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FamilyAttorney
FamilyAttorney, Lawyer
Category: Family Law
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Experience:  Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 37 years
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Plaintiff got a restraining order in april 2015. He

Customer Question

Plaintiff got a restraining order in april 2015. He submitted false evidence which could not be verified at the time. In august he filed a "show cause notice for violating restraining order" He again produced fake video showing that the defendant drove by his residence. Again the defendant had no idea that the plaintiff was going to produce any video so couldn't produce counter evidence but now has evidence to prove that plaintiff's video was a false evidence. Question - 1. Can you file for a motion to set aside the restrainign order now?
Submitted: 1 year ago.
Category: Family Law
Expert:  FamilyAttorney replied 1 year ago.

Hello. I’m Ronna, a licensed attorney with 35 years’ experience. I specialize in family law, landlord-tenant and appeals. I look forward to helping you today.

Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

You can file a motion to set aside the restraining order based on the new evidence that you have. The worst the court can do is deny your motion unless there is a reason to extend the restraining order. Because that could happen (extending the order), you may want to get an attorney to do the motion and court appearances for you. You would probably testify, and you'll have to identify the new evidence and explain it.

Unfortunately many times people get restraining orders based on false pretenses. It's perjury and they know what they're doing. You can counter this with a motion to dismiss the restraining order. There may be templates that your court website has in NC, but your best bet is to have a lawyer do this for you. Lawyers do this type of motion every day of the week. If this is a family-related restrainng order, be sure to look for a family lawyer. If criminal, then you would need a criminal attorney.

If you want to do this yourself, check the court website or call the court clerk. The clerks aren't supposed to give you legal advice but they are allowed to point you to the proper forms. Since this may require a hearing or a trial, this is why I'm suggesting an attorney. The chance is that the restraining order can be extended or that your motion could be dismissed. It is also possible for you to vacate the restraining order based on the evidence you have! Because this is so important to you, you would be well-advised to consult with an attorney. You can even find attorneys that do free consultations, so all that will cost you is your time.

Please let me know if there are any follow-up questions to this.

My goal is to provide you with excellent service. If you feel you have received anything less, please reply back as I am happy to answer follow-up questions. If you are happy with my service, please provide a rating. Thank you.

I hope this helps and clarifies. If you could, I'd appreciate it if you can rate me when finished.

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Best of luck to you!

Sincerely,

Ronna L. DeLoe, Esq.

Customer: replied 1 year ago.
They only have one form for 60b but that's for condition 5 and 6. What if I want to file it for 1, 2 or 3?
Customer: replied 1 year ago.
I guess my question is what are my options at this point? The court held the defendant in civil contempt last month. Can you ask for another retrail on the "show cause notice" considering the plaintiff produced false evidence? Or Is it better to apply for a motion to set aside the actual restraining order? Or wait out until next april? The defendant moved out of state as a result of this, she quit her job and moved to D.C. Can you ask the judge to set aside the restraining order citing the move?
Expert:  FamilyAttorney replied 1 year ago.

Hi, I"m reviewing this and will get right back to you. Thanks.

Expert:  FamilyAttorney replied 1 year ago.

I see NC 60b - North Carolina Rule of Civil Procedure 60(b) allows a trial court to “relieve a party or his legal representative from a final judgment, order, or proceeding” for a number of specified reasons based in equity." It also allows setting aside a judgment for fraud, newly discovered evidence, and (5) is r it is no longer equitable that the judgment should have prospective application[.]

This is difficult to answer without knowing all the facts of this case, what it's about, etc. If you want to fill me in on those details I can give a more accurate answer. The issue here is that with the information you gave me, I know only that the restraining order was obtained falsely and you want to open that up by motion. You can do that. Citing the move is permissible and possibly the judge would entertain that. I don't know what waiting until next april means unless the restraining order is for 1 year, and you want to let it expire according to its terms. That depends on if you can live with the RO right now. If you cannot, you would have to do one of several things: you could make a motion to set aside the RO based on your #3 fraud, or #2, newly discovered evidence. #1 refers to mistake and this wasn't a mistake. She knew what she was doing. Judges may or may not set aside a RO because someone moved out of state -- he may think she could come back into the state, so you can't necessarily rely on that. However, in a motion, you can ask for relief from the restraining order based on several issues, such as newly discovered evidence, fraud, perjury, and that is no longer equitable for the judgment to have a prospective application. That being said, you have to weigh whether you're okay keeping a RO in effect till April, or do you want to spend the $ and make the motion? You can make it by yourself, but you would do better with an attorney. Proving that the video was a fake is not going to be easy. So it's really your call if you want to leave the RO in place and of course avoid her if she comes into town, or if you want to make the motion to dismiss. I will tell you this --if you don't make the motion to dismiss or don't win, in the future if you're in court for any reason or if you have to answer a job application about any restraining orders you have had, you know what you'll have to say about the RO unless you move to vacate it. It's important to do that, but it might not be that important to you. You have the option and you have to decide how important it is to you. If it is, I would advise getting an attorney to help you with this. It won't be easy without one.

Expert:  FamilyAttorney replied 1 year ago.

Have I answered your question?

Expert:  FamilyAttorney replied 1 year ago.

I do want to add that regarding your retrial on a show cause: many states allow you to make a motion to reargue or a motion for a new trial. Often the new trial is not granted but sometimes the motion to reargue the case is without going to trial. You're probably better off filing a motion unless, in your case scenario, the whole case was based on a lie. If it was, then you may want to reopen the trial. I'm also an appellate attorney, so make sure you don't lose out on time to appeal. Newly discovered evidence is often a reason to open up a trial.

Expert:  FamilyAttorney replied 1 year ago.

Additionally, if she moved out of state as the result of a restraining order (unless she moved out because of the case result) the judge probably won't set it aside for the reason of the move, but you can certainly ask for that. YOu can ask for multiple forms of relief in a motion, usually the kitchen sink type of motion where you ask for everything. YOu ask for A, ask for B as an alternative, or ask for C as an alternative.

Does that help?

Expert:  FamilyAttorney replied 1 year ago.

You have a bunch of different options. See if you can file a notice of appeal in the meantime so that your time to appeal does not expire.

While you do that, you can also make a motion for setting aside the RO. Make the motion does NOT extend the time to appeal, which is why you'd have to do both. You don't have to actually appeal if you don't want, but if you file the notice, you can decide later if you want to appeal. If you don't file it, you are forever barred from appealing.

Expert:  FamilyAttorney replied 1 year ago.

Because of the different routes to take here, getting an attorney is well-advised. You want to file the Notice of Appeal correctly and you want to do the motion correctly. Again, though, it's ultimately your decision how you want to proceed.

We answer these questions generally within 15-20 min and I can offer additional time for you if you'd like after this series of questions.

I wish you the very best of luck.

Sincerely,

Ronna L. DeLoe

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