Need Case Resolution

[TwoBoys]

Case history (Im sure you get so many you dont remember mine so here it is = the brief version).

Case is in FL and is my Hs case.
He had a son by a woman and they were not married, born June 02
He attempted to get CS and visitation done through an amicable agmt, no luck, She threatened to leave state if he didnt comply with her demands.
Feb 03 - he filed papers to legally establish CS, visitation, and custody, requesting the standard visitation per the Shared parenting agreement.  She moved 8 hours away, but stayed in state (S Florida).

Case has been ongoing since then.  CS is established - agreed by both parties (close to guidelines if she was paying for childcare - but she does not pay for child care).

Temp order for visitation was established in apr 03 - one week visitation per month.  BM denied visitation.
Aug 03 - they agreed on every 3rd weekend visitation, plus 3 week long visitations per year.  Stipulation got written in a way that it states 14 weekends per year, no specific dates, as a result, visitation is repeatedly denied.
Jan 04 - temp order by the court enforcing the agreement by both parties, with jurisdiction reserved to sort out issues not clarified bythe agreement.  Court order from that hearing states parties are to have a Settlement conference to settle all outstanding issues prior to a final hearing, at which time a judge will hear and decide on all outstanding and unresolved issues.

During Jan - Feb H fired current counsel b/c he refused to return calls, file the order, among many other things.  Order allowing counsel to withdraw was signed apr 1 (he took his sweet time withdrawing).

Since Mar 16 have been trying to set settlement conference with other parties atty.  He refused to set it until court orderw as signed by judge allowing our counsel to withdraw.

Now that the order is signed, we went two days of the other party's office refusing to return calls.  During one conversation wtih the other partys legal office, paralegal stated they didnt need to set a conference, the case was closed and settled.  H referred to the order, and they still refused to set a date.

Finally, today, they agreed to set a date, however its 2 months out.

We were told by an atty (during a consultation) that if this happened (the other party has stalled unreasonably since day one), we could file a motion/order for emergency case resolution.

My questions are:

Do you know anything about this?
Any suggestions on how to word/draft this motion?
Is it a motion or do we draft an order for the judge to sign?
What does this accomplish (exactly)?
Do we need to cite our numerous (unsuccessful) attempts at scheduling the settlement conference as ordered?
Does 2 months out sound unreasonable to you as well (esp considering the order is 9 weeks old)?

Thank you, Any help is appreciated.  Sorry for the slew of info, i just wanted to cover all bases just in case, and to give you an idea of how much this has been dragged out.  

Thank you,
Two Boys

[socrateaser]

>My questions are:
>
>Do you know anything about this?

Well, two months out for a settlement conference is stalling in my opinion, so I would file an emergency motion asking the court to set a more timely conference on grounds that they are intentionally delaying the case.

>Any suggestions on how to word/draft this motion?

Before I do this, please tell me all of the events that you believe were intended to delay the case, and whether anything you or your attorney did, could be used to rebut your version of the facts.

>Is it a motion or do we draft an order for the judge to sign?

Both.

>What does this accomplish (exactly)?

Gets the judge to force a conference sooner.

>Do we need to cite our numerous (unsuccessful) attempts at
>scheduling the settlement conference as ordered?

Yes.

>Does 2 months out sound unreasonable to you as well (esp
>considering the order is 9 weeks old)?

Yes.

[TwoBoys]

Sorry for the delayed response, and thank you for your timely response :)

As for the events we believe were intended to delay the case...
Well, they have stalled on every response, waiting until the very last moment on everything including responses to interrogatories, etc.

At our first hearing in 03 (april?), the two parties were ordered to mediation.  They waited until the last minute then called and rescheduled it without our knowledge (delaying it two months).  We (including our atty) were informed by the mediator.  A week prior to the new mediation date, they attempted to reschedule again after a dispute over which day visitation was to take place.  The mediator refused to have it rescheduled and so it occurred as planned.  Mediation was a total failure, and later, the BM admitted in an email that they intentionally stalled, and intentionally asked for things they knew would never be accepted to cost the NCP in legal fees and to draw the case out further.  The longer they stall, the longer before he gets "real" visitation on a regular schedule.  Obviously, the email from her is probably useless.

(The schedule in the order allows him visitation, but doesnt state exactly when so until a final hearing, its at her whim).

She (the BM) has since stated that while she is ready to be done paying legal fees, that she wants to wait as long as possible to go to court so she can continue to control visitation.

Also, as a side note.  over half a dozen attempts have now been made on just this one issue, and they still refuse to change the date.  So, I called and pretended to need a 1 hour consultation.  They offered me 2 dates - April 15th and April 19th.  I accepted the April 19th appointment, and H immediately called, told the paralegal that he knew she had two openings - the 15th and 19th.  She claimed shed already given them both away (in 5 minutes?) and that two months out was still the earliest she could give him and that the atty sent him a letter stating such.

