Court entered wrong orders from 2005 - now what?

[DecentDad]

Soc,

Recall that in May 2005, court ruled that Petitioner may select a school within 10 miles of MY (i.e., respondent's) home.

I want to emphasize that the transcript is clear on this.  There was no mention of anything else in the transcript, neither by accident nor intent.

OC repeatedly asked me to agree the language is within 10 miles of PETITIONER'S home.  I refused, noting that the transcript is clear.

In July 2006, a new judge inserted boilerplate language in the orders stating that parties jointly make education decisions (i.e., though the corresponding hearing made no mention of it).

In October 2006, OC wrote the new judge, asking him to enter findings after the May 2005 hearing, but with language stating that the school must be within 10 miles of PETITIONER'S HOME.

I immediately wrote the judge, noting OC's intentional disregard for due process, noting that OC has no foundation (including providing judge a copy of the transcript and specifying the exact lines pertaining to the matter).

That was 2 weeks ago.  Today I received a conformed copy of the orders OC asked the judge to enter.

1.  What is my remedy at this point to ensure child's school isn't easily changed to one far from me (i.e., at least force Petitioner to have a hearing on the matter, if she wants that)?

2.  What is going on that an attorney can merely write to a judge and get orders modified?!

3.  Realistically, am I just getting flicked away?  I mean, if I starting trying to correct it, what's to stop the judge from making his own motion to modify the school issue so he can be done with me?

4.  Does minor's counsel have any role in any of this?

DD

[socrateaser]

>1.  What is my remedy at this point to ensure child's school
>isn't easily changed to one far from me (i.e., at least force
>Petitioner to have a hearing on the matter, if she wants
>that)?

Motion to reconsider based on different facts, i.e., the order is in error.

Except that the order isn't in error, because the judge apparently ignored your letter. This indicates that your new judge is not sympathetic to pro se litigants, which is bad news, but you've been pretty lucky up until now.

>
>2.  What is going on that an attorney can merely write to a
>judge and get orders modified?!

See above. Judge may be giving you a tacit encouragment to obtain legal counsel. It's the conspiracy of the professions. Attorneys are assholes in general (regrettably). ;-)

>3.  Realistically, am I just getting flicked away?  I mean, if
>I starting trying to correct it, what's to stop the judge from
>making his own motion to modify the school issue so he can be
>done with me?

Nothing. You could move to reconsider, or you could file an appeal with the circuit court, which would be a nightmare of paperwork and process.

When you asked about this the first time, I probably should have recommended that you call the court and get a motion hearing date, and then file a notice of motion for clarification of the issue. Then, the judge would have been forced to give you a hearing before entering the order.

But, you've had so much success in the past, I figured you could do what any attorney would do -- write the judge and tell him that opposing counsel is attempting to enter an order that does not comport with the court record, and the judge would give you the nod.

So, either your letter never reached the judge's eyeballs, which is possible (after all, you're in one of the busiest county courts in the USA, so it could have been lost), or the judge is throwing opposing counsel a bone and simultaneously telling you that your rope is as slack is it's gonna ever get.
>
>4.  Does minor's counsel have any role in any of this?

Don't know. Call up and ask.

[DecentDad]

I was so annoyed with what I received today, I didn't review the whole package.

OC has now withdrawn.

I can only conclude that the judge WAS in error and must not have seen my letter mailed Oct 30 (orders were dated/entered Nov 8), as to enter orders contrary to the hearing transcript can only be an error made by this court.  That's my layperson conclusion.

Further I feel I can argue that this is not an issue of insignificance, for the following reasons:

A) Mother has advised me and declared to the court previously that she'll have to leave her home soon due to property sale.

B) In 2005, I moved my home to be a few miles from child's school
that mother already selected.  Moving again is not in child's interest (particularly if mother is likewise moving).

C) Beginning this school year (1st grade), I've been picking up child
on 4 of 10 (40%) afternoons directly from school.  Mother fought/lost this in court, showing her desire to eliminate it (i.e., potentially by frustrating it with a far away school).

D) It's in child's interest to have stability in her K-8 private
school (i.e., her enrollment continues regardless of either parent's residential address).

E) If mother moves the school 15 miles away - in congested west L.A.
traffic, that could mean a one-hour journey for child to my home.


BTW, I haven't filed anything since April 2005.  We've been in court four time since then, all on Petitioner's actions.  She won her temporary 30-day orders on the alleged suicide threat, but then judge reversed everything and even gave me additional time (i.e., not necessarily anti pro per).


1.  If I did an OSC for Motion to Reconsider (i.e., put it on calendar), outlined the error and the above reasons as being important to comply with the letter of the original hearing transcript... do you buy that and find it reasonable; and more importantly, does it corner the court into the right decision?

2.  Is it still relevant to hammer that Petitioner willfully buffaloed the court on this issue?

D

[DecentDad]

Soc,

Recall that in May 2005, court ruled that Petitioner may select a school within 10 miles of MY (i.e., respondent's) home.

I want to emphasize that the transcript is clear on this.  There was no mention of anything else in the transcript, neither by accident nor intent.

OC repeatedly asked me to agree the language is within 10 miles of PETITIONER'S home.  I refused, noting that the transcript is clear.

In July 2006, a new judge inserted boilerplate language in the orders stating that parties jointly make education decisions (i.e., though the corresponding hearing made no mention of it).

In October 2006, OC wrote the new judge, asking him to enter findings after the May 2005 hearing, but with language stating that the school must be within 10 miles of PETITIONER'S HOME.

I immediately wrote the judge, noting OC's intentional disregard for due process, noting that OC has no foundation (including providing judge a copy of the transcript and specifying the exact lines pertaining to the matter).

That was 2 weeks ago.  Today I received a conformed copy of the orders OC asked the judge to enter.

1.  What is my remedy at this point to ensure child's school isn't easily changed to one far from me (i.e., at least force Petitioner to have a hearing on the matter, if she wants that)?

2.  What is going on that an attorney can merely write to a judge and get orders modified?!

3.  Realistically, am I just getting flicked away?  I mean, if I starting trying to correct it, what's to stop the judge from making his own motion to modify the school issue so he can be done with me?

4.  Does minor's counsel have any role in any of this?

DD

[socrateaser]

>1.  What is my remedy at this point to ensure child's school
>isn't easily changed to one far from me (i.e., at least force
>Petitioner to have a hearing on the matter, if she wants
>that)?

Motion to reconsider based on different facts, i.e., the order is in error.

Except that the order isn't in error, because the judge apparently ignored your letter. This indicates that your new judge is not sympathetic to pro se litigants, which is bad news, but you've been pretty lucky up until now.

>
>2.  What is going on that an attorney can merely write to a
>judge and get orders modified?!

See above. Judge may be giving you a tacit encouragment to obtain legal counsel. It's the conspiracy of the professions. Attorneys are assholes in general (regrettably). ;-)

>3.  Realistically, am I just getting flicked away?  I mean, if
>I starting trying to correct it, what's to stop the judge from
>making his own motion to modify the school issue so he can be
>done with me?

Nothing. You could move to reconsider, or you could file an appeal with the circuit court, which would be a nightmare of paperwork and process.

When you asked about this the first time, I probably should have recommended that you call the court and get a motion hearing date, and then file a notice of motion for clarification of the issue. Then, the judge would have been forced to give you a hearing before entering the order.

But, you've had so much success in the past, I figured you could do what any attorney would do -- write the judge and tell him that opposing counsel is attempting to enter an order that does not comport with the court record, and the judge would give you the nod.

So, either your letter never reached the judge's eyeballs, which is possible (after all, you're in one of the busiest county courts in the USA, so it could have been lost), or the judge is throwing opposing counsel a bone and simultaneously telling you that your rope is as slack is it's gonna ever get.
>
>4.  Does minor's counsel have any role in any of this?

Don't know. Call up and ask.

[DecentDad]

I was so annoyed with what I received today, I didn't review the whole package.

OC has now withdrawn.

I can only conclude that the judge WAS in error and must not have seen my letter mailed Oct 30 (orders were dated/entered Nov 8), as to enter orders contrary to the hearing transcript can only be an error made by this court.  That's my layperson conclusion.

Further I feel I can argue that this is not an issue of insignificance, for the following reasons:

A) Mother has advised me and declared to the court previously that she'll have to leave her home soon due to property sale.

B) In 2005, I moved my home to be a few miles from child's school
that mother already selected.  Moving again is not in child's interest (particularly if mother is likewise moving).

C) Beginning this school year (1st grade), I've been picking up child
on 4 of 10 (40%) afternoons directly from school.  Mother fought/lost this in court, showing her desire to eliminate it (i.e., potentially by frustrating it with a far away school).

D) It's in child's interest to have stability in her K-8 private
school (i.e., her enrollment continues regardless of either parent's residential address).

E) If mother moves the school 15 miles away - in congested west L.A.
traffic, that could mean a one-hour journey for child to my home.


BTW, I haven't filed anything since April 2005.  We've been in court four time since then, all on Petitioner's actions.  She won her temporary 30-day orders on the alleged suicide threat, but then judge reversed everything and even gave me additional time (i.e., not necessarily anti pro per).


1.  If I did an OSC for Motion to Reconsider (i.e., put it on calendar), outlined the error and the above reasons as being important to comply with the letter of the original hearing transcript... do you buy that and find it reasonable; and more importantly, does it corner the court into the right decision?

2.  Is it still relevant to hammer that Petitioner willfully buffaloed the court on this issue?

D

[socrateaser]

>1.  If I did an OSC for Motion to Reconsider (i.e., put it on
>calendar), outlined the error and the above reasons as being
>important to comply with the letter of the original hearing
>transcript... do you buy that and find it reasonable; and more
>importantly, does it corner the court into the right
>decision?

