Attorney does not comply with Compliance Order...what to do?

[mmentas]

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

Child support modification case. My ex attorney has failed to produce documents (bank statements, pay stubs etc) and after an order to comply from a Judge has still not produced the documents. The case is set for a few weeks, and there is no documentation from other party whatsoever. What can be done at this point? Is he is default or contempt of court?

 

[quincy]

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

Child support modification case. My ex attorney has failed to produce documents (bank statements, pay stubs etc) and after an order to comply from a Judge has still not produced the documents. The case is set for a few weeks, and there is no documentation from other party whatsoever. What can be done at this point? Is he is default or contempt of court?

Do you have a new attorney or are you planning to continue with the child modification on your own?

I see that you have a couple of options if your ex-attorney is not responding to the court order to turn over the documents needed for your case.

You, or your new attorney, can request of the other party's attorney additional copies of the documents, for one thing.

You can also contact your ex-attorney one additional time and inform him that you will be filing a contempt of court petition if the documents are not produced for your use immediately.

And, you can file a contempt of court petition (with the court where the judge issued the compliance order) and serve the attorney. Because civil contempt can result in a fine, or jail, or both, the attorney may act quickly. Or, if the matter is heard in court, sanctions can be ordered.

Sanctions are designed solely in contempt of court actions to compel compliance with the order.

Good luck with your child support modification case.

 

[latigo]

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

Child support modification case. My ex attorney has failed to produce documents (bank statements, pay stubs etc) and after an order to comply from a Judge has still not produced the documents. The case is set for a few weeks, and there is no documentation from other party whatsoever. What can be done at this point? Is he is default or contempt of court?

Who is meant by the "he" in your:

"Is he (in) default or contempt of court"?

And what is your ex's ex's attorney doing about it "at this point"?

Would that be you?

If a litigant fails to comply with an order to comply with a discovery request, his/her/its pleadings, motions and the whole works can be struck from the court record. Which, depending on the nature of the proceedings can result in the opposing party being granted whatever affirmative relief is reasonably and legally being sought.

Or if the party who is at fault is the one seeking affirmative relief, then the action of that party is/can be dismissed and no relief granted.

Plus other sanctions/penalties can be imposed, including an order directing the party at fault to pay the opposing party's attorney fees necessarily and actually incurred.

It all depends on what the court is being asked to do. But nothing good will happen to the party disobeying the judge. They are very possessive about such things.

Simple stuff, right?

 

[quincy]

Ah. I think we have read the post differently, latigo.

Is it mmenta's ex-attorney, or the attorney of mmenta's ex, who is ignoring the order to produce the documents?

Contempt of a court order, either way, though.

 

[mmentas]

Do you have a new attorney or are you planning to continue with the child modification on your own?

I see that you have a couple of options if your ex-attorney is not responding to the court order to turn over the documents needed for your case.

You, or your new attorney, can request of the other party's attorney additional copies of the documents, for one thing.

You can also contact your ex-attorney one additional time and inform him that you will be filing a contempt of court petition if the documents are not produced for your use immediately.

And, you can file a contempt of court petition (with the court where the judge issued the compliance order) and serve the attorney. Because civil contempt can result in a fine, or jail, or both, the attorney may act quickly. Or, if the matter is heard in court, sanctions can be ordered.

Sanctions are designed solely in contempt of court actions to compel compliance with the order.

Good luck with your child support modification case.

Thank You for response. Please let me clarify, I did not write clearly. It is my ex's attorney that has not complied, and has missed the date that the judge set to produce documents by.

Also, if the lawyer is held in contempt of court by the Judge at this point, what would happen to the original litigation that is set in a few weeks. With the documents that are needed to modify, not in hand, will the case be dismissed?
I thank you for your help greatly!

 

[quincy]

Thank You for response. Please let me clarify, I did not write clearly. It is my ex's attorney that has not complied, and has missed the date that the judge set to produce documents by.

Also, if the lawyer is held in contempt of court by the Judge at this point, what would happen to the original litigation that is set in a few weeks. With the documents that are needed to modify, not in hand, will the case be dismissed?
I thank you for your help greatly!

Sorry for my misreading of your post, mmentas.

Your modification case can be rescheduled if necessary.

I imagine your ex's attorney, if faced with a contempt of court hearing over his failure to produce the documents, will produce the documents.

