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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 17441
Experience:  B.A.; M.B.A.; J.D.
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New York State, Orange County - wife filed

Customer Question

New York State, Orange County
- wife filed for divorce mid-December.
- RJI filed in early February along with a motion for Order to Show Cause for Pendente Lite Relief (temporary financial support during the Divorce proceeding) order to start paying Child alleging inability to continue living at home though we do still live together, vacationed together with kids a full week for spring break, drove across country in same car, stayed in same hotel room (separate beds with kids), slept in same room at relatives homes (separate beds)
- in fact we have been on 3 separate vacations in the same condition with the kids,
- coached son's basketball season together
- she just signed us up both together again to coach son's baseball team
- we go to church and dine at restuarants together with the kids
- sit in family room together with kids watching games or tv.
- did not serve me for nearly 90 days.So 90+ days after filing her Divorce Summons and Complaint (but never serving me),
She served me with a Judge signed Order to Show Cause for Pendente Lite Relief (temporary order to start paying Child-support, spousal maintenance, her attorney fees so she could go ahead and move out and afford an apartment outside our huge home (2 separate homes - totally separate entry and exit access - under 1 roof - totally separately lockable).Along with the Order to Show Cause for Pendente Lite Relief a copy of her heretofore 90 day UNSERVED original mid-December Divorce Summons and Complaint was included.I am in the process of trying to retain an Attorney now.QUESTION:
1) Should an Order to Show Cause for support based on an UNSERVED Complaint and Summons have been granted ordered by the Judge? It that the RJI should have been declined or void without 1st performing Service on the Complaint and Summons the plaintiff isRequesting Judicial Intervention for. In other words it seems the Court should have found that there is NOTHING or no cause to Intervene for or in since Service had not been attempted.
If no RJI would be proper then no Order to Show Cause for an as yet unServed cause would be proper.2) Is it not possible to make and win a law supported argument that, based on our well document pattern of living, worshiping and vacationing together, etc, there is no need demonstrated need for or justification for an Order to Show cause for the Pendente Lite Relief to get her own apartment and indeed no necessity to incur and forcibly burden me (the defendant) and our family with unnecessary financial costs of the spouse moving out and renting a separate home with all the same utilities , etc?
Submitted: 7 months ago.
Category: Family Law
Expert:  Phillips Esq. replied 7 months ago.
QUESTION: 1) Should an Order to Show Cause for support based on an UNSERVED Complaint and Summons have been granted ordered by the Judge? It that the RJI should have been declined or void without 1st performing Service on the Complaint and Summons the plaintiff isRequesting Judicial Intervention for. In other words it seems the Court should have found that there is NOTHING or no cause to Intervene for or in since Service had not been attempted.If no RJI would be proper then no Order to Show Cause for an as yet unServed cause would be proper. Response 1: No. RJI can only filed if the other party has been served. if the other party has not been served, then Motion for Order to Show Cause should not have been granted. See New York Uniform Civil Rules Part 202 Section 202.6: https://www.nycourts.gov/rules/trialcourts/202.shtml#062) Is it not possible to make and win a law supported argument that, based on our well document pattern of living, worshiping and vacationing together, etc, there is no need demonstrated need for or justification for an Order to Show cause for the Pendente Lite Relief to get her own apartment and indeed no necessity to incur and forcibly burden me (the defendant) and our family with unnecessary financial costs of the spouse moving out and renting a separate home with all the same utilities , etc? Response 2: Yes, it is possible under the circumstances that you have described. Kindly give a positive rating to my post so that I can receive credit for answering your question—so that part of the deposit that you already paid to the site can be transferred to me. You are not charged extra for doing this. Thank you for your cooperation.
Customer: replied 7 months ago.
