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  1. #1
    Join Date
    Jul 2010
    Location
    VIrginia
    Posts
    19

    Default Told Restraining Order Hearing Was Canceled, but Case Was Called

    This is a two year divorce and costs over 100K, final decree entered. My x recently got a DWI and has tried to hide the facts. Apparently drinking has become an issue, my kids both minors are not aware but there are other factors like missing 70 days of school last year.

    I went to the DWI hearing, case was continued. yes she was shocked but I was there at the recommendation of the GAL to find out what is going on. I'm waiting for re-assignment of GAL to case.

    when I approached the courthouse my X told a sheriff that there was a PO against me, he came out and stopped my entry, I gave my id and asked him to check, he went back in and my X admitted that there is not a PO.

    After the trial my X went to JDR and tried to get a protective order. I know because I saw her in line at JDR. I called the GAL and informed her.

    The clerks at the court issue her a show cause/ failure to comply with PO against me. I received the summons 14 days later. I file a subpeona for the sheriff , the GAL and subpeona duces tecom for phone records the day of court.

    15 days before court I got a call from the jdr clerks court and was told that the case would not be heard and that I did not have to appear and that she would not be there. I asked to speak to the clerk of the court. A week later I got the call from the clerk of the court and was told the same thing, I recorded the conversation so I could make sure I was hearing correctly.

    One week before court I got a motion to squash from her lawyer the phone records.

    I called the clerks office again to make sure that the case was not going to be heard.

    I also taped this conversation. case will not be heard and she will not be there. I asked who she was they indicated my X. I asked how they knew that. She said they called her first.

    Being a good citizen that was summoned, I showed up for court with my lawyer and wow guess what everyone was there, the X, her lawyer etc....

    I actually found a place to make myself scarce until we were called. We got called in and they did not show up, yet the GAL talked to both the X and her lawyer.

    Yes, it is wierd but I can prove every single event incuding the clerks phone calls.

    The divorce has been just like this the whole time. The very first thing that happened was the answers to interrogatories from her all had answers of attorney client privilidged information, Had to get a court order to force the answers. 25 times in court against her lawyer, she only showed up 7 times, The lawyer was sanctioned by one judge and I proved the lawyer lied to another.

    So the question remains, what to do? File a bar complaint, do I issue a lawsuit, o to the DA? All of the above.

  2. #2
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Barratry or Malicious Intent

    Please list your state.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Barratry or Malicious Intent

    So basically the clerk told you that your ex- canceled the motion hearing and would not appear. You showed up anyway and the case was still on the docket. You and your lawyer told the clerk you were there to appear on the case, so that you would be called when the case came up. The case was called. Your ex- was not there, nor was her lawyer.

    Whether or not the case should have been removed from the docket could depend upon local court practices, as well as the manner in which the court date was canceled. If neither party appeared, odds are the case would not have been called at all - or if it were, the clerk would have indicated that nobody was there to argue and the judge would have taken whatever action was anticipated, I assume a dismissal. Which probably happened anyway. It might be possible to figure out more had you followed the instruction to identify your state, but even then I expect we would be guessing. (You have a lawyer - you could try discussing this with your lawyer.)

    So how do you imagine that you were damaged by appearing for a canceled court hearing, at which your ex did not appear - just as she had indicated?

  4. #4
    Join Date
    Jul 2010
    Location
    VIrginia
    Posts
    19

    Default Re: Barratry or Malicious Intent

    The State is Virginia.

    Let me clarify.

    Hearing for my ex DWI June 10
    1) X told Deputy that a RO was against me at the court entrance. I was stopped from entering. I explained why I was here and that the GAL had recommened I attend. He went back in and my X admitted that there was no RO against me. There was one but it was thrown out 2 years ago.
    2) Hearing on DWI got continued until next week.
    3) I left and called GAL to inform her of what occurred during the hearing. I also made the decision to go back and get a copy of the DWI charges plus a copy of the order that dismissed the PO. After getting that copy I left the building again and in walks my X heading towards JDR. I left and called the GAL again, I told her that my X was going to try to get a PO and (my opinion ) lie like she did last time. After the discussion with the GAL, I decided that I need the GAL re-appointed and I drove back to court to get the forms. I approached the counter there stood the X, in line, I turned around and left, called GAL again and told her that the X was standing in line at JDR. I did not want to cause a problem so I left but would return tomorrow to file for custody change and re-appointment of GAL.

