Response, motion to dismiss, and counter-motion

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Response, motion to dismiss, and counter-motion

Postby Fleeced » Thu Sep 01, 2011 2:58 pm

Got a bit of confusion going here, guys. MO case, divorce final 2006, last mod (mine) 2009. NJ has filed for mod to reduce my time, extract more money, and sundry other crap. She's represented, I'm pro se. Case management conference on her mod is Sep. 12.

I've filed my response, in which I ask for her motion to be dismissed. I am also about to file a motion for contempt for some travel-related < bovine scat > she pulled this summer (earlier threads). So far so good.

Now, I also want to file a counter-motion so I can ask for more time with the kids, tighter restrictions on her, etc. Tidy up some loopholes and put some more teeth in the decree to prevent her from < edited > with my parenting time and vacations in the future. Given that I've asked the court to dismiss her motion, though, does it make sense for me to also file a counter-motion now? Seems to me that's like saying I don't agree there's a change of circumstance to warrant her motion but there is one to warrant mine. Should I wait until after case management conference, when I know whether the judge will allow her motion to go to trial?
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Re: Response, motion to dismiss, and counter-motion

Postby jerry2010 » Thu Sep 01, 2011 3:38 pm

I would say file your motion now and if the Judge thinks they are both BS then out they go. In my experience the longer you wait to file such the more vindictive you look to counter. Just my opinion though
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Re: Response, motion to dismiss, and counter-motion

Postby Trevor » Fri Sep 02, 2011 9:56 am

Trouble is, with the case management conf ten days away, you should've already filed this stuff and argued for it all to be heard together. You might still do that, but her lawyer will object (maybe even strenuously). Yes, counterfile now too because you cannot predict what the judge will decide...and you may have some wording that puts the countersuit contingent on the dismissal decision. But that might be unnecessary. Dunno. You might look into your local Rules for Civil Procedure to understand the protocol. Or PM TeflonDad, a MO guy, who may have that knowledge.
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Re: Response, motion to dismiss, and counter-motion

Postby Fleeced » Fri Sep 02, 2011 12:23 pm

In our last round, her attorney stalled and dragged the thing out for two years. One of the ways they did that was to file stuff at the last minute or ask for leave to file something new once we were in case-management conference. Invariably, the judge would continue and schedule a new conference 30-60 days later.

This time around, she's paying an attorney and I'm not. Every wrinkle buys me more time and costs her money, so if her attorney wants to object and ask that the motions be considered separately that's just dandy with me. We can have five cases going at the same time for all I care.

So, here's my plan. In conference, I'll copy what her attorney did and request leave to file a counter-claim. Meanwhile, I just filed my motion for contempt for her stunt this summer.

Question, though. Do I need to file for rule to show cause with it?
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Re: Response, motion to dismiss, and counter-motion

Postby beenthere » Fri Sep 02, 2011 12:35 pm

In my state and county, the petition for contempt is called "Petition For Rule to Show Cause". What this asks for is a ruling that the NJ must show cause why she shouldn't be held in contempt. You will have to detail what the original ruling was and how the NJ did or did not conform to that ruling. Depending upon why you are asking the court to find her in contempt, you will then list out what the relief is that you want the court to order.
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Re: Response, motion to dismiss, and counter-motion

Postby Fleeced » Fri Sep 02, 2011 12:41 pm

I did get the contents of the motion right -- listed out my allegations, listed out the attempts I'd made to rectify the situation, and requested remedies. 95% confident the motion for contempt itself is solid.

I didn't file a separate Petition for Rule to Show Cause, though, and my motion isn't specifically titled such. I tried asking the court clerk for procedural advice, which Missouri requires they give to pro se litigants, but apparently his instructions were that any and all questions are legal, not procedural, in nature, so no help there.

Any MO veterans out there who know this -- if my motion of contempt itself is properly constructed and filed, does it matter that I didn't specifically use the words Petition for Rule to Show Cause?
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Re: Response, motion to dismiss, and counter-motion

Postby beenthere » Fri Sep 02, 2011 1:07 pm

A very general distinction between a motion and a petition is this: A motion is filed in an ongoing case asking the court to do something regarding the case at hand. A petition starts a new case.

So--you would file a motion to dismiss, to motion for a continuance, etc.

If you want to change an existing custody, parenting time, child support order, a petition would be required.

If you are asking for the judge to find contempt regarding an existing order in a case that is not before the court, that would require a petition.

You court clerk can not tell you which to file but they can provide you with either or both of those forms.

As I view this, you should have filed your response to her petition for a modification, a motion to dismiss her petition, a petition to modify your existing orders, and a petition for contempt.
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Re: Response, motion to dismiss, and counter-motion

Postby Fleeced » Fri Sep 02, 2011 1:22 pm

That is very helpful, beenthere. Appreciate the primer.

So, help me test my thinking here. There is a petition currently under consideration by the court. I've already file my response and motion to dismiss that petition. However, since it is at this time open and it does concern the parenting plan I allege that she violated, that means my motion for contempt and also a counter-motion for modification could be considered part of that open case.

If my thinking is sound on that, I don't need to file petitions to open new cases but pile on the current one. If I'm wrong about that, will I get a smack on the wrist and a continuance to get it right, or do I risk not having my stuff not heard at all?
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Re: Response, motion to dismiss, and counter-motion

Postby Trevor » Fri Sep 02, 2011 1:24 pm

I can't speak to how your local Rules of Civil Procedure work, but hearings are scheduled for specified issues, motions, petitions, or whatever. You can't just show up with a new filing and expect it to be heard; the OC will need to have time to formulate a response.
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Re: Response, motion to dismiss, and counter-motion

Postby Fleeced » Fri Sep 02, 2011 1:30 pm

Understood. My experience from the last round in court is that the judge will leaf through the new stuff, ask what the hell is going on, and continue case management so OC can deal with those new filings. Which is fine by me.

The only worry I have is making a procedural mistake that prevents my requests from being heard at all.
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