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.

[DecentDad]

I went to the courthouse to review the file to see if my recent correspondence was in there and when it was received (i.e., before or after Nov 8 entry of orders), and also if I could find the original orders after hearing that OC claimed never got entered.

Records Dept showed that the file was up in the judge's department.  They ran a retrieval for it.  I had to call back to check on it.

Now, Records Dept told me that Judge's department reports back that the case file is lost.

So, I need to submit a case file search request.  Records Dept says that there are more than 100 search requests ahead of mine, it could be more than 30 days before they can get to mine.

Aside from being in a busy county, I'm at the main downtown courthouse.

1.  If I can't retrieve the file to ascertain if the original hearing already had orders entered (i.e., I submitted them to the court timely, back in June 2005), is that prejudicial in any way to me?

[socrateaser]

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

Isn't it in the court file, attached to some pleading? If not, then if you have a copy of it, that's still admissible evidence, but it's not new evidence. It "is" "different" evidence, based on the fact that this item wasn't at issue until OC added it to the new order.

>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.

Transcript is evidence. Court can conceivably order differently, but not if it never gave you an opportunity to argue the issue on the merits, because the order would be based on no facts on the record.

>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.

Um...the question is, did you provide OC with a letter stating the specifics of your objection. If you did, then OC had a legal obligation under court rules to forward that letter to the court.

If you didn't write OC a letter, then you are SOL, because you had your opportunity to state your objection using the proper process and you waived it by failing to do so.

If OC had your letter and failed to forward it to the court, then that would be improper and you have grounds for reconsideration -- that reconsideration would be the letter not forwarded (different facts).

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

Evidence of a change in circumstance but not for reconsideration -- for a new motion to modify parenting.

>
>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?

Depends on whose at fault for not notifying the judge. If OC, then yes -- if you, then no.

>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)?

Neither. "New or different" means facts not reasonably ascertainable using the tools of discovery prior to entry of judgment/order.
>
>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?

I don't know. The timeline is cloudy for me. Issue is whether this move was "at issue," between parties after the prior ruling.

You need to give me the entire timeline, i.e., who ruled what, and when, and what sort of order it was (final, temp, minute, oral, stip).

>
>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?

Yes.

How to clean up? I dunno. First answer question about how you "objected" to the orders, because that may foreclose any discussion of reconsideration. Then, restate the timeline.

Ultimately, if you are screwed for reconsideration, you may just be able to file a new motion to modify on grounds that the other parent intends to move and the move will frustrate your ability to exercise custody.

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

Yes. This could be good for you, however it goes, because mother is gonna start having trouble finding alternative counsel and the court will wonder why lawyers are withdrawing so quickly. Usually, counsel never withdraws voluntarily, just in case something new comes up -- they want first shot at the next litigation fees.

[socrateaser]

>Aside from being in a busy county, I'm at the main downtown
>courthouse.

So, you're probably in the busiest courthouse in the USA, except for maybe downtown Manhatten.

>1.  If I can't retrieve the file to ascertain if the original
>hearing already had orders entered (i.e., I submitted them to
>the court timely, back in June 2005), is that prejudicial in
>any way to me?

If there's no court record, then you can demand a hearing to "settle the record," and the parties can start assembling everything that they can find ($$$$) to offer to the court. You can also negotiate with the other party to stip to what the record is (which is what usually happens, because of the ridiculous expense).

The case file will be found. It's just sitting on someone's desk, and that someone is too busy to answer the request at the moment.

[DecentDad]

Okay, I'll try to be as brief as possible regarding the matter at hand.  Other matters, all initiated and lost by Petitioner, have had us in court four times in past 14 months, so there are a variety of orders floating around.

May 2005
OSC to select kindergarten school for Fall 2005.  Judge ruled that mom can pick it, mom can pay for it, and it must be within 10 miles of my home.  Judge ordered OC to draft the orders.

June 2005
OC drafted incorrect orders.  I objected with specific objection that the draft didn't conform to the ruling, i.e., 10 miles from MY home.  I never heard back.  I drafted correct orders and served on OC.  I never heard back.  Four weeks later, I submitted them to the court to be entered, advising that OC waived objections.  I don't know if they ever were entered.

July 2005
I moved to be closer to school biomom selected.

April 2006
Judge A retires, Judge B picks up the case.  Judge B has 3 years on the bench, 2.5 of them in the boonies.  He was a civil attorney prior. Google search results show he's been involved in CFLS type of seminars during past year.

July 2006
Judge B enters orders from a June 2006 OSC that was a review hearing from a May OSC that was continued from an April ex parte.  In his orders, he adds his own boilerplate language that was not addressed at the OSC, including "Parents jointly make education decisions."  OC never objected to the July 2006 orders entered.

August-October 2006
OC writes me and calls me several times, wanting to stip to the May 2005 ruling on school selection.  I express willingness to stip to it, rather than fight all over about it.  OC repeatedly proposes wrong language.  I send three response letters.  Two specifically advised OC that she's departing from the transcript on whose home must be within 10 miles of the school.

Late October 2006
OC writes to judge, asking to enter her version of Orders After Hearing for May 2005 OSC.  OC advises judge that I disagree on the clause about school selection (but provides no explanation as to the disagreement).  OC provides entire transcript of May 2005 OSC.  OC provides a copy of corespondence from me in which I only ask her to adhere to the transcript language on school selection.  OC does not provide my two other letters that instruct exactly where she is wrong.

Oct 30, 2006
I mail my letter to the court, explain why OC's draft is wrong.  I point court to specific lines in the transcript.  I suggest that OC is attempting to modify July 2006 orders.  I suggest that OC is willfully misrepresenting the ruling that was made.  I suggest that OC is showing disregard for due process.  I included copy of correspondence sent to Judge A in June 2005 and draft orders I prepared in June 2005.

Nov 8, 2006
OC's orders got entered.

Nov 15, 2006
I receive OC's service by mail of the entered orders.

Nov 15, 2006
I receive OC's service by mail of OC's withdrawl.  She was attorney #7 for Petitioner in less than 6 years.  Three withdrew, four were subbed out.

-------------------

All of that said... in the end, if the judge was truly in error and is interested in correcting what occurred, I should prevail on this.  If the judge is annoyed to be bothered with it, I imagine he'll easily find a way to kick me to the curb.  And... I have no control over which scenario I'm in.

Is that about the short of it?  If so, I think I have enough (trying to be respectful of your time), and I'll draft my motion to reconsider; unless you think there's a way I can lock this.

[socrateaser]

>Okay, I'll try to be as brief as possible regarding the
>matter at hand.  Other matters, all initiated and lost by
>Petitioner, have had us in court four times in past 14 months,
>so there are a variety of orders floating around.
>
>May 2005
>OSC to select kindergarten school for Fall 2005.  Judge ruled
>that mom can pick it, mom can pay for it, and it must be
>within 10 miles of my home.  Judge ordered OC to draft the
>orders.
>
>June 2005
>OC drafted incorrect orders.  I objected with specific
>objection that the draft didn't conform to the ruling, i.e.,
>10 miles from MY home.  I never heard back.  I drafted correct
>orders and served on OC.  I never heard back.  Four weeks
>later, I submitted them to the court to be entered, advising
>that OC waived objections.  I don't know if they ever were
>entered.

Either the orders were entered or they weren't. When you never heard back, you should have filed a motion for entry of the order, so that you could get the court to address the orders and either enter them or deny them. Leaving this in limbo was incompetent (I'm treating you like an attorney, because if you were someone else's attorney and this happened to them, you would be in trouble with the state bar, and maybe sued for malpractice).

>
>July 2005
>I moved to be closer to school biomom selected.
>
>April 2006
>Judge A retires, Judge B picks up the case.  Judge B has 3
>years on the bench, 2.5 of them in the boonies.  He was a
>civil attorney prior. Google search results show he's been
>involved in CFLS type of seminars during past year.

Great. He's an ignernt idjit, trying to learn on the job.

>
>July 2006
>Judge B enters orders from a June 2006 OSC that was a review
>hearing from a May OSC that was continued from an April ex
>parte.  In his orders, he adds his own boilerplate language
>that was not addressed at the OSC, including "Parents jointly
>make education decisions."  OC never objected to the July 2006
>orders entered.

OK, so that changed the prior orders re ed decisions.

