Motion to Dismiss Part 2

[Ray246]

What is the name of your state (only U.S. law)? MO

Not sure why my original thread was closed but since it was I am forced to start a new one. I filed a Motion to Dismiss in response to my ex’s Motion to Modify. After waiting 15 days to see if my motion would be granted the judge has ordered my ex to file amended motion to modify within 10 days. Why would a judge order her to do this? Is it an indication that her motion to modify and the reasoning within not sufficient and he is giving her a second attempt to convince him why he should take up her motion rather than dismiss it? I had hoped after her not responding within 10 days to my motion to dismiss the judge would have simply ruled on the motion.

 

[justalayman]

What is the name of your state (only U.S. law)? MO

Not sure why my original thread was closed but since it was I am forced to start a new one. I filed a Motion to Dismiss in response to my ex’s Motion to Modify. After waiting 15 days to see if my motion would be granted the judge has ordered my ex to file amended motion to modify within 10 days. Why would a judge order her to do this? Is it an indication that her motion to modify and the reasoning within not sufficient and he is giving her a second attempt to convince him why he should take up her motion rather than dismiss it? I had hoped after her not responding within 10 days to my motion to dismiss the judge would have simply ruled on the motion.

without knowing what she was told to modify in her filing, there is no way to know anything more. Sometimes the way issues are phrased or simple form of the motion does not comply with the requirements of the law. If it was something such as that, it is simply rewriting the motion and refiling it.

so, any idea what the judge was speaking to when he told her to modify the motion?

 

[CJane]

Just guessing... As I said in the original thread, she should have filed a Motion to Reconsider, not a Motion to Modify. If the judge believed the same, all she has to do is change the title of her pleading and resubmit.

 

[Ray246]

without knowing what she was told to modify in her filing, there is no way to know anything more. Sometimes the way issues are phrased or simple form of the motion does not comply with the requirements of the law. If it was something such as that, it is simply rewriting the motion and refiling it.

so, any idea what the judge was speaking to when he told her to modify the motion?

The order states that she is to file an amended motion to modify that addresses the deficiencies noted in my motion to dismiss. If it is not filed within 10 days the case will be dismissed.

It doesnt specify what the deficiencies are.

 

[CJane]

The order states that she is to file an amended motion to modify that addresses the deficiencies noted in my motion to dismiss. If it is not filed within 10 days the case will be dismissed.

It doesnt specify what the deficiencies are.

YOU apparently specified the deficiencies. So, what were they?

 

[Ray246]

YOU apparently specified the deficiencies. So, what were they?

What I meant was he didnt specify what parts of my motion she is to address...all of it I guess.

Basically my motion stated she failed to state a claim. That all the claims made in her motion were already tried by the court. That she filed her motion to modify less than 30 days after the judgment was made instead of attempting to exhaust all other remedies where she could have raised her issues or allegations concerning the court's judgement. No substantial change in circumstances and fails to raise new allegaions with regard to significant and continuing changes in circumstances since the judgment.

 

[Ray246]

Just guessing... As I said in the original thread, she should have filed a Motion to Reconsider, not a Motion to Modify. If the judge believed the same, all she has to do is change the title of her pleading and resubmit.

Except that an after-trial motion must be answered by the court within 90 days of the judgment or it is considered overuled. It has been well past the 90 days so that is no longer an option.

 

[Proserpina]

Except that an after-trial motion must be answered by the court within 90 days of the judgment or it is considered overuled. It has been well past the 90 days so that is no longer an option.

Without reading post hx, it would appear that the Judge is exercising some latitude.

It happens.

 

[CJane]

Except that an after-trial motion must be answered by the court within 90 days of the judgment or it is considered overuled. It has been well past the 90 days so that is no longer an option.

It's past the 90 days at this point, largely because she had so much difficulty serving you. If you wanted to appeal, post-judgment, based on an abuse of discretion, you could. You'd probably lose on appeal, but you could try.

You alleged that mom failed to state a claim, and then alleged that she DID state a claim, but it was invalid because she should have filed a different type of motion to "exhaust other remedies".

So, she is being given the opportunity to exhaust those other remedies. If she's smart, she'll file a Motion to Reconsider or In The Alternative a Motion to Modify Due to Changed Circumstances or Circumstances Not Previously Considered, and cover ALL her bases in one motion.

 

[Ray246]

It's past the 90 days at this point, largely because she had so much difficulty serving you. If you wanted to appeal, post-judgment, based on an abuse of discretion, you could. You'd probably lose on appeal, but you could try.

