? on interpretation of orders for time of exchange

[DecentDad]

Soc,

My ex is queen of subjectively interpreting orders and finding creative ways to defeat their intent.

Orders state that I pick up daughter "after school" on alternating Fridays, "or 5pm if no school."

For two months, biomom has informed me that she is keeping daughter home from preschool on Fridays "for family time" and I should pick up daughter from her home at normal school ending time.  As this is preschool, I don't get to make much of a stink in court.

Biomom doesn't like me interacting with the preschool, so that's her motivation.

Today, she informs me by email that she has retained a new attorney who tells her that if she keeps daughter from school on Friday, I must pick up daughter at 5pm, not at normal school let-out time.

School was ordered to be the exchange point on the recommendation of the custody evaluator.  Biomom has defeated that, simply by not taking daughter to school.

1.  Does the phrase "or 5pm if no school" reasonably mean "5pm only when school is not held" or "5pm if daughter doesn't attend school, regardless of whether it's held" ?

2.  Does the fact that biomom has been acting like it means "5pm only when school is not held" ever since orders were entered have any bearing on how a court will view her sudden new interpretation?

3.  Is it contempt if I go to pick up daughter at normal end of school time, and daughter isn't available either at school or biomom's home?

4.  How would you suggest I proceed on this, or respond to her?

Thanks,
DD

[socrateaser]

>1.  Does the phrase "or 5pm if no school" reasonably mean "5pm
>only when school is not held" or "5pm if daughter doesn't
>attend school, regardless of whether it's held" ?

I'd interpret it to mean "or 5pm if no school." However, pre-school isn't really school. K-12 is school. So, this is gray in the gaps and open to an argument, either way.

You may want to contact her attorney and try to negotiate a stip. If nothing else, you'll be costing her money, and making her attorney money.

>2.  Does the fact that biomom has been acting like it means
>"5pm only when school is not held" ever since orders were
>entered have any bearing on how a court will view her sudden
>new interpretation?

Yes, assuming you prove that her interpretation has actually changed.

>3.  Is it contempt if I go to pick up daughter at normal end
>of school time, and daughter isn't available either at school
>or biomom's home?

I think the ambiguity makes a contempt here impossible without a clarification by the court.

>4.  How would you suggest I proceed on this, or respond to
>her?

Deal with her attorney.

[DecentDad]

> Yes, assuming you prove that her interpretation has actually changed.

QUESTION 1
Would her prior multiple emails to me, advising me she is keeping daughter home from preschool so I am to pick up daughter from her home at 1:15pm (i.e., the time that preschool lets out, NOT 5pm) on Fridays be sufficient evidence?  If relevant, court ordered two years ago that we communicate only through email and save print outs of our emails.

I've left already message with her attorney and sent a fax advising of two options I see... A) stipulate to "if no school" means "if preschool/school is not held that day" or B) return to court to clarify.  As biomom never budges in such scenarios, I'm anticipating return to court.

In terms of return to court, it's not simply a petty matter of losing a few hours on Friday.  I need to arrange my work schedule, sometimes we take a weekend trip (fly out Friday afternoon) with daughter to visit family, sometimes I plan other Friday afternoon activities with daughter.  It's not reasonable that I'm now going to be held hostage until every Thursday evening, not knowing if Friday pick-up will be at 1:15pm or 5pm.

I'm thinking the order for Friday exchanges (i.e., intent is obviously to have me pick up at end of school) would be helpful to mirror how Monday return to school is already written... "ME to bring child to school in the morning, or exchange at 8:45AM if no school".

This would remove incentive to biomom to keep child home from preschool/school when it's held on Friday.  If child still doesn't attend, then pick-up time is arguably never later than end of school.

It's also a veiled shot at picking up daughter at 8:45AM on Fridays during summer break or school holidays.

QUESTION 2
Is it reasonable to propose new language in this manner in a motion to clarify?  Or is a motion to clarify simply, "Here's the current language, here's the dispute, tell us what the court thinks it means."

