Rick Waters and Carol Smith were married on November 1, 2001. After a six or seven year marriage, Carol Smith Waters filed for divorce on December 2, 2007. On July 13, 2008, a divorce Judgment was entered, the marriage ended. There are no children from this marriage.
November 22, 2011, three years later - Rick is sitting at his desk and decides to open the daily mail. He finds it intriguing that it's a letter from the Sacramento Superior Court, family law division. To his astonishment, it's a court document called a Findings and Order After Hearing stating his divorce has been set-aside (set-aside is legal jargon meaning his divorce is null and voided).
He's no longer divorced?? Huh? What? This is freaking unbelievable! What hearing???
He had not heard from his ex-wife in three years and now he's no longer divorced? How could this happen without him knowing about it?
Rick then hired LEGWORK to find out how this happened and how he can get this court decision overturned so that he is divorced - again.
Off to the courthouse I go, pulling the case file and looking at every document Carol filed. There is a document called an ORDER TO SHOW CAUSE (aka OSC, that she hired some paralegal to prepare), asking the court to set-aside her marital Judgment. She whines in this court document that she only has a GED, no college or legal education experience, she didn’t know what she was doing when filing for divorce back in 2007, and now wants the court to open the door so that Carol can go after Rick for property and spousal support. There is a marital settlement agreement originally signed by both of them in the file and all original paperwork appears to be in order. After reading the entire file, the lowdown is this: Carol had managed to somehow get six court hearings from the Sacramento Superior Court without Rick's knowledge.
In the last hearing, Carol got the Judge to sign off on her request to set-aside her divorce and this is the copy Rick received in the mail. What did Carol do in all these court hearings? How did she or the court get away with not notifying Rick of all these hearings?
Rick swears he was never personally served or notified regarding any court hearing and especially did not know about this ORDER TO SHOW CAUSE. He had no clue Carol was even pursuing any legal action at all. Here are further facts from the court file, read it and be warned, this is a real injustice.
The first court hearing after initially filing the OSC was set for January 4, 2011, in Dept. 124 of the Family Law court.
Carol attends this first hearing, and the Judge re-sets the hearing for a time in February because there was no Proof of Service showing that Rick received any kind of notification regarding this legal paper and hearing. Carol goes back to court in February, and the Judge again re-sets the hearing in March because there was again, no Proof of Service showing Rick had any notice of this hearing.
Carol goes back to court in March, and again this hearing was re-set for April 25th, because again, there was no proof of service. At the April hearing, Carol shows up and again the Judge would not hear it due to there being no Proof of Service. Another hearing date was then set for July 18, 2011.
In the case file, each hearing has its own notes of what transpired each time. Carol, in every hearing, told the Judge that she cannot find Rick to serve him and needs more time.
Rick had no knowledge of any of these court appearances by Carol and definitely did not know about the hearing in July.
From April to July 18, 2011, a review of statements made by Carol in the case file, it appears Carol engaged in filing false information, thus allowing the court to believe certain things about Rick thus granting her what she wanted; she got the court to set-aside her marital Judgment, without Rick having any knowledge of this or a chance to defend himself.
Carol has known the whole time where Rick's business is located (she worked there at one time) and could have easily served Rick. His business is open to the public, when you come into the store his desk is in public view.
One note in the case file is definitely misleading to the court. Carol states she hired a process server, some guy named Gary, to try and serve Rick the Order to Show Cause. According to this process server, he stated in a Due Diligence Declaration that he attempted to serve Rick at two different old addresses.
Carol knows that Rick hasn't lived at these addresses for years and could have sent the process server to his place of business.
At one of these hearings, Carol speaks to the court about getting permission to publish a document called APPLICATION & ORDER FOR SERVICE OF PUBLICATION. This is an action where you can legally serve a person by publishing the legal document in a newspaper. In this document she tells the court:
1. Carol cannot locate Rick to serve him documents regarding the hearings. (false)
2. Rick has some kind of outstanding legal action against him. (false)
3. Her "only choice" to serve Rick is by publishing this notice in a paper (false)
4. Carol states that Rick “will continue to take action to avoid service.” (false)
Based on these statements the court can only assume that Rick is avoiding service, that he can’t be found, that he has some legal action against him from somewhere and that he will continue to avoid this legal situation. (false)
Carol lies to the Judge and he signs the ORDER on May 23, 2011, now allowing Carol to publish this notice in the newspaper and she does so for four weeks in June 2011.
