Michigan
In my original divorce judgment, I received 3 dependents to file on my tax return and the ex wife got 1. She filed a motion to have the judge give them all to her. I received the hearing and motion notice in the mail on a Thursday afternoon and opened it Friday morning. The hearing was for the next Monday. I believe the law requires 9 days if you are serving via mail. I told the ex I couldn't make it as I was traveling for business. She went anyway, I got a failure to appear, and the judge signed the order. Wondering what my remedy might be since I wasn't properly served (2 days notice vs. required 9 days). The order is signed, do I have to appeal to the next court? Or do I need to file another motion?
http://courts.mi.gov/courts/michigansupremecourt/currentcourtrules/1chapter2civilprocedure.pdf
Under MCR 2.119(C)(1)(a)
(C) Time for Service and Filing of Motions and Responses.
(1) Unless a different period is set by these rules or by the court for good
cause, a written motion (other than one that may be heard ex parte), notice of
the hearing on the motion, and any supporting brief or affidavits must be
served as follows:
(a) at least 9 days before the time set for the hearing, if served by mail, or
(b) at least 7 days before the time set for the hearing, if served by delivery
under MCR 2.107(C)(1) or (2).
Unless:
(3) If the court sets a different time for serving a motion or response its
authorization must be endorsed in writing on the face of the notice of hearing or
made by separate order.
You should have asked the court for a continuance. You could have filed for an Extension of Time under 2.108(E) if you planned on filing a responsive pleading, or at the very least contacted the court and informed them that you just received the summons two business days before the hearing. Either way, simply skipping the hearing when you were notified about it four calendar days ahead of time was pretty silly.
Here's what the MI Court of Appeals had to say on service time under 9 days:
http://www.michbar.org/opinions/appeals/2005/100405/28954.pdf
Although by serving notice through the mail only six days before the hearing failed to
comply with the requirements of MCR 2.119(C)(1)(a), Belle Pointe did not deprive appellants of
their right to due process. Due process is satisfied when interested parties are given notice
through a method that is reasonably calculated, under the circumstances, to apprise them of
proceedings that may directly and adversely affect their legally protected interests and afford
them an opportunity to respond. Vicencio, supra at 504. Here, Belle Pointe sent notice of the
hearing to appellants’ attorneys by facsimile on the same day the notices were mailed. Although
appellants did not appear at the hearing, they do not contend that they did not actually receive
the facsimiles. While such service did not satisfy the requirements of the court rule, it provided
notice that was reasonably calculated to apprise appellants of the hearing and afford them an
opportunity to respond.
http://statecasefiles.justia.com/documents/michigan/court-of-appeals-unpublished/20101019_C293632_45_293632.OPN.PDF?ts=1323898502
Hamood argues that the proof of service was deficient because Hechtman did not specify
the manner of service on the proof of service. While the proof of service did not mention the
specific method of service Hechtman used, at the hearing on the motion to set aside the default,
Hechtman indicated that he served all documents filed in the case on Hamood by mail.
Moreover, Hamood argues that the proof of service was untimely under MCR 2.119(C)(1)(a).
And MCR 2.119(C)(1)(a) applies when service is made by mail. By relying on MCR
2.119(C)(1)(a) to attack Hechtman’s proof of service, Hamood acknowledges that service was
proper by mail, albeit untimely, even though the proof of service failed to state the manner of the
service. Regardless, even if Hechtman did not specify the manner of service on the proof of
service, reversal is not required because proof of service is not a prerequisite to the entry of a
valid default judgment.19 Therefore, we conclude that the trial court did not commit a reversible
error when it found that Hechtman served Hamood with a valid proof of service.
The bigger question is, for what purpose are/were each of you claiming the children for tax purposes? While the court has the power to order YOU and YOUR EX to do certain things, such as accommodate each other for tax filing purposes, the court does not have the authority to order that the IRS grant exemptions or issue certain credits to one person or another. Where do the children actually live for more than half of the year?
I suggest you file a motion for reconsideration, a brief in support explaining the circumstances, and ask very, very nicely.
