Fraud on the Court

If a lawyer drafts and files a final order on a case that went to trial and was recessed with no ruling, does this constitute fraud on the court? Can he be disbarred?

naneki_CA:

If a lawyer drafts and files a final order on a case that went to trial and was recessed with no ruling, does this constitute fraud on the court? Can he be disbarred?

Oh come on now.

There's no way anybody can answer that without details of who did what to who and when and who's griping about it and why.

You want details: My husband filed a change of visitation, his ex responded with contempt charges claiming he was supposed to pay child support through the OAG, but instead he payed her directly. We later realized that the order for contempt for non payment of child support does not match the original divorce decree. It seems the child support section of the decree was pieced together. After 3 days of trial, the judge decided he wasn't going to make an official ruling, but he suggested an interim order until the new date. We filed with the court this interim order in may. After several months it seems we had a court date sometime in oct, but none of the parties showed up, therefore the court dismissed our case. In Nov the opposing counsel reinstated the case saying the court erred by closing it as it was not finalized. Attached to the order to reinstate he included the copy of the interim order all parties agreed on and filed with the court. Then in Dec, he drafted a Final Order for visitation and an Order to confirm arrearages and contempt charges claiming the court found that my husband was in contempt, that the court ordered he pay lawyers fees and that the court ordered him to pay an additional $1500 plus child support, a final judhement of $60K owed to his ex. He filed a motion to enter final order claiming this is what was ordered during the trial. Yesterday this went into place. Was what he did fraud on the court?

Thank you for the details. It all makes sense now.

naneki_CA:

Then in Dec, he drafted a Final Order for visitation and an Order to confirm arrearages and contempt charges claiming the court found that my husband was in contempt, that the court ordered he pay lawyers fees and that the court ordered him to pay an additional $1500 plus child support, a final judhement of $60K owed to his ex. He filed a motion to enter final order claiming this is what was ordered during the trial. Yesterday this went into place. Was what he did fraud on the court?

No.

By filing the motion all he is doing is ASKING the court to accept the order as written.

Your husband needed to properly respond to the motion and state why it shouldn't be granted. Your husband should have filed a response in Dec. That he didn't respond is why the order went into place. Motions that are not objected to often get granted as unopposed.

So it's not fraud and the attorney is not going to get disbarred.

If your husband was served with the motion when it was filed with the court and didn't do anything, then he is very likely stuck.

If he wasn't served with the motion when it was filed he might be able to get the order overturned but he's darn well going to need a lawyer to get it done right.

Even if in this motion he claims the orders conform with recommendations of the court made inopen court on the date of the trial. And he files an opposed motion to enter order. We never filed the first motion. 

naneki_CA:

Even if in this motion he claims the orders conform with recommendations of the court made inopen court on the date of the trial.

That could just be his interpretation of what happened and if your husband thought it was wrong he was supposed to respond to it.

Does your husband have a lawyer?

We had a lawyer up until sep. she withdrew because we could no longer pay her. We have spent over 80k on this case. 

What he did was file a motion to enter order with the court stipulating that back during the trial the judge ruled that my husband was in contempt and he is ordered to go to jail for 120 days for each violation, he listed several, and that he was ordered to pay $1500 monthly, plus child support, etc. However, he didn't mail us the copy of the motion to enter order that he filed with the court, he mailed us an opposed motion to enter order. So when we called the legal line to get help, when we told them it was an opposed motion, they told us to just show up at the hearing and the judge will decide. So that's what we did, not realizing we were being duped. Then on the day of the hearing they sneak into the associate judges chambers to get her to sign the order without our presence. 

The associate judge later realized we were there only because she came to the main courtroom and the clerk told her who we were and she said I just signed the order for that case. We were present at docket call and were waiting on her lawyer who was running late. 

This to me sounds like fraud!

Your posts are a tad hard to cobble together, but it sounds like the lawyer filed an unopposed/stipulated motion or order.  And the second the judge said "I just signed X" I presume your husband said "huh?  whaddya talking about, your honor?"  You don't bother mentioning what happened next, and I suppose it doesn't matter.

What you need to focus on -- rather your husband -- is filing a motion to vacate and laying out X-Y-Z.  He ought not be focusing on how to label what this lawyer did to the court (I'd argue it's a fraud upon the court if you're saying what actually occurred vs. misinterpreting/your husband didn't timely file an opposition to whatever it is the other parent was pursuing, sure), but to get across to the court that he didn't agree to it and wants the court to vacate/set aside the order.  Down the road, hubby is free to file an ethics complaint with the state bar.