    4) 14 days later I got a summons "show cause- failure to comply with PO" by sherriff

    5) so after getting my custody review date from court I decided to ask for expedite of review case.

    6) I also filed a subpeona- for the Deputy at courthouse and the GAL.

    7) two days later I filed a Motion for review of the order dismissing the PO and for the judge to dismiss the show cause failure to comply.

    8) The next day I got a phone call from clerks office saying. The case would not be heard and she would not be there. I asked for documentation from a signed judge or clerk documentation, anything to provide to me. She would not respond to the question. I asked for the Clerk of the Court, not in, but she would leave a message


    9) the next day I called and asked for the clerk of the court. I never said my name or case number. A few minutes later I got a lady who said my name and explained that the day before my case they would get a judge to sign off on a order. I asked why wait until then. what if he does not sign off. What about my subpeona's , no answer, asked for clerk again, not in, asked for clerks voice mail. I left the message.

    10) following wednesday i got the clerk's call and the exact same thing, case would not be heard as it should never have been filed. No one would be there and she would not be there. I asked who is she, they indicated my X as they called her first.

    11) Since I could not get documentaion and 2 days before the "not heard" hearing, I get a motion to quash from her attorney for the subpeonas.

    12) I went and got my attorney, everything to this point was pro-se.

    13) Being a good citizen that was summoned, I showed up for court with my lawyer and wow guess what everyone was there, the X, her lawyer etc....

    14) I actually found a place to make myself scarce until we were called. We got called in and they did not show up, yet the GAL talked to both the X and her lawyer.

    Yes, it is weird but I can prove every single event including the clerks phone calls.

    The divorce has been just like this the whole time. The very first thing that happened was the answers to interrogatories from her all had answers of attorney client privilidged information, Had to get a court order to force the answers. 25 times in court against her lawyer, she only showed up 7 times, The lawyer was sanctioned by one judge and I proved the lawyer lied to another.


    Does this make sense? This is Virginia. City of VB.

    So the question remains, what to do? File a bar complaint, do I issue a lawsuit, o to the DA? All of the above.

    Update: Based on the ethics hotline in VA I am filing a complaint. I still am unsure of what course needs to be set in place. The attorney I have, has to play ball with the courts as it is his bread and butter. that is a problem when you are going against the courts. Do I get another attorney from out of town? The cost is killing me. Do I go to the DA? Should I file against the clerk of the courts. I have all the proof with recorded phone calls, letters , time frames etc... proving is not the issue, how far should I take this is the issue. I have had my named smeared, called a criminal in court, massive billing fees, defamed, my TSC is on hold, big impact on my job, lose the TSC I lose the job. I was up for compartmental clearnance for a GOV contract, I can't get that now.

  5. #5
    Join Date
    Jul 2010
    Location
    VIrginia
    Posts
    19

    Default Re: Barratry or Malicious Intent

    the X did not cancel the motion or hearing, the clerks tried to have me not show up by telling me it would not be heard. These are facts with proof. What should the clerk have done?

  6. #6
    Join Date
    Jul 2010
    Location
    VIrginia
    Posts
    19

    Default Re: Barratry or Malicious Intent

    Update. The case was dismissed. We proved that she lied and that the attorney lied. The judge cited that since the lawyer was in good standing she would have to take the attorneys word that she forgot. Case dismissed based on facts that , no order was possible, clerks made a mistake, and she lied to the sheriff. It was almost a comedy. Here is the really juicy part, the managing partner of the firm representing my X's came in to represent my X's divorce attorney, they first had to clear up whether he was representing the attorney or my X. It ended up both.

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