Motion to Dismiss

[Ray246]

I still have not gotten served. I contacted my attorney and asked about going ahead and contacting the Sheriff’s department as some here have suggested I do. My attorney said not to contact them that if I am not served by the due date the court would notify my ex and she would have to submit an Alias Summons to attempt to have me served again. My attorney is convinced my ex will probably quit her job once she has run out of options to get out of child support. I guess my attorney is trying to save me some money by having me do nothing at this point and also prolong the process so I can hopefully collect some child support while the ex is still working.

On a side note I was looking in the Child Custody & Visitation forum and saw a very helpful thread by Ohiogal that is stickied called “Newbies Please Read Before Posting”. I wish that thread would have been in this forum as well as it would have saved me from doing things to upset the volunteers in here (esp Ohiogal…sorry).

 

[Ray246]

The service was never made and the Summons was returned Non-Est. So far there is no entry on Case Net showing an alias summons has been filed. If nothing else is filed or if I am never served and the status of the motion does not change should I go ahead and show up at the Case Management Conference to make sure I am represented? Should I go ahead and complete discovery and an answer to the motion to have for the judge at the CMC? Would it be unwise to take care of everything on my own and not get my attorney involved unless the case is not dismissed at the CMC? Is an attorney more likely to convince the judge at the CMC that the case should be dismissed? Thanks.

 

[Ray246]

The service was never made and the Summons was returned Non-Est. So far there is no entry on Case Net showing an alias summons has been filed. If nothing else is filed or if I am never served and the status of the motion does not change should I go ahead and show up at the Case Management Conference to make sure I am represented? Should I go ahead and complete discovery and an answer to the motion to have for the judge at the CMC? Would it be unwise to take care of everything on my own and not get my attorney involved unless the case is not dismissed at the CMC? Is an attorney more likely to convince the judge at the CMC that the case should be dismissed? Thanks.

Any advice on my questions?

 

[Ray246]

I finally started recieving child support payments but they do not include any of the arrears. The court order states that any arrears is to be paid through wage assignment at 50% of the monthly child support amount each month. How do I go about getting this collected and payed out?

 

[CJane]

I finally started recieving child support payments but they do not include any of the arrears. The court order states that any arrears is to be paid through wage assignment at 50% of the monthly child support amount each month. How do I go about getting this collected and payed out?

Is 50% of the monthly amount + the actual monthly amount more than 60% of her income per pay period?

How far in arrears is she (dollar amount)?

 

[Ray246]

Is 50% of the monthly amount + the actual monthly amount more than 60% of her income per pay period?

How far in arrears is she (dollar amount)?

Per pay period income yes, per month income no. Arrears is approximately $6500.

 

[Ray246]

I might be waisting my time here since none of my last few posts have been responded to but I will give it one more try. I have finally been served on an Alias Summons. The Sherriff left me a voice message that he was trying to get some papers to me. I called him back and arrange to get them from him so I could get this moving forward and hopefully dismissed. The changes she is listing as reasons to change the support amount are as follows:

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That the Form 14 from the Judgement did not include my bonuses or money her mother has been giving me to help cover her costs of living in our home (There is no rental agreement). It did not include her travel expenses for the children to see her.

She claims she has additional medical, legal and travel expenses.

That my income has increased since the divorce and hers has decreased.

That I have additional assets and she has none.

That she signed a quit claim deed on our home. (After I gave her half of equity)

Extra-Curricular activities are less now than when we divorced. (False)

Child Care expenses are less now than when we divorced. (False)
------

The above claims are either false or were already brought up in court. In regards to the travel expenses for the kids it was brought up she had the expense in court but it was not included on either one of our form 14s.

She goes on to submit a Form 14 in this motion that has inflated numbers for travel, ommits the expenses I have and inflates my income to cut the support in half. She then goes on to claim her Form 14 number is unjust and she should not have to pay anything. This is the same tactic she used earlier this year that backfired on her.

Based on the information above, if my Answer to her motion asks that the case be dismissed due to no substantial change in circumstances is it possible the judge might dismiss it before the Case Management Conference. If I have a lawyer draw up the paperwork and attend the CMC and it is found to be a frivolous motion can the judge order her to pay my attorney fees? If so do those fees get added to the support arrears or is that something I will have to try and collect seperatly and likely will never get? Any advice would be appreciated.

 

[TheGeekess]

I might be waisting my time here since none of my last few posts have been responded to but I will give it one more try. I have finally been served on an Alias Summons. The Sherriff left me a voice message that he was trying to get some papers to me. I called him back and arrange to get them from him so I could get this moving forward and hopefully dismissed. The changes she is listing as reasons to change the support amount are as follows:

------
That the Form 14 from the Judgement did not include my bonuses or money her mother has been giving me to help cover her costs of living in our home (There is no rental agreement). It did not include her travel expenses for the children to see her.

