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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1772
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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California lawyers only When is the deadline to appeal starting

Resolved Question:

California lawyers only

When is the deadline to appeal starting in San Diego Family Court, after the order is made, or entered.

And can a judge order me to pay attorney fees when I am not the moving party, even not seeing my income statement?

Rene
Submitted: 3 years ago.
Category: Family Law
Expert:  Steven K. replied 3 years ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

I am licensed in many jurisdictions and have ten years of experience practicing in California.

Steven Kincaid :

Unless a specific statute relevant to your case or an extension is granted, a notice of appeal must be filed on or before the earliest of:


(1)60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served;


(2)60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or


(3)180 days after entry of judgment.

Customer:

thanks

Steven Kincaid :

This is a family law case?

Customer:

I have som eother question

Customer:

yes

Customer:

My ex had an attorney and was the moving party, this was a new judge from criminal law, he gave them attorney fees, without asking me for financial statement and said I was overly litigious

Customer:

the previous judge in June 2009, when I was the moving party, was going to punish my ex for all the things she let her new husband do as disturbing communication and destroying cell phones, it says in the transcripts that serious custody changes would result

Steven Kincaid :

Family Code Section 270 states:

Steven Kincaid :

If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has
or is reasonably likely to have the ability to pay.

Customer:

The judge ordered at the hearing my income and expense, I saw him writing it down, but it is not in the minutes of order

Customer:

So I have a reason to appeal, as I am broke

Steven Kincaid :

Section 271 states:

Steven Kincaid :

Notwithstanding any other provision of this code, the
court may base an award of attorney's fees and costs on the extent to
which the conduct of each party or attorney furthers or frustrates
the policy of the law to promote settlement of litigation and, where
possible, to reduce the cost of litigation by encouraging cooperation
between the parties and attorneys. An award of attorney's fees and
costs pursuant to this section is in the nature of a sanction. In
making an award pursuant to this section, the court shall take into
consideration all evidence concerning the parties' incomes, assets,
and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. In order to obtain an
award under this section, the party requesting an award of attorney's
fees and costs is not required to demonstrate any financial need for
the award.

Steven Kincaid :

So, yes, you might have a basis for appeal if your finances were not even considered.

Customer:

I told th ejudge I lost my business due to the custody battle. The judge rules me overly litigious but I wasnt even the moving party. I was last time in June 2009

Steven Kincaid :

271(b) further states:

Steven Kincaid :

(b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.

Customer:

see, I always was told it would be a seperate hearing

Steven Kincaid :

Usually in family law cases, I tell people not to appeal because the cases are so hard to win and it is hard to prove legal error. However, the law is quite clear that the court must consider finances.

Customer:

This is such a weird case. Again as I lost my custody the same way, FCS mediator recommends no changes. Judge says he is not going to make any changes. Then there is a lot of changes because he favors the FCS wrong printout.

Customer:

It tells me why he ordered my income/expense, and then didnt put it on th eminutes, when I wanted to see the transcripts, we ordered the minutes. I saw him writing it down though. He would have admitted to not knowing my income/expense. However I told him I had no money for an attorney.

Customer:

We amicably parented without living together for 6 years, until step father requests adoption. The first FCS mediator we reached an agreement with close to 50/50. However she prints out a standard other arrangement for 20/80, but hand writes 40/60. Judge hammers it in, I didnt see the mistake, went back to court on recommendation of FCS, and the judge readjusts to 20-80 and not the days that were missing in custody.

Customer:

thats 2 years ago

Steven Kincaid :

Wow. You really have to read everything to catch people's incompetence.

Customer:

I didnt know it was on the table, because it said she recommends no changes

Customer:

judge hmmers it in and runs away from his desk?

Steven Kincaid :

Anyone doing an appeal should have the Appellate Rules. Click on the link for them.

Customer:

My ex is friends with a DA, who hates me, any corruption possible?

Steven Kincaid :

I don't know if there is corruption, but it is very, VERY hard to prove. A suspicion is not sufficient. Is the DA somehow connected with the new judge?

Customer:

both were into criminal

Steven Kincaid :

but on the same cases?