He then asked that if either of those two appointments were cancelled, could she immediatley put him in for that date/time and call to notify him.  She reluctantly agreed.

I plan to call and cancel my "consultation" today, and have H call immediately afterwards to try to get the 19th.  We know they probably wont give it to him, but well try anyways, and then file the motion/order.  An atty weve consulted with also suggested filing a complaint with the bar.

We have a list of dates and times that weve attempted to call.  We also have a letter from the other atty stating that he refuses to deal with us until our other atty was officially off record.  We then have another letter from him a week later (prior to the order being signed from the judge allowing our counsel to withdraw), denying us our week long visitation for the summer and offering us 5 different days instead, and informing us that BM is taking their son out of state for his birthday, as reason why his visitation at the time specified  in the court order is being denied.  It also states that he will not be allowed to get him for his bday (The NCPs bday) even though the court order specifically states that each parent will have visitation with the child on each of their bdays.

Now, we have yet to receive the most recent letter that the paralegal says was sent, that is supposed to state in writing that 2 months out is the soonest appt they have.  I expect well receive it today.

We have recorded all conversations, even though Im sure they cant be used b/c they werent notified of it being recorded.

But it is all documented with dates/times, and they were called from a cell phone so we have further proof of the phone calls being placed.

We are currently not being represented by any atty.  

And one other thing - we have received numerous offers from them  on visitation schedules, and every time weve accepted it, they change it, and have stalled this thing continuously.  They have filed numerous frivolous motions:  one to subpoena his cell phone records after they came to an agreement (we objected and they dropped it), one to subpoena his work schedule, prevoius work records, and all vacation time hed requested (we objected and so far theyve dropped it), one contempt and request for incarceration (because his mother took the child shoe shopping for 2 hours without the BM's permission, which they later dropped). (*The order states she has first right of refusal but that first right of refusal only applies when the parties ware within 100 miles from each other, which they are not.  This was their grounds for the contempt).

Its been over 1 yr since the original petition to establish custody, visitation and child support was filed (which was filed by H - the NCP).

I hope this gives you enough information on their history of stalling.  We have constantly tried to get this thing over with, being the one to initiate all appointments, mediation, court dates, etc, with no cooperation on any of it from them, and accepted most of their settlement offers which they have retracted 99% of the time.  

Also, the order which is currently in place - is only in place because the BM faxed us her signed copy.  Her atty held the original signature hostage, and refused to turn it over when he realized H signed it (a surprise to them, they didnt think he would b/c of the high child support amount).  We filed the fax copy of it, with an explanation for the judge that they refused to turn over the original (they refused to give it to us for 2 months - she signed it in August, we filed the fax copy in October) and this was "best evidence".  They originally objected to it, but then dropped their objection.

With all of this,
How do you propose wording a motion/order requesting emergency case resolution?

How much should we include in it - just our attempts to schedule this particular settlement conference?

Thank you, sorry for the length post!
TwoBoys

[TwoBoys]

I called and cancelled the appointment i had, and H called immediately after since she already promised that appointment to him if it "happened" to cancel.

She refused to give him the date, stated that the attorney didnt want to do the settlement conference "telephonically" he stated he would come there.  She stated that he was not allowed in their office, the atty would meet him for the settlement conference at the law library.  He stated that was fine also.

The paralegal then said she needed to put him on hold, then you can hear in the background (this is all recorded) her BEGGING the attorney to talk to him.

The attorney comes on the phone, is very hostile (I wish you could hear this recording!), and states that he wilL NOT discuss the case with him.  If he wishes to settle the case, he may submit a settlement offer in writing, and he will discuss it with his client.  

H reminds himthat the judge ordered a settlement conference before a final hearing could be scheduled, at which time the attorney stated that it didnt matter, he would NOT discuss the case with him in person, face to face, or over the phone because he no longer had an attorney.  

H asked him "Are you telling me taht you are refusing to deal with me because I am pro se?" to which he said "NO, i am telling you that i will not discuss this case with you in person or over the phone, you may submit s ettlement offer in writing".

H stated "Mr. Atty, that is not a settlement conference.  Judge So and so ordered us to a settlement conference, are you saying you refuse to have a settlement conference per the court order?".  

Atty responded " I am tellingyou that i will not discuss anything with you unless it is with a judge present HAVE A GOOD DAY".

H stated again that he would like to set the settlement conference per the court order, and that he is sorry that he wont set it per the court order, and that he will be left no choice but to bring this matter in front of the judge.  H also stated that he didnt think the judge would look too kindly at him if he refused to follow the court order, refused to deal with a person who was pro se simmply because they wree pro se, or look to kindly on the fact that they are attempting to stall the case.

The attorney simply said "Have a good day".

End of conversation.

Now what?!

TwoBoys...

[socrateaser]

Send letter to attorney, stating that you are disappointed that he refuses to engage in a settlement conference, and enclose the exact terms under which you will settle, state that if no agreement can be reached within 5 days, that you will move for a final hearing on grounds that opposing counsel has refused to follow the court's order re a settlement conference, and has further rejected the reasonable terms of your proposed settlement.

If attorney writes back with a counteroffer within 5 days, respond in writing with your counter, and state everything else in the letter the same, except that you should shorten the time for his response to 2 days.

If it happens again, then do the same one more time, and after that, send letter stating that attempting to negotiate in this manner is futile and that you believe that they are merely using this as a means of stalling any settlement or hearing, and that your offer stands as proposed until the hearing.

Then move for an expedited hearing on grounds that the other party has deliberately engaged in a pattern of behavior designed to protract resolution of the matter indefinitely.

[TwoBoys]

Thanks!

We'll do exactly that.

We received the letter from him today, stating the 30th was the first available appointment and if we chose to accept it, he would meet us at the law library.  

Also, The order states that one of the outstanding issues to be discussed as part of the settlement conference is attorneys fees and that a settlement conference (specifically states NOT formal mediation and no 3rd party is necessary) MUST take place prior to a final hearing being set and that any issues not settled within the settlement conference between parties would then be decided at the final hearing, specifically including legal fees as one of the issues to be settled.

Along with the letter we received today, we received a Notice of Hearing for a hearing on May 19th to specifically address attorneys fees.

Questions:
We follow your advice and send the letter, they refuse to settle, can they (the atty in particular) be held in contempt for failing to set a settlement conference per the court order?

We have it in writing from him now, offering the 30th of May for a settlement conference to take place in the law library, is it in our best interest to accept that, or continue on with the letter as you suggested (and that he has now requested)?

The hearing notice:  Its a copy that doesnt appear to have been filed with the courthouse yet (no legal stamp on it from the courthouse showing that it was filed).   The court order specifically states a settlement conference must take place prior to the final hearing being set.  Legal fees are specifically listed as one of the issues to be discussed during the settlement conference.  What can we do about this hearing hes trying to get given those facts?  

Is it possible to object (esp based on the court order)?  Reschedule?  If so, how?

Should we let the hearing stand?

The notice of hearing was sent via regular mail, fl statutes and civil rules & procedures specifically state that a notice of hearing must be sent via personal service, and US mail is not considered personal service.  What can be done about this?  

Legal fees are not addressed at all in the signed stipulation by both parties.  We have been told in a consultation with an attorney that this should be our primary defense against their request for legal fees.  That they requested it in their original counterpetition and the case was settled with no mention of legal fees, and it has already been ordered (atty used a latin term for this maybe  you can help us out) therefore it is assumed that there are no legal fees that H is responsible for.  
Does this sound reasonable?
Could we also use as a defense that she has no need and he hasnt got the ability (its 10k in legal fees shes asking for).  He makes decent $, but pays a heft CS amount,  she doesnt work (voluntarily) but does have some work exp and education, and is a student at the age of 28.

Thanks, sorry for the slew of questions!  Hopefully this will get over with eventually!

TwoBoys (and H is thanking you like crazy right now!)

[socrateaser]

>Questions:
>We follow your advice and send the letter, they refuse to
>settle, can they (the atty in particular) be held in contempt
>for failing to set a settlement conference per the court
>order?

I'm confused. You just posted that the attorney will meet you at the law library. That's a settlement conference. Arrange for the meeting.

>
>We have it in writing from him now, offering the 30th of May
>for a settlement conference to take place in the law library,
>is it in our best interest to accept that, or continue on with
>the letter as you suggested (and that he has now requested)?

Take the meeting.

>
>The hearing notice:  Its a copy that doesnt appear to have
>been filed with the courthouse yet (no legal stamp on it from
>the courthouse showing that it was filed).   The court order
>specifically states a settlement conference must take place
>prior to the final hearing being set.  Legal fees are
>specifically listed as one of the issues to be discussed
>during the settlement conference.  What can we do about this
>hearing hes trying to get given those facts?  

Keep the hearing, try to settle, if you can't take the hearing.

>
>Is it possible to object (esp based on the court order)?
>Reschedule?  If so, how?

Now, your stalling. Take the meeting, try to settle, if not move for a final hearing.

>
>Should we let the hearing stand?

Yes.

>
>The notice of hearing was sent via regular mail, fl statutes
>and civil rules & procedures specifically state that a notice
>of hearing must be sent via personal service, and US mail is
>not considered personal service.  What can be done about this?

