Thread: what are the cirumstances a judge is allowed to issue a set aside?

hello,

i have just started the process of dealing with c.s. that hasnt been paid for almost 3 years because they had an invalid address and couldnt notify me. i tried to explain to her that my children were taken from me by my ex and her new husband and my childrens grandmother refused to tell me where they were but all said was that said was that i should have notified the authorites and i had to come to san diego (i live in s.f. bay area) and pay 10% of the total yo get my license back.

anyhow, i had read somewhere on the web about a set aside. i was wondering under what circumstances set asides are allowed are they allowed and what the process was to having one issued.

i would call back my case worker and ask her but for some reason i have a feeling that she just wants me to pay the money...

thanks a bunch

Hi Gamble and thank you for your post. When did you receive the order? I will post the set aside statutes tomorrow, so you can look at those. Is DCSS (Department of Child Support Services) involved?

Originally Posted by gamble

hello,

i have just started the process of dealing with c.s. that hasnt been paid for almost 3 years because they had an invalid address and couldnt notify me. i tried to explain to her that my children were taken from me by my ex and her new husband and my childrens grandmother refused to tell me where they were but all said was that said was that i should have notified the authorites and i had to come to san diego (i live in s.f. bay area) and pay 10% of the total yo get my license back.

anyhow, i had read somewhere on the web about a set aside. i was wondering under what circumstances set asides are allowed are they allowed and what the process was to having one issued.

i would call back my case worker and ask her but for some reason i have a feeling that she just wants me to pay the money...

thanks a bunch

hello isaac.
thank you for the reply. this may sound ridiculous but im not even sure of the answers to your questions anymore. but...

When did you receive the order?

when you say received the order, does that mean when i found out? or actually was shown/served an actual order? the ow about the support issue was when they put a suspension on my licensce. its been almost 2 months since then (i know im getting close to that 90 days to respond) and the only papers that ive received have been from my dcss case worker in san diego. the only thing she sent me was a decleration of support paymenit history, visitation verification and expense decleration... as welll as the nifty handbook.

Is DCSS (Department of Child Support Services) involved?

yeah they are involved and from what ive been able to gather from a friend that works at a dcss in another county was that the dcss doesnt have an actual case open....
my friend really confused me when she wrote a case number down.?.?.?. she had mentioned something about my ex not receiving any welfare and so the support debt is not owed to dcss but i owe it to her. which she said is a good thing...

i hope that didnt confuse you as much as it does me. from what i make sense of last part (please correct me if im wrong) is that since my ex hasnt been getting gov. aid that my actual debt is to her, minus arrears. from what ive read about that sort of situation is that the petitioneer has the right to request the debt to be forgiven... is that true?
and if it is true then how was the dcss able to put it on my credit report?

i have a few other questions that i guess i should ask in another thread.

i do thank you isaac and god bless !

one more thing, would you still be willing to post the set aside statutes for me, please.

Hi Gamble,

Here are the most common statutes we use to set aside judgments/orders. Not all of them apply in your case, but I thought I would post them anyway. I will draft a sample motion for you soon, but please keep in mind, it will ONLY be a sample to use as a guide if you need it. You should not rely on it in any way in your legal matter and I'd advise you to seek competent counsel if you can in your area. Here are the statutes:


§ 473 Civ. Proc.

(a)(1) The court may, in furtherance of justice, and on any
terms as may be proper, allow a party to amend any pleading
or proceeding by adding or striking out the name of any
party, or by correcting a mistake in the name of a party,
or a mistake in any other respect; and may, upon like terms,
enlarge the time for answer or demurrer. The court may
likewise, in its discretion, after notice to the adverse
party, allow, upon any terms as may be just, an amendment to
any pleading or proceeding in other particulars; and may
upon like terms allow an answer to be made after the time
limited by this code.

(2) When it appears to the satisfaction of the court that
the amendment renders it necessary, the court may postpone
the trial, and may, when the postponement will by the
amendment be rendered necessary, require, as a condition to
the amendment, the payment to the adverse party of any costs
as may be just.

