Presenting evidence at default hearing

[nightshift]

My wife has failed to respond to the initial divorce petition and notice of default. A default hearing was scheduled for early next week but has been put aside and resheduled because she filed a motion to vacate the default judgement. The commissioner allowed it and now she will be attending and be heard at the new hearing. How can she have recourse at this point? Can I present evidence regarding her DUI and drug arrests prior to or at this hearing. I am seeking sole custody of my 2 teenage kids. They have lived with me since the wife left in 2009. Any thoughts would be appreciated.

 

[fredrikklaw]

Stipulate, withdraw and proceed!

Alas, no; you cannot!

So let horses run on courses and to each function be applied its own functionaries and there cannot be enough emphasis put on not even trying to present evidence of her D.U.I. because it is simply not the function of a default hearing to receive and consider evidence pertaining to what sounds like a custody issue.

Let me put it this way: as much as I love law and court room sparring, last year I came to unequivocally detest with a passion and in no uncertain terms anything and everything, having to do with the family courts from janitorial staff right up to the head presiding judge when assisting two women with their horribly ugly custody battles over an eight month period.

The judges were obtuse, intolerant, uncaring, unforgiving despots with a barefaced and unapologetic penchant for dispensing the kind of justice that might as well had come out of a Mickey Mouse PEZ CANDY dispenser. Oh, and did I mention ultra holier than thou and unbearably prejudiced with the patience of a Nat?

And for all intents and purposes, the upcoming hearing which is really an order for your ex to appear and show cause, why a default judgment should not be entered against her, is but an elaborate window dressing and you might as well withdraw your objection to her motion to vacate as the default WILL almost certainly be vacated and your ex left to defend (or litigate) divorce petition, especially at such a very early stage of a default life cycle, which is before it has even been entered into court records.

And the granting of such a motion is quite common place in all court rooms and for all types of law even as long as six months to a year after the entry of default judgment if the defaulting party can show good causes listed under the heading of "excusable neglect."

That apart, the law does not like cases decided by default judgments and prefers to see cases decided on their merits instead and that the parties get to have their days in court. Merits here means the controversies of the case having actually been litigated and adjudicated proper and the legal cliché here would be that the motion should be granted if "the ends of justice demand it!"

And the above are for default judgments rendered in civil cases with wrangling over money damages for a whiplash or a breached contract. Add to these the presence and the welfare of two children, then the vacating of the default will be as certain as the sun coming up in the east.

I wish you, your ex and the children well in this matter and try not to cheese off the judges by introducing irrelevancies.

fredrikklaw

 

[army judge]

Well said, FL, well said. :cheer:

And, a quite accurate representation of the characters that inhabit family courts, might I add! :biglol: