Procedure to request reconsideration of judgement (CA)

[ByrdBrain]

Hello, Socrateaser,

This is my first post, but I've already learned a great deal from the information and advice you've given to others (although much of it was not in time to save me from blunders).

Now I hope you can help me untangle the following mess (and I apologize in advance for the length):

All parties in California, all in Fresno County.  Three minor children involved, ages 7, 5, and 2.  I am pro per; wife is represented and wants me to pay her attorney. (If I could afford to pay an attorney, I'd have one myself!)

Wife and I separated by mutual agreement on 2/26/06. Wife stayed in marital home (rental) until 4/15/06. I stayed with a coworker who lives near our job site, about 40 miles from Fresno, until I moved back into the rental house on 4/16. I moved to my current residence on 5/5/06.

While I was living out of town, wife allowed me to have the children about EOW. Also, the 2-year-old stayed with me full-time in alternate weeks. In addition, I took time off work to attend school conference (wife refused) and take children to doctors. I continued to pay rent on family home, car payment on car wife drives, day care, and as many of our bills as I could pay until I ran out of money. I also provided wife with cash (via check) to augment her own earnings in support of our family.

On 4/19/06, wife filed a complaint w/DFSS to establish a child support order. On her paperwork, she greatly overstated my income, understated her own, and overstated her time-share. Therefore, the computer calculations were way out of line.  As of 4/19, I had provided more than $8000 in cash and in-kind support.

On 4/28/06, wife attempted to kill (or scare) me by trying to run me over w/her SUV and threatening me w/a sledgehammer. I filed police report, but did not press charges.

The child support complaint was filed by DFSS on 5/5/06. By then, I  had the children with me more than 50% of the time. I also continued to pay some of my wife's expenses and give her some cash. All payments can be documented.

I filed for Dissolution on 6/23/06. (Wife filed untimely response on 8/3/06.)

On 7/29/06, wife went berserk again. She chased me all over town at high speed, threatening me by cell phone all the way, with the children in the car. When I finally got away, she went back to my apartment and vandalized my car in front of the children. (I was driving the truck I use for work.) Then she went home and sent me 22 messages, which included obscenities, threats, and messages from our children pleading w/me not to kill their Mommy. On 7/30/06, she attempted suicide by overdose, after putting the 7-year-old in charge of her siblings, all of whom were in the house at the time. She was admitted on involuntary psych hold through 8/7/06. The first thing she did when she got out was threaten to "blow my [expletive] brains out."

I filed a request for DV TRO w/custody on 8/8/06, which was granted on 8/9/06. Wife was to have no visitation until after the hearing, scheduled for 9/1/06.

In case you've lost count, we now have three different cases pending, with three different case numbers: child support, dissolution, and DV/custody.

The child support hearing was held on 8/11/06. The notice of hearing advised me to bring financial records, and I had cancelled checks and the transaction summaries from my bank to show that I had paid (by that time) more than $14,000 in cash and in-kind. I provided four years of income tax returns, showing wife's earnings to have been comparable to my own. (She has refused multiple requests to provide me w/copies of her pay stubs.) I showed the caseworker my journal and calendar to document my time share. I did not have my own pay stubs b/c wife has had all my mail re-routed to her address and I have been unable to get it re-routed, so far; she also refuses to return any of this mail.

The "hearing" was ludicrous. Every time I tried to speak, opposing counsel interrupted, contradicted me, and changed the subject -- which judge permitted. The only true statement she made was that there are 3 children involved.

The guideline calculations made by DFSS overstated my gross income by more than $1200/mo, even though they supposedly based their calculations on my pay stub, submitted by my wife. None of the Family Code deductions from income were considered, nor were the add-ons for out of pocket medical expenses and day care. Finally, the judge accepted a "visitation calendar" (prepared by wife's mother that same day, in the hallway outside the courtroom) as "proof" that wife had the children 80% of the time. The judge was not interested in my contemporaneous records -- even my cancelled checks.