(b) The court may, upon any terms as may be just, relieve a
party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him
or her through his or her mistake, inadvertence, surprise,
or excusable neglect Application for this relief shall be
accompanied by a copy of the answer or other pleading
proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable
time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken. However, in the
case of a judgment, dismissal, order, or other proceeding
determining the ownership or right to possession of real
or personal property, without extending the six-month period,
when a notice in writing is personally served within the
State of California both upon the party against whom the
judgment, dismissal, order, or other proceeding has been
taken, and upon his or her attorney of record, if any,
notifying that party and his or her attorney of record, if
any, that the order, judgment, dismissal, or other
proceeding was taken against him or her and that any rights
the party has to apply for relief under the provisions
of Section 473 of the Code of Civil Procedure shall expire
90 days after service of the notice, then the application
shall be made within 90 days after service of the notice upon
the defaulting party or his or her attorney of record, if
any, whichever service shall be later. No affidavit
or declaration of merits shall be required of the moving party.
Notwithstanding any other requirements of this section, the
court shall, whenever an application for relief is made no
more than six months after entry of judgment, is in proper
form, and is accompanied by an attorney's sworn affidavit
attesting to his or her mistake, inadvertence, surprise,
or neglect, vacate any (1) resulting default entered by the
clerk against his or her client, and which will result in
entry of a default judgment, or (2) resulting default
judgment or dismissal entered against his or her client,
unless the court finds that the default or dismissal was not
in fact caused by the attorney's mistake, inadvertence,
surprise, or neglect. The court shall, whenever relief is
granted based on an attorney's affidavit of fault, direct
the attorney to pay reasonable compensatory legal fees and
costs to opposing counsel or parties. However, this
section shall not lengthen the time within which an action shall be
brought to trial pursuant to Section 583.310.

(c)(1) Whenever the court grants relief from a default,
default judgment, or dismissal based on any of the
provisions of this section, the court may do any of the
following:

(A) Impose a penalty of no greater than one thousand dollars
($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no
greater than one thousand dollars ($1,000) to the State Bar
Client Security Fund.

(C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default
or default judgment pursuant to this section based upon the
affidavit of the defaulting party's attorney attesting to
the attorney's mistake, inadvertence, surprise, or neglect,
the relief shall not be made conditional upon the attorney's
payment of compensatory legal fees or costs or monetary
penalties imposed by the court or upon compliance with other
sanctions ordered by the court.

(d) The court may, upon motion of the injured party, or its
own motion, correct clerical mistakes in its judgment
or orders as entered, so as to conform to the judgment or order
directed, and may, on motion of either party after notice to
the other party, set aside any void judgment or order.

(Enacted 1872. Amended by Code Am.1873-74, c. 383,
p. 302, § 60; Code Am.1880, c. 14, p. 2, § 3; Stats. 1917, c. 159,
p. 242, § 1; Stats. 1933, c. 744, p. 1851, § 34; Stats. 1961,
c. 722, p. 1965, § 1; Stats. 1981, c. 122, p. 857, § 2;
Stats. 1988, c. 1131, § 1; Stats. 1991, c. 1003, § 1;
Stats. 1992, c. 427, § 16; Stats. 1992, c. 876, § 4;
Stats. 1996, c. 60, § 1.) BODY,.aolmailheader {font-size:10pt; color:black; font-family:Arial;} a.aolmailheader:link {color:blue; text-decoration:underline; font-weight:normal;} a.aolmailheader:visited {color:magenta; text-decoration:underline; font-weight:normal;} a.aolmailheader:active {color:blue; text-decoration:underline; font-weight:normal;} a.aolmailheader:hover {color:blue; text-decoration:underline; font-weight:normal;} § 2120 Fam.

The Legislature finds and declares the following:

(a) The State of California has a strong policy of ensuring the
division of community and quasi-community property in the dissolution
of a marriage as set forth in Division 7 (commencing with
Section 2500), and of providing for fair and sufficient child and spousal
support awards. These policy goals can only be implemented with full
disclosure of community, quasi-community, and separate assets,
liabilities, income, and expenses, as provided in Chapter 9
(commencing with Section 2100), and decisions freely and knowingly
made.

(b) It occasionally happens that the division of property or the
award of support, whether made as a result of agreement or trial, is
inequitable when made due to the nondisclosure or other misconduct
of one of the parties.

(c) The public policy of assuring finality of judgments must be
balanced against the public interest in ensuring proper
division of marital property, in ensuring sufficient support awards, and in
deterring misconduct.

(d) The law governing the circumstances under which a judgment can
be set aside, after the time for relief under Section 473
of the Code of Civil Procedure has passed, has been the subject
of considerable confusion which has led to increased litigation and
unpredictable and inconsistent decisions at the trial and appellate
levels.

(Added by Stats. 1993, Ch. 219, § 108.)

§ 2121 Fam.

(a) In proceedings for dissolution of marriage, for nullity
of marriage, or for legal separation of the parties, the court may, on
any terms that may be just, relieve a spouse from a judgment, or any
part or parts thereof, adjudicating support or division of property,
after the six-month time limit of Section 473 of the
Code of Civil Procedure has run, based on the grounds, and within the
time limits, provided in this chapter.

(b) In all proceedings under this chapter, before granting relief,
the court shall find that the facts alleged as the grounds for relief
materially affected the original outcome and that the moving party
would materially benefit from the granting of the relief.


§ 2122 Fam.

The grounds and time limits for a motion to set aside a judgment,
or any part or parts thereof, are governed by this section and shall be one
of the following:

(a) Actual fraud where the defrauded party was kept in ignorance or in
some other manner was fraudulently prevented from fully participating in
the proceeding. An action or motion based on fraud shall be brought
within one year after the date on which the complaining party either did
discover, or should have discovered, the fraud.

(b) Perjury. An action or motion based on perjury in the preliminary
or final declaration of disclosure, the waiver of the final declaration
of disclosure, or in the current income and expense statement shall be
brought within one year after the date on which the complaining party
either did discover, or should have discovered, the perjury.

(c) Duress. An action or motion based upon duress shall be brought
within two years after the date of entry of judgment.

(d) Mental incapacity. An action or motion based on mental incapacity
shall be brought within two years after the date of entry of judgment.

(e) As to stipulated or uncontested judgments or that part of a
judgment stipulated to by the parties, mistake, either mutual
or unilateral, whether mistake of law or mistake of fact. An action
or motion based on mistake shall be brought within one year after the date
of entry of judgment.

(f) Failure to comply with the disclosure requirements of Chapter 9
(commencing with Section 2100). An action or motion based on failure
to comply with the disclosure requirements shall be brought within one
year after the date on which the complaining party either discovered,
or should have discovered, the failure to comply.

(Amended by Stats. 2001, c. 703, § 7.)

Originally Posted by Isaac

Hi Gamble,

Here are the most common statutes we use to set aside judgments/orders. Not all of them apply in your case, but I thought I would post them anyway. I will draft a sample motion for you soon, but please keep in mind, it will ONLY be a sample to use as a guide if you need it. You should not rely on it in any way in your legal matter and I'd advise you to seek competent counsel if you can in your area. Here are the statutes:

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isaac,

i know that when i say that i have a job its nothing more then the way i support myself/family... the profession i have.... a 9 to 5... i work and do what my job requires of me, whether i like it or not. "if a detail gets overlooked, no biggie. at least ill have it done and its one less problem resolved to bring me closer to the end of my work day". i believe my bad work ethic is shared by many in the family courts. however, im honest enough to know that about myself and i also know for that reason (as well as others) i have no reason to be in the family law buisness and/or contributing in any part of the process. these A+ students that have no care, appreciation, respect or understanding
for their work or the chatostrophic results due to their ignorant career choice.
still my point being is some people people in this and others belong maybe in criminal law or flipping burgers... i see that you are a individual that likes what he does, cares about what he does and you obviously respect what you do. the out of control ca. family courts have become cruel, not in the best interest for any member of a family and highly lack people with the traits that i described about you. there needs to be more understanding and compassion.

california is creating criminals out of all non-custodial parents for the simple reason the they are not the petitioneer. only family courts do/will presume you guilty until proven innocent!!! forums like this are the only places some of us can find where we can get answers that we cant find anywhere. sometimes even are own consultants/lawyers (if we can afford because we sure as hell cant put it on our credit cards.) because we're now truly becoming voiceless, powerless "dead beats" that couldnt take care of our problems even if we do come to learn our lessons or we had no lesson to learn and our ex's are just sneaky.

but yeah....thanks again. i appreciate your compassion towards your work, as well as the forum. unless youve sat on this side of the family courts or family law confused as hell, you will not how much we (exiled- loving parents) do appreciate you and others like you.

Hi Gamble,
I hope we can provide some assistance. It is true that the courts generally take a hard-line on child support and are not likely to deviate from the guideline amount, regardless of the payor's expenses, living conditions, etc. As far as your case is concerned, I highly recommend having someone go to the courthouse and make a copy of your court file. You will then know when the last order was made (one of my questions to you) etc. If you can get me a little more information about your case, like a copy of the last order, I can prepare a skeleton motion for you to use as an example if you are going to be representing yourself. Ignoring the situation can lead to disastrous consequences as DCSS can take your driver's license and eventually bring a contempt action against you.

You should also know that you can use willful concealment of the child as a defense against unpaid support, and I can get you more information about that.

I do understand your frustration with the legal system. Isaac

when you say received the order, does that mean when i found out? or actually was shown/served an actual order? the ow about the support issue was when they put a suspension on my licensce. its been almost 2 months since then (i know im getting close to that 90 days to respond) and the only papers that ive received have been from my dcss case worker in san diego. the only thing she sent me was a decleration of support paymenit history, visitation verification and expense decleration... as welll as the nifty handbook.


Real Estate Law Temecula

Hi Angeline,

You lost me a little bit. Is there any way you can get me any of the documents so I can take a look? If you have a scanner, I can give you an email address to email them to, or you can fax them to us. Thanks, Isaac

Originally Posted by angelinebrown

when you say received the order, does that mean when i found out? or actually was shown/served an actual order? the ow about the support issue was when they put a suspension on my licensce. its been almost 2 months since then (i know im getting close to that 90 days to respond) and the only papers that ive received have been from my dcss case worker in san diego. the only thing she sent me was a decleration of support paymenit history, visitation verification and expense decleration... as welll as the nifty handbook.


Real Estate Law Temecula

Hello, Gamble. This is Joan. Sorry to say, I think you're doomed (financially). If your child (and the custodial parent) were concealed from you until the child reached majority, and if the court felt that you had used reasonable diligence to find your child, then you might have a defense against enforcement of the arrearages. However, I'm guessing that you've "found" your child before he or she reaches majority. It doesn't appear that you have any good defense from the arrearages.

Originally Posted by gamble

hello isaac.
thank you for the reply. this may sound ridiculous but im not even sure of the answers to your questions anymore. but...

When did you receive the order?

when you say received the order, does that mean when i found out? or actually was shown/served an actual order? the ow about the support issue was when they put a suspension on my licensce. its been almost 2 months since then (i know im getting close to that 90 days to respond) and the only papers that ive received have been from my dcss case worker in san diego. the only thing she sent me was a decleration of support paymenit history, visitation verification and expense decleration... as welll as the nifty handbook.

Is DCSS (Department of Child Support Services) involved?

yeah they are involved and from what ive been able to gather from a friend that works at a dcss in another county was that the dcss doesnt have an actual case open....
my friend really confused me when she wrote a case number down.?.?.?. she had mentioned something about my ex not receiving any welfare and so the support debt is not owed to dcss but i owe it to her. which she said is a good thing...

i hope that didnt confuse you as much as it does me. from what i make sense of last part (please correct me if im wrong) is that since my ex hasnt been getting gov. aid that my actual debt is to her, minus arrears. from what ive read about that sort of situation is that the petitioneer has the right to request the debt to be forgiven... is that true?
and if it is true then how was the dcss able to put it on my credit report?

i have a few other questions that i guess i should ask in another thread.

i do thank you isaac and god bless !

one more thing, would you still be willing to post the set aside statutes for me, please.