Steven Kincaid :

I don't really know if corruption actually has happened, but speculation is not enough to get you anywhere. You must have evidence that corruption has happened to get any relief.

Customer:

why did he call me overly litigious

Customer:

isnt that biased? he used that to give attorney fees

Steven Kincaid :

Maybe he mistakenly thought you were the moving party. He might have simply been "sloppy." What county is this in?

Customer:

San Diego, El Cajon. I thought he also was mistaken maybe

Steven Kincaid :

That would not be enough to prove bias for the purposes of having him recuse himself. Oh, you did mention San Diego before.

Steven Kincaid :

I have practiced in L.A., Orange and Riverside Counties but I don't know the players in San Diego.

Customer:

Our previous judge had seen us both without lawyers and was mad at my ex and promised (in transcripts) serious changes in custody if her behavior didnt drastically change, since cell phones were destroyed and she would not want to answer the judge to where she would parent with me

Steven Kincaid :

That's too bad there has been a change in judge.

Customer:

This time moving party (my-ex) filed some things and got life insurance, I didnt file anything because I was to exhausted from high blood pressure medication.

Customer:

Both my ex and her husband are threatening me all the time that I am about to loose all custody, loose my drivers license (child support, also weird), tell me I have lost my drivers license on Martin Luther King weekend, and nothing like that is going on. Everytime I have my daughter they start something, it breaks you down after 2 years.

Steven Kincaid :

It can. Just enjoy the time you have with your daughter and keep your relationship strong. They can't stop that.

Customer:

True, but they are co-ercing her and she is changing. Child psychologist is talking about the effects on long term and breakdown. CPS has been involved (also weird). I complained about a case worker and she was never to be on the case again. So this case worker told me to report lice, since in my 20% I cant get rid of it. Only now its gone, but they put same case worker on.

Customer:

step dad overly involving himself in school and teaching after class chess. Not working step dad, and he tells kids in school he is the dad. He even put himself on school forms at first as the father (judge ruled that away).

Customer:

They have put in writing they want me buried, gone, they will call DCSS, INS, IRS and everybody else, and I will give up.

Customer:

We live in San Diego, but got divorced in El Cajon. Can I have the case transferred. I tried that in the beginning but it didnt work because my ex objected. 5 minutes before the first case, we were transferred to another judge (that is very unlikely isnt it?)

Steven Kincaid :

Parents do sometimes give up, but I hope you don't. I have seen little kids scream and kick at the beginning of a visit, claiming that they don't want to go with mommy or daddy, and then enjoy the whole visit. They only put on the show for the custodial parent. I have seen other cases where the child starts not wanting to see the non-custodial parent, simply because it upsets the custodial parent.

Customer:

no, she wants to see me and stay here, in th elast 2 months she came up with 2 scenario's to kill them

Steven Kincaid :

Transferring the case between San Diego and El Cajon probably would not occur. You probably have nearly a 0% chance of that happening against the will of the other party because they are so close and the courts discourage "forum shopping."

Steven Kincaid :

Is she in counseling?

Customer:

she used to start screaming and hanging on my legs, she never wants to leave. Now she is giving up, because I loose whatever I get. The cell phone, mediation, child custody evalution, never happens. SHe is in counseling, I am the only one taking her, but mother is also ordered to take her. First psychologist withdrew because the mom didnt cooperate. Mom stopped going to the second because she couldnt come together with the step dad

Customer:

Counselor says he is wrongly interpreted by CPS and the court mediator. Judge didnt buy into that, and luckily ordered the child psychologist again, however its not happening. Mom doesnt do anything thats ordered.

Steven Kincaid :

It really is amazing, given these facts, that the judge is blaming you and calling you litigious. I want to tell you the kinds of motions to file or things to ask for, but it sounds like that is just making things worse.

Customer:

I heard to lay low for a while. My ex is threatening me with all the things that are coming at me, it can be worked out so easily (adoption of course). Her husband is under investigation by the dmv for identity theft, his own daughter didnt want to see him since she was 12? He stole her college funds and another 200,000 from his ex by opening credit cards under her name in a secret PO Box

Customer:

Can I ask for another judge?

Steven Kincaid :

You can ask based on bias, but chances are your request will be denied and you will anger the judge.

Customer:

I also heard not to try contempt for the most necessary help we need, mediation and high conflict counseling.

Customer:

Do all previous orders cease to exist with a new order? I didnt agree with this new order, since it didnt state that all not addressed previous orders stay as is

Customer:

Her lawyer is a fre lawyer btw, the husband from a friend at work

Steven Kincaid :

Unless the order says that prior orders remain in effect in part, the previous orders do terminate upon issuance of a new order on the same subject.

Customer:

what if both the FCS and Judge say they dont want any changes

Steven Kincaid :

If it is written in the order that the priors order remain then they do. The language in the order is, "All prior orders remain in effect unless modified herein," but any language meaning the same thing will work.

Customer:

I have once succesfully used the facilitators, but last time I got a nasty woman that just said that I was simply unbelievable. I was very unhappy, hurt, and never went back.

Steven Kincaid :

That's not their place anyway. They are not to judge you or tell you what to do or give you advice. They are simply supposed to tell people how to do the paperwork for the things they want to accomplish. Sorry you had that experience.

Customer:

Its hopeless

Steven Kincaid :

Getting "justice" may be hopeless, but you have quality time with your daughter and she is in counseling. There is hope there.

Customer:

Not if you have no mediator the counselor can talk too. That court mediation is real sloppy, the counselor told me he didnt say just say that the child is fine. The mediator said that it i sher belief th eparents can parent this child ok, but that there is a father stepfather issue, and that it is her 'belief' that I am the instigator. I have never responded to the guy! Why dont people in th ejustice system have to substantiate their advice and rulings?

Customer:

Appeal sounds like a real big pile of work with large chance of doing it wrong!

Steven Kincaid :

Can the counselor provide a written statement clarifying what she actually said? This could both bring accurate evidence to the case and prove the vias of the mediator.

Customer:

He told me he can opnly do that with approval of both me and the mom

Customer:

he went out of his way I think to tell me what he already did

Customer:

I have those emails, but it says confidential below it

Steven Kincaid :

I would have an attorney review those emails and determine whether they are truly confidential under the law. True, if you reveal those emails you may anger the therapist, but I am not convinced that dual consent is required for you to disclose those emails - depending on what is stated in those emails.

Customer:

I think you are right, he is very careful what he writes

Customer:

Better go work on my financial statements for DCSS, hers are fraudulent at the start, deducting her whole house rent (2450) for a not often used table in the bedroom, as a business expense. But the stories about DCSS are so awkward that I am afraid for them. I am now ordered 500 a month. A friend says they will never give you less. we are both self-employed so the support calculator falsely calculates daycare.

Steven Kincaid :

Yes. Unless you can show different figures and the court accepts those figures, the support won't change.

Steven Kincaid :

Here is an online child support calculator for CA if you want it.

Customer:

we never had figures set. When Olivia was born after we divorced, we just set the amount based on making the same. We also had 50-50 custody. But robbed by a wrong printout my lawyer didnt fight at the time. Rotten deal.

Steven Kincaid :

Well, the printout should have some numbers on them and you can use that and see what would happen with the child support calculator, then see how various changes would affect the support amount.

Customer:

thank you for your help, btw how do you fight a free attorney, he even falsely spoiled our vacation by claiming we were in violation with a court order, which we were not? The judge had to set him straight twice, we were just in Phoenix in a Waterpark, but returned

Steven Kincaid :

Well, you don't want to be accused of being too litigious so it is difficult to determine what would help. If the case were in full swing, I would say to do some discovery, because that takes time and it may make it difficult for an attorney to keep doing that for free. But you can't do that after the case is over or for the sole purpose of harassment.

Steven Kincaid :

Do you have any other questions?

Steven Kincaid :

If you have no further questions and you do not plan on requesting a refund of your JustAnswer deposit, I would appreciate if you could click on the green ACCEPT button as I do not get credit for my work unless you do so.

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1772
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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Steven  K.
Steven K.
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I have practiced family law since 1996, focusing on child custody and domestic violence