I doubt that you are correct. I have never known of a jurisdiction with that requirement.

>Legal fees are not addressed at all in the signed stipulation
>by both parties.  We have been told in a consultation with an
>attorney that this should be our primary defense against their
>request for legal fees.  That they requested it in their
>original counterpetition and the case was settled with no
>mention of legal fees, and it has already been ordered (atty
>used a latin term for this maybe  you can help us out)
>therefore it is assumed that there are no legal fees that H is
>responsible for.  
>Does this sound reasonable?

Not reasonable, in my opinion, unless the stip states that it is the final settlement of all outstanding issues and that the parties agree to request that the court dismiss any claims raised in the pending action with prejudice.


>Could we also use as a defense that she has no need and he
>hasnt got the ability (its 10k in legal fees shes asking for).
> He makes decent $, but pays a heft CS amount,  she doesnt
>work (voluntarily) but does have some work exp and education,
>and is a student at the age of 28.

Equitable attorney fees are based on need and ability to pay, however just because a person has no need, doesn't mean that the judge won't order attorney fees paid if the other party has the ability to pay. You need to make a case that the other parent stalled the process, refused to bargain in good faith, raised frivolous issues, etc., or that you have no ability to pay, or that the other party has an overwhelmingly better financial position, than you.

In the end, the judge will do whatever he wants...it's very open to court's discretion.

[TwoBoys]

Thanks.

We attempted to take the meeting, responding as they requested in their letter, they announced that they have rescinded their offer for the meeting.  They now again asked that if we have an interest in settling, that we submit an offer to them.

The hearing on legal fees is only 30 minutes, and the legal fees are in excess of $10k.  

Can we ask that the hearing at least be extended or that we have one final hearing rather than several hearings on each of the issues since that was the original plan per the court order (all unresolved issues would be settled by the judge at the final hearing)?  b/c we dont have a problem with the hearing itself, just that hes trying to corner in a hearing specifically on atty fees and prolong the final hearing.  We want it all over with.

What kind of income would someone have to have to be considered able to pay that?  He makes about $50k/yr, and support was agreed by both parties, above guidelines at around $700/mo.

I understand you dont know our judge, but what do you think is the likelihood of him being required to pay any or all of her atty fees, based on other cases?  I dont think well have a hard time proving shes stalled, refused to bargain in good faith, or raised frivolous issues (her most recent offer to settle was that she change the childs last name by hyphenating with hers and eliminating one of his weeks of visitation with the child, wanting the child to only be allowed to ride in the car with drivers approved by her, and not allowing anyone to have the child, including the grandmother, without her permission).  Not to mention the frivolous contempts and subpoenas.

I know this is vague, but maybe you can offer some insight based on experience of what youve seen?  

In the meanwhile, well see what happens.

Thanks,
TwoBoys

[socrateaser]

>Can we ask that the hearing at least be extended or that we
>have one final hearing rather than several hearings on each of
>the issues since that was the original plan per the court
>order (all unresolved issues would be settled by the judge at
>the final hearing)?  

No. Attorney fees are almost always dealt with separately, so as to not allow the dirty issue of "money" to interfere with the more important issues.

>What kind of income would someone have to have to be
>considered able to pay that?  He makes about $50k/yr, and
>support was agreed by both parties, above guidelines at around
>$700/mo.

It's up to you to make a compelling case. Why you would agree to over guideline support is beyond my understanding, but you could certainly use that as an argument that she is already receiving more support than guideline, so you should receive credit against any equitable attorney fee award.

>I understand you dont know our judge, but what do you think is
>the likelihood of him being required to pay any or all of her
>atty fees, based on other cases?

You'll argue about it and make a credible case, and if the judge sees really good evidence that the other party wasted time and money, then you could get that part knocked off your bill, but as for the rest, you're gonna pay one half, if you represented yourself throughout, and she had an attorney. If you paid an attorney for anything, then present copies of the bills and that will be credited, too.

[TwoBoys]

Thank you,

We did have an attorney through out as well until only recently, and our financial resources are completely exhausted, and we cant even afford a retainer for a new attorney.  Hence, his decision to go pro se (not many other options!).  

And for the record, I am COMPLETELY in agreement with you on paying over guidelines.  At the time, her offer was that if hed agree to the amount, she wouldnt raise the issue of legal fees and signed the stipulation.   Our atty at the time said that since legal fees werent even mentioned in the signed stipulation it would be assumed that she made the settlement without any reimbursement of legal fees.  Hes now finding out that he was duped on that one.

He feels stupid about it now!  So... to hearing we go.  

Does he need to file a guidelines worksheet showing what guidelines would have been before he goes to hearing?

Thanks,
Twoboys