QUESTION 3
Contempt motion is heard April 29.  I've asked attorney to reply by today before noon (i.e., normal pick-up is 1:15pm).  Any chance at pushing the Motion to Clarify to be heard on April 29 (and how to do so)?

Never a dull moment with this woman.  But that's good for chipping away at better orders.  :)

Thanks,
DD

[socrateaser]

>QUESTION 1
>Would her prior multiple emails to me, advising me she is
>keeping daughter home from preschool so I am to pick up
>daughter from her home at 1:15pm (i.e., the time that
>preschool lets out, NOT 5pm) on Fridays be sufficient
>evidence?  If relevant, court ordered two years ago that we
>communicate only through email and save print outs of our
>emails.

You're breaking the rules. Don't put your facts after your questions.

Ordinarily, I'd say email correspondence is hard to prove up in court, but if the court has previously ordered you to communicate via email, then I'd say that's ok.


>QUESTION 2
>Is it reasonable to propose new language in this manner in a
>motion to clarify?  Or is a motion to clarify simply, "Here's
>the current language, here's the dispute, tell us what the
>court thinks it means."

Yes, it's reasonable, and I would do it. Make it clear that you have tried to amicably settle the matter via negotiation, and that you merely wish the court to make a reasonable decision so as to eliminate ambiguity and the likelihood of further anamosity between the parties, which is not in the child's best interests.

>
>QUESTION 3
>Contempt motion is heard April 29.  I've asked attorney to
>reply by today before noon (i.e., normal pick-up is 1:15pm).
>Any chance at pushing the Motion to Clarify to be heard on
>April 29 (and how to do so)?

Well, if you've filed the motion by the time of the hearing, and you can't get a hearing date on the same day, then, you could ask the judge to rule, and whether opposing counsel has any objection to clearing up the matter "right now."

Seems to me that if you win the contempt, that your ex is gonna have a whole lot more trouble than just when to pick up the kid after school. You're painting the kind of picture that would really begin to annoy a judge to the point where he's gonna say, "Ms. X, if you don't stop screwing around, I'm going to order custody reversed!"

[DecentDad]

>  You're breaking the rules. Don't put your facts after your questions.


Well, they were ALLEGED facts.  :)   But sorry, I forgot.

I'm thinking that if this can be heard same day as the contempt motion, it saves on her attorney fees and saves me from taking more time off work.

Thanks much!

DD

[DecentDad]

Made correspondence contact with her attorney asking for stipulation on what parties have been doing since May 2004, else we'd need the court to clarify.

Attorney wrote back that she has no interest in "arguing the case" with me, stating preschool isn't school and that I should instead just stipulate to pick up daughter at 5pm on Friday so I can quit "breaking up the day" for all parties involved.

Biomom didn't release daughter at 1:15pm yesterday, not until 5pm.

So, I'm preparing my motion, integrating exhibits, in addition to what I already outlined.

EXHIBIT A
One email biomom sent me in Sept 2004 says, "Also, (daughter) finishes school on Fridays at 11:45 a.m. Will you be picking her up at school at 11:45 a.m. or at home at 5:00 p.m?"  (Biomom had changed the preschool schedule for a few weeks without consulting me, against what we registered for, then she changed it back to 1:15pm schedule that has been in place since).

EXHIBIT B
After I responded with expectation that daughter will attend proper schedule with 1:15pm end of day, biomom responded in email with "I will pack a lunch for (daughter) on the Fridays you pick (daughter) up at 1:15pm" referring to her agreement that I will pick up daughter at preschool at proper time, but insinuating her intent to not send a lunch with daughter to preschool on other days (i.e., early pick-up by mom).