She claims she has additional medical, legal and travel expenses.

That my income has increased since the divorce and hers has decreased.

That I have additional assets and she has none.

That she signed a quit claim deed on our home. (After I gave her half of equity)

Extra-Curricular activities are less now than when we divorced. (False)

Child Care expenses are less now than when we divorced. (False)
------

The above claims are either false or were already brought up in court. In regards to the travel expenses for the kids it was brought up she had the expense in court but it was not included on either one of our form 14s.

She goes on to submit a Form 14 in this motion that has inflated numbers for travel, ommits the expenses I have and inflates my income to cut the support in half. She then goes on to claim her Form 14 number is unjust and she should not have to pay anything. This is the same tactic she used earlier this year that backfired on her.

Based on the information above, if my Answer to her motion asks that the case be dismissed due to no substantial change in circumstances is it possible the judge might dismiss it before the Case Management Conference. If I have a lawyer draw up the paperwork and attend the CMC and it is found to be a frivolous motion can the judge order her to pay my attorney fees? If so do those fees get added to the support arrears or is that something I will have to try and collect seperatly and likely will never get? Any advice would be appreciated.

That's something that you would need to ask the local attorney you hire.

 

[CJane]

Why shouldn't rent and bonuses be included?

If the Form 14 is not correct, Mom has every right to ask that the amount be reconsidered. That's what we've been trying to tell you. You've been prolonging it by refusing to be served (glad to see you finally contacted the Sheriff and took care of that, at least), but you can't put it off forever.

And if ONE LITTLE BIT of her claim is justified, it's not frivolous. There's never any guarantee that attorney's fees would be ordered, and if they are, there's no way they'd be included in the child support. They'll be separate, and probably made payable to the attorney, not you.

 

[Ray246]

Why shouldn't rent and bonuses be included?

If the Form 14 is not correct, Mom has every right to ask that the amount be reconsidered. That's what we've been trying to tell you. You've been prolonging it by refusing to be served (glad to see you finally contacted the Sheriff and took care of that, at least), but you can't put it off forever.

And if ONE LITTLE BIT of her claim is justified, it's not frivolous. There's never any guarantee that attorney's fees would be ordered, and if they are, there's no way they'd be included in the child support. They'll be separate, and probably made payable to the attorney, not you.

Not to be argumentative but I never refused, ducked or in any other way avoided service. I just did not go out of my way to be served by contacting the sherrif in the initial summons.

There is no rental agreement with the ex mother in law and what she gives me is a lot less than what I could get if I wanted to rent that area of our house out. The amount she gives me helps cover her utillities, phone, cable tv, internet, some food, taking her to get her meds or groceries (she is legally blind and cant drive herself) etc. All of this what brought up in the previous trial and the judge made the determination that this money should not be considered.

In regards to the bonuses they were also brought up in the previous trial. It is an annual bonus that is not guaranteed and can vary greatly. The judge determined not to include it.

My income numbers reflected my earnings at the time of the trial based off my pay stubs while the ones on her Form 14 had my numbers based on a prior year. Her income numbers did not reflect her current income based on her pay stubs.

The judge determined that my Form 14 was correct and hers was not, based off the evidence. My understanding is that she would have to bring new information to the table not already presented in the previous trial to justify going to court for a modification.

Whats more is she is not taking me back to court to try and get those items put on the Form 14 and have her support obligation reduced. She is still stating that she shouldnt have to pay anything in child support. She truly feels that since I make more than her and she has to pay to fly them 3 times a year to see her that she shouldnt be obligated to help financially with their upbringing.

So if she was ordered to pay my attorney fees then she would pay the attorney and then the attorney would remberse me for what I already paid them? And if she doesnt pay them are they likely to go after her?

 

[CJane]

Not to be argumentative but I never refused, ducked or in any other way avoided service. I just did not go out of my way to be served by contacting the sherrif in the initial summons.

There is no rental agreement with the ex mother in law and what she gives me is a lot less than what I could get if I wanted to rent that area of our house out. The amount she gives me helps cover her utillities, phone, cable tv, internet, some food, taking her to get her meds or groceries (she is legally blind and cant drive herself) etc. All of this what brought up in the previous trial and the judge made the determination that this money should not be considered.

In regards to the bonuses they were also brought up in the previous trial. It is an annual bonus that is not guaranteed and can vary greatly. The judge determined not to include it.

