Motion to Dismiss Part 2

[Ray246]

Thank you CJane for all of your input as it really helps me to understand the process. It will be interesting to see how she responds in the 10 days he has given her and if it is enough to convince the judge to not dismiss it. I am asking that the Case Management Conference be delayed so the judge has time to recieve her amended motion and time to consider it prior to the CMC date which currently would fall on the 10th day she has to respond.

 

[Ray246]

My ex has filed a Motion for Apptmnt of Counsel. Is that even a right she would have in a motion to modify child support?

 

[CJane]

Maybe. There are tests to be applied, and if she meets those tests, it would not be outside the judge's discretion to appoint an attorney.

 

[single317dad]

http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=2817&context=mlr

http://www.leagle.com/decision/1989937769SW2d168_1918

Muza asserts other errors against the circuit court judgment of dismissal. He argues that the refusal of the trial court to appoint counsel to assist him as an indigent civil litigant in the prosecution of the § 1983 claims was error. The plaintiff was not entitled as a matter of right either under federal or state decisions to appointed counsel for the civil rights claim brought under § 1983. Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir.1985); State ex rel. Scott v. Roper, 688 S.W.2d 757, 768[6] (Mo. banc 1985). Such a right exists for an indigent only where the loss of liberty or other cognate interests are at stake in the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640 (1981); Fitzpatrick v. Hoehn, 746 S.W.2d 652, 654[1] (Mo.App.1988).

 

[Just Blue]

Px Hx is a treat!!

https://forum.freeadvice.com/child-support-98/motion-dismiss-598579.html

 

[CJane]

http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=2817&context=mlr

http://www.leagle.com/decision/1989937769SW2d168_1918

In Missouri, the appointment of counsel (UNPAID counsel, mind you) is entirely at the discretion of the presiding judge, in civil cases. An attorney MAY be appointed. No, Mom has no INHERENT RIGHT to an attorney at this point, but if any of several factors apply (indigency, application of the right not to incriminate herself, etc), it is well within the judge's discretion to appoint counsel.

 

[single317dad]

In Missouri, the appointment of counsel (UNPAID counsel, mind you) is entirely at the discretion of the presiding judge, in civil cases. An attorney MAY be appointed. No, Mom has no INHERENT RIGHT to an attorney at this point, but if any of several factors apply (indigency, application of the right not to incriminate herself, etc), it is well within the judge's discretion to appoint counsel.

I don't dispute that, however it seems clear from case law that an appointment of free counsel would only stand up in very specific circumstances. The appointed counsel could certainly challenge it, or the opposing party.

Of course, the easiest way to push it through is if no one bothers objecting. That's why I provided the info for OP.

 

[CJane]

I don't dispute that, however it seems clear from case law that an appointment of free counsel would only stand up in very specific circumstances. The appointed counsel could certainly challenge it, or the opposing party.

Of course, the easiest way to push it through is if no one bothers objecting. That's why I provided the info for OP.

I dunno - I think a FAILURE to appoint counsel would stand up under review. But I don't know if actually appointing counsel for Mother would be something the Father could use to appeal the case. Know what I mean?

 

[Ray246]

The ex did just as CJane suggested and filed a Motion to Reconsider. Makes me think she might have caught on to this thread. Her MtoR is full of innacuracies. She also filed her Amended Motion to Modify but it has nothing new in it from the Motion to Modify other than that she is no longer engaged.

At the CMC the judge ordered us to respond to her Amended Motion to Modify and list what deficiencies were not addressed. She didnt address any of them. She is then ordered to respond to our response and then he will possibly rule on it or schedule another CMC.

He didnt give any attention to the MtoR other than to say we can file a response to it also. He also didnt respond to her Motion to Appointment of Attorney. She is understating her income and her household income in that motion.

 

[Ray246]

Now I know the ex has found this thread and is using CJanes advice as she just filed a "Motion to Modify Due to Changed Circumstances or Circumstances Not Previously Considered". The problem is she is not giving facts that are true and accurate to her best knowledge and belief but she is signing under oath that they are.

What repricussions can a person have placed upon them for knowingly lieing to the courts under oath if it can be proven that they are doing so?

 

[CJane]

Now I know the ex has found this thread and is using CJanes advice as she just filed a "Motion to Modify Due to Changed Circumstances or Circumstances Not Previously Considered". The problem is she is not giving facts that are true and accurate to her best knowledge and belief but she is signing under oath that they are.

What repricussions can a person have placed upon them for knowingly lieing to the courts under oath if it can be proven that they are doing so?

In family court? Virtually no consequences. My advice to you is to stop trying to fight this through dismissals and amendments, and just GO TO COURT and prove your case. If Mom is as full of poo as you claim, it should be obvious to the judge, she'll lose credibility, and her case will be dismissed after a hearing. It really MIGHT be that easy.

 

[Ray246]

In family court? Virtually no consequences. My advice to you is to stop trying to fight this through dismissals and amendments, and just GO TO COURT and prove your case. If Mom is as full of poo as you claim, it should be obvious to the judge, she'll lose credibility, and her case will be dismissed after a hearing. It really MIGHT be that easy.

Well that is comforting to know we can just lie our way through family court without having to worry about being punished for perjury. The last time I just went to court to prove my case it cost me over $8k in legal fees even though it went my way. I'll spend a few hundred first to try and get it dismissed and attorney fees paid rather than run off and spend another $8k in court because the ex doesnt feel she has a financial responsability toward her children. He found her credibility lacking the first time around and stated such in part of the judgement.

 

[LdiJ]

Well that is comforting to know we can just lie our way through family court without having to worry about being punished for perjury. The last time I just went to court to prove my case it cost me over $8k in legal fees even though it went my way. I'll spend a few hundred first to try and get it dismissed and attorney fees paid rather than run off and spend another $8k in court because the ex doesnt feel she has a financial responsability toward her children. He found her credibility lacking the first time around and stated such in part of the judgement.

Please understand that when it comes to divorce/family law situations one person's version of the truth is often very different than the other person's version. She may say something that she believes to be the total truth, and you believe to be a total lie, and vice-versa. 9 times out of 10 the actual truth is somewhere in the middle. You have been around the block enough that you can probably represent yourself without an attorney at this point, particularly if she doesn't have one.

 

[Ray246]

Please understand that when it comes to divorce/family law situations one person's version of the truth is often very different than the other person's version. She may say something that she believes to be the total truth, and you believe to be a total lie, and vice-versa. 9 times out of 10 the actual truth is somewhere in the middle.

I understand completely what your saying about it typically being a he said/she said scenario with some truth on both sides. What I'm refering to has varifiable documented court filed evidence that she is blatantly giving false information in hopes to mislead the judge. That being said I dont know how relevant it is to the matter at hand but hopefully it will at least show her lack of credibility.

You have been around the block enough that you can probably represent yourself without an attorney at this point, particularly if she doesn't have one.

I had thought the same thing but CJane has convinced me I dont know much about how the courts work so I'm not ready to fly solo yet. Also her Motion for Apptmnt of Counsel hasnt been ruled on yet so she may still end up with an attorney.

 

[Ohiogal]

Perjury is NOT simply lying in court. Perjury is lying under oath and telling a different story than what you previously had told under oath... if your testimony is different/contradictory in court than it was in a police statement or deposition or affidavit.