I set a hearing for an order of default hearing. I served the attorney representing my ex with the ex parte note for hearing and filed a return of service. She never showed up for the hearing .The following week we had a bench conference.While we were on record she told the judge that I never gave her notice. I was in shock. I did not know what to say, because she.Again I am pro se, doing this on my own. What can I do?
Administrative Law Lawyer
Service of ex parte notice is matter that is fraught with potential for these kinds of disputes. You say you "served" her, but "served" is a legal conclusion and you haven't stated any facts here that establish proper service. What did you actually do that you contend constituted timely service of ex parte notice? It is common in legal practice for law offices to designate certain kinds of communications and transmissions (often, fax, email, and telephone answering machine) as NOT acceptable ex parte notice. By and large, the courts tolerate this practice even when the prohibitions are somewhat questionable. That is a consequence of the judicial disfavor afforded ex parte proceedings.
It is also common that persons in pro per give ex parte notice for matters that cannot be handled ex parte. If so, lawful service is not accomplished by any means. Motions for defaults are not ordinarily heard ex parte, and it is hard to guess why you would contend that an ex parte hearing -- as opposed to a noticed motion -- was necessary here. And, even when a court can hear a matter ex parte, many courts prefer not to and will require that the matter be properly noticed for hearing.
As a pro per you need to chill a bit on allegations that someone -- particularly your spouse's attorney -- is lying. Courts get really sick and tired of hearing that, especially from persons in pro per because courts know that not every disagreement or difference in factual positions is a lie. Sometimes, someone is just wrong -- mistake, different vantage point, subjective perceptions, different context, second-hand info, whatever. "Lying" is a charge you don't want to toss out there unless you can affirmatively demonstrate a deliberate and purposeful untruth. After the first few times you make that allegation and the court finds the dispute to be less than a purposeful and knowing lie, the court starts to filter out such allegations and then you have a real disability in getting the court's attention about legitimate issues of deception and misrepresentation.
In most cases, the consequences of the kind of problem you describe are manageable. That is, you can re-schedule your hearing and re-serve, or you can file a noticed motion and set that for hearing. You haven't described any consequence of this dispute that requires more or different action than that.
My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.
Child Custody Lawyer
Hire an attorney. Default proceedings are easily set aside so I would not waste a lot of time on this issue, regardless of whether the opposing attorney received proper notice under local rule. Matters of this natrue are controlled by local rile and not the normal civil rules. When an attorney is served with a notice of a motion of default, it is common practice to continue any hearing to allow the attorney to file a response. Courts are not fond of closing cases where there is an attorney on the other side, knowing full well that on appeal the default would be set aside. Our system of justice favors full and fair litigation based upon both sides of the story. My best advice is to hire a local family law attorney
The information is for general information purposes only. Nothing stated above should be taken as legal advice for any individual case or situation.
Family Law Attorney
Hiring an attorney is the best way to make sure you are represented well.
Estate Planning Attorney
Forget about it. It was a default motion. I assume the attorney has cured the default by now. If not re-note the motion and have someone else ( not you) deliver the motion papers to the attorney's office ( and sign and file a declaration of service).