Trial Advocacy Part 7

NOTICE:  THIS DOCUMENT

CONTAINS SENSITIVE DATA

AMENDED MOTION TO SET ASIDE DEFAULT JUDGMENT, OBJECTION TO EX PARTE DISCUSSIONS AND EX PARTE HEARING ON THE MERITS, OBJECTION TO LACK OF PROPER 45 DAYS NOTICE BEFORE HEARING ON THE MERITS AND REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

(My intent is to make this sound as a Motion to Recuse disguised as a Motion for new Trial.  A very wise judge told me once to give judges a chance to fix an error before you throw the rock).

1. This motion is presented within the time allowed by law on motions for new trial of the default judgment in this case because the court heard this matter rendered Final Order on the merits, without notice or 45 day notice, _____________, ex parte.
2. ____________, presumably on its own Motion, the Court scheduled a Status Conference in this matter for three days later.Counsel presumes, because there is no filed Motion for such a Status Conference.  The only pending Motion is Petitioner’s Motion to Compel Discovery which was filed and scheduled for hearing on ______________.  That day, Counsel and Petitioner appeared but Respondent failed to appear.  As a courtesy, Counsel called Respondent’s Counsel and eventually found her in the Court house.  When asked why she was not present at the hearing for the Motion to Compel, she informed Counsel that she had not received notice of the hearing that was filed and accepted on the e file system. 
3. As a courtesy, Counsel for Petitioner cancelled the hearing on the Motion to Compel and deferred rescheduling to give Respondent’s Counsel time to respond informally to the Motion to Compel.
4. The next contact Counsel had from Respondent’s Counsel was on _____________ through email notifying Counsel that the Court had scheduled, on its own, a Status Conference.And that Counsel and Petitioner had failed to appear.  A copy of that email is attached to the Motion as Exhibit “A.” Apparently, the Court proceeded to hear this matter as a default, on the merits and received evidence on the record. 
5. Neither the Court nor Counsel for Respondent called or emailed to notify Counsel that the Court was proceeding on the merits.Counsel will note that Respondent’s Counsel has the mobile number to both Counsel for Petitioner.  ____________, for some reason, was not listed as co-counsel in this matter, even though he has handled all matters before the Court so far.  Forty five days proper notice was not given for this hearing.  Counsel was not given notice so he could object.  Consequently, Counsel hereby objects.
6. Counsel will note that this matter was transferred to this Court after the Honorable _______________ recused himself for unstated reasons.Upon inquiry and belief, it appears that the contact information for all counsel, including Respondent’s Counsel, did not transfer in the e-file system of the District Clerk.  This would give credence to Respondent Counsel’s statement that she did not receive e file notice of the Petitioner’s Motion to Compel.  The Judge, however, was unswayed by this reason and, quite frankly, seemed annoyed with Counsel’s pleas.
7. On ______________, both Counsel for Petitioner and Respondent approached the Judge and counsel informed the Judge that he had not received any notice.The Judge expressed his doubts and showed Counsel a copy of the notice that was sent by the Court Coordinator and inquired whether that was the email address to Counsel.  Counsel informed the Court that the email on the copy is not, in fact, the email address for notices with the District Clerk. 
8. Nevertheless, the Court proceeded to sign the proposed Final Order submitted by Respondent’s Counsel, without even reading it.While signing it, the Court asked Counsel if he did not consider the Respondent’s Final Order to be “in all respects, fair and just.  And that it was his opinion that the Final Order correctly reflected his findings and the evidence, without reading it.
9. upon further extensive investigation, Counsel was informed through email by the Coordinator, that she has, in fact, obtained Counsel’s email through Respondent Counsel.Counsel was and remains surprised why Respondent’s Counsel provided the Court with Petitioner’s Counsel incorrect email, if she was unaware when the court, on its own, scheduled the Status Conference.
10. The failure of Petitioner to appear on the hearing date was the result of improper service.Specifically, Petitioner, and his attorneys, were not notified of any hearing regarding this matter through e-file or any other electronic means.
11. The safety and well-being of the child in the presence of Respondent, is a litigating issue in this matter. Respondent has only had supervised visitation with the child as recommended by Court Services. Allowing Respondent to have unsupervised access to the child is not in the child’s best interest at this time.