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Motion to Dismiss

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Ray246

Member
You *might be wrong. All of these things should be addressed in your Motion to Dismiss AND your Answer. It IS possible that the judge will change the ruling to reflect the items from the original income and expense statement if an attorney properly points out that they are statutorily required to be included. Having the judge deny it a second time sets the stage for appeal.
Yes I might be...definately not my first time :) I am in agreement I will need to file both a motion to dismiss and an answer. If the judge were to decide the items he didnt include in the previous motions Form 14 should be on it does the change in circumstance from the last judgement need to be at least 20% for the amount of support to be changed? Just to be clear all income and expense items were presented to the judge and the items in question were brought up in the trial. The judgement wasnt a result of hiding information from the court. So far it doesnt appear she has gotten an attorney for the motion she submitted.
 


CJane

Senior Member
Yes I might be...definately not my first time :) I am in agreement I will need to file both a motion to dismiss and an answer. If the judge were to decide the items he didnt include in the previous motions Form 14 should be on it does the change in circumstance from the last judgement need to be at least 20% for the amount of support to be changed? Just to be clear all income and expense items were presented to the judge and the items in question were brought up in the trial. The judgement wasnt a result of hiding information from the court. So far it doesnt appear she has gotten an attorney for the motion she submitted.
No, it would not need to meet the 20% threshold. In fact, the 20% threshold only needs to be met for DSS to modify child support, not for the courts to modify.
 

Ray246

Member
No, it would not need to meet the 20% threshold. In fact, the 20% threshold only needs to be met for DSS to modify child support, not for the courts to modify.
So it sounds like it is up to the judge what constitutes a substantial change in circumstances to justify a modification.

Thanks CJane and others that have provided assistance. I will update as things move forward.
 

Ray246

Member
Sorry I have another question. In the previous judgement my ex was ordered to pay support back to the date of the filing. She has 10 months of support in arrears. Can her Motion to Modify effect the amount she currently owes or would it only effect the amount from the time of her filing should she get a modification? I assume the DSS will move forward to start collecting based on the current order?
 

CJane

Senior Member
Sorry I have another question. In the previous judgement my ex was ordered to pay support back to the date of the filing. She has 10 months of support in arrears. Can her Motion to Modify effect the amount she currently owes or would it only effect the amount from the time of her filing should she get a modification? I assume the DSS will move forward to start collecting based on the current order?
I can almost guarantee you that her motion to modify will be treated as a motion to reconsider. If that is the way it's handled, then any change in judgment will completely replace the existing judgment. Please also bear in mind that judges hold wide discretion in modifying orders, eliminating arrears, etc.

The 10 months that she is "in arrears" will not be treated in the same manner as arrearages from lack of payment. As long as she's paying child support, those arrears can - and will - hang out there pretty much forever. Depending on the $ amount, it may affect any tax refund she'd normally be due, but that's about it.
 

Ray246

Member
I can almost guarantee you that her motion to modify will be treated as a motion to reconsider. If that is the way it's handled, then any change in judgment will completely replace the existing judgment. Please also bear in mind that judges hold wide discretion in modifying orders, eliminating arrears, etc.

The 10 months that she is "in arrears" will not be treated in the same manner as arrearages from lack of payment. As long as she's paying child support, those arrears can - and will - hang out there pretty much forever. Depending on the $ amount, it may affect any tax refund she'd normally be due, but that's about it.
Is there not a different form for a motion to reconsider vs a motion to modify? She filed a Form CAFC102 - Motion to Modify Child Support. I cant even find any information for Missouri regarding a motion to reconsider in relation to child support. I cant see the judge having any reason to eliminate arrears he just ordered other than to possibly modify it down to the new amount should it get modified.

Regarding the arrears the judgement stated that she is to pay it back at 50% of her monthly support obligation through wage assignment.
 

CJane

Senior Member
Is there not a different form for a motion to reconsider vs a motion to modify? She filed a Form CAFC102 - Motion to Modify Child Support. I cant even find any information for Missouri regarding a motion to reconsider in relation to child support. I cant see the judge having any reason to eliminate arrears he just ordered other than to possibly modify it down to the new amount should it get modified.

Regarding the arrears the judgement stated that she is to pay it back at 50% of her monthly support obligation through wage assignment.
And if that's the only form that was available to her, then it's no big deal that she used it. There's no set "form" for any motion in MO. You could probably turn in a motion handwritten on a napkin, and if you ask the court for relief, it will be considered. Don't get caught up in the minutiae. Just answer/request the dismissal, and wait for your court date.
 