You can use the facts as part of your allegation of "new or different evidence" necessary to obtain reconsideration.

>
>2.  Is it still relevant to hammer that Petitioner willfully
>buffaloed the court on this issue?

I think it's probably a waste of time if you have a valid rationale for an adjustment of the parenting, which only requires a preponderance of evidence to obtain.

You'll probably annoy the judge if you start calling OC a con artist. I'd just stick to the: Petitioner's gonna move and that will frustrate my parenting time, because the order now states that she can choose a school within 10 miles of her residence rather than mine.

[DecentDad]

And I fill out the OSC form in "Other" with application for relief, then attach my declaration, same as a normal OSC?

[socrateaser]

>And I fill out the OSC form in "Other" with application for
>relief, then attach my declaration, same as a normal OSC?

No, this is a Notice of Motion, where you get the new date from the court, and serve the other party and then file the notice with the court.

However, in some counties, the clerk won't calendar a motion for a pro se litigant unless the clerk sees the form first, because they don't trust you to fill it out correctly. So, they may require you to go to the court and file the notice of motion first.

Read Cal. Code of Civ. Pro. 1008 "carefully." You must allege "new" and/or "different" facts than existed prior to the time that the order was entered, and which affect the merits of the case on which the order was just entered.

So, you can argue this new info re your ex selling and moving and how it will affect your exercise of custody, but you must have knowledge that the move is imminent -- otherwise the court will say, "so, come back when she's moved or you have knowledge of her imminent intent to do so (like the house is in escrow, or the sign on the property says "sold").

You can also allege that the court ruled prior to getting your letter explaining what OC did, but I'd call the court clerk and try to confirm that actually happened before alleging it, or you may annoy the judge, and he'll just deny your motion.

You don't have much time to consider your case or file, but if you act too impulsively, you may create more problems for yourself, if it turns out that the judge was doing what I'm thinking he's doing -- tossing OC a bone and encouraging you to get a lawyer.

Remember, that the judge probably doesn't say to himself, "Oh yeah, I remember that guy -- he actually knows what he's doing, not like most pro pers." The judge probably got the letter and as soon as he read the words "due process," he thought, "Another schmuck pro per who doesn't have a clue about what "due process" means trying to tell a licensed lawyer and judge how it all works." And, then he signed the order against you.

[DecentDad]

So, I have a declaration from biomom of May 2005 stating that the reason why the school closest to her isn't an option is because her apartment building was sold and that she'll have to move within a year or two due to condo conversion.  She rents.

She declared in May 2005 that she wanted XYZ school, because it's in the area to which she'd like to move.

At that time, the court considered that fact, and he stated that mom can pick the school BUT that any school selection must be within 10 miles of my home.  The school/neighborhood she wanted complies with this.

The transcript does not state that mom would be moving within a year or two.  Only her declaration did.

That was the May 2005 ruling on that matter.

That judge retired.

New judge was not privvy to mom's May 2005 sworn declaration that she'll be moving.

New judge entered orders 18 months later on the matter, without a hearing, and clearly departing from what the hearing transcript shows as the ruling.  

BTW, when OC wrote to him, she advised that I objected, and she provided the entire 28-page transcript without pointing out the specific reason for objection.  Unless one knows to look specifically in 3-pages of draft orders for a single substitution of the word "Petitioner" instead of "Respondent", at cursory review against the transcript, the orders probably looked fine.  But point a jurist to 8 lines on a single page, note the home restriction, and the problem is evident.  OC didn't do that.

Mother confirmed in email a few months ago that she'll still need to move at some point.

In summer 2006, Mother's attorney repeatedly contacted me to eliminate the distance restriction imposed by old judge's ruling.

1.  Is mother's intent to move within a couple years, as declared in May 2005, "new and/or different" fact because the new judge was not made aware of that testimony when he signed OC's draft orders in Nov 2006?

2.  I guess the bigger question is... which is the benchmark for "new or different" fact?  Is it from May 2005 (time of ruling), or Nov 2006 (entry of orders)?

3.  If I moved in July 2005 (after ruling) to be closer to selected school, is that a new and different fact relevant to the Nov 2006 entry of orders?

4.  In May 2005 (time of ruling), child was not yet in elementary school.  There was no consistency concern.  In Nov 2006 (entry of orders), child is in first grade.  Is that a different fact, given that consistency of enrollment creates a best interest issue?

5.  Is all of this just confounded by a combination of A) entry of orders 18 months after hearing despite that situation has changed and other orders subsequently superceded it (but not anymore due to entry of orders from 18 months prior); B) entry of substantively wrong orders; and C) no hearing on any of it?  When faced with such a mess, how would an attorney convince a judge to clean this up?

Keep in mind that OC is now gone, withdrawn as soon as these were entered.