Author Topic: Motion to Modify - Rules Applicable for Attorneys vs. Pro Se  (Read 7074 times)

jc2011

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Motion to Modify - Rules Applicable for Attorneys vs. Pro Se
« on: March 17, 2013, 11:29:48 PM »
My child's father filed a motion to modify child support over 5 months ago, only after receiving a contempt of court notice ( no $$ paid up to that point and $6k arrearage).   The obligation/order was for over $1100/mo, and by the advice of an attorney, has gained some minimal, less than part-time work and has a withholding of under $300/mo since the initialy motion for modification.

4 contempt of court proceedings have come and gone for non-payment or under payment for arrearage since then.  Each time we appear, the hearing officer asks why the arrearage is over $13k now, and what the plans are to pay the monthly obligation and arrearage.  Each time (4x now) his attorney continues to say that they have "filed a motion to modify." Problem is that the DRA and worksheet were never submitted to the court clerk or entered (for a variety of reasons, mainly becuase he had to come up with actual numbers for income that were not under-the-table and establish something).  Each time, the hearing officer says - "Okay- well you need to get that modification hearing on the calendar."  So nothing happens.  They do not request that in the interim he should be working at least full time minimum wage, or searching for additional employment, or make plans for the arrearage, etc.  It seems like they just want to pass it off, assuming that the modification will adjust everything anyway.... 5 months later.... nothing.

Last week, the DRA was finally submitted according to JIMS. I had filed for a Pro-Se motion for medical reimbursement in the meantime.  Pretty straight-forward- I have receipts, I have a total and wanted it added to the judgement. 

Well, the father's attorney went ahead and (with the minimum 5 days allowed) mailed me a hearing for the modification of support - FINALLY!  .... for Tuesday!  4 business days later as a piggy-back to same date/time and hearing room as my medical reimbursement! 

I tried to hire an attorney back in November for the motion to modify, but each attorney I spoke with said they would represent me but that there was not a point to enter an appearance just then because no DRA or worksheet for the respondent appeared with his motion.... so there was nothing to review. 

And several months later, good thing I didn't hire then, becuase nothing had still been filed.
 
Low and behold they finally got a worksheet- but then are giving me 4 days to get access to an attorney, and to have them review and possibly request discovery, etc.!? 

Two questions:
1.  What is the likelihood that I can get this set out so that I can have counsel represent me for the modification portion?  I can't go that one alone given the under-the-table income, etc. that is involved in whatever that DRA says (haven't seen it myself yet).  Can they just do that?  I think his attorney felt as though I would be vunerable as Pro Se for the medical reimbursement, so they would just tack this on knowing that I wouldnt' have representation to know how to defend or fight it? 

2.  My understanding is that you MUST file the worksheet, and DRA UPON filing for the motion of the modification.  (at least for pro-se that is in the directions).  Why was his attorney allowed to file for the modification without  the approporiate worksheets and affidavits ready until 5 months later and then set a hearing for 5 days later suddenly without giving anyone time for hiring counsel?  I think they are just trying to show that they tried for a modification before the next contempt hearing... a game....  I also think they made the filing back in November just to have it on record becuase IF the child support is reduced... it appears they are able to retro the lower support payment to the month after the filing which would reduce the arrearage.  This has also given him 5 months to doctor papers and have income "on the books" prior to the hearing.... 

I don't know what I can and can't say and don't know if what the attorney did was legal....?

Guru

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Re: Motion to Modify - Rules Applicable for Attorneys vs. Pro Se
« Reply #1 on: March 18, 2013, 02:31:14 PM »
1.) A few things here - first, they can't just mail you notice for a motion and have it set on the docket and heard that fast unless a local rule allows it.  Most local rules for motions require that is be filed pursuant to KSA 60-206, which requires 7 days, but if served by mail, add 3 days.  So if he mailed the motion, did not include the supporting affadavit (DRA), and did not allow the correct amount of time, you can have his motion continued based on that fact alone.  But, since you'd like to request continuance to seek counsel, they should allow that as well.  You should send a certified letter (return receipt) to the attorney to request continuance to some date citing only that you'd like to seek counsel.  Keep the technicality in your back pocket for the hearing.  You probably won't receive correspondence, so you make sure that you have the return receipt with you at the hearing.  Prepare to have your motion on reimbursement ready for hearing, and be ready to argue very hard to have his motion continued so you can confer with counsel (ask for 2 weeks).

