent discovered in his file a copy of correspondence from his attorney to Petitioner's attorney in which Respondent's objections to the proposed draft judgment were made very clear.

III. CONCLUSION

For the above and foregoing reasons, Respondent urges the court to reconsider and to revoke its previous ruling denying Respondent's Motion to Vacate Judgment.

[socrateaser]

I think you're making this way to complex, and the judge has demonstrated that unless things are presented in a manner so straightforward that he can follow it instantly, that he will blow you off.

When is your 10 days up? I need to think about this a little.