Order of Dismissal/Equitable Distribution Hearing


#1

My hearing for ED was on January 17, 2012, and the Plaintiff was not present. The Judge had the Clerk of Court try to reach the Plaintiff’s attorney, but was unsuccessful, so we proceeded with the hearing without the Plaintiff and his attorney. We previously had an Order of Reference in which the Plaintiff was supposed to file his ED by 9/26/11 (I filed mine on 9/16/11); complete the ADR by 11/1/11; discovery to be completed by 10/15/11; pretrial conference by 11/14/11; ED trial on 12/5/11----none of which happened because we could not get the Plaintiff’s attorney to respond, neither my attorney nor the appointed Mediator could reach his attorney by phone, fax, or mail and Plaintiff’s attorney never attended any of the calendar calls to schedule a hearing (I personally told the Plaintiff all the deadlines in a phone conversation and he wrote them down, so he knew about them). As sanction for not filing an ED Affidavit, not meeting any of the court ordered deadlines (ADR, discovery, etc.) I was granted an Order of Dismissal preventing the Plaintiff from submitting any evidence for his first Complaint for Writ of Possession and ED.
I received a Judgment and Order of Equitable Distribution that gave the Plaintiff 90 days to refinance the house and remove my name from the mortgages, but should he not refinance the house in 90 days it is to be immediately sold and the Plaintiff will be responsible for all deficiencies or liabilities should the sale not be enough to pay off the mortgages (mortgage is currently $221,500, appraised for $205,000). The vehicles were divided (he received 1998 Dodge Ram and 1992 Olds and I received the 2002 Cadillac). I have items on my credit cards (refrigerator, dishwasher, tile, paint, etc. from a remodel of marital home in 2007) and we also owned a John Deere z-track tractor, so Plaintiff was ordered to pay me $10,000 within 90 days as compensation. My retirement was ruled as separate property, therefore he will not receive any compensation; he has no retirement except Social Security. He is to return to me a list of items still in marital home (if he hasn’t already destroyed them!).

I felt sure the Plaintiff did not get a copy of the Judgment even though one was sent to his attorney of record, so I sent him a text by phone just to make sure he got a copy. Ironically, an attorney friend of mine saw him going to the courthouse the next day–I am sure he was going to get a copy of the Judgment. On February 23, 2012, my attorney received a fax from Plaintiff’s ‘new’ attorney that included an Affidavit of Plaintiff stating that in November, 2011, he was told his attorney would be retiring, but he was not aware that his attorney had actually retired, that he never received notice that a hearing was scheduled for January 17, 2012, and that he never signed a consent for his first attorney to withdraw as attorney of record. His ‘new’ attorney was requesting to meet with the judge and my attorney to discuss the case; his ‘new’ attorney stated he was unable to reach Plaintiff’s first attorney to discuss the case.

Plaintiff was aware of all the deadlines, yet did nothing; Plaintiff was made aware in November that his attorney was retiring/had retired, but did nothing to retain another attorney until he received a copy of the judgment. My attorney told me last summer that she had spoken to Plaintiff’s first attorney outside of court and he indicated he was not willing to do much for his client because he had not received any money from him. Question: does Plaintiff have any recourse? If so, what?


#2

This sounds like an involved situation, and is best answered by your attorney.