The judge ordered "temporary" support for May, June, and July in an amount much higher than guideline, had accurate figures been used. Since the existence of the visitation calendar had been sprung on me, and I had not been permitted to see it (my mother saw it being prepared), I requested a continuance and I thought it had been granted until 9/5/06.  Opposing counsel was under the same impression, because she mentioned the upcoming CS hearing during our DV hearing. (outcome: I still have the kids, she has minimal, supervised, visitation, order of protection granted. Issue of support to me is reserved. Mediation pending.)

Preliminary to the continued CS hearing, I prepared and filed a Declaration with many, many exhibits to document the actual numbers that should have been used in the guideline calculations, as well as the amounts I paid voluntarily in the absence of an order.

When I appeared for the continued hearing on 9/5/06, I found that my case was not on the calendar.  At the clerk's office I discovered that a final judgement had been made and filed on 8/11/06 (the day of the hearing), finding me liable for the 3 months of support. The judgement had not been served on me --  the clerk said they never serve judgements, the parties have to pick them up. My declaration was in file but, of course, it was moot since a judgement had previously been made.

I also discovered that the judicial officer had been a commissioner, not a judge. There was no announcement that he was not a judge, and the way in which he introduced himself implied that he is a judge.  Even the clerks refer to him as "Judge X." I had been prepared to object to a commissioner hearing the case.

When I tried to research the procedure to request that the judgement be set aside or reconsidered or referred to a superior court judge, I found that there is no provision for remedy (that I could find) when the Government fails to follow its own procedures. Based on the available Judicial Council forms, it seemed that only the Government can file motions in child support cases.

I opted to file a Notice of Objection, with a declaration that I could not object to the commisioner at hearing b/c he didn't identify himself as such and could not file my written objection w/in 10 days of the judgement b/c I was not served with the judgement until 9/5/06. I also threw in a little bit on the merits (mainly that my salary was said to be $1200/mo more than it is). I filed the Notice on 9/6/06; although it threw the clerk's office into a tizzy, they did accept it.

Now that I've had a bit more time to think things over, it occurs to me that (perhaps) a better course of action would be to file a motion to consolidate the three cases (with the Disso as lead), and include with it a motion to reconsider the CS decision.  The motion would be assigned to the judge who heard the DV, who seemed pretty knowledgeable and fair.

Finally, here are my questions:

1. Are you aware of the procedure I should follow (or should have) to try to "undo" the child support ruling?

2.  I'd really like to get this issue out of Family Support's grubby little hands. I realized -- far too late -- that the "hearing" was solely to decide how much money I would be ordered to pay, regardless of the facts. Is the consolidation + motion to reconsider a viable option?

3. I found the procedure to request reconsideration of an ORDER granted via motion in the CCP (Section 1008). This would have to be filed w/in 10 days of service of the order.  I could not find a procedure to request recon of a JUDGEMENT, even if based on error or fraud. (I also looked at Section 473, but it didn't seem to apply, either.)  I need to hurry if I have to meet a 10-day deadline.

What should I do?  What are the timeframes?  Applicable law?

Help!

[ByrdBrain]

ByrdBrain wrote:

>On 4/19/06, wife filed a complaint w/DFSS to establish a child
>support order. . . .

>The child support complaint was filed by DFSS on 5/5/06. ******************************************************
Oops! I forgot to tell you that I filed a timely Answer to the complaint on 6/13/06, objecting to the calculations, objecting to retroactivity, and requesting credit for payments already made should retro be awarded.
******************************************************

[socrateaser]

>Finally, here are my questions:
>
>1. Are you aware of the procedure I should follow (or should
>have) to try to "undo" the child support ruling?

You can file a motion for reconsideration, if you can show that the court used the wrong amount for the support order. But if the judge knew what the right amount was and intentionally used a wrong amount based on some other factor, then your only option is an appeal, unless you actually have changed circumstances, like you lose your job, or get a raise or a reduction in salary -- in which case you can simply file a motion to modify support.

Use the case number for the dissolution, fi you want to move to modify now, and ask to consolodate the child support action under your disso case number. You must serve both your spouse and DCSS (Dept. of Child Support Services; there is no such thing as DFSS).

>
>2.  I'd really like to get this issue out of Family Support's
>grubby little hands. I realized -- far too late -- that the
>"hearing" was solely to decide how much money I would be
>ordered to pay, regardless of the facts. Is the consolidation
>+ motion to reconsider a viable option?

You can request that the existing support case number be consolidated in your notice of motion. See above.

>
>3. I found the procedure to request reconsideration of an
>ORDER granted via motion in the CCP (Section 1008). This would
>have to be filed w/in 10 days of service of the order.  I
>could not find a procedure to request recon of a JUDGEMENT,
>even if based on error or fraud. (I also looked at Section
>473, but it didn't seem to apply, either.)  I need to hurry if
>I have to meet a 10-day deadline.

The only reason to use a motion to reconsider is if there are new facts not available at the time of entry of judgment. A new fact might be a clerical error, but it seems to me that you are not suggesting that the court mistakenly calculated income -- rather the court determined the amount used for income was correct. If this is true, then there has been no change in circumstances and no error in the judgment, and your only avenue is an appeal.

You should hire an attorney. I know you can't afford one, but if you had hired one, your spouse wouldn't have an argument for attorney fees. So either way you will probably end up spending money for a lawyer -- the only question is, will it be only for your spouse or for both you  and your spouse.

[ByrdBrain]

Soc,
Thanks so much for your response. Just a few more questions about this issue.


>>Finally, here are my questions:
>>
>>1. Are you aware of the procedure I should follow (or should
>>have) to try to "undo" the child support ruling?
>
>You can file a motion for reconsideration, if you can show
>that the court used the wrong amount for the support order.
>But if the judge knew what the right amount was and
>intentionally used a wrong amount based on some other factor,
>then your only option is an appeal, unless you actually have
>changed circumstances, like you lose your job, or get a raise
>or a reduction in salary -- in which case you can simply file
>a motion to modify support.

The procedure was that each party met separately with a DCSS worker prior to the hearing (thanks for the correction -- I was confused b/c they have "Family Support Services" on the door), who reviewed our financial and timeshare info, then completed Dissomaster computer calculations for the court.

When I saw the Dissomaster, I objected, stating that there had to be an error (and why). Opposing counsel said the figure for my salary came from the year-to-date number on my pay stub for the period ending July 31, 2006, and there was no more discussion on the issue. DCSS has refused me access to the file, including my own payroll records, stating it's all "confidential." (Remember, my wife had my pay stubs and I didn't.)

OC finally released the 7/31 pay stub to me on August 25, 2006. This shows that the salary used for the Dissomaster was clearly wrong and, most likely, resulted from mathematical error when worker (or OC) used it to extrapolate my annual income. No one even suggested I have an additional source of income, and I don't.

Question: Is this scenario consistent w/motion to reconsider, rather than an appeal?
>
>Use the case number for the dissolution, fi you want to move
>to modify now, and ask to consolodate the child support action
>under your disso case number. You must serve both your spouse
>and DCSS (Dept. of Child Support Services; there is no such
>thing as DFSS).
>
>>
>>2.  I'd really like to get this issue out of Family
>Support's
>>grubby little hands. I realized -- far too late -- that the
>>"hearing" was solely to decide how much money I would be
>>ordered to pay, regardless of the facts. Is the
>consolidation
>>+ motion to reconsider a viable option?
>
>You can request that the existing support case number be
>consolidated in your notice of motion. See above.

I do think it would be wise to get the cases consolodated ASAP, but not move to reconsider until later. I'm still in the dark as to what "evidence" my wife submitted to DCSS.  I know she lied, but I want to see what the actual lies were. In addition, I want to see her "visitation calendar" so I can track down evidence besides my records to disprove it. (Even if this judgement sticks, my wife habitually lies to get what she wants, and I want to have a paper trail to impeach her down the line.)