Rick or anyone else for that matter doesn't make it a habit to check the newspapers every day looking for this kind of legal notice in some small time newspaper. Would you?
Carol knew this notice would never be seen by Rick.
During this publication period of four weeks, Carol hires another process serving company. It is unknown why she would do this, she has already published, and the court requires nothing else to be done.
There is another time where Carol hired another process server, James. This process server goes to Auburn, CA. address seven times. She has James sign a Due Diligence Declaration that he went to this address and couldn’t find Rick. She files this with the court on July 18, 2011.
At no time did this process server come to Rick's work either.
July 18th, in the Sacramento Superior Court, Dept. 124 @ 1:30 PM, without Rick's knowledge, Carol tells the court Rick cannot be located and that she has no idea where he is. Therefore the Judge rules that the divorce Judgment is set-aside, issuing a FINDINGS AND ORDER AFTER HEARING, in her favor.
Carol then goes further by getting some female friend to serve Rick by just mailing a copy of this Findings and Order After Hearing. This female then signs a court document stating Rick was served by mail. But again, Carol gives this person an old address to mail it to. Rick has not lived there for almost a year but luckily, this court order was forwarded to him at his work address and here we are today.
Rick now has to fill out court forms, obtain a hearing asking the court to set-aside the Order and Findings after Hearing per CCP Code 473 and impose Sanctions per PC 271 on Carol for purposely misleading the court as to Rick's whereabouts, including sanctions for causing him undue financial hardship for filing this Motion, including attorney, paralegal and court fees.
In situations like this, it would cost thousands of dollars to litigate this mess. And sure enough, Rick decided after hearing what some attorney's and mediation fees were, he asked me if I could further assist him. I told him I wasn't an attorney but as a process server, I could use some of my skills and see what happens.
The first thing I did was prepare an Affidavit and several other Request for Hearing documents (of all of the facts I have laid out so far), had Rick sign each one, filed them all with the court and our hearing was set for January 15, 2012.
Now I need to serve Carol with a copy of this and I am reminded of an old saying, “Keep your friends close, and your enemy’s closer."
― Sun Tzu
I decided to just telephone Carol, I have to serve her anyway, she can run but not hide, and it makes sense to do this the simple way first. To my luck, she was receptive, all too eager to meet, be the victim and tell me all about it. Besides serving her, I wanted to find out what her beef really is and what her strategy is going to be at the hearing in January.
As it turns out, I met with Carol on two occasions. The first time we met, I served her the legal papers so she can attend the hearing. She talked openly and I noted her statements telling her I wanted to type up an Affidavit for her signature, and we would get together again to make sure it was correct before I filed it with the court.
I had no intention of doing jack-crap with any Affidavit; I just wanted her strategy, which is:
She wants alimony from Rick.
She wants the court to subpoena his bank accounts, financial records from his business and other financial institutions so she can show the court the amount of money he is making.
She wants equitable monies for all the property and business assets he has.
When we met again, I pretended to give-a-hoot and let her read a quasi-affidavit I typed up. Not to my surprise at all, she changes her story on certain statements she had said to me previously. She’d say, “I didn’t mean that” or, “I think someone misunderstood” or “I want to think about whether or not I am going to say that in the courtroom”. When I tried to confirm exactly what statements she was going to make or what statements she possibly might make in the courtroom, she stated repeatedly that she wants to “think about it”. Basically, I could not get her to commit on what she was going to say, she was being manipulative, evasive.
Then Carol decides to verbally tell me if Rick does not cooperate she might have to tell the court and Judge the following: Rick told her after the divorce, he would still take care of her, and they had sexual relations while she continued to work for him in his business. She'll go on to tell the court Rick owes her for the time he beat her up, which she had bruises and pictures of this abuse, and that Rick hid $200,000 cash during the original divorce proceedings. All of these accusations are false.
It was really apparent now that Carol felt scorned and wanted revenge, and if she keeps lying which she has done and continues to do, then these hearings will never end. She'll make up lies why she can't show proof of abuse, "I lost the pictures" or "my internet provider is going to send me the emails" or "I need more time" or in actuality, it's "I'm going to keep on lying and disrupt Rick's life." It will be hearing after hearing.
The one thing I had going for me was she was very naive, she had no clue what the repercussions were for lying to a Judge in a courtroom. Since I met her, I found her to have no inkling of a conscious. Trying to pin her down about these untrue statements, she just ignored them in a contempt manner.
These hearings had to stop, this craziness had to stop. I have no pity when I find that someone does not have a conscious. So I am going to call her bluff, show her how the legal system really can work to bite her in the ass and teach her a lesson.
I prepared some subpoenas which forced Carol to come to the court hearing with documents and pictures showing physical abuse.
I gave a trial subpoena to all the process servers she hired so they can testify in court that Carol purposely gave them Rick's old addresses so he could NOT be found. I also gave a trial subpoena to a bookkeeper who knew Carol had worked in Rick's business prior to the divorce, to testify that Carol knew where to find Rick this whole time. I also subpoenaed Carol's mother, who knew where Rick worked along with giving subpoena's to two other friends of Carol's, who knew where Rick was working.
I served Carol with all of these subpoenas, and she was pissed beyond belief. She went into a screaming tirade, throwing the subpoenas everywhere and stalked off, threatening to hire a lawyer.
I told Rick that I have done what I can do within my process serving ability and that he may need a lawyer if she continues to lie and cause trouble. We won't know until the court hearing in January.
In the meantime, I filed another Affidavit with the court outlining Carol's accusations and how they are false. There never was any physical abuse, much less sexual relations after the divorce and neither was there $200,000 hidden anywhere.
I checked the court case file periodically up until the hearing date to see if Carol had filed any more paperwork with the court, but there was nothing, so if anything I got her to stop filing lies and distortions with the court. Rick prepared for the worst, which she would attend the hearing, carry-on like a victim and we'll be in court hearings forever, and he'll need to hire a very expensive lawyer.
Unbeknownst to Carol, court Judges really don't have time to read every document that is filed. Since Carol brought this action, she gets to go first at the hearing. She'll start rambling and the judge won't have any idea what she is talking about. I told Rick, do not say or do anything at the hearing unless the Judge asks him a question, let Carol dig herself into a bigger hole.
JUDGMENT DAY: January 20, 2012 - Sacramento Superior Court - 1:30 PM
Rick and I show up along with the witnesses we subpoenaed. Carol shows up by herself and does not look in our direction at all. After listening to three other cases before us, it was Rick's turn; both he and Carol went up to their prospective seats. The Judge looked over the file, took off his glasses, looked up at Carol and said, "You go first Ms. Smith, what is going on here?"
To our amazement, Carol made this statement. "In light of new discussions with my family and counselor, I wish to withdraw my intentions to set-aside my divorce judgment and actually re-instate my divorce". The Judge asked her if she was absolutely sure she wanted to do this and if she is doing this under her own determinism. She replied that she was. The Judge then stated to both Rick and Carol that the original divorce judgment of July 13, 2008, was reinstated. This hearing took less than five minutes!
I still believe up to this day that the Judge had no time to read all the Affidavits, not really knowing all the lies Carol told. If she had pursued this action, then all her lies and perjury would have come to light resulting in some kind of punishment. I also believe that the basis of the subpoenas and asking people to testify threatened to expose Carol's lies. She was scared that she would get caught for lying and obstructing justice.
Rick and I left the courtroom, waited in the lobby for the bailiff to bring us some paperwork, and while we were waiting, Carol left the courtroom and came into the lobby, saw us and flipped us off as she went by. That's okay, we made our point.