4Summer
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Reged: 07/14/09
Posts: 1508
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I received a phone call from DH's attorney today stating that she will be unable to represent DH in the hearing for contempt for unpaid medical bills.
Apparently once she received our fax of the contempt order, she realized the date that the hearing was set was also a day that she has to appear in court. She called the court house to see about getting a continuance but was unable to because of the nature of the contempt.
This attorney is through my union, so all attorney fees are paid for out of union dues.
So, we're left to either hire an outside attorney, which doesn't make any sense because it would put us out the same amount of money as the claim, or worse, we'd end up paying double in the event DH was ordered to pay half.
So DH is looking at going pro se. I had planned on filing a motion to dismiss because the contempt is retaliatory and because DH has not received any copies of paid bills/receipts for these charges brought forth. However, I received some advice that filing a motion to dismiss may be a waste of time because usually in these types of cases, a Judge wants to hear the case before making a decision to dismiss or not.
So, I have typed up an affidavit of facts to file with the court and it states the following: (I'm paraphrasing)
1) The Plaintiff has not provided the Defendent with any accurate and legible copies of medical bills in an expedient manner within the years of 2006-2011.
2) Exhibit A that is attached to the motion for contempt does not provide accurate totals to match the itemized statements that are listed in the other exhibits as an attachment to this contempt. For example, Exhibit B should be $700, not $1300. and so on. Exhibit A is $1500 more than what the itemized statements actually show.
3)The defendent can show proof that at least one payment that the Plaintiff is claiming credit for was actually paid by him in the amount of $X.XX on X date. This is listed in Exhibit X. Therefore, there is no means of determining who actually paid for which visits between the years of 2006-2011 without proof of receipts.
4) After reviewing the Exhibits listed in the contempt order, the defendent can show proof of atleast one payment that was made by him in the amount of $X.XX on X date that is not listed in any of these Exhibits.
5) Defendent has reimbursed the Plaintiff half of all 2012 medical bills provided to him, via certified mail. They are listed as follows...(I listed the 3 bills that BM provided DH after she was served with the custody modification)
My questions are, should we continue to file a motion to dismiss based on the contempt being retaliatory, or can we add this statement into the affidavit?
Should we file a discovery to show cause requesting BM provide proof that she has provided DH with paid receipts/bills or is the affidavit sufficient enough to raise question with the judge for these documents?
Should we provide exhibits of proof for each point made in this affidavit as an attachment or just bring this to the hearing?
I looked at our county's website for the forms we would need to file. I found the general affidavit form, however, I could not find the forms for the motion to dismiss or the show cause. Would these forms, if we need them, be available at the clerk's office?
Any other advice you can give?
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"Sometimes I need what only you can provide: your absence"
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Cassie23
Carpal \'Tunnel
Reged: 10/07/05
Posts: 14714
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I have no advice, Gecko would be of great help to ya. I just wanted to say GOOD LUCK and I hope you are able to get this dismissed NOW.
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4Summer
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Reged: 07/14/09
Posts: 1508
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Thanks Cassie, I certainly appreciate it!
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"Sometimes I need what only you can provide: your absence"
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MrsB
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Reged: 07/03/10
Posts: 6355
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I don't really have advice but what you posted looks good! No experience here though. Do you have any attorney friends you can maybe ask advice of? I would request discovery btw. GOOD LUCK!
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4Summer
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Reged: 07/14/09
Posts: 1508
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Thanks MrsB - I spoke to a friend yesterday who is a paralegal, however, she's not too familiar with family law.
We have an appointment with an Attorney today basically to find out if he'll charge a flat fee for this particular case, or if he still requires a retainer fee.
If he's going to charge a retainer fee, it wouldn't make any sense to hire an Attorney, *unless* DH is awarded reimbursment of his attorney fees by BM. But, that's not a given I don't think.
We'll see what he says. But in the event we find that it's not financially beneficial to hire this Attorney, we still need to prepare for DH to represent himself. *sigh*
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"Sometimes I need what only you can provide: your absence"
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Gecko
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Reged: 06/01/04
Posts: 19802
Loc: Third rock from the sun
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I received some advice that filing a motion to dismiss may be a waste of time because usually in these types of cases, a Judge wants to hear the case before making a decision to dismiss or not.
---> As I said previously...it depends on the Judge, but it doesn't hurt to play the odds...you might win, but if you don't, you're not out anything.
So, I have typed up an affidavit of facts to file with the court.....
---> No, no, no, and NO! As written, your husband will be held you in contempt for non-payment, interest will be added, he'll be ordered to Plaintiff's attorney's fees and have 30 to 90 days in which to pay everything!
---> Seriously. Your first statement implies that you received the bills, but then you come up with all these 'excuses' as to why you didn't pay them: "legible", "accurate", "expedient". And your other 'facts' back it up with more 'excuses' (nitpicking).