 

[Doreen]

The order to compel discovery was most likely directed TO the other party, and NOT their attorney.

Not many, if any, lawyers are willing to put their heads on the chopping block for their client by not complying with a court order. It is most likely the attorney's client who is not providing the necessary information. If so, any sanctions will be directed to the other party, rather than to their attorney.

Discovery sanctions are not always immediate, with the exception of costs and attorney fees, which often leaves a pro se with fewer teeth to sink into discovery disputes. Although the other party will incur more billable hours from their attorney to litigate any disputes.

Your hearing is in a few weeks. Unless the documentation does not arrive in time for you to adequately prepare for your hearing, there is no reason to request a continuance yet.

First attempt to communicate with the attorney to determine why the discovery is late, and what will be done about that.

Assuming you are pro se, consider filing a motion for contempt, schedule it at the same time your upcoming hearing is set for, and serve a copy to the attorney. A plea for relief should include that if the discovery was not provided to you in a reasonable time prior to the hearing, that a continuance be granted in your hearing and that sanctions be imposed. If the attorney provides you the information you need in a reasonable time, you have the option of not raising your sanctions motion at the hearing, and simply moving on to the hearing.

Don't waste time litigating the sanctions motion if you do get your discovery, because the attorney will likely have standard excuses for the delay, even if weak, and you may not likely have any sanctions imposed.

 

[quincy]

The order to compel discovery was most likely directed TO the other party, and NOT their attorney.
Not many, if any, lawyers are willing to put their heads on the chopping block for their client by not complying with a court order. It is most likely the attorney's client who is not providing the necessary information. If so, any sanctions will be directed to the other party, rather than to their attorney.

To clarify, perhaps: If the party is represented by an attorney, the court may impose an appropriate sanction upon the attorney, the law firm or the parties that have violated or are responsible for the violation.

Discovery sanctions are not always immediate, with the exception of costs and attorney fees, which often leaves a pro se with fewer teeth to sink into discovery disputes. Although the other party will incur more billable hours from their attorney to litigate any disputes.

The party in violation is given time to comply. The purpose of a contempt of court action is not to issue a monetary award but to compel compliance.

Your hearing is in a few weeks. Unless the documentation does not arrive in time for you to adequately prepare for your hearing, there is no reason to request a continuance yet.

Agreed.

First attempt to communicate with the attorney to determine why the discovery is late, and what will be done about that.

The violation must be brought to the attention of the other party prior to filing a contempt petition.

Assuming you are pro se, consider filing a motion for contempt, schedule it at the same time your upcoming hearing is set for, and serve a copy to the attorney. A plea for relief should include that if the discovery was not provided to you in a reasonable time prior to the hearing, that a continuance be granted in your hearing and that sanctions be imposed. If the attorney provides you the information you need in a reasonable time, you have the option of not raising your sanctions motion at the hearing, and simply moving on to the hearing.

Rule 11 (or corresponding state rule) provides that requests for sanctions must be made as a separate motion. The motion for sanctions is not filed until at least 21 days (or time set by court) after the other party is served. This allows the other party time to comply.

Don't waste time litigating the sanctions motion if you do get your discovery, because the attorney will likely have standard excuses for the delay, even if weak, and you may not likely have any sanctions imposed.

There is no litigation on a sanctions motion once the other party complies.

Again, contempt of court motions are to compel the party in violation to comply with the order. Once the party has complied with the order, the motion is generally withdrawn.

 

[Doreen]

There is no litigation on a sanctions motion once the other party complies.

Again, contempt of court motions are to compel the party in violation to comply with the order. Once the party has complied with the order, the motion is generally withdrawn.

Litigation is required if the party filing the contempt motion wishes to recover attorney fees expended as a result of preparing the motion seeking compliance with the order

 

[quincy]

Litigation is required if the party filing the contempt motion wishes to recover attorney fees expended as a result of preparing the motion seeking compliance with the order

That is assuming mmentas has an attorney.

Even if she has an attorney (and it seems doubtful if she is here on FreeAdvice seeking advice), litigation on a contempt motion is a long ways off. Any motion for sanctions will not be filed with the court until at least 21 days (or however long the court has decided) after the other party is served.

THEN, if the alleged violation is corrected within this time, the motion is not filed with the court at all.

The attorney for the ex will, more than likely, ensure that the documents are in mmentas' hands before the contempt motion is filed with the court.

 

[TheGeekess]

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

Child support modification case. My ex attorney has failed to produce documents (bank statements, pay stubs etc) and after an order to comply from a Judge has still not produced the documents. The case is set for a few weeks, and there is no documentation from other party whatsoever. What can be done at this point? Is he is default or contempt of court?

Why are you handling this when CSEA would have done all the worrying for you?

 

[mmentas]

The order to compel discovery was most likely directed TO the other party, and NOT their attorney.

Not many, if any, lawyers are willing to put their heads on the chopping block for their client by not complying with a court order. It is most likely the attorney's client who is not providing the necessary information. If so, any sanctions will be directed to the other party, rather than to their attorney.

Discovery sanctions are not always immediate, with the exception of costs and attorney fees, which often leaves a pro se with fewer teeth to sink into discovery disputes. Although the other party will incur more billable hours from their attorney to litigate any disputes.

Your hearing is in a few weeks. Unless the documentation does not arrive in time for you to adequately prepare for your hearing, there is no reason to request a continuance yet.

First attempt to communicate with the attorney to determine why the discovery is late, and what will be done about that.

Assuming you are pro se, consider filing a motion for contempt, schedule it at the same time your upcoming hearing is set for, and serve a copy to the attorney. A plea for relief should include that if the discovery was not provided to you in a reasonable time prior to the hearing, that a continuance be granted in your hearing and that sanctions be imposed. If the attorney provides you the information you need in a reasonable time, you have the option of not raising your sanctions motion at the hearing, and simply moving on to the hearing.

Don't waste time litigating the sanctions motion if you do get your discovery, because the attorney will likely have standard excuses for the delay, even if weak, and you may not likely have any sanctions imposed.

Thank You for your response. Yes, I am pro se. Let me tell what has been done for the beginning. Originally, I filed for a discovery of documents and the interrogatories back in late February. I waited the normal 30 days plus a few extra weeks. I then filed a second request for the same two documents and then waited another 30 days plus a few weeks. A that time, I then filed a motion to compel and on the compel gave more weeks and got nothing. I then filed for a court date on that motion to compel, went to court, the judge upheld my motion and gave him 20 days to produce the documents. That 20 days how now lapsed and still nothing. As far as I can tell and understand, he is already in contempt of court and should be punished for this neglect to comply to a court order.I have given plenty of opportunity and grace to try and get these documents and have not only not received anything but have received no correspondence at all in the matter from the ex or her attorney.

 

[mmentas]

Why are you handling this when CSEA would have done all the worrying for you?

I have a fairly good understanding of the documents needed and protocol, up to a certain extent and decided to do this pro se simply for money reasons. I couldnt and cant afford an attorney.

 

[TheGeekess]

I have a fairly good understanding of the documents needed and protocol, up to a certain extent and decided to do this pro se simply for money reasons. I couldnt and cant afford an attorney.

At the most, CSEA will charge you $25/year to enforce your CS order.
https://dssapp3.dss.mo.gov/ChildSupportEligibility/faq.aspx

 

[mmentas]

Thank You for your response. Yes, I am pro se. Let me tell what has been done for the beginning. Originally, I filed for a discovery of documents and the interrogatories back in late February. I waited the normal 30 days plus a few extra weeks. I then filed a second request for the same two documents and then waited another 30 days plus a few weeks. A that time, I then filed a motion to compel and on the compel gave more weeks and got nothing. I then filed for a court date on that motion to compel, went to court, the judge upheld my motion and gave him 20 days to produce the documents. That 20 days how now lapsed and still nothing. As far as I can tell and understand, he is already in contempt of court and should be punished for this neglect to comply to a court order.I have given plenty of opportunity and grace to try and get these documents and have not only not received anything but have received no correspondence at all in the matter from the ex or her attorney.

My biggest problem and question is: Why would I need to give 21 more days when he is already in violation of the court order from the compel? He is already in contempt and me filing a contempt only brings it to the judges attention. The ex's attorney already knows he hasnt complied but the judge is the one who needs to know. I am having an issue with the fact that I am "supposed" to give him even more chances to comply. Meanwhile, my original court date is the 25th of July and by me filing this contempt and giving 21 days more pushes me right up to that court date and then forces me to file a continuance, which I do not want to do if I dont have to. In my opinion, he is already in contempt and he should be held accountable.