Skip to main content

A hearing was set but I was never served with the Motion

Boca Raton, FL |
Filed under: Family law

I have an upcoming hearing (next week) on an Motion and Affidavit in a contempt order. I have paid the "purge" that was required. I am supposed to "return" property that was awarded to me in our MSA according to the Order. I have filed an appeal with the DCA and filed a Motion to Stay Enforcement, but it won't be able to be heard by the Judge in time since I only received 10 days notice of the hearing. My question is . . . I was never served with the original Motion and Affidavit but there was a hearing set and I did receive notice of that. Is there a procedural rule that can automatically continue this hearing since I was never served with the original Motion and Affidavit?

Attorney Answers 4

Posted

Do you have the motion and affidavit now? If you have never seen it then you might be able to argue at the hearing for a continuance to have time to prepare but it sounds like a stretch. It also depends on the judge and what they are in the mood to do that particular day. Does the other party claim the motion was sent to you?

You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-354-5223. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Mark as helpful

4 lawyers agree

4 comments

Asker

Posted

I only have the Notice of Hearing which I received 10 days prior to the hearing date. I was never served a copy of the Motion and Affidavit.

Asker

Posted

The other party claims it was sent Certified Mail but I never recevied anything.

Ophelia Genarina Bernal-Mora

Ophelia Genarina Bernal-Mora

Posted

They will have to show the certified mail return receipt then at the hearing. But there is no telling if the judge will continue it or not.

Asker

Posted

This Magistrate is a complete rogue. She ordered me to return property that "exclusive ownership" was "very clearly" awarded to me all because I made a few of the payments on it late.

Posted

Are you saying you filed an Appeal Pro Se? Is it on the same issue as the Contempt Motion is for? It sounds like we are missing some important facts.

This information is a general answer and is not specific to any particular case. Carin Manders Constantine, Esq. 727-456-0032/ 727-488-8272 familylawyer411.com/about-carin https://www.facebook.com/pages/The-Law-Offices-of-Carin-M-Constantine/125967577416313 http://www.linkedin.com/pub/carin-constantine/b/861/445

Mark as helpful

3 lawyers agree

4 comments

Asker

Posted

I was awarded "exclusive ownership" of a car in our MSA. in the division of liabilities I am to make the payments. I made a few payments late and my ex filed for contempt. I was found in contempt even after exceptions were heard. I filed a Notice of Appeal because I received the Order in the mail 16 days after it was entered and statutorily could not file a Motion to Vacate. I also filed a Motion for Stay of Enforcement pending appeal. In the meantime, my ex filed a Motion and

Asker

Posted

Affidavit for Committment which I was never served a copy of. There is now a hearing set and the Magistrate set the hearing so fast that my Motion for Stay won't have time to be heard. My question is since I was never served with the Motion and Affidavit for Committment, although I received the Notice of Hearing, is there some rule of procedure to have this hearing continued as I was never served with the original Motion and Affidavit.

Asker

Posted

The Order of Contempt ordered me to pay a "purge" of the late car payments AND to return the car to her. I made the payments but am appealing the return of the car since I was awarded "exclusive ownership" in our MSA and I believe there is enough case law that an MSA cannot be modified as to the division of property by the lower court.

Carin Manders Constantine

Carin Manders Constantine

Posted

I have no idea what to tell you. This is very complex. You really need to see an attorney.

Posted

While you may be able to obtain an adjournment, your best bet would be to consult in person with a local family law attorney. Search on Avvo or call around, but don't wait!

I am not your attorney and any posts/messages or responses to posts/messages can not establish an attorney-client relationship. www.PatchogueAttorney.com You should not rely upon free legal advice and I disclaim any liability for the results if you do.

Mark as helpful

3 lawyers agree

1 comment

Asker

Posted

Paul, I wish I had the money to do so.

Posted

In order to give you the best answer to this question, I would need to see your final judgment and any settlement agreements. I would send the Judge a letter with a copy of your Motion to Stay and request a brief hearing before the hearing or at the hearing on the enforcement matter. Please make sure that you order a court reporter since you may want to ask the appellate court to review the trial court's stay order, if denied. I would go to the clerk of court to get a copy of the motion. I highly recommend speaking to a lawyer.

Mark as helpful

Family law topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics