Ex Parte Note for Hearing Issue of Law

[crayiii]

I recieved papers showing that my wife's attorney scheduled a motion for Default in our dissolution. This is in Washington.

The Motion is titled Motion and Declaration for Default.

They are saying that I appeared but didn't respond to the petition.  I responded many many many times to argue jurisdiction...

I have filed a response to the motion, a response to the petition, and a notice of appearance the day after the Motion and Declaration for Default.

I plan on attending the hearing next week.

Do I need to file a Motion to Vacate Judgment/Order?  There hasn't been a judgement yet, only a hearing set.

This is what my response to the Motion said:


1. I am the Respondent in the above-captioned action and, on a limited appearance, make this statement upon my personal knowledge. Any and all exhibits attached are incorporated by reference and are true and correct copies of the originals, unless they are original.

2. I have recently seen action on this proceeding indicating that Petitioner has filed a motion for Default Judgment with a hearing being scheduled. I have not yet received service of a court date as required under Rule 55.

3. I have not missed my deadline for responding to this petition.

4. This case and the one filed in Oregon have both been held in abeyance while the courts followed rules set out in the UCCJEA to determine proper jurisdiction.

5. On April 14, 2005, the Oregon and Washington courts held a teleconference call to discuss the matter. During the teleconference call, the Oregon judge determined that, although Oregon was the Home State of the child, Oregon would be an inconvenient forum for my wife.

6. Opposing counsel was told by the Washington Commissioner to write up the order and send it out. I have asked the opposing counsel, Mr. NAME, numerous times to please send me the write-up. Mr. NAME has refused to do so as of the signing of this Declaration.

7. Attached as Exhibits "A", "B", and "C" are copies of communication that I have had with opposing counsel. Exhibit "A" happened before the Petitioner filed her motion for default. Opposing counsel knew that I would be continuing this case Pro Se, and decided to try to take advantage of me.

8. Rule 60 allows for RELIEF FROM JUDGMENT OR ORDER and states the following:

"(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity
in obtaining a judgment or order;
(2) For erroneous proceedings against a minor or person of unsound
mind, when the condition of such defendant does not appear in the record,
nor the error in the proceedings;
(3) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under rule 59(b);
(4) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(5) The judgment is void;
(6) The judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application;
(7) If the defendant was served by publication, relief may be granted
as prescribed in RCW 4.28.200;
(8) Death of one of the parties before the judgment in the action;
(9) Unavoidable casualty or misfortune preventing the party from
prosecuting or defending;
(10) Error in judgment shown by a minor, within 12 months after
arriving at full age; or
(11) Any other reason justifying relief from the operation of the
judgment".

9. I would ask for relief under Rule 60 (b)(1) and (b)(11).

10. I have received no notice that the stay has been lifted in this case and have been reserving my response until such time as I have been notified of jurisdiction.

11. After realizing that I might lose by default (I am a layman responding Pro Se) I have now filed a response to the original Petition.

12. I ask the court to deny the Motion for Default on the grounds that I have not been provided notice on the ruling regarding jurisdiction, the Petition has been stayed, during the time the Petition has been stayed I have been arguing vigorously regarding jurisdiction, the "clock" stopped for response during the stay for UCCJEA Hearings, and I have every intention of exercising my rights to argue this case.

13. As shown in Exhibit "D", there has been much action on this case with many appearances, and responses by me.

14. I feel that this is a "dirty tactic" by the Petitioner. My attorney for the UCCJEA in Washington served notice to withdraw on May 3 and on May 4, Petitioner filed the Motion for Default Judgment.

15. I have every intention of presenting evidence during trial to uphold my position and to justify my requests for parenting.

16. I ask the court to dismiss the Motion for Default Judgment, cancel the Default Judgment Hearing, and set this case for trial.

[socrateaser]

>Do I need to file a Motion to Vacate Judgment/Order?  

No. You need to oppose the motion for default on grounds that you have filed a response in the case. You could have done this with a one-paragraph response. Your actual response appears to be a little bit more than one paragraph. LOL!

Example: "Dirty tactic," is not a legal theory upon which to base a defense or a request for affirmative relief. This sort of writing will annoy the judge and opposing counsel, and you will be viewed as just another angry man who doesn't know what he's doing.

You did mention that the stay on jurisdiction wasn't yet lifted. Ordinarily, that would be a pretty good argument, but it's really a formality at this point. The other party wants to know your response on the merits of the dissolution, i.e., child support, spousal support, custody, property division, attorney fees. That's all that's relevant. Writing about anything else is just recycled paper.

You are probably already aware of the WA website with all the general pleadings for a dissolution, but just in case you're not, here's the link:

http://www.courts.wa.gov/forms/

[Fobbed-Fodder]

Some counties in Washington require a mandatory settlement conference approximately 2 weeks prior to trial, mine does.

You need to find this out from the local court rules in the county having jurisdiction.

Here in my county, when my attorney filed and served a NOTICE FOR TRIAL SETTING, the court clerk set the settlement conference date, then mailed a notice out to our attorneys indicating when.

If you want to see the form used in my county, NOTICE FOR TRIAL SETTING, then go here and scroll down to the bottom of the page and you will find a few forms.

http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=superior&set=supcll

[crayiii]

Okay, I'll do my best to not sound angry (I'm not, I just don't know what I'm doing).

The hearing is scheduled in the Ex Parte Department.  Does that mean that I won't be allowed to appear?

[socrateaser]

>Okay, I'll do my best to not sound angry (I'm not, I just
>don't know what I'm doing).
>
>The hearing is scheduled in the Ex Parte Department.  Does
>that mean that I won't be allowed to appear?

