I filed Contempt # 2 against ex - wife for failure to follow Divorce Decree on multiple items related to children . She signed for notification of contempt hearing . She did NOT show up , I put on my case and win . She then files a motion for a new trial . Her attorney [ same as in case 1 ] falls on her sword . She alleges in her motion that she met with my ex wife who had a nursing school sched conflict . Atty had " planned to file for a continuance " , but FORGOT to do it . She also used the exact same excuse in contempt # 1 [ diff magistrate ] if it matters & I have copies . To me its the " dog ate my homework " motion . Can I file a counter motion to ask to deny them a new trial ? What are my chances of success ? Do courts normally give 1 free pass ? Any suggestions for points to make in my motion ?
Family Law Attorney
File a memorandum opposing a new hearing and attach the papers from the previous one. While I agree that everyone should be heard,
If they don't show it's on them. Also a lawyer's negligence is imputed to the client. I would also ask for attorney fees in the event a new hearing is granted.
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Family Law Attorney
You can attach the papers from when it was done before, but most judges want to giv all parties an oppourtunity to be heard.
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You can present those documents at the hearing. If she has an attorney you should get one as well. Judges are usually hesitant to find contempt but eventually they get fed up and do it.
Attorney Chris Beck
Beck Law Office, L.L.C.
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Family Law Attorney
I like your reference to the, "Dog ate my homework," excuse. It sounds like an accurate reference, considering the circumstances. To answer your questions, #1. Yes, file a motion to oppose a new hearing/trial. Title it "Motion in Opposition to New Hearing." Explain the reasons you want the Court to deny the motion and attach a copy of the other motion for continuance as an exhibit so the Court can see the trend #2. Chances of success depend on the magistrate. If your magistrate dislikes delays, prefers a clean docket and is unimpressed by the developing trend of excuses, you will likely prevail. If your magistrate wants to hear what your ex-wife has to say, then she will likely prevail. #3. Do courts normally give free passes...same rules apply as in #2.
As far as points to make in your motion, I'll leave that to you as you know much more about your circumstances than I, but I'd respectfully suggest you follow, "The 3 B's." Be bold, Be brief, and Be better-prepared; meaning, make your points, make them brief (don't write a 10 page motion) and make the impression upon the magistrate that YOU are the one who is on top of the situation.
The opinions and answers provided by Matthew Langhals, Attorney at Law do not constitute legal advice. If you are seeking legal advice, it is highly recommended that you retain an attorney and provide the details of your legal issue so he/she can advise you competently and properly.