Motion and order to showe cause - CS


#1

I was served with a “motion and order to show cause for failure to comply with order in child support action” on Friday.

Reason for non payment - I was laid off in September and have fallen behind in support. Since the time of my being laid off, I have been consistently looking for a new job but in order to take care of my family, my wife and I have had to go apply for food stamps and WIC/Medicaid for my pregnant wife and 18 month old son. I have NO money (my account is negative about $100 right now) and I’m selling stuff on Craigslist and other sites just to have gas to get to job interviews and diapers for my son.

All that being said, when I was served with the paper, I immediately called my ex to explain my situation and she plain out said she doesn’t care. I was found guilty of contempt for nonpayment a couple years ago because I was actually laid off then as well but the judge did not force immediate payment since I didn’t have any money. He put me on a payment plan of $50/month for her and $50/month for her attorney’s fees to her attorney.

She has supposedly dropped her attorney several months back but nothing has been filed saying that the attorney is no longer representing her. She didn’t use her attorney to file the motion to show cause.

My question, since she technically has an attorney, doesn’t she (the attorney) have to be included in any and all matters with the case (i.e. any filings and court hearings)? Also, what does “motion and order to show cause for failure to comply with order in child support action” actually mean? Will this be an actual contempt hearing like last time or will there be a chance for continuation? I’d rather just pay her back a lump sum once I regain employment than pay her back over a couple years but I can’t do that until I start working. The court date is set for 3 weeks and while I’m hoping to have a job, I’m also going to have to catch up on my utility bills and my rent as well as the child support I owe so I’m not sure I will have the $900 needed by that date. If I haven’t paid by the court date, and the judge finds me guilty, is there a chance for jail time?


#2

If she still has an attorney of record, you should be include both her and the attorney on correspondence to be cautious. It really depends on the jurisdiction how strictly the court requires a formal motion and order to withdraw to remove an attorney from a file. In some counties, a party showing up stating that they are representing themselves and allowing the attorney to be released is sufficient.

An order to appear and show cause is the same thing as a motion for contempt except that the burden of proof is shifted to you to explain why you shouldn’t be held in contempt. Usually, at the first court date, the court must notify you of your right to court appointed counsel, so you may have a built in continuance.

You also may want to consider filing a motion to modify child support.


#3

Thank you. I am in Mecklenburg County. Do you know what they typically expect people to do here as far as the attorney being officially off the case? I had an attorney at the beginning of all this (4 years ago) but eventually dropped him because it was costing too much for her petty drama, but he immediately filed paperwork with the court that was in turn mailed to the opposing party’s counsel and myself. I figured that was the process since that’s what he did. If they haven’t followed proper procedure, do I need to bring it to the attorney’s attention or just wait until we get to the courtroom for the hearing?

Also, I got another paper from the courthouse in the mail this week and it says we have a contempt hearing for 9am. The original paper I got was the motion to show cause hearing scheduled for the same day but at 2pm. Does this mean that the motion to show cause hearing is cancelled and we are just going straight for a contempt hearing? This is not how it happened before, I just got a letter about the one hearing for contempt in the past. Now I’m just confused as to what I should expect. Also, will a contempt hearing be much different than the motion to show cause hearing would have been that you explained in your last response?

Thanks for you all of your help!


#4

Mecklenburg usually requires a formal motion and order to withdraw, but it is really in the judge’s discretion. It’s not your responsibility to bring it to the attorney’s attention. The only thing that his failure withdraw himself properly from the case would do would be to cause a delay for the moving party, which would benefit you.

The contempt hearing and the order to appear and show cause are the same thing. It is normal for a party to file both, a motion for contempt and a motion for order to appear and show cause as there is a chance that a judge will not sign the order to appear. The order shifts the burden of proof to you. It is likely that it was intended that both would be heard at the same time, but it sounds like someone made a calendaring error. You should show up for court at 9:00 a.m.