It is my understanding that the consolidated case will be a matter of public record, thus accessible to me. YES?

Also, it's possible that the matter will be re-heard in superior court anyway, based on my rinky-dink Objection.

Question: If I just move to consolidate now, and nothing else, will it look like I'm wasting court time if I later do request reconsideration?

Question: I haven't served a copy of my Notice of Objection on the other side yet. Is service to counsel sufficient, or does my wife need to be served as well?

NEW ISSUE (sort of):
I have been collaborating with my mother in prosecuting the case(s) so far. She has more time than I do and understands this stuff better, having just retired from a 32 year career involving administrative law. I am getting ready to give her Power of Attorney, so she can deal with some of this on my behalf and I won't need to keep missing work. Which raises this question . . .

Question: If Mom has my POA authorizing her to do anything I can do for myself, could she speak for me in court, or would that be practicing law w/o a license?  My thinking is that the POA would make her "me." I'm an engineer, so I deal best with numbers, not words.

I am still looking for a "real" attorney, but absolutely no one (so far) will take this on -- even on a limited scope basis -- w/o a hefty advance. I have no credit now (wife trashed), and can't pay the bills we already owe (bankruptcy looms). Nothing I could sell, can't take extra job b/c I have the kids, etc.

Thanks again for whatever help you can give. It's obvious to me that you know what you're talking about, which is a relief after my dealings with Kangaroo - er - Child Support Court.

[socrateaser]

>Question: Is this scenario consistent w/motion to reconsider,
>rather than an appeal?

Anything that happened during negotiations is irrelevant, with respect to reconsideration, because you were there and you knew the facts or you could have discovered them, with reasonable diligence (e.g., paystubs).

There's nothing to appeal on the above facts, either, for the same reasons.

>>>2.  I'd really like to get this issue out of Family
>>Support's
>>>grubby little hands. I realized -- far too late -- that the
>>>"hearing" was solely to decide how much money I would be
>>>ordered to pay, regardless of the facts. Is the
>>consolidation
>>>+ motion to reconsider a viable option?

They are two separate motions -- you can move to consolidate whenever you want, even if you don't have any separate reason to do so.

>It is my understanding that the consolidated case will be a
>matter of public record, thus accessible to me. YES?

What your wife submitted to DCSS is subject to subpoena on a subsequent motion. Only evidence actually submitted during the hearing before the commissioner/judge/court will appear in the public court file.

>
>Also, it's possible that the matter will be re-heard in
>superior court anyway, based on my rinky-dink Objection.

I don't know, but I'm doubtful.

>
>Question: If I just move to consolidate now, and nothing else,
>will it look like I'm wasting court time if I later do request
>reconsideration?

You only have a few days to file for consideration, so do them both at the same time, if that's your intent.

>
>Question: I haven't served a copy of my Notice of Objection on
>the other side yet. Is service to counsel sufficient, or does
>my wife need to be served as well?

Opposing counsel and DCSS. Personal service on the other party is only required where the previous matter is a final order and no further action is pending.

>Question: If Mom has my POA authorizing her to do anything I
>can do for myself, could she speak for me in court, or would
>that be practicing law w/o a license?  My thinking is that the
>POA would make her "me." I'm an engineer, so I deal best with
>numbers, not words.

A power of attorney does not include a license to practice law in California. Your mother can retain an attorney based on the POA and she can sign any court document that would require your signature. But, she cannot plead your case. Only you or a licensed attorney at law representing your interests can do that.

>I am still looking for a "real" attorney, but absolutely no
>one (so far) will take this on -- even on a limited scope
>basis -- w/o a hefty advance. I have no credit now (wife
>trashed), and can't pay the bills we already owe (bankruptcy
>looms). Nothing I could sell, can't take extra job b/c I have
>the kids, etc.

Dr. Richard Kimble: I didn't kill my wife.
Deputy Marshal Samuel Gerard: I don't care.
-- "The Fugitive" (1993)