The affirmation of my son’s mother’s attorney, for attorney fees, had a copy of the corresponding retainer agreement annexed thereto. I have omitted it here as it seems to be nothing more than a conventional retainer agreement.
At my July 25, 2018 sentencing hearing, my son’s mother’s attorney had requested for permission to file for attorney fees, from the violation proceeding. This request was granted, and upon my objection, judge Cecil said that I will be able to respond to her motion for attorney fees, and my objections would be handled at that time.
Petitioner’s affidavit for attorney fees
Now, in my experience, every motion gets a “return date”, meaning a date where a decision is rendered. From the return date, you can then calculate the time which the non-moving party has to respond to the motion. If the motion does not set a return date therein, the court sets it. In the affirmation in support of attorney fees, there was no return date set, and the court had not set one as of August 23, 2018. Further, I had received a copy of the Petitioner’s request for attorney fees about a week or so after the July 25 sentencing hearing. Return dates are normally set for about 30 days after motions are filed.
On August 6, 2018, I file my response to the request for attorney fees. I cite arguments which I’ve already made on record, and object to some procedural things. There’s really nothing more for me to do for a response than those two thing.
Response to Petitioner’s affidavit for attorney fees
On August 24, 2018, I received an email stating:
“Please be advised that Judge Cecile has scheduled this matter for a per-trial conference on September 12 at 11:00 to address the request for attorney fees.”
… from someone who appears to be an employee of the court.
My response to this email, was to get something that documents the proceeding, as it seems throughout, that the court is trying to handle this request for attorney fees as much “off the record” as possible, from the failure to set a return date, and the failure to provide me with a proper notice for appearance. So in response, I file the following request for a proper summons:
I then received a summons a few days later.
Outstanding, I have achieved a summons for a proceeding which I am a party in. Now, on further with the case itself…
It’s strange that this request for attorney fees has been scheduled as a pre-trial matter, as I had already been found to have “willfully violated” my child support order. In fact, the law (NY FCA section 454(3)) reads:
3. Upon a finding by the court that a respondent has willfully failed to obey any lawful order of support, the court shall order respondent to pay counsel fees to the attorney representing petitioner pursuant to section four hundred thirty-eight of this act and may in addition to or in lieu of any or all of the powers conferred in subdivision two of this section or any other section of law:
and the other law that the Petitioner has cited reads no differently. The way that the law reads, and the way that anyone would consider that, the proceeding should follow, is that after you’ve been found to have been in willful violation of a child support order, because you chose not to follow the order, you have to cover the attorney fees of the other party because, they shouldn’t have to pay for the enforcement of the order, that you decided not to follow. A contrasting view, which seems to be reflected here in this matter as (is), we found you guilty, and now that the Petitioner would like their attorney fees reimbursed, we’ll have a proceeding to determine the merits of the contentions of each side… Superb.
It looks like the court is trying to tack a trial onto the end of a matter which throughout, had its merits disregarded, but perhaps an attorney would hold a different view…
** UPDATE **
It seems like the court wasn’t so much “trying” to tack on a trial, as they were “seeing” if I felt that any considerations by the court, after there had been a trial, would be reflective of the facts. I did not feel that they would, so I rested my case. This September 12, 2018 “pre-trial conference” was to find if my support matter was ready to be heard in its entirety on appeal, from my Petition filed with the United States Supreme Court, itself filed on/about April 9, 2018.
WRIT OF CERTIORARI (Petition) (I have the appendix in its entirety, if people want to see it I can post it but I’d have to redact some things first. It’s 96 pages long and I’m not sure if it’s of any interest to anyone. Docket No. 17-8668)
While the details of myself proceeding through the entire New York State court system is certainly interesting and worth posting about, it will have to be done at another time and with its own article; Regardless, considering the sudden relevance of my US Supreme Court Petition to my matters, from the September 12, 2018 “pre-trial conference”, my US Supreme Court Petition requires its mention at this time.