motion to dismiss or motion for summary judgment....

I need to request that a petition to modify child support be dismissed.  I already answered the petition and a hearing has just been scheduled for Nov. 5th.    I am still unclear as to which motion I should use.

Well I just read if it's the Motion for Summary Judgment I need to file, I needed to file it at least 20 days before hearing.

I'm short 3 days. 

No, you don't file a motion to dismiss and you don't file a motion for summary judgment.

The hearing is scheduled to hear your ex's request for modification.

You get to defend against that request by refuting the reasons for requesting it.

No offense, but this post and your previous posts seem to indicate that you are in over your head. I suggest you consult an attorney.

I simply cannot afford an attorney right now.  I am so grateful for all the help you and others provide.  I have learned so much.

In an older post, I had stated that I answered a petition for modification of child support and subpeoned my former husband's employment records only to discover there is no basis for the request. (Although his income did decrease, his in-kind payments and car allowance brought his child support obligation to the figure he is currently paying. However, he failed to disclose all of this on his financial affidavit. 

JSmitten answered my post and stated I should file a motion to dismiss or a motion for summary judgment however did not expand on the difference between the to. 

sweetpotato2k:

JSmitten answered my post and stated I should file a motion to dismiss or a motion for summary judgment however did not expand on the difference between the to.

Far be it from me to second guess an attorney.

But, a motion to dismiss asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedy.

So, in both your cases, I think a motion to dismiss is not proper because the law does offer a remedy to a request for modification of child support. It offers the modification. If the ex has good grounds the modification gets made. If there aren't good grounds, the modification doesn't get made. But the remedy (the modification) was still available. Therefor, a motion for dismissal would be denied and the hearing would go on as scheduled.

A motion for summary judgment asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party This motion is usually only made when sufficient time for discovering all evidence has expired. For summary judgment to be granted in most jurisdictions, a two-part standard must be satisfied: (i) no genuine issue of material fact can be in dispute between the parties, and (ii) the moving party must be entitled to judgment as a matter of law.

In both your cases the facts are in dispute. The ex says one thing about earnings, you say another. Therefor, a motion for summary judgment would be denied and the hearing would go on as scheduled.

I do not understand.  I am going to attach evidence to dispute his decrease in earnings,  i.e., his total compensation statement for 20009 including  kind payments (which he did not include in financial affidavit) and his bi-weekly payroll statements that I subpeoned.  (The difference is considerably less than $50 as required by law.)

To dispute his claim that I am employed and need to include my earnings, I am attaching a statement from social security showing I am not employed.  I am also attaching medical records from my last visit from my MS Specialist stating I am disabled. 

I am proving with evidence that what he has stated is untrue.  Therefore, why would I not be entitled to the summary judgment??

Does anyone know if a Notice of Motion for Summary judgment needs to be filed as well?  I have been told conflicting statements from court personnel. 

Thank you for your help.

It is Rule 1.420 I do not quite understand it.  Do I file a Notice of Motion for Dismissal along withe the Motion for Dismissal ??  I do not understand why that would be necessary. 

If I hearing is scheduled, perhaps then that would apply, correct?  Even then, in my county, the Court mails the parties a Notice of Hearing.

I mean rule 1.510

I do understand what is said.

I just need to know is it necessary to file  a notice of motion for summary judgment.  It does not say to.