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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 2910
Experience:  Experienced Family Law Attorney
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My question: 1. My ex is a W2 contactor and has jobs that

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My question:
1. My ex is a W2 contactor and has jobs that have end dates. His job market in the tech market and expertise is extremely hot here in San Jose. His assignment ended and the judge ran the child support tables off of a unemployment rates instead of his 12 month average, even though he has about 1/2 a million in assets and the ability and capacity to work. My question is, based on the above mentioned, shouldn't the judge taken the 12 month average IF he has assets and the ability to pay?
Submitted: 5 months ago.
Category: Family Law
Expert:  LegalGems replied 5 months ago.

LegalGems :

Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted. How long has he been unemployed for? And was this temporary or permanent support?

JACUSTOMER-y5k3ujrd- :

He was working until the end of April, went on disability (checked himself into rehab), then applied for unemployment in June when his contract ended. This is permanent support.

LegalGems :

OK. So it sounds like he is no longer disabled. Are you familiar with imputed income?

JACUSTOMER-y5k3ujrd- :

The just made the unemployment based support retroactive to May 1st even though there was no OSC filed and Scott had not file for unemployment until June.

LegalGems :

That is unusual. Usually the court won't make any support orders retroactive (prior to date of OSC being filed).

JACUSTOMER-y5k3ujrd- :

You are correct. He is no longer disabled. I believe this was simply a tactic.

JACUSTOMER-y5k3ujrd- :

I know but they did.

JACUSTOMER-y5k3ujrd- :

He told the judge that he was tired of the corporate world and wanted to work from home. They judge didn't impute income even though he said that he wanted to work from home (which I believe that he has been doing under the table). He has since told the judge that he is trying to get a job. Which he could get tomorrow if he wanted because his job market and expertise is hot.

LegalGems :

OK; well since it is permanent it can be appealed- which is an expensive process. However, usually with under/unemployment, a judge will impute income to a parent, particularly when the parent does not appear to be actively seeking work. The doctrine is discussed in great deal in the attached case and provides a good overview: http://scholar.google.com/scholar_case?case=4885912697134476043&q=%22in+re+marriage+of+bardzik%22&hl=en&as_sdt=4,5

LegalGems :

Has he had a vocation evaluation done?

LegalGems :

They analyze the local market based on his skills/experience.

JACUSTOMER-y5k3ujrd- :

No he hasn't. I asked the judge to have him send me proof that he is trying to get a job so Scott sends me copies of his EED form but they are mostly resume submittals. Few conversations. There just isn't any reason why he doesn't have a job. I got him a 6 figure job in just over a month at PayPal last year.

JACUSTOMER-y5k3ujrd- :

Would his assets play any part in the court imputing income if he is unemployed, whether he is looking for a job or not?

LegalGems :

P 201-9 of the attached bench guide (judges use this as a resource) states that annual income is to be used: http://www2.courtinfo.ca.gov/protem/pubs/bg201.pdf If he has fluctuating income since he is self employed, this is addressed in : section 201.15. And yes, that is where the child support would come from if it is based on imputed income. So the fact that he has assets is beneficial.

LegalGems :

201.17 et seq goes into great detail: re: self employment income, imputed income, etc. I'm not sure of your child's age, but if he isn't about to be 18, it may be very worthwhile to hire an attorney to appeal this and to prepare a memorandum of points and authorities in support of imputed income. Generally this will include hiring a vocational expert to gauge the local market and its opportunities.

JACUSTOMER-y5k3ujrd- :

However, would someone who is a W2 contractor and lost his contract be viewed as self employed?

LegalGems :

And I think you will enjoy this case: n


opportunity

to work.

Marriage of Regnery

(1989) 214 CA3d

1367, 137

2–

1373, 263 CR 243. A parent has an opportunity to

work if there is a reasonable likelihood that the party could, with

reasonable effort, apply his or her education, skills, and training to

produce income.
LegalGems :

Because he is a contractor it would be similar.

LegalGems :

He is not a full time employ but a contractor. It is up to him to find employment as the jobs end, correct? And he has done so successfully in the past?

LegalGems :

All that is evidentiary info that will help you.

JACUSTOMER-y5k3ujrd- :

This is great information! You have been incredibly helpful!! The judge just denied my motion to vacate with prejudice and my only step is to appeal. I have a motion to compel discovery (on his fixed assets as Scott didn't list them on his FL150 but listed TBD instead). Not sure if the motion to compel will still be heard since he denied my motion to vacate with prejudice.

