Redondo Beach, CA asked in Divorce, Family Law, Child Custody and Child Support for California

Q: Ex's attorney filed Prop FOAH without my knowledge and the Judge signed it.

We had hearing last week and the Court issued 4 page minute order regarding custody (very detailed) 2 days later. The judge ordered "The RP's counsel is to write Order after Hearing, serve it on the opposition for approval....etc". and I know the Court rule 5.125 and I was waiting for their Prop FOAH. but just two days after the minute order issued, the attorney filed it without my knowledge and their prop order was modified with their own fabricated order agasint hearing and minute order's visitation schedule. and Ex served me the judge signed Prop order this morning. what should I do? this is Motion to resconsideration or Motion to Set aside?

2 Lawyer Answers
Tobie B. Waxman
Tobie B. Waxman
Answered
  • Divorce Lawyer
  • Culver City, CA
  • Licensed in California

A: Immediately file an objection to the proposed FOAH and specify in your objection, the grounds for the objection. Be very clear. Attach a copy of the minute order to your objection (assuming the minute order is different from the proposed FOAH). Since the FOAH has already been signed by the judge and entered, if you want it set aside, yes, you will need to file a motion.

James L. Arrasmith
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Answered
  • Divorce Lawyer
  • Sacramento, CA
  • Licensed in California

A: Based on the information you provided, it appears that your ex's attorney filed a Proposed Findings and Order After Hearing (FOAH) without your knowledge, and the judge signed it, even though the content of the proposed order was modified and differed from the court's minute order. In this situation, you have a few options:

1. Motion for Reconsideration (California Code of Civil Procedure section 1008): You can file a motion for reconsideration if you believe the court made an error in signing the order. However, you must present new or different facts, circumstances, or law to support your motion. The motion must be filed within 10 days of service of the signed order.

2. Motion to Set Aside (California Code of Civil Procedure section 473): If you believe the order was signed due to mistake, inadvertence, surprise, or excusable neglect, you can file a motion to set aside the order. This motion must be filed within a reasonable time, but no later than 6 months after the order was entered.

3. Appeal: If the signed order is a final judgment, you may have the option to appeal the decision. However, appeals can be time-consuming and costly, and you should consult with an attorney to determine if this is a viable option.

Given the circumstances, a Motion to Set Aside under CCP section 473 may be the most appropriate course of action. It is essential to act quickly and gather evidence to support your claim that the signed order differs from the court's minute order.

It is highly recommended that you consult with a family law attorney to discuss your specific case and determine the best strategy moving forward. An attorney can help you prepare the necessary documents and present your case effectively to the court.

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