>
>August-October 2006
>OC writes me and calls me several times, wanting to stip to
>the May 2005 ruling on school selection.  I express
>willingness to stip to it, rather than fight all over about
>it.  OC repeatedly proposes wrong language.  I send three
>response letters.  Two specifically advised OC that she's
>departing from the transcript on whose home must be within 10
>miles of the school.
>
>Late October 2006
>OC writes to judge, asking to enter her version of Orders
>After Hearing for May 2005 OSC.  OC advises judge that I
>disagree on the clause about school selection (but provides no
>explanation as to the disagreement).  OC provides entire
>transcript of May 2005 OSC.  OC provides a copy of
>corespondence from me in which I only ask her to adhere to the
>transcript language on school selection.  OC does not provide
>my two other letters that instruct exactly where she is
>wrong.
>
>Oct 30, 2006
>I mail my letter to the court, explain why OC's draft is
>wrong.  I point court to specific lines in the transcript.  I
>suggest that OC is attempting to modify July 2006 orders.  I
>suggest that OC is willfully misrepresenting the ruling that
>was made.  I suggest that OC is showing disregard for due
>process.  I included copy of correspondence sent to Judge A in
>June 2005 and draft orders I prepared in June 2005.

Did you copy OC on this letter, and show a cc: in the letter so the court would know that it was copied to OC? If not, then the judge couldn't read it.

>
>Nov 8, 2006
>OC's orders got entered.
>
>Nov 15, 2006
>I receive OC's service by mail of the entered orders.
>
>Nov 15, 2006
>I receive OC's service by mail of OC's withdrawl.  She was
>attorney #7 for Petitioner in less than 6 years.  Three
>withdrew, four were subbed out.
>
>-------------------
>
>All of that said... in the end, if the judge was truly in
>error and is interested in correcting what occurred, I should
>prevail on this.  If the judge is annoyed to be bothered with
>it, I imagine he'll easily find a way to kick me to the curb.
>And... I have no control over which scenario I'm in.
>
>Is that about the short of it?  If so, I think I have enough
>(trying to be respectful of your time), and I'll draft my
>motion to reconsider; unless you think there's a way I can
>lock this.

From your notes, it appears that the judge was aware that there is a controversy about the location of schooling. I think the judge will just deny on grounds that the facts are not new or different.

Really hard to say without reading all of the correspondence that was sent to the court.

And, this new judge is not gonna be your friend, if only because he probably doesn't have a clue what he's doing. So if you embarass him, he'll sweep it under and try to make you look stupid for asking.

With that said, go ahead and draft the motion. If you want me to read it, email it and let me know when it's there. But, don't leave it to the last minute, cause I don't have much time to look at anything right now.

[DecentDad]

Thanks, I emailed you my draft, along with the letter I sent to the judge.

Yes, I cc'd OC and minor's counsel, and it indicates same on the letter I sent.

New judge was ONLY aware about the location controversy if he received/read my letter before entering OC's orders.  OC never informed him that the controvery was over location.  She just said it was about school selection.  IF he read my letter is the black box.

Yep, I understand that I don't control judge's receptiveness to this.  All I can do is all I can do.

Thanks

[DecentDad]

Ruling was made in May 2005.  Orders from that OSC were entered in Nov 2006.

Can you advise which of the following is new/different, for the purpose of reconsideration?  I really still don't know whether it's from the date of the hearing or the date of entry of orders (and I imagine that it's atypical for 18 months of time to transpire between the two).

1.  New orders on education decisions were entered July 2006, and no hearing was held to modify them.  But it's not new to the new judge who entered the Nov 2006, since the file would reflect the orders he entered in July.  So, he was aware when he signed in Nov 2006.  No?

2.  Original ruling was 10 miles from my home, which prevented mother's ability to frustrate my exercise of custody (though the original judge never said this was the exact reason, but that's the only possible explanation).  There was never any hearing or ruling to change it to be from mother's home.  (I have no evidence that she even INTENDS to go beyond 10 miles from my home).  HOWEVER - the new judge had the transcript in his possession when he entered the orders, so how would this be NEW information (unless he admits that he didn't bother to read it, which ain't gonna happen)?!

