Contempt outcome

[DecentDad]

Hi Soc,

Okay, I lost on my 19 counts of contempt, and I'm not sure why on most of them.

One of them, I got to argue pretty well, called a witness and myself.  This was on biomom's refusal to let me pick up daughter at preschool on Dec 17.  Orders state pick up is "after school or 5pm if no school".

Opposing attorney hammered everything on that count, including vague language.  Court was inclined to believe my case that biomom acted willfully, knew about the orders, indeed did what I claimed.  However, he bought opposing counsel's argument that the orders are too vague for contempt (i.e., biomom released daughter to me some time after school, but not AT THE END of school, as I argued).

On the phone access to daughter, judge said that I wasn't specific in the OSC for contempt and he was denying that portion altogether (i.e., all 18 counts).  He said something like the pleadings weren't appropriate for contempt.  I didn't get to introduce audio recordings of phone messages or my own personal testimony on it.

It really sounded like I lost all the phone call contempts due to some technical reason, not for lack of merit.

Opposing attorney did a 1118 in her closing arguments, and it sounded like judge granted it on the lost contempt charge (but other charges had already been dismissed).

Good news is that the judge said it's clear we need to clarify the orders on Friday exchanges, and I let him know that's already on calendar for next month.

I did two objections during cross, both sustained.  When I was on the stand testifying, and when my other witness was on the stand, opposing counsel was objecting every 20 seconds, 90% overruled.  After a few dozen objections, judge finally yelled at her, "Counsel, stop it!"  When she asked me to repeat something that she couldn't hear, judge told me to not repeat, that I spoke loudly enough and she should move on.

So other good news is that judge didn't seem irritated with me at all today.  He just ruled against me.

1.  What's a 1118?

2.  Any idea what went wrong on my contempt for phone calls?  As attachment to the Affadavit for Contempt for each of those 18 counts, I listed the date, time, phone numbers, and messages left on each attempt to reach my daughter, and I noted that biomom never called me back.  On the OSC for contempt, I noted "18 days in March and April '05" and noted continued on attachment.

3.  Can I go back and argue the same counts of contempt for the phone calls if I correct whatever problem I did, or is that like double jeopardy?

4.  I already have more than 5 more incidents of biomom refusing to let me talk with daughter, subsequent to filing for today's contempt.  Pressing my luck to immediately file another contempt?  But I just don't know what was wrong on my forms at this point.

Thanks,
DD

[socrateaser]

>1.  What's a 1118?

Cal. Penal Code

1118.  In a case tried by the court without a jury, a jury having
been waived, the court on motion of the defendant or on its own
motion shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading after the
evidence of the prosecution has been closed if the court, upon
weighing the evidence then before it, finds the defendant not guilty
of such offense or offenses.  If such a motion for judgment of
acquittal at the close of the evidence offered by the prosecution is
not granted, the defendant may offer evidence without first having
reserved that right.

1118.2.  A judgment of acquittal entered pursuant to the provisions
of Section 1118 or 1118.1 shall not be appealable and is a bar to any
other prosecution for the same offense.

>2.  Any idea what went wrong on my contempt for phone calls?
>As attachment to the Affadavit for Contempt for each of those
>18 counts, I listed the date, time, phone numbers, and
>messages left on each attempt to reach my daughter, and I
>noted that biomom never called me back.  On the OSC for
>contempt, I noted "18 days in March and April '05" and noted
>continued on attachment.

No idea. I'd need to read your entire pleading.

>
>3.  Can I go back and argue the same counts of contempt for
>the phone calls if I correct whatever problem I did, or is
>that like double jeopardy?

Nope. See 1118.2, above.

>
>4.  I already have more than 5 more incidents of biomom
>refusing to let me talk with daughter, subsequent to filing
>for today's contempt.  Pressing my luck to immediately file
>another contempt?  But I just don't know what was wrong on my
>forms at this point.

Scan your doc and email me. [email protected]

[DecentDad]

Okay, I sent you the stuff.

Regarding current orders for phone... current order simply says "There shall not be any restrictions on phone access."  This may be too vague to contempt.  What's the measure for "no restrictions"??  I got a taste today of how darn technical it is (I paid my $36 for Intro to Contempt 101).

We already have OSC matters scheduled for May 24, including court's own stated perspective today that the Friday exchange language needs to be clarified (i.e., which I already had on calendar).

Using all the evidence I recently built on my inability to reach daughter... I can serve by Monday to add on another clarification for May 24...

I'm thinking of modifying phone orders to something like, "If a current noncustodial parent leaves voicemail messages on the home and cell phone of the current custodial parent prior to 6:30pm Pacific time, the current custodial parent shall call the current noncustodial parent on the same day, attempting both home and cell phones, so that the minor child may speak to the current noncustodial parent."

This way, I would have my cell phone records to show no return call made by mother, after continuing to audio record my messages left requesting a return call.  Much cleaner contempt.

1.  Given problems with messages not being returned (though not found in contempt), think it's reasonable for me to tack that on while clarifying orders on Fridays and also summer vacation?

Thanks,
DD

[Sunshine1]

This is in our parenting plan...

15.  Telephone Contact: That BOTH parties shall cooperate together in making reasonable telephonic communication possible with said children including, but not limited to or no less than, two (2), telephone calls per week between the children and the parent that they are not with at the time, during any type of Parenting Time that is being exercised. The children shall be made available during the hours of 7:00PM to 8:00PM  of each week and the expense of the call shall be the responsibility of the calling parent. In the event the said children are unavailable, any messages left will be given to the children and or will be heard by the children if at all possible. Parents may call at other times, other than the scheduled telephone contact times listed herein, and shall be allowed to speak to the children if the children are present. The length of telephone contact shall last as long as the child or children determines the conversation shall last.


You could change it to fit your specific situation...hope this will help you some.

[socrateaser]

>1.  Given problems with messages not being returned (though
>not found in contempt), think it's reasonable for me to tack
>that on while clarifying orders on Fridays and also summer
>vacation?

I think that you should provide for a certain time during each day to speak with the child ("each parent shall make the parties' minor child available to speak with the parent not then exercising custody, between the hours of X and Y, every day, and each parents shall make reasonable efforts to permit phone contact during other hours).

The second part of this order is not really enforceable by contempt, but the first part is. I haven't really given this a lot of thought, though. This is just stream of consciousness, at the moment.

[DecentDad]

Thanks, Soc.

So, are you suggesting that I SHOULD throw this into the mess to clarify the orders, all on the same day?  Or is it reasonable to just wait to feel the pulse at the time of hearing and say, "BTW, can we quickly clarify phone access orders too as long as we're clarifying other parts of the judgment?"

Also... did you get the pleadings sent via email... and if so, able to ascertain why the judge pretty much dismissed the contempt counts on phone access due to "specificity" problems prior to me even laying out the evidence on it?

Finally... in your experience, do you find that judges are apt to get annoyed with the party repeatedly trying to get contempt for the same matter over and over (i.e., new incidents) if preponderance of evidence shows it's going on, but might still not get successful contempts?

Thanks,

DD

[socrateaser]

>So, are you suggesting that I SHOULD throw this into the mess
>to clarify the orders, all on the same day?  

Yes. Why not? The judge is just begging to get rid of you once and for all!

>
>Also... did you get the pleadings sent via email... and if so,
>able to ascertain why the judge pretty much dismissed the
>contempt counts on phone access due to "specificity" problems
>prior to me even laying out the evidence on it?

Yes. I think that (1) Your order is too vague to get a contempt, and (2) too many facts. Next time (assuming another contempt hearing occurs), you just state the specific order, the exact violation and the ultimate facts that prove the contempt and then fill in the gaps with testimony. Support modification hearings are usually decided on the affidavits -- contempt hearings are decided on the testimony in the courtroom.

>Finally... in your experience, do you find that judges are apt
>to get annoyed with the party repeatedly trying to get
>contempt for the same matter over and over (i.e., new
>incidents) if preponderance of evidence shows it's going on,
>but might still not get successful contempts?

You need to be able to conclusively prove your case or don't bother bringing it to court. Otherwise, the judge will view you as a typical angry parent.