2.) Attorneys are bound by the same laws as Pro Se.  Attorneys just get away with breaking the law because they have a rapport with the judge.  Many Pro Se's are either not savvy enough or knowledgeable enough to confront an attorney in front of a judge on a technicality such as this one.  If you say on the record that persuant to KSA 60-206 subsection (c), the attorney is required to serve the DRA with the motion, and it was not, you can request it dismissed or you can request it continued.

It sounds as though this attorney is trying to take advantage of a Pro Se, which is pretty common.  Keep in mind that all district court hearings are recorded, so make sure you mention statutes and local and supreme court rules which have been violated.  By doing this, the judge knows that if he doesn't play by the rules, his judgement can easily be overturned on appeal.  Your gut is correct that this attorney is not sending motions pursuant to statute.  So, you should look for counsel if you want it, but also you can ask for continuance or dismissal of his motions.

You should also look for a notary stamp and a file stamp on the DRA.  If he says that he filed it, he should have a file stamped copy dated the same as the motion.  BUT, sometimes attorneys don't really file the DRA until the day before the hearing.  That's fine, but they still have to serve it on you with the motion.  As you know, the DRA must be notarized.  That's just another way you can have it thrown out on technicality.

jc2011

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Re: Motion to Modify - Rules Applicable for Attorneys vs. Pro Se
« Reply #2 on: March 19, 2013, 09:41:19 PM »
Wow, you folks are amazing- thank you more than you know.  It worked and was set out!  Thank goodness!  I feel like the only person that has listened are the invisible ones on this site.

Much thanks! :D

Guru

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Re: Motion to Modify - Rules Applicable for Attorneys vs. Pro Se
« Reply #3 on: March 19, 2013, 11:05:09 PM »
Always glad to help!  So for our own knowledge how exactly did the hearing go?  Did you need to play the technical card or did the request for counsel suffice?  Was the judge empathetic to your situation or did you have to persuade him a little?

KTM

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Re: Motion to Modify - Rules Applicable for Attorneys vs. Pro Se
« Reply #4 on: July 30, 2013, 07:31:24 PM »

2.) Attorneys are bound by the same laws as Pro Se.  Attorneys just get away with breaking the law because they have a rapport with the judge.  Many Pro Se's are either not savvy enough or knowledgeable enough to confront an attorney in front of a judge on a technicality such as this one.  If you say on the record that persuant to KSA 60-206 subsection (c), the attorney is required to serve the DRA with the motion, and it was not, you can request it dismissed or you can request it continued.

It sounds as though this attorney is trying to take advantage of a Pro Se, which is pretty common.  Keep in mind that all district court hearings are recorded, so make sure you mention statutes and local and supreme court rules which have been violated.  By doing this, the judge knows that if he doesn't play by the rules, his judgement can easily be overturned on appeal.  Your gut is correct that this attorney is not sending motions pursuant to statute.  So, you should look for counsel if you want it, but also you can ask for continuance or dismissal of his motions.

You should also look for a notary stamp and a file stamp on the DRA.  If he says that he filed it, he should have a file stamped copy dated the same as the motion.  BUT, sometimes attorneys don't really file the DRA until the day before the hearing.  That's fine, but they still have to serve it on you with the motion.  As you know, the DRA must be notarized.  That's just another way you can have it thrown out on technicality.

Guru - I am not sure about all of the strategic legal advise you have given in the quote above and would advise extreme caution with that approach. I strongly disagree with your statement that attorneys get away with breaking the law because they have a relationship with a judge. It is so much more complicated than that when a Pro Se goes against an attorney there is an automatic disadvantage because Pro Se's do not know the laws and how they are applied. Additionally, attorneys are held to a high standard of licensing ethics and the Court will assume the attorney is abiding by the law unless it is proven otherwise. Most Pro Se's will not know how to challenge an attorney. Most errors must be egregious and obviously intentional to be corrected.