Jefferson County, Missouri
Hi,
I'm new here and this is liable to be a fairly long post, but please read and any help would be greatly appreciated (I'm about at the end of my rope.)
I've recently become residential parent of my son. After trying and trying to work with and reason with his mother on various medical, endangerment, behavioral, and other issues, I decided my only option was to take her to court. I figured even if I didn't win, it would scare her enough to get her act together in addition to turning the court onto what she has been up to. There is a LENGTHY list of the things she has done and I have proof of most of it, I won't even go into it. Suffice to say, by trial time, I had letters of recommendation from both of his teachers, and the school counselor. His psychologist made a good recommendation for me to the GAL, and the GAL who met with everyone involved recommended in court that I be awarded primary physical custody and be the residential parent. My sons mom never retained an attorney, never filed responsive paperwork, never paid her half of the GAL fees, skipped out on at least 2 court dates and didn't show up for the trial. Instead of taking a default verdict, we held an actual trial, I was told this would be harder to overturn. I won, I was awarded child support as well as final decision making rights should we fail to agree on something. I was also ordered to pay her half of the GAL fees. This was all about a month ago.
Now I am completely broke, worse than broke, I have completely changed my work schedule to accomodate my son, which is fine, I have also taken off a lot of work to help him get settled in. I am in debt to my attorney as well as the GAL. I had relocated previous to the trial to his school district so switching schools wasn't a problem. These things I would be able to recover from in a short time but it gets worse. 1 1/2 weeks ago we were told my son would need a spinal fusion and another operation done on his spinal cord. The operation went fine and he is currently in the hospital still. I will (more or less) have to take off work for at least a month to give him constant supervision. His mother is not willing to take any additional time off work to help me with this (even though I've done the same for her many times). Also, I have yet to recieve any child support from her.
So now I have recieved a letter that she has NOW retained an attorney and has filed a "motion to set aside default judgement and order"
It was not a default judgement for one thing. She blatently lies in the order saying she was "extremely ill" on the date of the trial (I know for a fact that she actually went to work and was at work during the trial.)
In addition my attorney wants $500-$700 up front, to respond to her motion, which I have no way of coming up with at this time. The judge in court did not seem like she would be very willing to give my sons mom a retrial, she actually seemed rather angry with her after I presented my evidence and due to the fact that the mother completely blew the court and the GAL off. The judge also happened to be the commissioner of family courts.

I guess my questions are: Do I have to file a response? Would I get anywhere simply contacting the court or judge if possible and explaining my present situation? Would not filing a response give her an automatic retrial? If she is denied a retrial, does she have any other recourse, or is that her "last chance" so to speak? I have done everything I could to make sure my son is taken care of, If I have to be drawn back into a trial or even continually file responsive motions at this point, I don't know what I will do.
Any help would be appreciated-thanks

I guess my questions are: Do I have to file a response? Yes. Remember that word "default". Would I get anywhere simply contacting the court or judge if possible and explaining my present situation? Unlikely. ex parte communitcations with the judge are forbidden. Would not filing a response give her an automatic retrial? It's possible If she is denied a retrial, does she have any other recourse, or is that her "last chance" so to speak? She can appeal I have done everything I could to make sure my son is taken care of, If I have to be drawn back into a trial or even continually file responsive motions at this point, I don't know what I will do.
Any help would be appreciated-thanks

An attorney wanting $500 to $700 just to draft a responsive motion is ridiculous and highway robbery, especially when those motions are on a disk in their office and all they have to do is "fill in the blank" on a case by case basis. If you don't respond though, she can have a default judgment issued against you possibly so you need to get a response into the court.

Thank you for the response
My attorneys actual wording is "additional work required due to this motion will be $500-$750." Is there any "additional work" to this besides filing a response?
Also, if she is denied and appeals, will I then have to file another response? what a mess....
thanks

His "additional work" could include filing a response and showing up for the hearing, if there is one.

I'd file a motion to dismiss, based on failure to state a claim upon which relief can be granted. They're asking to set aside a default judgment when there wasn't one made. Can't set aside something that isn't there, therefore, theres no grounds for relief. Their motion, on it's face, is faulty.

Of course, I'm not your attorney, and this is just what I'd do.

I'd also ask your attorney what exactly that $500 to $700 would cover.

dear dad

i would like you to post the exact text of the order to an attorney on another web site .

between the two of us we should be able to help you respond to this motion.

the other posters idea of a motion to dismiss is a good idea but lets see what socrateaser has to say about it.

go to

www.deltabravo.net/custody

fill in the stuff to allow you to post on the forums you will need to give an email address so that they can give you a code to join the forums

then go to the forum that is entitled socrateaser.

please read the forum rules and post exactly as he asks you to with all the background information and the text of your order ( filling in names with alias's) or just blah blah blah.

give your order for custody

give the new filing word for word

ask your questions and number them for his response.

he is very good and very efficient

I will help with what i can

here is my personal email I have written many motions and Socrateaser has taught me more than i can possibly write about.

riniinusa@netscape.net

good luck

rini in Pa

Rini, what makes you think the advice I gave above your post didn't come from an attorney? ;)

I agreed with your content

but hoped that socrateaser would give a more informative and generalized response that would enable the writer to respond to the motion with the exact wording needed to handle the situation that he needs to respond to imminently.

A general response is helpful but if you would take the time to read some of Socrateasers responses He has written many motions for people and there was not any insult to your knowledge intended, i had only hoped to provide a bit more resources for the writer to utilize.

My apologies to you if you were offended as i was not meaning to offend you by insinuating that you were not an attorney or were not posting directly for one.