EXHIBIT C
I got copies of preschool attendance records to show biomom's latest antics preventing daughter from attending school.  Preschool director doesn't want to be involved, but gives both of us complete access.  Director told me that both parents have come to her, asking for testimony, that she isn't willing to be involved, but that I should be assured even if she's subpoenaed that the preschool won't say anything negative about me because they think I'm great.  Director suggested I look at all the sign-in/sign-out sheets, especially on the days I've brought daughter to school.  Huh?  I looked at those days (on which I pack a lunch) for past six months-- biomom regularly and consistently removed daughter from preschool as soon as 10 minutes after I dropped her off to a couple hours later-- preventing her from eating the lunch I pack.  Just too odd.

1.  In Exhibit A, would you say it pretty much seals our mutual interpretation of orders that "school" (a word twice used in her own email) was intended to be analagous with "preschool" and likewise shows understanding that I have right to pick up daughter at end of preschool?

2.  In Exhibit B, would you say it pretty much seals our mutual interpretation of orders that I am to pick up daughter at end of preschool at 1:15pm?

3.  In my motion, should I remind this judge (assigned May 2004) that our prior judge on his own 2003 motion made orders for email communication only and that we are to print out emails?  Or wait to do that until opposing counsel objects?

4.  In Exhibit C, does it have any bearing other than demonstrating biomom truly kept daughter absent on my custodial Fridays?

Thanks,
DD

[socrateaser]

>1.  In Exhibit A, would you say it pretty much seals our
>mutual interpretation of orders that "school" (a word twice
>used in her own email) was intended to be analagous with
>"preschool" and likewise shows understanding that I have right
>to pick up daughter at end of preschool?

No, I would say that this gives your argument that both of your interpretations are as you suggest. "Seals" is way too strong, unless you have at least two more similar emails.

>
>2.  In Exhibit B, would you say it pretty much seals our
>mutual interpretation of orders that I am to pick up daughter
>at end of preschool at 1:15pm?

Same answer as above.

>
>3.  In my motion, should I remind this judge (assigned May
>2004) that our prior judge on his own 2003 motion made orders
>for email communication only and that we are to print out
>emails?  Or wait to do that until opposing counsel objects?

I would not remind the judge, I would simply state, that per the court's prior orders, the parties have communicated routinely via email, and then lay out your facts via those emails.

>
>4.  In Exhibit C, does it have any bearing other than
>demonstrating biomom truly kept daughter absent on my
>custodial Fridays?

Hmmm, well, I'd hold that back, and put the mother on the stand, and then go through your other proofs. Then, at the end, I would refer to the record and ask the mother why she consistently removes the child from preschool whenever you drop her off.

This may generate a relevancy objection from opposing counsel, and if the judge sustains, then you will need to argue that this is relevant to showing that the mother's hostility towards you is what is forcing you to continually bring the case back before the court.

If the judge allows your question, then you are looking for the mom to say something stupid, and I don't know what, but hopefully you can come back with a straight, "Be honest, you don't want me involved in the child's life any more than you're forced to by the court, right?"

If you get a "yes," then you immediately ask the court for a new custody hearing on grounds that the mother's hatred and routine failure to cooperate is a substantial change in circumstances affecting the child's best interests.

And, if you pull this off, you should get the Trial Lawyer Association's "Lawyer of the Year" award.

[DecentDad]

Okay, great on all counts.

A.  Since time of judgment, have found a total of five emails in which biomom refers to preschool as "school" (e.g., daughter is home sick from school today, etc).

B.  Have found a total of four emails where biomom notes that exchange is supposed to be 1:15pm on Fridays (i.e., end of preschool).

I'll leave the alienation thing for another day.  One of the only valuable things my prior attorney did was three depositions during which he guided her into saying some great stuff (e.g., biomom admitting to her earning capacity and willful unemployment).

On alienation, he led her through repeating herself in many different ways on multiple issues, her belief and intent that I should have no involvement with daughter's life other than what court forces her to do.

Unfortunately, evaluator didn't report any concern about her deposition testimony, so game was over (i.e., we settled for evaluator's recommendations at time of trial).

Thanks for your help on this.  I feel good... am discovering that proving/resolving one issue at a time is much easier than trying to argue the world and distracting from focal points.

DD