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lgia · Feb 5, 2009, 11:15 AM

I was granted my divorce and child custody as a result of a default. My ex nor her attorney showed up for court. Now they are filing a motion to vacate? Can they do this? What could happen? How can they file a motion to vacate when they didn't bother showing up for court?

cdad · Feb 5, 2009, 01:09 PM

Originally Posted by lgia

I was granted my divorce and child custody as a result of a default. My ex nor her attorney showed up for court. Now they are filing a motion to vacate? Can they do this? What could happen? How can they file a motion to vacate when they didn't bother showing up for court?

How long ago was the divorce and what grounds are they using to vacate ?

lgia · Feb 5, 2009, 01:16 PM

It was granted on the 23rd of January and we don't know their reasoning yet. Im sure they'll have some kind of excuse but they didn't show up for the pre-trial either! The judge specifically said that all parties were present when he set the trial dates so if my visitation schedule was reasonable then he would sign it, it was and he granted everything I asked for and now since they didn't get what they wanted they file this motion! I just want to know what legal grounds they need to file this. Don't they have to have a legit reason? Do you know if motions to vacate get granted very much?

cdad · Feb 5, 2009, 01:36 PM

Originally Posted by lgia

It was granted on the 23rd of January and we don't know their reasoning yet. Im sure they'll have some kind of excuse but they didn't show up for the pre-trial either! The judge specifically said that all parties were present when he set the trial dates so if my visitation schedule was reasonable then he would sign it, it was and he granted everything I asked for and now since they didn't get what they wanted they file this motion! I just want to know what legal grounds they need to file this. Don't they have to have a legit reason? Do you know if motions to vacate get granted very much?

Sure they get granted all the time when there is a reason for it. Do you have a lawyer ?

What do the papers say in the motion that they filed. You can't just say I don't like it. There has to be a legal reason. Also you need to go back over your paperwork and make sure your legal proceedings were followed correctly. Was she or her council served correctly ? Was she available with her council or represented at any time ?

What is your lawyer saying about all this ?

lgia · Feb 5, 2009, 02:01 PM

Our lawyer is kind of a push over but we did everything that we were suppose to do. The just filed the motion today so we don't know what they are claiming yet. Their attorney had called and said he was going to be late but we waited an hour with the judge and he never showed nor did they so the judge granted everything! They were properly served on everything so Im just wondering what legal excuse they could come up with, I thought the only way you could get it vacated was if the weren't served or something but they were!

ScottGem · Feb 5, 2009, 02:12 PM

Originally Posted by lgia

Their attorney had called and said he was going to be late but we waited an hour with the judge and he never showed nor did they so the judge granted everything!

Well the key here is probably going to be the reason the attorney didn't make it. Most likely he was involved with another case. If he can prove that he didn't make it through no fault of his own, then they may get the motion to vacate granted and a new hearing.

That does not mean you will lose anything. The judge may decide to grant you the same provisions at the next hearing.

lgia · Feb 5, 2009, 02:20 PM

I just want to see my kid she's only 2 1/2 and Ive only got to see her a few times, the first year I was in Afghanistan and the past year Ive seen her once, they moved out of state without telling me and now won't come to court or abide by the custody agreement, as of Jan. 23rd 2009 I am suppose to have her every other month(which my month is February) and they won't answer the phone or anything, just filed this motion to vacate!!

ScottGem · Feb 5, 2009, 02:22 PM

So this will have to go back through the court. If the judge rules in your favor, ask that he change the schedule to have your month start in March. There is really nothing more you can do, but see what the court does.

lgia · Feb 5, 2009, 02:25 PM

I understand maybe the attorney was on another case but they ALL knew we had trial so if the attorney couldn't be there then they should have and they didn't!! And the attorney had said he was just running a little late not that he wasn't coming at all so...

ScottGem · Feb 5, 2009, 02:31 PM

Your missing the point here. You have to remember that these court systems, especially family courts are very much an old boy network. The judges and lawyers see each other time and time again. So, if an attorney was not able to make a hearing and he can show that it wasn't his fault but because another case ran over, a motion to vacate will probably be granted. The judge may have little choice. But judges also don't like to have their time wasted. And if the attorney is overbooking himself, the judge will not be happy that he got the short end.

The attorney is allowed to file this motion. Whether he wins depends on the circumstances. If the motion isn't granted you file for an immediate enforcement of your visitation. If the motion is granted, then you go back to court and argue for the agreement you originally got.

You will have no choice in this matter, so stop fretting it. Just go with the flow.

lgia · Feb 5, 2009, 02:35 PM

As of right now should I file a contempt of court on them for not letting me see her when the agreement signed by the judge clearly states that I have her this month. It doesn't matter that the filed the motion, The agreement the judge signed is still valid, right?

ScottGem · Feb 5, 2009, 02:47 PM

Not necessarily. The motion to vacate probably puts a stay on the original order. Your attorney should be able to advise you about that.

lgia · Feb 5, 2009, 02:50 PM

Thanks for your help!

ScottGem · Feb 5, 2009, 02:51 PM

Keep us posted

cadillac59 · Feb 5, 2009, 06:12 PM

Motions to set aside default judgments are liberally granted. Mostly this has to do with the policy of the law favoring trial on the merits. However a competing policy of the law (and one that can be used to oppose these motions) is that parties promptly assert their rights in court. Therefore, an unreasonable delay in seeking the set aside may grounds to deny the motion, it depends on how old the judgment is. It would also help to know what state you are in to give you a more specific answer.

But keep in mind that child custody is always modifiable anyway, so you may want to ask yourself what the big deal is in having the default set aside. Will it really make that much of a difference? There's not going to be a set aside of termination of marital status (they certainly wouldn't be able to do this is California for example) so what are they after? Was some property unfairly divided in the divorce? Like I said, child custody is always modifiable anyway (there's a bit of a caveat that applies in defaults but I won't bore you with the details on that, particularly not knowing what state you are in). Find this stuff out--just ask them why they want to set aside the default (if you don't know already) and let us know. That would be the first thing on my mind if you were consulting with me.

Incidentally, you don't get a stay on enforement of an order or judgment just because a motion to vacate is filed (you do when an appeal is filed --in most cases with a caveat I won't mention--but not motions to vacate). You can definitely be held in contempt for violating a court order while a motion to vacate that same order is pending.