Amending Petition/Service of Process

[katiedee2006]

Hello,

Jursidiction is NY.  BM is in AZ.

DH filed a Violation Petition against BM for non-payment of unreimbursed medical.  BM was current with CS at time of filing.

Amounts for unreimbursed medical have increased since filing.  BM also failed to pay large arrears balance by April 15 as ordered & is now also behind in CS.

We have been told we can amend the Violation Petition to reflect current past due amounts.

Rec'd notice on 4/29 that court date is 5/17.  Court advises they take care of service on BM.  However, BM closed her PO address of record (we only found out 4/28 b/c something we sent to her was ret'd as undeliverable; SD saw it and said BM closed PO Box).  DH has advised Court of same & what we think is her street address.

1) Does amending the Violation Petition mean a supplemental petition in which we refer to the original Petition DH filed?  For ex. $$ amount in Section 1 is hereby amended to read ...(new dollar amount) OR does it mean create an entirely new petition to supersede the original?

2) Any tips on how to word the amended petition?

3) If the street address we think is BM's turns out not to be (we are not 100% sure), and she never receives notice of court date, & therefore does not respond, will the whole thing be postponed once DH is sitting there & no sign of BM? (hate to take time from work if this would be the case)

4) If 'no' in response to #3, will DH win (seeking monetary judgment) b/c BM failed to show or call in?

Thank you so much in advance!!

[socrateaser]

>Hello,
>
>Jursidiction is NY.  BM is in AZ.
>
>DH filed a Violation Petition against BM for non-payment of
>unreimbursed medical.  BM was current with CS at time of
>filing.
>
>Amounts for unreimbursed medical have increased since filing.
>BM also failed to pay large arrears balance by April 15 as
>ordered & is now also behind in CS.
>
>We have been told we can amend the Violation Petition to
>reflect current past due amounts.
>
>Rec'd notice on 4/29 that court date is 5/17.  Court advises
>they take care of service on BM.  However, BM closed her PO
>address of record (we only found out 4/28 b/c something we
>sent to her was ret'd as undeliverable; SD saw it and said BM
>closed PO Box).  DH has advised Court of same & what we think
>is her street address.
>
>1) Does amending the Violation Petition mean a supplemental
>petition in which we refer to the original Petition DH filed?
>For ex. $$ amount in Section 1 is hereby amended to read
>...(new dollar amount) OR does it mean create an entirely new
>petition to supersede the original?

Best thing to do is submit a (assumes you are Petitioner) "Petitioner's First Amended Violation Petition", and just state at the beginning that "This pleading completely replaces the prior Violation Petition, filed ??/??/????".

>2) Any tips on how to word the amended petition?

Now that you know you're entirely replacing the original pleading, the answer should be obvious.

>
>3) If the street address we think is BM's turns out not to be
>(we are not 100% sure), and she never receives notice of court
>date, & therefore does not respond, will the whole thing be
>postponed once DH is sitting there & no sign of BM? (hate to
>take time from work if this would be the case)

Well, this is a specific problem of NY law, that I can't easily answer. Generally, contempt proceedings, which is what you're actually asking for, require personal service, so that the defendant/respondent/violator has clear notice that he/she may be subject to criminal penalties if he/she doesn't appear and defend.

Ordinarily, a party has a legal obligation to keep the court notified of his/her contact address, so that if you cannot serve that party by mail, you can simply serve the court clerk and the party thereby obtains "constructive notice" of the pending action.

So, while I can't be absolutely sure of my answer here, I very much suspect that you must find the other party and effect personal service on them.

>
>4) If 'no' in response to #3, will DH win (seeking monetary
>judgment) b/c BM failed to show or call in?

If BM is served and doesn't show, then you win. But, if she's not served, then you will get a continuance.