LegalGems :

If there is no pending case, then the discovery order would be void. I have a pet peeve with parents that try to skirt their responsibilities so I try to provide as much info as possible!

LegalGems :

A motion to compel needs to be attached to a case, basically. A pending case.

JACUSTOMER-y5k3ujrd- :

Me too! His done this many times.

JACUSTOMER-y5k3ujrd- :

If I have further questions can I request you?

LegalGems :

Yes, that'd be great. You can just put to Legal Gems in front of the question and most experts will defer to me. If you have an urgent situation though, that could delay a response if I'm not online.

JACUSTOMER-y5k3ujrd- :

Thank you so much! I really appreciate your help.

LegalGems :

Very welcome! If you're bored one evening, read through that bench guide. It's interesting and very informative.

JACUSTOMER-y5k3ujrd- :

Will do!

JACUSTOMER-y5k3ujrd- :

Great advice.

LegalGems :

Perfect. Glad to have helped. Good luck on all this.

JACUSTOMER-y5k3ujrd- :

I think it will. Do you think that I can still do an vocational evaluation if I am appealing this? Would they allow it to be entered? Not that I think Scott would do it. Uh!

LegalGems :

The court can order it. After the appeal, if it is remanded to trial court, they can order it at that point.

JACUSTOMER-y5k3ujrd- :

Thanks!

LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 2910
Experience: Experienced Family Law Attorney
LegalGems and 8 other Family Law Specialists are ready to help you
Expert:  LegalGems replied 5 months ago.
Hope you enjoy your reading assignment ( It really will be very informative)!! And many thanks for the bonus- much appreciated!

It would be appreciated if you complete the admin's survey - it's like our report card!

Thanks, XXXXX XXXXX care!
Customer: replied 5 months ago.

I had rated you with excellent service but is there something else that I can fill out? I would be more than happy to do that. You were wonderful.

Expert:  LegalGems replied 5 months ago.
Thank you for inquiring about that and for the compliment!

I do try to provide customers with as much info as possible, as I know attorney fees can be quite outrageous!

The site should be sending you a customer satisfaction survey in an email in the next couple of days. If you could fill that out, that'd be great.

Thanks again!
Customer: replied 5 months ago.

I absolutely will! In the meantime I am researching what I need to do for an appeal. Hey...never know...maybe my case will be the next teaching case! Ha! Thanks again.

Customer: replied 4 months ago.

I would love to chat. Let me know when you are available. I have court tomorrow.

Expert:  LegalGems replied 4 months ago.
Hello again!

I will be on line for the next hour or so, and then unfortunately I will not be available for the remainder of the evening.

If you get this, you can post "for legal gems only" in front of the question, and I'll check back every few minutes for the next hour or so.

Thanks!
Customer: replied 4 months ago.

For Legal Gems Only.


Wonderful! Ok..so it looks like the judge had denied my motion to vacate his orders (that were full of legal errors) WITHOUT prejudice and said that if I want to pursue this then I would have to appeal at the 6th district.I thought he said WITH prejudice. He had overlooked or had ignored my motion to continue my motion to vacate which I needed to do because my ex refused discovery and I had filed a motion to compel discovery of my ex's fixed assets (again...he only wrote TBD) and documents to proved that he had this information the entire time. As well as documents surrounding his unemployment (which he now admits he wasn't on the entire time but was on disability and then unemployment). So here we are: My motion to compel was never taken off calendar. I'm a little confused...the judge already directed me to the 6th floor.

Expert:  LegalGems replied 4 months ago.
If he denied your motion to vacate without prejudice, that means you can re-file it, but that would generally be pointless - because he would likely just deny it again.

So the judge directed you to file an appeal, but the motion to compel is still on the calendar? Only final judgments can be appealed (I think we went over that last month) so it is possible that the motion to compel (and I believe this was re: the ability to work, vocational exam, etc) addresses a point that does not have a final judgment, whereas the appeal is addressing an issue with a final judgment.

What issue exactly did the judge instruct you to appeal if you were dissatisfied?

Customer: replied 4 months ago.

