Legal Question in Family Law in California

Judge accidentally closes case for lack of prosecution during reconsideration

I filed an OSC for modification over a year ago. During litigation the commissioners behavior was biased and unprofessional. The support was increased but not under guide line formula because the court failed to include the Interest on petitioners home and also deducted state taxes when they petitioner lives in Nevada and pays no state tax. Under the law when a judge does not follow guideline formula he is supposed to state for the record why he didn't. After the decision in court the commissioner was asked for a statement of decision in which he responded he didn't have to give any decision and would be considerering sanctions for asking. A timely reconsideration was filed in which the commissioner set the case for long cause and made a tentative ruling that the order would be changed following guideline. 10 days before appearing in court on the reconsideration a clerk accidentally filed an order in which another judge from the same court room signed closing the case for lack of prosecution. I believe this was done in retaliation. I now have to go back in Jan. at my expense to vacate that order then come back to court again in March 2009 for the hearing for the reconsideration. Any action I can take against the court or judge.


Asked on 11/04/08, 5:54 am

1 Answer from Attorneys
Phillip Lemmons, Esq. Phillip Lemmons APC, Attorneys at Law

Re: Judge accidentally closes case for lack of prosecution during reconsideration

Before filing a writ or an appeal, which would be interesting. You should rerun the numbers to make sure the correctly calculated order substantially changes the current support order. There is nothing worse than going through all the motions only to find a $10 difference. If there is a substantial difference, you might want to seek the assistance of counsel and appeal the decision. The court of appeals may make the opposing party pay your fees and costs.

Of course their may be a completely different and far more less expensive approach. Depends on your goal at this point. If it's merely to change the support order, then perhaps filing a new OSC is the way to go.

Well there's a couple of ideas. I could probably come up with a few more, but it would be best to retain counsel to assist you at this point. You can seek santions from the opposing party under 271 for failing to negotiate a new support order in good faith. That has to be properly set up to work. Again go seek counsel. Good luck.

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Answered on 11/04/08, 11:28 am


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