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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 111484
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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Can I file a Relief of Judgment from a Family Court

Customer Question

Can I file a Relief of Judgment from a Family Court Magistrate through an Order to Show Cause if the time for appeal has expired and the family court judge erred in dismissing my cross petition filing for constructive emancipation to a contempt petition for tuition? Due to the family court judge incorrectly dismissing my petition bc she thought my daughter aged out and she's not 21. The Magistrate was then given the contempt petition and wouldn't let me explain and said she didn't care. We "settled" knowing I could Appeal but when Magistrate wrote up final order I was held guilty willful contempt after hearing evidence and fact and finding and have a money judgment against me for over 15,000.00 that jeopardizes my New York State professional license
Submitted: 1 year ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am afraid that once you have missed the time for appeal, the court will not allow you to "back door" your way into an appeal. If there is a violation of the magistrate judgment, then you can file the motion for order to show cause for contempt. However, if the judge ruled against you in the case and they erred, the only way to get the judgment looked at and reviewed is by filing an appeal in a timely manner.
However, if you settled the case, that also would be over as well.
If you believe your attorney was incorrect and negligent in their handling of the matter and negligent in not advising you regarding appeal, your only recourse would be to file a malpractice suit against the attorney if you do so within 3 years of when your attorney did this. The malpractice case against your attorney would be your only option if you missed the appeal time and then settled without your attorney properly advising you and without them properly appealing errors of the judge.
Customer: replied 1 year ago.
I'm filing under
N.Y. CVP. LAW § 5015 : NY Code - Section 5015: Relief from judgment or order - See more at: http://codes.lp.findlaw.com/nycode/CVP/50/5015#sthash.KLG8KoF3.dpuf
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You can only file to vacate under one of the following reasons:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is based.
If you cannot fit specifically into one of reasons, then this will not work I am afraid (you did not mention one of those specific reasons above), but it is the only chance if it has been less than a year.
Otherwise, as I said, you will have to sue for malpractice.
Customer: replied 1 year ago.
That's what I was planning on filing the whole time as I had indicated. My question was regarding the actual procedure in filing this type of motion as indicated in my questions
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
If you have one of those reasons available, then you do this by filing a motion to vacate pursuant to CPLR 5015. Here is a sample of such a motion for template purposes only: http://stopforeclosurefraud.com/wp-content/uploads/2011/07/DEUTSCHE-v-PICON-w.pdf
You have to write your motion and then you have to sign it and have it notarized. You then file it with the clerk of court and send a copy to the opposing party in the suit.
Customer: replied 1 year ago.
Thank you. I was told in NY it was done through An Order To Show Cause. Is this form appropriate to use in NY State? I also have to put an application in for Constructive Emancipation in regards ***** ***** incorrect judgment against me due to the family court judge erring that one can't apply when child is over 18. My ex's content petition was sent back to the Magistrate due to this error and she stated she "didn't know and didn't care" about the judge's decision and that we weren't leaving her courtroom until the case was closed. I was forced to "settle upon consent" with permission to Appeal the decision of the Judge re: cons emancipation. But the judge's ruling was incorrect and she never formally did anything with my petition on record or dismissed it formally. After telling the Magistrate I couldn't afford the tuition for my daughter's college(we have joint custody and he excluded me from entire process and interfered w parent child relationship) Magistrate states she wouldn't put a schedule of payments on tuition. However a month later the final order came in the mail and stated I was guilty by admission and evidence and investigation of willful contempt. No mention of the settlement. I now have a money judgment against me and could lose my NY State license as a Psychologist after being in arrears for 4 months. It's taken almost that long to get a court date which is tomorrow. I'd like to see if I can apply for constructive emancipation; recuse this judge and consolidate the current custody dispute we are engaged in about my 15 year old. He was granted sole custody by default because my lawyer forgot to adjourn the first Appearance of Attorneys and told me the night before to go ahead to work the next day and she'd appear in court and get everything rolling. It was my first day back to work as a school administrator and I had to train 200 faculty members. Within 10 minutes he was awarded sole by default from a petition full f false allegations, afterwards having primary residential custody for 12 years. And my lawyer never vacated the order and said she would. I was naive and didn't know the time frame. My ex within 4 weeks cut off all my contact w our daughter. This is a true mess
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

This is a motion for an order to show cause and to vacate. It is the same thing, as you are showing cause to the court why the judgment should be vacated pursuant to the CPLR. The sample I provided is from the NY courts, even though it is not a family court sample, it is written pursuant to NY laws.