Ray246

Member
Don't get caught up in the minutiae. Just answer/request the dismissal, and wait for your court date.
I would like to submit the answer/request for dismissal but I am still waiting to get served. It's been almost two weeks since she filed so I would have assumed I would have gotten served by now. What happens if the service does not happen in the 30 day period that is designated?
 

TinkerBelleLuvr

Senior Member
I would watch your case like a hawk, particularly if there was a date set. My X was infamous for filing the motion to the judge but NOT serving the other party, etc.

If a motion is filed, but not served in the allotted time, it's as if they didn't file the motion and should get dismissed. For example, I filed motions of garnishment. I get x amount of days to serve the appropriate parties. If I exceed that window, then I have to go back to the drawing board. I got motions in place but did NOT serve them to the bank until certain things were in place. Maybe mom is doing the same thing. Just watch the court dates religiously.
 

Ray246

Member
I assume my only way to watch the case is through Case Net which is how I found out she filed the Motion. Case Net shows the summons was issued about weeks ago so Im guessing its already in place and they just havent done it yet. There is a case management conference scheduled in October.
 

CJane

Senior Member
I would watch your case like a hawk, particularly if there was a date set. My X was infamous for filing the motion to the judge but NOT serving the other party, etc.

If a motion is filed, but not served in the allotted time, it's as if they didn't file the motion and should get dismissed. For example, I filed motions of garnishment. I get x amount of days to serve the appropriate parties. If I exceed that window, then I have to go back to the drawing board. I got motions in place but did NOT serve them to the bank until certain things were in place. Maybe mom is doing the same thing. Just watch the court dates religiously.
I don't even think the above is possible - at least in my county in MO.

When you file something at the courthouse, you fill out the request for service while you're standing there, and it gets attached to the copy of the filing that is for the other party. That is then turned over to the Sheriff's department.

If I were OP - and what I've done in the past - I would call the Sheriff and ask if they have any pending documents to be served to me. If they do, offer to go pick them up, or let the office know when you will be home to accept service. OR, go to the courthouse, explain to the clerk that you know something was filed, but you haven't been served, and you'd like to accept service of the documents there.

It's a heck of a lot easier to be proactive about it than it is to hope that because you weren't served, the case won't be heard. I've been served literally HOURS before a hearing and it still took place.
 

Ray246

Member
I don't even think the above is possible - at least in my county in MO.

When you file something at the courthouse, you fill out the request for service while you're standing there, and it gets attached to the copy of the filing that is for the other party. That is then turned over to the Sheriff's department.

If I were OP - and what I've done in the past - I would call the Sheriff and ask if they have any pending documents to be served to me. If they do, offer to go pick them up, or let the office know when you will be home to accept service. OR, go to the courthouse, explain to the clerk that you know something was filed, but you haven't been served, and you'd like to accept service of the documents there.

It's a heck of a lot easier to be proactive about it than it is to hope that because you weren't served, the case won't be heard. I've been served literally HOURS before a hearing and it still took place.
In Case Net it shows a Due Date on the Issuance of the Summons. The Case Management Conference is not scheduled for almost 2 months after that date. I'm not going to go out of my way to try to not be served but if there is even a slight chance the case could get dismissed if they fail to serve me by the due date then I am certaintly going to wait until after the Due Date to see what happens with the case before I consider calling the Sheriff's office.
 

CJane

Senior Member
In Case Net it shows a Due Date on the Issuance of the Summons. The Case Management Conference is not scheduled for almost 2 months after that date. I'm not going to go out of my way to try to not be served but if there is even a slight chance the case could get dismissed if they fail to serve me by the due date then I am certaintly going to wait until after the Due Date to see what happens with the case before I consider calling the Sheriff's office.
Okey dokey.
 

Ladyback1

Senior Member
In Case Net it shows a Due Date on the Issuance of the Summons. The Case Management Conference is not scheduled for almost 2 months after that date. I'm not going to go out of my way to try to not be served but if there is even a slight chance the case could get dismissed if they fail to serve me by the due date then I am certaintly going to wait until after the Due Date to see what happens with the case before I consider calling the Sheriff's office.
I could be wrong (and often am;)) however: If the Sheriff's Dept. acts in due diligence, and is unable to serve you, they will report back to the court---and the court can still hear the case. I know at least in some jurisdictions, if you are unable to be served "in person", there is the option to serve by public notice (in a local/regional newspaper).

So, it would behoove you (especially since this isn't a criminal warrant or criminal complaint!) to contact the Sheriff's office and arrange to be served.
 
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