Ex and I went to court and had contempt motions against each other. Before Judge ruled I agreed to withdraw my motion if Ex withdrew hers WITH PREJUDICE. Judge accepted this from each side and ordered paperwork drawn for him to sign.
Ex’s counsel drafted but added extra language and did not include “with prejudice”. It was sent to my atty on a friday and in hast ( apparently) without consulting me, my atty said it was OK.
I receive a copy of opposing counsel’s draft on Monday and immediately notify my atty that I do not approve.
My atty waits another day and then fax’s Judge to say that she had not spoken to me when she said OK, that I have concerns and if he hasn;t signed it yet she would like to speak with him.
He e mails back that it was just signed and entered BUT if she wants to file to amend or set aside, he will listen to it, that my atty needs to let his assistant know.
MY attorney is balking and trying to say it will cost me more in fee’s than i will get back ( it involves child support arrears due me), and that I need add retainer to keep going.
Question is, if my atty will not file a motion to amend ( I have no more funds to pay for this, and in my opinion this situation is entirely my atty’s fault for not consulting me first, I never gave blanket authority to do so). Can I contact the Judge, do I file pro se ? What suggestions do you have ?
You may communicate with the judge, however you must copy the opposing attorney on any correspondence you send to the judge. I really wound not be so concerned with the absence of the “:with prejudice language”. If your spouse brings up the issue again, your are free to revive your contempt motion as well.
I understand. I left out this from last post. Ex owes me arrears, there is disagreement on the exact amount. Her atty added language saying that No arrears exist at this time.
I told my atty this is false and I do not want that in this order.
When my atty faxed Judge my atty stated that to say no arrears exist is a “false” statement, and says that the amount while in dispute is still an arrears.
My major concern is that I now have DCSE taking the case and I do not want to lose my right to get arrears ( whatever the amount).
So I get back to whether my atty should file for an amendmant without demanding further retainer, or should I do it pro se, or should I not worry because this order does not change what CSE will show owing for arrears ?
I see. You must file a motion for relief from judgment under rule 60. I would certainly ask that your attorney file the motion as it was entered based on their mistake.
My atty e mailed me basically saying that the legal fee’s to set aside or amend will exceed my gain in arrearage due me. That while I can make payments on the bill up to know, I need to pay more in order for the atty to file a motion to correct the order in question.
I sent the following to my atty and would like your opinion on what i sent, as well as what i should do if the atty still refuses to follow up:
[i]I believe it would be appropriate for you to file for relief of Judgment under Rule 60 on my behalf, as this was entered due to what you agree was your mistake in not reviewing the proposed order with me before you agreed to it , as well as the fact that it as a “false” statement that no arrears existed, as you stated in your email to the Judge.
It is not my desire to create a problem , but this order is wrong and I do not believe I should be stuck with it because I have no funds.
The only reason I went with the contempt filing was based on your very strong urging, knowing I had no funds. You were certain we would get awarded attorney fees.
Now I feel I am due serious consideration on getting this incorrect order corrected.
I will not needlessly use your time
On this and appreciate your follow up to correct this.
I hope you will agree so we can put this behind us.[/i]
Note: If I need to go pro se, how long do I have to file whatever motion I need to , and do I let the Judge know ?
The motion must be filed in a “reasonable time”, but not more than one year after the judgment.
If you plan on taking this issue on pro se, you may want to consider trying out our new DIY (do-it-yourself) system, which gives you the forms, rules, and other materials you will need, all with email access to an attorney.
" The Judges clerk emailed us this afternoon and said the Judge has requested both attorneys review the transcript of the hearing. After reviewing the transcript, I will let you know if my opinion has changed. If I feel a motion to set aside or amend the order is appropriate I will prepare and file the motion "
My Atty then told me they will then withdraw.
I find it very unusual that a Judge would request the atty’s to review the transcript AFTER he signed and entered the order that they presented to him. I told you already that upon my insistance, my Atty e mailed the Judge to say they approved the order before I had seen it and that saying that no arrears exist would be a false statement.
My atty told me that Judge said if we wanted to file a motion to amend or set aside he would hear it. NOW, my atty is saying he wants both atty’s to review the transcript???
Please tell me what you make of this, as although I am not a lawyer, it sounds very unusual to me?
The judge’s response is normal. A dispute has arisen after entry, and he is now requesting the attorney’s sort it out and prepare a new order, if appropriate.