[DecentDad]

Okay, thanks.

I have two separate OSCs on calendar for May 24, filed separately for the same day.  Both are to "clarify orders"... one for summer vacation, one for Fridays.  Also on calendar is OSC to determine school, which was continued from last week upon opposing counsel's request.

Today is May 3, twenty-one days out from the hearing.  Yesterday was 21 calendar days prior to the day of hearing.  I'm not sure which is correct for counting 21 days.

1.  Do I have to file a new OSC to clarify orders on phone, or can I add an addendum to one of the OSCs already filed?

2.  If amending or adding an addendum, would it be an amended application for orders?

I guess my bottom-line question is... best route to address clarification of phone access orders for May 24?

These are finally the last of vague orders needing cleaning.  Thank G-d.

DD

[socrateaser]

>Okay, thanks.
>
>I have two separate OSCs on calendar for May 24, filed
>separately for the same day.  Both are to "clarify orders"...
>one for summer vacation, one for Fridays.  Also on calendar is
>OSC to determine school, which was continued from last week
>upon opposing counsel's request.
>
>Today is May 3, twenty-one days out from the hearing.
>Yesterday was 21 calendar days prior to the day of hearing.
>I'm not sure which is correct for counting 21 days.
>
>1.  Do I have to file a new OSC to clarify orders on phone, or
>can I add an addendum to one of the OSCs already filed?

You don't need to file a new OSC. File and serve opposing counsel, by mail (she's on notice of the hearing, already), "Petitioner's Supplimental Application and Supporting Declaration for Orders re OSC for Custody" (assuming you're petitioner). Then type something like:

Petitioner, YOURNNAME, pro se, hereby requests, that in addition to the requests made in his previously filed OSC to modify custody orders, that the court, additionally make more specific orders concerning telephone contact between the Parties and their minor child, on grounds that the Parties routinely dispute the terms of the current orders, and that such disputes do not advance the child's best interests.

In support of the above-stated motion, I, YOURNAME, declare as follows:

1. That I am the Petitioner in the above-entitled action, and if called upon, I could competently testify to the matters set forth herein of my own personal knowledge.

2. Tell your story, and propose the orders you want.

I declare, under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct.

Dated: ______________

By: ______________
YOURNAME


>2.  If amending or adding an addendum, would it be an amended
>application for orders?

See above.

PS. I'm fairly certain that the judge will order mediation, but maybe not, since you fight continuously. You may want to ask opposing counsel if she's willing to waive mediation now so as to avoid an unnecessary hearing, or whether she will stipulate to more specific orders to avoid a hearing entirely.

Make your offer in writing, so you can show that you tried to avoid wasting the court's time, because opposing counsel may try to use any failure to do so against you in court (and to get attorney feeeeees from you).

[DecentDad]

Fantastical.  That's easy enough.

We've been through mediation more times than I can recall, always ends in bust because biomom never wants to budge.  Judge has failed-mediation folks back for second call after lunch.

In this case, it's pretty darn easy.  What does Friday "after school" mean?  I'm asking that it's just an exact time like 12pm that physical responsibility changes (not some arbitrary time manipulated by biomom's behavior or interpretations), so no question as to who picks up child if school ends early at 10:30AM or later at 2PM.

What does "2 weeks uninterrupted vacation" mean?  I'm asking to just clarify two vacation periods as each a week (not broken into 336 hours or 14 days, as biomom asserts).  No brainer.

What does "no restrictions on phone access" mean?  Something akin to what you outlined.  No brainer.

This is idiotic stuff, but I'm emphasizing in my pleadings that these are the last of the ambiguous clauses in our judgment that biomom exploits unreasonably, so clarifying these clauses should keep us out of court for a while.

Attorney (#6 attorney for biomom and only a month on this case) doesn't respond to my correspondence to settle these matters reasonably to avoid going to court.  With every action filed, I ask that if she doesn't like what I'm proposing in attempt to resolve conflicts, to feel free to counter-propose.  No answer.  Her client is a nut who likes the flexibility that the on-going chaos allows.  Really, what can the attorney say?

Thanks, you're a huge help.

DD