Q. Hello Mr. Arnold,
I appreciate your website, it is very useful. I really hope you can let
me know if I am allowed to serve Form Interrogatories on my ex after I
file a FL-360 Application to set aside support order under family law
section 3691. Is discovery in this manner permitted before the hearing? If so, how
long do I have to wait after filing FL-360 before I serve him with Form
Interrogatories? Any help is GREATLY appreciated!
A. Hi Wendy -
Discovery is permitted by the CCP so long as the underlying "action"
(i.e., the case in chief) has not gone to Judgment - I would serve the
form interrogatories along with your application together, and personally
and not by mail. If a support order was issued, as in a temporary support
order, but the overall case has not been resolved, you are free to conduct
discovery. The proper analysis is that each post-order modification or
set aside motion is a discrete proceeding with discovery rights and obligations,
assuming you've not had a trial on the merits of the entire case.
If your matter is "post-judgment," please consider
CCP section 2024.020 which might apply - we don't know, because there is no appellate decision
on post-dissolution discovery to date.
I'm not sure that all judges see it that way though but I believe it
is an accurate statement of the law.
One problem is timing - if you file an OSC then the clerk sets the hearing
date, which in most jurisdictions will be about the same time as your
form interrogatory answers are due - and you can expect your ex to toy
with you and so you may not get useful answers within the 30 days after
you propound them. When interrogatories are served by mail, they are due
35 days after mailed, plus the responding party can mail the responses
and so this adds another 5 days.
His answers may come in after the time your Reply to any Responsive Declaration
must be filed and served, so you can't bring the quality (or lack
thereof) or information contained in the responses to the judge's
attention in a procedurally correct fashion. I usually go with a Notice
of Motion format where I want some discovery completed before the hearing
- and set the date 60 to 75 days out to give time for the other side to
have a reasonable opportunity to have gotten it done and to appear unreasonable
or obstructionist if they have not.
It never hurts to send out a set of form interrogatories because at least
you can complain about the other party's failure/refusal to comply
with their discovery obligations, which may win you a continuance or some
bias against the ex.
However, form interrogatories are extremely limited in their usefulness
except when seeking general information in the course of a dissolution
or legal separation action. A better or additional practice would be to
use a demand for production instead of or in addition to form rogs, or
possibly special interrogatories if you can draft them properly. You can
use a Notice to Appear and Produce Documents at the hearing, assuming
you are looking for specific records. I don't have that form up on
my website and I'm not sure if there is a Judicial Council form for
it. Subpoenas to third parties can be useful in small jurisdictions particularly
when those records won't be lost by the clerk's office, but third
parties often ignore them and judges usually don't grant continuances
based upon the lack of a response (for subpoeanas, always demand that
the custodian of records actually appear on the date and at the time specified
rather than giving them the option of not appearing).
If you had a lawyer and if a lot of money was involved, you might consider
a deposition. They require only 10 day's personal service when the
Notice is served personally, unless they include a document production request.
C.C.P. § 2025.270.
Finally, you might hit the "Other" box on the
FL-310 application forms and specifically ask the Court to allow you to complete specific
discovery before your application is heard on its merits, as in "I
request an order permitting me to complete the following discovery (state
it, but make the discovery as short and pin-pointed as you can) before
this application is decided by the Court."
How this goes for you depends a lot on the personality of the judge and
their custom and practices in managing their calendar. If you have a reasonable
and narrow discovery request, no good judge will preclude you from exercising
Finally, be careful not to draft your application as a sort of disguised
motion for reconsideration. If the Court feels you are just trying to
take another bite of the apple from a recent hearing, unless you have
material new evidence that wasn't disclosed by the other party you
may not get much traction.
One more thing - I am assuming this set aside is not a post-judgment application.
If you are in the middle of a dissolution, legal separation, or paternity
action and no final judgment has been entered then you are free to do
discovery and then file the motion afterwards or do both concurrently.
On the other hand, if there has already been a judgment and the set aside
deals with an order that came as a result of a post-judgment motion either
of you filed, then one route is follow my recommendations above.
T.W. Arnold, III, CLFS