As far as the motion for emancipation, you are going to have to show that your child is capable of paying for their own needs and that your support is not necessary.

Yes, it sounds like a mess. You really should be using a new attorney to increase your chances of success AND if you win this case, you can seek to pursue your first attorney for malpractice for improperly handling your case and for forgetting to adjourn the first appearance attorneys and forgetting to appeal on time.

Customer: replied 1 year ago.
I live in Rockland County, NY which is a small community entrenched with connections throughout the court system and I've found that the Attorneys are difficult to trust. I have had to terminate 3 different Attorneys for erroe; lack of due diligence and unpreparedness for trial. I have spent thousands of dollars to no avail. So I have been doing a ton of research and hoping to be able to get something accomplished at this point. The problem with the Family Court is that the judge is temporary and has never been on a family law bench.There's a new judge coming in January but until then I do believe that this judge will be reviewing everything as well as the Support Magistrate. And I am making a motion to recuse her for multiple, valid reasons. So my thought was if I submit an 1. Order To Show Cause to the Supreme Court for Constructive Emancipation which I have educated myself a ton about; submit the request for relief to the Support Magistrate through the form you forwarded me (thank you:); wait to see what her determination is and then asked Supreme to consolidate the current custody dispute, investigation of contempt for tuition and submit sanctions for his fabrication of disparaging documents I allegedly wrote my daughter which were submitted formally with his contempt petition; ask for lawyer's fees to be reimbursed as per our original agreement stating if one of us violates the agreement, and, based on the significant custodial interference and the "error" pursuant on the part of my first Attorney (instructed me to go to work rather than attend initial appearance which resulted in default sole custody). But Supreme doesn't allot assigned counsel to support cases and emancipation is under support, correct?Get this...Are you familiar with NY CPLR 7801? I was just disecting it and it seems like most of these issues fall under this:
Whether a determination was made in violation of lawful
procedure, was affected by an error of law, or was arbitrary and
capricious or an abuse of discretion, including an abuse of
discretion as to the measure or mode of penalty or discipline
imposed (mandamus to review). MtL of Arrocha v. Bd. of Educ.
of Citv of N.Y., 93 N.Y.2d 361 (1999) (The standard of review
considers whether there's a rational basis for the determination,
whether the determination is arbitrary and capricious); MtL of Poster
v. Strough, 299 AD.2d 127, 140-43 (2d Dep't 2002) (Mandamus to
review questions the rationality of the administrative act where there
is no record before the agency comparable to a trial record, and the
parties are free to present any competent evidence in support of their
position); or
4. Whether a determination made as a result of a hearing at
which evidence was required to be and was taken is, on the entire
record, supported by substantial evidence (certiorari to review).
MtL of Kolt v. Zoning Bd. of Appeals, 159 A.D.2d 625 (2d Dep't
1990) (Substantial evidence challenge to agency determination made
after a hearing falls under certiorari to review); see generallv MtL of
Poster v. Strough, 299 AD.2d 127, 140-43 (2d Dep't 2002), for a
comparison of certiorari and mandamus to review....I haven't researched where I would file the above and if you have a clue please let me know.
The Judge; The Magistrate and my First Attorney. Oh and the Law Guardian. He's been assigned to investigate my "witness list" and review my evidence and report back to the judge on whether he thinks I am worthy of a trial, as per the judge's instructions last appearance.Do you know of any solid attorneys in the ninth district of NY? Do Attorneys do payment plans? I do think there's a good chance I may be reimbursed for legal fees as per all of this BS my ex has created. Sorry this is so lengthy but this is assisting me greatly and I truly appreciate it.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You have to file this in the same court where the judgment was issued. It gets filed with the clerk of court as I said above.
Legally, we cannot make personal referrals, but if you are in a small town, you can used the same sites used by other attorneys http://www.hg.org and http://www.lexmundi.com and look in the larger cities near you and not just in your small town.
Each attorney sets their own payment plan so you can negotiate your own payment plan with each attorney you meet with.

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