My income numbers reflected my earnings at the time of the trial based off my pay stubs while the ones on her Form 14 had my numbers based on a prior year. Her income numbers did not reflect her current income based on her pay stubs.

The judge determined that my Form 14 was correct and hers was not, based off the evidence. My understanding is that she would have to bring new information to the table not already presented in the previous trial to justify going to court for a modification.

Whats more is she is not taking me back to court to try and get those items put on the Form 14 and have her support obligation reduced. She is still stating that she shouldnt have to pay anything in child support. She truly feels that since I make more than her and she has to pay to fly them 3 times a year to see her that she shouldnt be obligated to help financially with their upbringing.

And again. For the 1000th time. She has EVERY RIGHT to ask the judge to reconsider the original judgment.

So if she was ordered to pay my attorney fees then she would pay the attorney and then the attorney would remberse me for what I already paid them? And if she doesnt pay them are they likely to go after her?

I can't tell you how your attorney would handle it. And no, usually attorneys have bigger fish to fry than someone who owes them a couple hundred dollars from a family court judgment.

 

[Ray246]

And again. For the 1000th time. She has EVERY RIGHT to ask the judge to reconsider the original judgment.



I can't tell you how your attorney would handle it. And no, usually attorneys have bigger fish to fry than someone who owes them a couple hundred dollars from a family court judgment.

I understand she has a right to ask the judge to reconsider the original judgement. Im not questioning her right to do so. My questions have been about the likelyhood the judge will consider it based on the information I have given? Is this something I can likely handle on my own (Is it a straight forward case?) rather than pay out more money to an attorney? What are the chances I would actually get reimbursed should the judge order her to pay. If we are only talking a couple hundred bucks to get this settled then I dont even care about getting reimbursed but the last time we were in court it cost me over $8k because she didnt want to agree to pay any child support so we ended in court for a full day. All I am trying to do is see what advice I can get so I can make the most informed choices going forward. Thank you for the advice you have given.

 

[CJane]

I understand she has a right to ask the judge to reconsider the original judgement. Im not questioning her right to do so. My questions have been about the likelyhood the judge will consider it based on the information I have given? Is this something I can likely handle on my own (Is it a straight forward case?) rather than pay out more money to an attorney? What are the chances I would actually get reimbursed should the judge order her to pay. If we are only talking a couple hundred bucks to get this settled then I dont even care about getting reimbursed but the last time we were in court it cost me over $8k because she didnt want to agree to pay any child support so we ended in court for a full day. All I am trying to do is see what advice I can get so I can make the most informed choices going forward. Thank you for the advice you have given.

There is a very strong likelihood that she will be allowed to present her case to the judge. And you ARE questioning her right to do so. Every time you say it's a frivolous claim, or whatever, you're questioning her right to bring the motion back before the court.

The chances of being reimbursed for attorney fees are slim. The chances of them being ORDERED are slim - the chances of her actually paying them even slimmer.

And it may well be a whole day - or a couple of partial days. It might also be 15 minutes. There's no way for any of us to be able to tell.

 

[Ray246]

There is a very strong likelihood that she will be allowed to present her case to the judge. And you ARE questioning her right to do so. Every time you say it's a frivolous claim, or whatever, you're questioning her right to bring the motion back before the court.

The chances of being reimbursed for attorney fees are slim. The chances of them being ORDERED are slim - the chances of her actually paying them even slimmer.

And it may well be a whole day - or a couple of partial days. It might also be 15 minutes. There's no way for any of us to be able to tell.

My calling it frivolous is just my bias and hope that the judge will see it that way as well. My hope is that the judge who saw all the same facts earlier in the year will not have a Jekyll and Hyde moment and rule against himself. I cant imagine judges like having their judgments questioned and even less like the idea of reversing themselves but we will see. I'm rooting for the 15 minutes in court : )

 

[single317dad]

My calling it frivolous is just my bias and hope that the judge will see it that way as well. My hope is that the judge who saw all the same facts earlier in the year will not have a Jekyll and Hyde moment and rule against himself. I cant imagine judges like having their judgments questioned and even less like the idea of reversing themselves but we will see. I'm rooting for the 15 minutes in court : )

'Frivolous' has a specific legal meaning. Though it is often used loosely, in a court of law is not a wise place to do so.

Specifically, http://thelawdictionary.org/frivolous/

Also, http://legal-dictionary.thefreedictionary.com/frivolous
http://dictionary.law.com/Default.aspx?selected=794

frivolous adj. referring to a legal move in a lawsuit clearly intended merely to harass, delay, or embarrass the opposition.