---> When someone accuses you of 'contempt' in court...what they are saying is that you WILLFULLY and/or DELIBERATELY failed to do something that you were supposed to. In this case, your husband has been accused of willfully/deliberately NOT paying his share of medical expenses from 2006 to 2011. His Response should be that he is NOT GUILTY because he can't pay when he didn't receive ANY copies during that time.
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If you air your dirty linen in public, expect people to comment on the skid marks!
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4Summer
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Reged: 07/14/09
Posts: 1508
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Seriously. Your first statement implies that you received the bills, but then you come up with all these 'excuses' as to why you didn't pay them: "legible", "accurate", "expedient". And your other 'facts' back it up with more 'excuses' (nitpicking).
------> I see what you're saying now after going back to read it. It wasn't intended to imply that he was making excuses. The reason I worded the first statement the way I did is because that's how the CO is written up in regards to BM providing DH with the medical bills.
Too bad BM won't just tell the freakin truth and admit that she never gave him any bills or receipts for the doctor visits.
I can't believe SHE wouldn't have to be accountable for following the CO and have the burden to prove that she did since she filed the motion, but because she presented the motion the way she did, DH could possibly be held in contempt for HER failure to follow the CO. It's BS.
The fact that she waited 6 years to file contempt AND filed it in response to another motion that wasn't even relevant should be enough alone for it to get thrown out.
We met with another attorney and decided to retain him. His legal fees weren't as high as I expected them to be. So luckily DH won't have to represent himself.
Apparently, it's a good thing, because thanks to me and the affidavit, he would've been found in contempt.
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"Sometimes I need what only you can provide: your absence"
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MrsB
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Reged: 07/03/10
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I think it's good you retained an attorney! It'll just make it less stressful since you've never done pro se before.
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Gecko
Carpal \'Tunnel
Reged: 06/01/04
Posts: 19802
Loc: Third rock from the sun
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Too bad BM won't just tell the freakin truth and admit that she never gave him any bills or receipts for the doctor visits.
---> But if everyone told the truth, then think of all those poor attorneys who would be out of work. :)
I can't believe SHE wouldn't have to be accountable for following the CO and have the burden to prove that she did since she filed the motion.....
---> Two separate issues here. 1) In Civil Court, the 'burden' usually lies with the Defendent to prove that they did or didn't do what they are being accused of...that's just the way it is. 2) If your husband is successful in proving that he is NOT in contempt because he never received the bills, then HER 'accountability' for NOT following the court order is that she won't be getting any money. Additionally, the court could order that she pay your husband's attorney's fees and court costs.
.....but because she presented the motion the way she did, DH could possibly be held in contempt for HER failure to follow the CO. It's BS.
---> Not sure what you mean here. Would it be possible for you to copy/paste the text of the Motion?
The fact that she waited 6 years to file contempt AND filed it in response to another motion that wasn't even relevant should be enough alone for it to get thrown out.
---> But it was...initially; or are you forgetting that that is why it became a separate Motion? Something that is easy to forget because this matter is so personal to you, is that it is NOT personal to the court...they have no idea who you people are outside of what is being said on paper.
We met with another attorney and decided to retain him. His legal fees weren't as high as I expected them to be. So luckily DH won't have to represent himself. Apparently, it's a good thing, because thanks to me and the affidavit, he would've been found in contempt.
---> Yes...he could have, but instead of beating yourself up about it, consider the fact that you were smart enough to run your response before to see what we thought.
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If you air your dirty linen in public, expect people to comment on the skid marks!
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4Summer
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Reged: 07/14/09
Posts: 1508
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Thanks Gecko, I appreciate your help. Here's some clarity on some of the statements....
Not sure what you mean here. Would it be possible for you to copy/paste the text of the Motion?
-----> She's claiming that he *refused* to pay. Which is a false statement. He's never refused to pay anything. Even sports activities for the kids he's helped out with when asked. And that's not even addressed in their CO.
-----> She actually confronted DH the other day about this issue. She told him he did receive medical bills. DH told her he's never received anything from her. And that's when she says, "Well that's what the EOB's are for"
-----> She knows good and damn well she's never presented him with a bill. And her statement above shows just that.
But it was...initially; or are you forgetting that that is why it became a separate Motion?
------> It wasn't dismissed on the grounds of being retaliatory, it was dismissed off of DH's original motion because it was irrelevant to that case.
In DH's notes to the attorney, he's requesting that the CO be modified to state that BM has 90 days from DOS to provide him with any bills/receipts otherwise, SHE becomes responsible for them.
This is the only way I can see preventing this from happening again.
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"Sometimes I need what only you can provide: your absence"
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