So there is NO exception that would allow the Judge honor the RJI and grant to Motion for Order to Show Cause for Request of Pendente Lite Relief when NO Service has been done on the 90 day old Summons and Complaint?I called police due to her physical attack of me, police took both reports, she alleged Harassment by me (an arm ONLY held up to bar and block her wreckless raged assault and used SLOWLY but persistently only push away and keep her from coming back at me. I was arrested and charge with Harassment because while police led us into separate rooms I refused to implicate her but she cited bruises (truly a result of her own wreckless swinging and kicking). Police also unknown to us took a statement from the 8 yr old who was present during her attack but was taken to a separate room in the home away from Dad and Mom in the care of his 17 yr old brother who arrived when police arrive. Neither Wife nor I nor 17 year old were present during their interview of 8 year old. According to Police, 8 yr old, not crying, not hurt, just afraid of cops, was asked if either one of us came into contact with him during (what I declare was) wife's assault on me? According to police 8 year old said he felt something brush by his right forehead but it didn't hurt. According to Police, they then asked him if he had any idea what brushed his fore head (again, no crying, no hurt, no complaint, no scratch, no voluntary comment from 8 year old). According to Police 8 year old said he thinks it might have been Dad's (my) hand. When wife heard of this before I did she told police no such thing happened - to her knowledge I did not even touch the 8 yr old.So, though I was the caller
(for the 2nd time in 2 months - last time I called I refused to ID the verbally abusive offender (wife) when they arrived and there was no physical component)
this time I was arrested still and charged with her alleged Harassment and the 8 yr old's fearfully and isolatedly coached statement of Endangering the Welfare of a Minor on that Saturday night around 7 PM but released without arraignment and order to come back for arraignment on Monday night.My wife called police and tried to recant but cop told her that she did not press charges - HE DID - because he did not like my attitude (while I was trying to let him know that I WAS THE CALLER and that he just did not know this because I never said anything but "Oh, that's OK I though my wife was calling the police like she swore she was btu instead had called our son - claiming I had hit her - though clearly she was upset that I blocked her barrage of an assault with what she felt was a hit) so the cop did not know who the caller was but upon arrival assume it must have been the woman calling and the man the offender - so he took a very hard and rude posture toward me from the onset and was offended by any of my urging him to calm down and be fair and not make me appear to be the offender as he began his investigation.My wife also called the DA and tried to get the charges dropped - still claiming she was bruised by my block and pushing of her back and that I started it (not true) but she wanted to drop charges. DA said they could not be dropped because officer documented her allegations of Harassment and the Child Endagerment and thus they were not dismissable because she and the child might even now be under duress to try to recant - but that charges will likely be Adjuorned Contemplatingf Dismissal since I had never in our 31 year marraige or my life had any such chargesSo I am under an ACD for 1 year which ends Feb 1 2017.I have not violated the ACD and have not been alleged to have done so either.Now...Given all that detail....
Question 1 follow-up: Does any of this then constitute a lawful exception that would allow the Judge honor the RJI and grant to Motion for Order to Show Cause for Request of Pendente Lite Relief when NO Service has been done on the 90 day old Summons and Complaint?Question 1 follow-up: Does any of this then constitute a lawful reason to grant to still order Pendente Lite Relief in order to allow wife to move out of 2 house home and go rent a totally separate place?
(assuming the Judge allows the RJI and Order to Show Cause to remain - though No Prior Service and Conviction on Charges and No violation of ACD - in fact I do not think Divorce Judge was even apprised of ACD and related allegations since none of that was included in the RJI and motion for Order to Show Cause, and could not and was not include in Summons and Complaint because it occurred after filing. )Question 3: Could any of the false Harassment and Child Endangerment charges - no conviction - ACD for 1 year have been reported to the Judge/Court legally and I not have been informed (not in docs served to me).Question 4: Should any of the charges have been shared with court without a requirement to inform and serve me about the information sharing?
Customer: replied 7 months ago.
Still waiting.
Customer: replied 7 months ago.
