Tuesday, June 23, 2009

Victim #119: Florida Courts Create A Dilemma in New Mexico

I was divorced in Florida in Oct., 1999. This was a mediated divorce with a marital settlement agreement. I was convinced by lawyer and the mediator at the time, to accept and sign off on it. That agreement was accepted by the Florida court and became final at the above mentioned date. The divorce settlement agreement called for permanent, periodic alimony in the amount of $7,50in Florida. I was married for approximately 23 years.

In 2001 because of the recession, the Dot Com bust, and 9-11, my income dropped approx. 62%. I went for a modification of my alimony as allowed. After 9 months of legal wrangling I had my day in court attended by my attorney and a forensic CPA. After the hearing was over in West Palm Beach, Judge Phillips took the matter under advisement and went on a vacation. 5 weeks later he came back with his ruling and reduced my alimony by ZERO!

This through me into such a horrible state mentally that I was forced to leave my job and I ended up on disability for severe anxiety and depression. Since I was only making $7,500.00 to $8,500.00 per month at that time and worked solely off commissions and was still required to pay the full alimony of $7,500.00 per month, I knew it would be impossible to continue working because of the extreme pressure this put on me and I couldn't manufacture commissions. My disability was enough to cover the ongoing alimony payments plus support myself. The only problem was the disability had a finite term of 2 years.

After being on disability for 2 years and paying the required alimony continuously the disability ran out due to policy limitations. That was in March, 2005. Before this took place my attorney and I tried to negotiate a settlement with my ex-wife and her counsel back in August, 2004 giving them plenty of forewarning and proof that my only source of income would soon be ending and we were trying to be proactive and reach some sort of settlement before the income ran out. They refused to settle.

In early February, 2005 my attorney filed a motion for modification of my alimony and shortly thereafter informed me she could no longer represent me adequately and recommended I have another lawyer take over my case. After hiring another woman lawyer, she recommended I drop the modification hearing.

Her opinion was that even though I don't have an income any longer the judge would hypothecate an income based on my past earnings and I wouldn't be able to pay that anyway so what's the point of continuing with a modification hearing. She recommended we ignore the contempt charges being brought against me.

I instructed her to attend the contempt hearings and at the very least show the court the proof that my disability income had expired since the opposing counsel was claiming I had ongoing income and the continued ability to pay using an outdated financial affidavit of mine.

My lawyer had all the proof she needed to defend me but didn't provide any of it to the court and provided no defense on my part what-so-ever. She knew the information the opposition was presenting to the court was outdated and inaccurate but still provided no defense and let contempt charges be ruled against me. Further a hearing was held to obtain a judgment against me for all the arrearages to which she provided no defense. She told me there's nothing they could do since I lived out of state and therefore she had me covered.

Of course this was very far from being true. My ex-wife has now hired a New Mexico attorney and has put forth a motion to the New Mexico court to adopt/domesticate the Florida judgment. I have now been forced to hire an attorney of my own here in New Mexico to defend me.

We have filed a motion with the court here to stay all further proceedings here in New Mexico pending the outcome of the Pro Se motion I now have before the Florida courts. My motion before the Florida courts is to set aside the existing judgment and adjudications of contempt.

My motion is based upon the fact that I did not receive proper counsel or representation and was provided no defense. My motion also shows evidence that the opposing counsel had proof that my disability income had run out since they were previously provide such documents by my old attorney showing statements from my insurance company stating that no further income would be paid to me after March, 2005.

The opposing counsel ignored this evidence and falsely provide the court inaccurate, misleading information to obtain their order of contempt and their judgment against me. Again my Florida lawyer provided me with no defense.

I have requested the Florida court to let me attend the hearing on my motion via telephone. The opposition objected to my attending this hearing via the telephone basing their objection on the need to take my testimony and show me certain documents, etc.

There was a hearing held this morning, which I attended via the telephone, so the judge, Jeffrey Colbath, would decide whether to accept or reject my request to attend the hearing on the 19th via telephone. Unfortunately he sustained their objection and will not allow me to attend that hearing via the phone and I must appear in person. I obviously can't do that since I'm presently in contempt of court, have an existing judgment ordering me to pay arrearages and also an order that I should be taken into custody until I satisfy the outstanding judgment. I do not have the ability to pay this judgment and can't take the risk of being jailed.

I would like to follow through with my motion before the court to set aside the existing judgment and adjudications of contempt but don't know if I'd be able to do so by hiring another attorney to show up at the hearing to represent me. Especially now that the judge has refused my request to attend the hearing via telephone. Can in fact an attorney go to court without me being present and represent me in such a circumstance?

Also once the Florida thing is over and done, if I can't be successful in having the judge set aside the existing judgment and contempt charges it will come right back to the New Mexico court to be domesticated. I don't really know what sort of chance, if any, I would have in having the judge here not adopt this judgment and it then becomes a New Mexico judgment and I find myself in the same situation here. That is not having the ability to pay and then having to face being thrown in jail.