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INTEROFFICE MEMO ONE TO: Paralegal FROM: Supervising Attorney Date: January 5, 2017 RE: Morgan v. Morgan ***ASSIGNMENT:
INTEROFFICE MEMO ONE
TO: Paralegal
FROM: Supervising Attorney
Date: January 5, 2017
RE: Morgan v. Morgan
***ASSIGNMENT: Denise Morgan has requested that our office represent her in a family court matter addressing the modification of an order for child support. Please review the following facts of the case, as well as the legal authority that I have provided, to determine the strengths and weaknesses of Ms. Morgan's case. Discuss whether you think David Morgan's motion to vacate is likely to be granted by the court.
In preparing your memorandum, please consult the sample Legal Memorandums in PCD and Statsky. Please note, this is a closed memo. Therefore, it is important that you do not conduct any outside research or apply any outside law in your analysis/conclusions. Apply the law as provided below.***
FACTS: David and Denise Morgan, residents of the Country of Liliput, were amicably divorced in December 2010. Due to David's status as an active member of the Liliput Armed Forces, the parties agreed that Denise would retain custody of their 3 children, and visitation and child support schedules were established at that time. Since the divorce, David has received two promotions, one in February of 2011, and the other in February of 2013, which increased his pay grade by just over one thousand dollars a month. He has also remarried.
In April of 2015, Denise petitioned the court to modify child support, and obtained a temporary order increasing David's monthly child support payments by approximately $150. In response, David moved for a deviation in the temporary support order until the matter could be fully adjudicated. David's motion was granted, reducing the modified support payment by approximately $75.
In December of 2015, Denise was forced to file a Motion to Compel Discovery, as David had repeatedly failed to respond to Denise's discovery requests, specifically, interrogatories, and requests for production of documents to substantiate his and his wife's monthly income. At that time, David's current wife formally attested to his deployment and requested that the Motion to Compel be denied due to his absence from the country. At that time, Denise voluntarily withdrew the motion despite the fact that David had not been deployed until well after the original discovery responses were due.
David returned to Liliput in March of 2016, continued to ignore discovery requests, and took no further action on behalf of the case. In late October of 2016, Denise filed a Motion for Final Hearing on her petition to modify the support order, and a hearing date was set for November 16, 2016. On November 7th, David requested a stay declaring that he would be deployed overseas at that time, and would be unavailable to attend the hearing. Included with that motion was a redacted letter from his commanding officer dated October 30, 2016 stating the following: Staff Sergeant Morgan is an active member of the Liliput Armed Forces and attached to [redacted]. He will be deployed November of 2016 to August of 2017." A second paragraph was fully redacted, and no other information was attached to that motion.
David has since deployed and his failure to appear for the November 16 hearing resulted in the court's entering final orders on the child support modification in Denise's favor. Until that time, both parties had represented themselves. However, on December 10th, Denise learned that an attorney filed a Motion to Vacate those orders on David's behalf. Your office was retained on January 3rd of this year to represent Denise for the duration of the case.
LEGAL AUTHORITY:
Section 2 of Title 47 of the Liliput Code for the Armed Forces (L.C.A.F.) provides, in part, the following:
If a member of the Liliput Armed Forces is a party to a civil action, the court shall, upon application by the service person, stay the action for a period of no less than 120 days. An application for a stay shall include the following:
i.)A notarized statement by the service person describing the manner in which the service person's required military duty affects that person's ability to appear and stating a date when the service person will be available to appear; and
ii.)A statement or other communication from the service person's commanding officer stating with specificity that the person's military duty prevents appearance and that leave is not authorized for the time appearance is required.
In a similar case involving Reid Walters, and his ex-wife, Captain Jennifer Walters-Damon, the trial court adjourned proceedings for six months due to Jennifer's required participation in training a Special Forces unit. Reid Walters appealed the stay, arguing that the requested income verification could have been provided through affidavits, pay records, and other financial documents; that those documents could have been made available to Jennifer's attorney; and that Jennifer's obligations, therefore, did not preclude her ability to actively participate in the proceedings. Liliput Supreme Court held that: 1) Until the court has rendered final judgment, a stay shall be granted in family matters involving members of the Armed Forces unless the member's ability to participate in their defense will not be significantly impaired by the person's military obligations; 2) the trial court shall have sole discretion in determining whether such impairment exists in any matter at bar.
[Walters v. Walters-Damon, 9 L.P.T. 2d 456 (2009)]