My intent was only to help as best I could with the resources that i have found in my own trial and tribulations.

Again my heartfelt apologies to you.

rini

No offense was taken. That's why I put the emoticon at the end of my post. ;)

For the record, no... I'm not an attorney. Yet. However, I did ask a colleague that is and told her what I thought about the situation. She agreed that on it's face, the motion is faulty if there was never a default granted. That's why I told the poster what I would do, as my colleague agreed that would be a route to take.

I received help from Soc about 2 years ago myself regarding wording of a final order and I agree, he's very knowledgable at what he does. Of course, since he's a licensed attorney he can post potential drafts of motions openly for the people that seek help without fear of reprimand for practicing law without a license. We are not afforded that luxury.

I wanted the OP to ask his attorney exactly what it is he'll be doing/filing because if his attorney was served this motion to set aside default judgment and order then that attorney should already KNOW that the motion is faulty. Just wanting the poster to be involved in his representation with knowledge instead of believing everything the attorney says as gospel truth. I think we all know there are attorneys out there that do and will take advantage of people. Knowledge is power.

Thank you both so much for your responses, I will post on this other forum when I get time, someone helping me with a response sounds great, I'm still back and forth between the hospital at present time though.
I'd file a motion to dismiss, based on failure to state a claim upon which relief can be granted. They're asking to set aside a default judgment when there wasn't one made. Can't set aside something that isn't there, therefore, theres no grounds for relief. Their motion, on it's face, is faulty.
Whyte Noise - This was my initial thought as well, Her attorney filed this motion when it reads plainly in the court order that I won by TRIAL verdict. I was somewhat suprised that my attorney didn't mention this in his letter to me and instead banked on the idea that she was aware of the trial date and had no good reason for missing it, saying that we will respond and there will be a hearing where the judge will enter a judgement.
I think I have a good attorney, but he's also kind of shiesty. That's the main reason I posted here, I want to know if he's doing the right thing for the amount of money I'm paying him. He was referred to me by a friend who warned me that although he's good, I have to keep my eye on him. He charges $200 an hour, which seems kind of high to me, I don't know. Also, he is traveling across counties approx. 2 hours both ways to court. I certainly don't want to pay him $400 (just for the car ride) for a trip to court that isn't necessary.

You've both raised a few more questions on how this could go, can either of you tell me:
If I file a motion to dismiss, will there still be a trial on it and will she be allowed afterward to file a proper a "proper" motion OR will it be too late, since her 30 day dead-line is past?
If she is denied and appeals, is this something I will have to respond to or will that be between her and the courts?
Is she allowed a certain amount of appeals? Can she drag this out forever?
I was ordered to pay her half of the GAL fees, can I ask that this be reversed (or that she reimburse me) now that she all of a sudden wants to get involved? I already plan on asking that she pay my attorney fees from this point on.
and finally...
If I do file a response/motion on my own, does this dis-involve my attorney for future matters with relation to this cause? I have a feeling it would probably p*ss him off if nothing else :rolleyes:
Thanks again, your help is much appreciated

Well I have some seemingly good news. After my attorney has not responded to my emails for the last week, I had contacted the GAL about some other issues and she mentioned that my sons moms "motion to set aside" had been denied by the judge. I guess it was denied without a response from me or a hearing, it has only been 15 days since it was filed. Does this sound right?
Also, if anyone could please answer my questions above about what else I can expect to have to deal with, I would truly appreciate it. Basically I need to know how much recourse she has left now and how long she can possibly try to drag this out now that one motion has been denied. I have asked my attorney these things and he has failed to respond to me. Thanks in advance

Call the court clerk or better yet go to the courthouse and make absolutely SURE that the motion was dismissed. Not saying the GAL is lying, but Missouri IS the "SHOW ME state" after all. ;) I'd want to see it for myself and make sure that it was dismissed before I just decided not to respond to it. If it wasn't dismissed, then YOU could be looking at a possible default judgment and "The GAL told me it was dismissed" wouldn't be a viable defense. See what I'm saying?

As for your questions:

There doesn't "have" to be a trial on a motion for dismissal. As you can see, the GAL told you what has supposedly happened and you didn't even know about it, nor was a trial scheduled. You can actually move for a dismissal standing right in the courtroom, without filing a written motion too. It's called an oral motion. (Please, do NOT google that phrase... just the sound of it lets me know what links you'd come up with. :eek: )

When something is dismissed, it's "with prejudice" or "without prejudice". With prejudice means the person can NOT file the motion again. Without prejudice means that they CAN file again. I'd find out which way the judge ruled if the GAL was correct and it has been dismissed.

She can appeal it all the way to the Supreme Court in Washington, DC. There's no limit to the number of appeals you can file, however... remember that the definition of insanity is doing the same thing repeatedly hoping to get a different outcome. :) An appeal has to be based in law. In other words, there has to have been an error made (procedural error, judges error, etc.) in order for an appeal to be granted. The judge in your case certainly seems to have covered her behind by NOT doing the default. If your ex appeals, she'd be appealing the judges ruling, so it's between her and the courts.

If you were ordered to pay half of the GAL fees, then do so. However, in the future if mom shows her butt and the GAL has to do more work, then I'd ask that mom be the one to pay all GAL fees incurred. She'd be the one causing the issues that needed the GAL in the first place, let her pay for them.

On a personal note: I'd go to the attorney's office and speak with him. I realize attorneys are busy people, but that's no excuse to ignore a client. If he's been on vacation, out sick, tending to an ill family member, those are understandable things. But someone in his office should have told you this. Remember single dad... HE works for YOU, not the other way around. If an employer isn't happy with an employees job performance, what do they do? Terminate the employment.