Received Motion to Dismiss Supplemental Petition for Modifcation Parent Plan

[troutette]

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

I am a Pro se litigant. I filed all necessary paperwork in Florida for the supplemental petition to modify parenting plan and other relief and also filed a motion for Temp Support. My ex was served but I inadvertently forgot to attach the last page of each document (where they were notarized or otherwise sworn by me).

My ex's attorney just filed a Motion to Dismiss/Strike the Petition due to "violating applicable rules of civil and family law procedure. None of Former Wife's allegations or pleadings are sworn to or notarized." No formal answer to petition was filed by him yet.

I know they are proper. They were sworn to and notarized right with the clerk of court as she filed the papers.

It also says that Petition should be stricken without prejudice. And now FH is seeking attorney fees.

My peitition to modify parenting plan was filed because my ex husband refuses to keep child an extra 45 minutes, two days a week so I could secure outside, full-time employment. A letter from my ex-attorney (ex because I can no longer afford him) was sent with proposed modified parenting plan on Oct 26th, and as of this date, no response at all has been received.

I have an email to FH requesting this additional time and his response was "not my problem". When I told him that I would need to pursue legal channels, his response to that was "knock yourself out". All this in writing.

I guess I have two questions.

1) How do I/should I respond to his motion to dismiss? Can I somehow re-file or re-serve him the papers with all the attachments? Do I need to file an answer to his motion? Will my case now be thrown out??

2) What is the liklihood of being granted my request in Petition based on above scenario with FH being so uncooperative?

Many thanks to all. Really wanting to have a good CHristmas and it's not feeling so good,What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[Proserpina]

Do you actually have the correct documents?

 

[troutette]

As far as I know, yes. Would telling you them help? They did state that they were not sworn by or notarized. I'm not sure how I could have given him a notarized copy? The clerk notarized it and immediately filed it. They didn't give it back to me to make a copy. Can I go to clerk's office and request copy?

 

[Ronin]

If the documents are properly filed with the clerk, and all you did was fail to serve the last pages of these documents to your ex, all you should have to do is serve it again with all the required pages.

File an answer to the motion indicating you have served them again with all the proper information.

File another copy of the notice of service indicating the new service with the Clerk and attach this to both service to your ex and in the response motion, which is also served to all parties.

Not sure what you mean by the clerk notarizing everything for you. All you generally need notarized is a simple Verification which is a sworn notarized affidavit that you have knowlege of all the facts you allege in the Peitition and that it is truthful.

I have an email to FH requesting this additional time and his response was "not my problem". When I told him that I would need to pursue legal channels, his response to that was "knock yourself out". All this in writing.

These are acceptable responses, given these problems are really yours and not his. There is no legal expectation he accomodate you with this if he is unwilling or unable.

 

[troutette]

The issue with accomodating the change in schedule is that the pick up time is not conducive to a 9-530 working schedule. I have been unemployed for 6 months. I am having trouble believing that a judge wouldn't grant me these extra few minutes so I am able to secure full, outside employment. My ex is the owner of his own restaurant and has the flexibility to keep her those 20 minutes.

The schedule was put in place 4 years ago when FH was opening his establishment and needed extra time to devote to it. My daughter was also only 22 months at the time. I worked part time then, but now that she is in school and alimony has ended, I need to secure outside work.

The judge would not see that is a substantial change in circumstances to award favor in the petition?

 

[Ronin]

I filed all necessary paperwork in Florida for the supplemental petition to modify parenting plan and other relief and also filed a motion for Temp Support.

What are you hoping to get out of your motion for temporary support?
An extension of the alimony?

My peitition to modify parenting plan was filed because my ex husband refuses to keep child an extra 45 minutes, two days a week so I could secure outside, full-time employment.

You may not be able to successfully argue a change in circumstances over what amounts to a 45 minutes of child care twice a week, even if that means you would have to make arrangements to pay for this. If not, the petition will be denied.

 

[troutette]

My motion is for temporary child support and attorney's fees to proceed with petition and until I can secure full-time employment. I am presently receiving state aid for groceries.

I can't believe that a judge would think it would be in my daughter's best interest to be placed in yet another care environment for 45 minutes a day instead of him just keeping her that amount of time.

Don't judges like to see parents try to work out minor details like this without involving the court?

 

[ecmst12]

I think it seems like you're being petty not wanting to put her in child care for that time. Child care (as long as it's a good center) is a POSITIVE environment for children. If he doesn't want the extra time with her, then ask that he split the cost of the day care with you.

 

[troutette]

It is not a matter of being petty. On those two days a week, she first goes to pre-care, then to kindergarten, then to after care, then to her dad and then I am supposed to put her in yet another care facility?

My petition is not just those few minutes twice a week. My ex has her on Saturdays from 3-7 every weekend. She has no weekend overnights with him and hasn't since the divorce in 2006. This visitation breaks up the entire weekend and it doesn't allow any time for either of us to take her away on a weekend to go visit family. The closest extended family we have is a 3 hour drive and it would be to visit several cousins.

Also, since the final judgment does not address holidays, we run on the 12th judicial guidelines which gives him 4 hours per holiday. I am petitioning the court for every other weekend and alternating holidays for him. I am actually petitioning for more time for him. I have not had a weekend alone since she was born.

It seems more age appropriate (she is five now) and I think this proposed visitation schedule would be approriate until she becomes of age to make her own decisions. The child also desires more time with her father.

Proposed time-sharing schedule was sent to his attorney back in October with absolutely no response. What recourse do I have if not to petition court?

 

[Ronin]

If the father does not agree to the extra visitation you propose, it is not likely the judge will force it upon him and order him to take it. It's best not to try to argue this to the court as petitioning for more time for him, when the intent of the Petition is clearly for less time for you. However, the time you need can also be relegated to child care providers.

Since you already started this ball rolling, you can now see how far it goes but it really does not appear you have enough of a change in circumstances to warrant modification. But as these things go, there are few absolutes in these matters, and it may work out as you wish.

 

[troutette]

Serve Attorney or Defendant

If the defendant has now obtained an attorney to handle this case, do I re-serve the defendant or serve the attorney? How do I need to re-serve this petition? By mail, by service? If attorney, is a fax sufficient as proper service?

What type of notice do I need to file with the court that proves service? If I don't use a personal service, is their another type of form I can use to state that documents were re-served?

 

[troutette]

Motion to Dismiss Modification

I have properly served the defendant the required initial petition and I answered his motion to dismiss based on inproperly filing. Does the court automatically decide whether the motion is dismissed or will it need to go to hearing? If it needs to go to hearing, his attorney would have to file for that, yes?

I also apologize for my posting errors. I will follow this thread. I thank everyone for their replies.