Florida- i was served with a motion for 'contempt and enforcement' last year from my child's father.Today he served me with the same (original) motion for 'contempt and enforcement' having the same allegations from last year. The judge closed the case last year with prejudice because he did not show up. Now I want to know if I can file a 'motion to dismiss'? BTW we have an active Time-share for our daughter and before today we haven't heard from him in about 8 months..what should I do??
I'm not a Florida practicing lawyer, but it would seem to me that a motion in re contempt - in that it is seeking a form of affirmative relief could be consider a "pleading" in the same sense as a complaint or answer. Thus subject to a Motion to Strike under
Rule 1.160 (f) * of the Florida Rules of Civil Procedure as containing redundant and immaterial, if not scandalous and frivolous matter.
But no interim orders of a family court pertaining to parent/child issue are final, i.e. "res adjudicata" (Latin meaning the thing (res) is settled once and for all time) until the children come of legal age or are emancipated. Until that occurs the court retains jurisdiction over those issues
This is not to say that the court's dismissal of the previous motion for contempt is not final as to that motion. And that it cannot be asserted in defense to the pending duplicate motion. But the term "res adjudicata" speaks of the entire litigated subject as having been resolved and put to rest. And that isn't true with respect to issues over which the court retains jurisdiction.
But I don't see that the form of how the motion is challenged is all that critical. Just so the matter of its redundancy and past treatment is brought to the court's attention - motion to dismiss, motion to strike, counter motion for contempt for raising frivolous issues, or whatever.
[*] (f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.
