Question: What does it usually mean when you receive an order that my motion to dismiss child support modification is denied?
Does this mean that the judge looked at the evidence I presented in my pleadings and decided against me? So now, we go back to court?
Answer by Attorney Shomik Gibson: When you file a Motion to Dismiss, the court examines the initial pleading to determine whether or not there are grounds for a dismissal. A common ground for a dismissal is a failure to state a claim, which requires an individual to sufficiently plead facts. This means that even if the Judge assumed what you wrote was totally true, you still would not have a case.
To state a claim to modify a child support action, an individual must allege a material change in one or both parent’s income or a material change in the child’s expenses. Once a Motion to Dismiss is filed, the court reviews the Petition to Modify Child Support and the Judge does not review additional documents attached to the Motion. The court will examine the Petition on its face to determine whether or not there are sufficient facts to support the claim. In your case, it is likely that the court found that she successfully pled that a material change in circumstances exists and therefore if she proves these facts at the hearing, the Court would grant the modification. Since the court denied your Motion to Dismiss, you will be required to defend against her Petition to Modify Child Support. This will require both of you to return to court unless the two of you come to an agreement before the trial date. Although the court likely did not consider your documents at this stage of the proceeding, your documents could be used as exhibits during the trial.
Please note that Courts rarely dismiss a case before hearing evidence at trial. You may be correct that the facts of this case show that your child support should not increase but the Judge is not likely to deny her the chance to make her argument and try to prove her point. If you were to consult with an attorney, he/she could review your Motion to Dismiss and the Order denying the Motion to Dismiss and more fully explain the next steps in the process.
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