3.  I submitted orders to be entered in June 2005, since OC did not.  I don't know why this is relevant as new or different information.  Why is it relevant?

Finally,

4.  If/when I get access to the case file, and IF I see that my original orders WERE entered (I don't know whether they were or not, since I never looked at the file)... what happens if that knowledge occurs AFTER I file the motion but before it's heard?

[socrateaser]

>1.  New orders on education decisions were entered July 2006,
>and no hearing was held to modify them.  But it's not new to
>the new judge who entered the Nov 2006, since the file would
>reflect the orders he entered in July.  So, he was aware when
>he signed in Nov 2006.  No?

Yes. Not new or different.

>
>2.  Original ruling was 10 miles from my home, which prevented
>mother's ability to frustrate my exercise of custody (though
>the original judge never said this was the exact reason, but
>that's the only possible explanation).  There was never any
>hearing or ruling to change it to be from mother's home.  (I
>have no evidence that she even INTENDS to go beyond 10 miles
>from my home).  HOWEVER - the new judge had the transcript in
>his possession when he entered the orders, so how would this
>be NEW information (unless he admits that he didn't bother to
>read it, which ain't gonna happen)?!

Yes. Not new or different.

>
>3.  I submitted orders to be entered in June 2005, since OC
>did not.  I don't know why this is relevant as new or
>different information.  Why is it relevant?

If the orders had been entered then the judge would have been much less likely to modify them re residence. Other than that, the only thing that's relevant is that the orders apparently vanished. Not that you can do anything about it, but it's damn weird.

>
>Finally,
>
>4.  If/when I get access to the case file, and IF I see that
>my original orders WERE entered (I don't know whether they
>were or not, since I never looked at the file)... what happens
>if that knowledge occurs AFTER I file the motion but before
>it's heard?

OC could argue that the file is public record and the existence or absence of the orders as filed would provide constructive notice, so either way, you will be expected to know the status of the contents of the file.

The new or different evidence would be your knowledge that the other parent intends to move shortly, which could be grounds to change the order to 10 miles from your residence again. Other than that, I think you'll be stuck with the orders you've got, and you'll have to wait until she actually shows signs of moving to start a motion to clarify re parenting, because of the impending move.

[DecentDad]

>OC could argue that the file is public record and the
>existence or absence of the orders as filed would provide
>constructive notice, so either way, you will be expected to
>know the status of the contents of the file.

Remember, OC is gone.  Mother would have to retain new counsel.

In my correspondence to OC (and OC provided copy of the letter to the court), I indicated that the court already entered my orders in 2005.  I figured I was either protecting myself, or I was simply wrong.

So what I'm hearing is... all it takes is a sleazy attorney and an incompetent judge, and there's no means to get orders to actually reflect a ruling?!

I mean, what if it was a visitation schedule, where OC decided to deviate from a ruling and it got entered?  Court could just ignore a motion to correct because there's no new evidence??

[socrateaser]

>So what I'm hearing is... all it takes is a sleazy attorney
>and an incompetent judge, and there's no means to get orders
>to actually reflect a ruling?!

Well, you could appeal on grounds of abuse of discretion, but it's probably not worth it.

You're being penalized for not being a lawyer -- simple as that. The judge simply will never take your arguments as seriously as someone who is a member of the California Bar.

If you want to get on an even footing with your opponent, you have two choices -- hire an attorney to represent you, or graduate law school and pass the bar exam.

>I mean, what if it was a visitation schedule, where OC decided
>to deviate from a ruling and it got entered?  Court could just
>ignore a motion to correct because there's no new evidence??

You aren't asserting an "error." OC gave the judge your objection and the judge ignored it. That wasn't a clerical error -- it was deliberate action on the judge's part.

The fact that OC has withdraw certainly gives you an opporunity to try to slip a new order in, because if your new opponent is your ex, then you both have equal status with the court.

You might want to discuss the matter with your ex and ask her to stip to it, and if she refuses, that you will be forced to seek reconsideration or appeal and that this could cost her a huge amount of dough. Maybe she'll buckle and give you what you want.

I wouldn't put your request in writing, though. If it got back to the judge that you were trying to leverage an appeal against your ex, the judge would never give you an inch in any future action.