No, it means that if you don't appear, that your opponent will win. Without reading your response to the divorce petition, to determine whether or not you have mucked it up, I can't say what the judge will do. If there is an appropriately filed response, then the judge should dismiss the motion for default.

But, like I said, I can't really tell. Your posted response to the motion seems to indicate that (as you mention) you don't really understand the legal process.

You really should consider getting another attorney.

[crayiii]

I used the WA Response to Petition (Domestic Relations) form and this is what I said:

TO THE ABOVE-NAMED PETITIONER:

I.  RESPONSE

1.1   ADMISSIONS AND DENIALS.

The allegations of the petition in this matter are ADMITTED or DENIED as follows (check only one for each paragraph):

Paragraph of the Petition
   1.1  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.2  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.3  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.4  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.5  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.6   [ ]   Admitted   [X ]   Denied   [ ]   Lacks Information
   1.7  [ ]   Admitted   [ X]   Denied   [ ]   Lacks Information
   1.8  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.9  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.10  X   Admitted   [ ]   Denied   [ ]   Lacks Information
   1.11  [ ]   Admitted   [ X]   Denied   [ ]   Lacks Information
   1.12  [ ]   Admitted   [ ]   Denied   [X ]   Lacks Information
   1.13  [ ]   Admitted   [ X]   Denied   [ ]   Lacks Information
   1.14  [ ]   Admitted   [ X]   Denied   [ ]   Lacks Information
   1.15  [ ]   Admitted   [ ]   Denied   [X ]   Lacks Information

Each allegation of the petition which is denied, is denied for the following reasons [List separately]:

1.6    Respondent was not notified of a separation until late September.

1.7   I do not believe Washington has jurisdiction over the marriage, I believe Oregon does.

1.11   Respondent has not done anything to warrant a restraining order.  Petitioner has lied to the Court about all allegations of abuse.

1.13   Respondent is preparing to appeal the Oregon Court's decision to give up it's Home State status.  Petitioner's attorney has failed to provide Respondent with the summary of the jurisdictional teleconference call between Oregon and Washington.

1.14   Respondent disagrees completely with the Petitioner's proposed Parenting Plan.  Respondent has submitted a proposed Temporary Parenting Plan to the courts and served it on the Petitioner's attorney.

1.2   NOTICE OF FURTHER PROCEEDINGS.

Notice of all further proceedings in this matter should be sent to the address below.  
NAME
ADDRESS

1.3   OTHER.

   Respondent asks the court to please order the Petitioner's attorney to follow the order issued after the teleconference call on April 14, 2005, requiring him to write up the findings and send them to me.   
   Respondent asks for the courts permission to appear for hearing telephonically due to financial inability to travel to Spokane.

II.  REQUEST FOR RELIEF.

[ ]   Does not apply.
[ X]   The respondent requests the court to grant the relief requested below.
   [ ]   Enter a decree.
   [ ]   Provide reasonable maintenance for the [ ] husband [ ] wife.
   [X ]   Approve my parenting plan for the dependent children.
   [ X]   Determine support for the dependent children pursuant to the Washington State Child Support Schedule.
   [ ]   Approve the separation agreement.
   [ ]   Dispose of property and liabilities.
   [ ]   Change name of wife to: ______________________________.
   [ ]   Change name of husband to: ______________________________.
   [ ]   Enter a continuing restraining order.
   [ ]   Order payment of day care expenses for the children.
   [ X]   Award the tax exemptions for the dependent children as follows: Respondent for all years.
   [X ]   Order payment of attorney's fees, other professional fees and costs.
   [X ]   Other: Provide immediate phone calls between the Respondent and the minor child.



Dated:             
      NAME

[socrateaser]

Well, your response isn't all that bad -- should be sufficient to fend off a default hearing. I'm not really certain why the hearing is still on the calendar. Could be attorney trying to annoy you. Anyway, I suggest that you send letter requesting that opposing counsel agree to withdraw motion for default, and stipulate to temporary orders re custody/support. If he refuses, then go to hearing, and show your letter, and suggest that opposing counsel is wasting the court's time, abusing the legal process by holding an unnecessary hearing, and that she should be sanctioned for your transportation costs and lost wages, made payable to you, so as to encourage communication towards a settlement.

Don't know if you'll get anywhere, but it will show you're not a schnook, and you'll find out if the judge intends to beat on you until you obtain legal representation.

[crayiii]

Her attorney is pissed at me because he is under investigation by the WA and OR bar for practicing in Oregon without a license.  He completed and filed responses in OR for my wife and indicated that he was getting paid to do it and wanted me to pay his fees.

I complained and both states came down on him with a ton of information requests.

[crayiii]

I sent a fax with the comments that you suggested and he called me 3 minutes latter.

He said that he agrees to withdraw the default and will send comments on my proposed settlement (I sent one using the parenting plan on this website as my starting point)

He also said that he has enough trouble already because of this case and it will be best to agree on a settlement instead of going to court.

[socrateaser]

>I sent a fax with the comments that you suggested and he
>called me 3 minutes latter.
>
>He said that he agrees to withdraw the default and will send
>comments on my proposed settlement (I sent one using the
>parenting plan on this website as my starting point)
>
>He also said that he has enough trouble already because of
>this case and it will be best to agree on a settlement instead
>of going to court.

Send a fax to the attorney confirming your phone conversation, i.e., agrees to withdraw default, etc. That way, he can't suddenly forget that the conversation ever occured. Be nice. The objective is to get the attorney to view you as a reasonable person trying to achieve a reasonable settlement and not attempting to stall or vent.