My motion to vacate two of the judges orders. 1. Where the judge made CS retroactive to a false unemployment date when there was no OSC filed or unemployment filed. Which my motion to compel would additionally prove. 2.a The court allowed Scott (who was "tired of the corporate life" to "work from home and build up his own business" instead of going back to work) and ran him off of unemployment. First of all this goes again everything that I have read in your bench guides, statues, and the family code. b) I believe this was part of Scotts plan to go into rehab a month before his contract (which had been extended in the past) so that they wouldn't extend his contract again and he could claim unemployment and work under the table like he did in the past. I am asking for docs in my motion to compel.


3). The court allowed him to use a TBD on his FL150 where he was supposed to list his fixed assets. Which I argued in my motion to vacate. And now have filed a motion to compel discovery on.


4). The court didn't take a 12 month average which I argued in my Motion to Vacate but instead went off of a two week unemployment pay stub and put me in a 2K deficit spending situation.


5). The court disregarded its own order to have Scott pay half of child care extracurricular costs (I had sole custody) stating that even though I tried to get Scott to respond and he didn't, I now have to get his agreement (we didn't have joint custody at the time that the judge said this btw) and if he didn't respond and I couldn't get this kids in a program that I should "stay home and read to them then".


6). The court waived arrearage interest because Scott was unemployed and didn't pay attention to his 94K in liquid assets and his TBD in fixed assests. Argued in my motion to vacate.


7). The court let him pay me $100.00 a month for the next 4 plus years to pay off arrears because he was unemployed.


 


My ex is a UI Visual Designer and has worked for Adobe System (for years) and recently contracted for PayPal. He has the 43rd hottest job (CNNMONEY.COM) and is #6 in wanted design jobs. There are 400 plus jobs in his salary rage for his title within a 15 mile radius in his living area. But he now says that he can't get a job and sends me his EDD report. It kills me.


I know this is alot but hopefully your get what I'm up against. I did research appeals and I did learn that orders can also be appealed as well.

Expert:  LegalGems replied 4 months ago.
Oh wow! I can't imagine your frustration. That is shameful, to say the least.

SInce the judge has ordered various things that aren't permitted, I would suggest you attend the motion to compel hearing and see where that gets you. I would be concerned that if you don't attend, and it's on calendar, the judge will sanction you for not appearing.

At the motion to compel, you can try to re-iterate the need for the documents and try to win that based on the merits. If the judge denies it because of the instructions to file an appeal, at least then you will know that you will need to go forward with the appeal.

The only thing is -appellate law is VERY complicated and requires the filing of voluminous briefs, which in turn requires extensive legal research. Has attorney fees been addressed? (Often times a party can get awarded attorney fees to level the playing field so to speak- so even if he's not working, based on the info above, I would imagine there is a substantial nest egg that the judge could order be made available to you for attorney fees).
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 2910
Experience: Experienced Family Law Attorney
LegalGems and 8 other Family Law Specialists are ready to help you
Customer: replied 2 months ago.

Ok..quick update. My ex was a W-2 contractor for Modis Staffing at PayPal. He went into rehab and then his contract ended before he got out and now the judge is running the tables off of UI rate. He has equity in his home and has liquid assets as well..side point. Here is the latest info. During discovery, he had to send me his paystub for the week - including that Friday that he missing our morning mediation date and that evening went into the hospital for an overdose. The interesting news is that his paystub said that he worked a full 8 hour day- on premise at PayPal. Which means he purposefully missed his mediation date (where I was going to show facts regarding addiction - possibly effecting visitation and custody) as opposed to misleading the court to think he was in a medical facility. He would have normally went straight to my house after work to pick up the kids. But instead he went home and would have arrived home at 5:30 pm. He was brought to the hospital by 6:40 pm. He said his mother found him "laid out" and brought him to the hospital. He would have had about 30 - 40 minutes to overdose with alcohol and 1 norco pill. This has to be intentional. 1. He never drank like that, 2. He didn't go to my house, 3. He wouldn't have time to get 'laid out', 4. He purposefully didn't go to mediation ( he didn't want to admit to his addictions and wanted everyone to think he was just depressed and that he wasn't in rehab facility but place for depression) 5. He never filed his FL 150, because if he had he would have had to pay CS on 8600 a month instead of 1800 a month. 6. He went into rehab 2 days before our court date. This was nothing short of intentional. Do you have any familiarity with cases like this? If he intentionally overdosed so that he would be a danger to himself, thus causing a doctor to commit him into a 30 day non-out patient facility, wouldn't this be job abandonment?

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