So there is NO exception that would allow the Judge honor the RJI and grant to Motion for Order to Show Cause for Request of Pendente Lite Relief when NO Service has been done on the 90 day old Summons and Complaint?I called police due to her physical attack of me, police took both reports, she alleged Harassment by me (an arm ONLY held up to bar and block her wreckless raged assault and used SLOWLY but persistently only push away and keep her from coming back at me. I was arrested and charge with Harassment because while police led us into separate rooms I refused to implicate her but she cited bruises (truly a result of her own wreckless swinging and kicking). Police also unknown to us took a statement from the 8 yr old who was present during her attack but was taken to a separate room in the home away from Dad and Mom in the care of his 17 yr old brother who arrived when police arrive. Neither Wife nor I nor 17 year old were present during their interview of 8 year old. According to Police, 8 yr old, not crying, not hurt, just afraid of cops, was asked if either one of us came into contact with him during (what I declare was) wife's assault on me? According to police 8 year old said he felt something brush by his right forehead but it didn't hurt. According to Police, they then asked him if he had any idea what brushed his fore head (again, no crying, no hurt, no complaint, no scratch, no voluntary comment from 8 year old). According to Police 8 year old said he thinks it might have been Dad's (my) hand. When wife heard of this before I did she told police no such thing happened - to her knowledge I did not even touch the 8 yr old.So, though I was the caller
(for the 2nd time in 2 months - last time I called I refused to ID the verbally abusive offender (wife) when they arrived and there was no physical component)
this time I was arrested still and charged with her alleged Harassment and the 8 yr old's fearfully and isolatedly coached statement of Endangering the Welfare of a Minor on that Saturday night around 7 PM but released without arraignment and order to come back for arraignment on Monday night.My wife called police and tried to recant but cop told her that she did not press charges - HE DID - because he did not like my attitude (while I was trying to let him know that I WAS THE CALLER and that he just did not know this because I never said anything but "Oh, that's OK I though my wife was calling the police like she swore she was btu instead had called our son - claiming I had hit her - though clearly she was upset that I blocked her barrage of an assault with what she felt was a hit) so the cop did not know who the caller was but upon arrival assume it must have been the woman calling and the man the offender - so he took a very hard and rude posture toward me from the onset and was offended by any of my urging him to calm down and be fair and not make me appear to be the offender as he began his investigation.My wife also called the DA and tried to get the charges dropped - still claiming she was bruised by my block and pushing of her back and that I started it (not true) but she wanted to drop charges. DA said they could not be dropped because officer documented her allegations of Harassment and the Child Endagerment and thus they were not dismissable because she and the child might even now be under duress to try to recant - but that charges will likely be Adjuorned Contemplatingf Dismissal since I had never in our 31 year marraige or my life had any such chargesSo I am under an ACD for 1 year which ends Feb 1 2017.I have not violated the ACD and have not been alleged to have done so either.Now...Given all that detail....
Question 1 follow-up: Does any of this then constitute a lawful exception that would allow the Judge honor the RJI and grant to Motion for Order to Show Cause for Request of Pendente Lite Relief when NO Service has been done on the 90 day old Summons and Complaint?Question 1 follow-up: Does any of this then constitute a lawful reason to grant to still order Pendente Lite Relief in order to allow wife to move out of 2 house home and go rent a totally separate place?
(assuming the Judge allows the RJI and Order to Show Cause to remain - though No Prior Service and Conviction on Charges and No violation of ACD - in fact I do not think Divorce Judge was even apprised of ACD and related allegations since none of that was included in the RJI and motion for Order to Show Cause, and could not and was not include in Summons and Complaint because it occurred after filing. )Question 3: Could any of the false Harassment and Child Endangerment charges - no conviction - ACD for 1 year have been reported to the Judge/Court legally and I not have been informed (not in docs served to me).Question 4: Should any of the charges have been shared with court without a requirement to inform and serve me about the information sharing?
Customer: replied 7 months ago.
I am still awaiting a response to my April 12th followup 4 questions.