You alleged that mom failed to state a claim, and then alleged that she DID state a claim, but it was invalid because she should have filed a different type of motion to "exhaust other remedies".

So, she is being given the opportunity to exhaust those other remedies. If she's smart, she'll file a Motion to Reconsider or In The Alternative a Motion to Modify Due to Changed Circumstances or Circumstances Not Previously Considered, and cover ALL her bases in one motion.

Correct me if I am wrong but wouldnt a motion to reconsider be handled by the court diffently than a motion to modify? Would I have been summoned if it had been a motion to reconsider? I would think that on a motion to reconsider the court would first respond to that motion on whether or not they were going to consider it or dismiss it before I would have ever been summoned.

She filed the wrong type of motion and therefore does not have a valid claim. The judge would have had to determine if any of her claims would have been valid as a motion to reconsider. I cant answer that.

The judge didnt order her to change the type of motion she filed, he ordered her to amend her motion to modify. That would lead me to believe he is treating it as a motion to modify but giving her a chance to state a valid claim based on my motion to dismiss. The Motion to Reconsider would have had to have been filed within 30 days of the judgement as it is an after-trial motion. I believe he is giving her the opportunity to state a change of circumstances not previously considered but there have been no substabtial changes since the judgement.

 

[Proserpina]

She filed the wrong type of motion and therefore does not have a valid claim. .

No, this is flawed thinking. A does not lead to B necessarily.

 

[tranquility]

Civ pro is not easy and often has many ways to work. The key is to have disputes fairly decided. That is the goal. Few win on civil procedure. At best there are minor advantages.

 

[Ray246]

No, this is flawed thinking. A does not lead to B necessarily.

Okay I need to be better with my wording. What I mean is that with the claims she stated in her Motion to Modify none of them appear to be valid claims because they refer to items already addressed in the previous trial and judgement. She would have needed to state new claims to justify a substantial change in circumstances to warrant modification from the last judgement. If she had filed a Motion to Reconsider within 30 days of the last judgement the claims may or may not have been viewed as valid when reviewed by the judge.

 

[Ray246]

Civ pro is not easy and often has many ways to work. The key is to have disputes fairly decided. That is the goal. Few win on civil procedure. At best there are minor advantages.

True but what is fair is up to the judge and this is the same judge. Im not wanting an unfair outcome. I wish she would have filed a motion to reconsider and an appeal so that the courts could have decided this instead of her filing the wrong motion and sending me back into the middle of this costing me more money. Thats my only gripe about this whole thing. I assume the judge made a judgement he viewed as fair when he made it. All the evidence was out there for him to see.

 

[CJane]

Correct me if I am wrong but wouldnt a motion to reconsider be handled by the court diffently than a motion to modify? Would I have been summoned if it had been a motion to reconsider? I would think that on a motion to reconsider the court would first respond to that motion on whether or not they were going to consider it or dismiss it before I would have ever been summoned.

You're incorrect. A Motion to Reconsider is handled, in large part, exactly the same as a Motion to Modify.

Basically, with a MtoR, you're asking the judge to look at the evidence again - in whole or in part - and see if he'd come to a different conclusion. New evidence cannot be entered - but a hearing will CERTAINLY be held.

In fact, a MtoR is often REQUIRED before an appeal can be filed.

She filed the wrong type of motion and therefore does not have a valid claim. The judge would have had to determine if any of her claims would have been valid as a motion to reconsider. I cant answer that.

No.

The judge didnt order her to change the type of motion she filed, he ordered her to amend her motion to modify.

In order to correct the deficiencies YOU outlined. One of those is that she filed the wrong thing. She can AMEND her MtoM by MAKING it a MtoR.

That would lead me to believe he is treating it as a motion to modify but giving her a chance to state a valid claim based on my motion to dismiss.

No.

The Motion to Reconsider would have had to have been filed within 30 days of the judgement as it is an after-trial motion. I believe he is giving her the opportunity to state a change of circumstances not previously considered but there have been no substabtial changes since the judgement.

When she AMENDS the MtoM, if she's smart, she'll MAKE IT a MtoR, and it will have an ORIGINALLY FILED date of whenever she filed the first motion.

As I warned you months ago - you're VERY unlikely to get this thrown out without a hearing. Judges, in my experience, tend to err on the side of due process, even when everything seems frivolous to one of the parties.

And they're not as averse to changing their mind - and their judgments - as you seem to think they will be. Our judge has modified our orders no fewer than 6 times in the past 10 years (ALL of those modification taking place in 5 years) - AND we've had one case go to the Appeals Court.