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socrateaser
socrateaser, Lawyer
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Experience:  Retired (mostly)
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This question is for Socrateaser.... Please suggest how

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This question is for Socrateaser....

Please suggest how I can resumit my contemp motion better/differently (ref. link below) I'm going to file it Monday morning, if it is heard great, if not, there will be another hearing. I will not relent. Any and all suggestions are appreciated.

New facts:

He provided me with his 2012 taxes, just yesterday.
He did file Married Joint with 4 dependents for 2012
He has yet to provide bonus information for 2012 aside from W-2. There was bonus money but I can't decipher from this.
His 2013 pay stub show "incentive plan" monies of 8,750
His taxes show a "loss from business income" of 11,508.
He has yet to provide me with any "documentation of business income"
He verbally told me he had a business income of 2,000.

I trust nothing he says. His income is upwards of 90K and mine was 23k in 2012. I wouldn't be surprised if the info he sent was "Doctered". Please help the underdog.

http://www.mediafire.com/download/a2z53aowgo359k8/First_Contempt_Motion_%2B_Petitioner's_Income.pdf
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Okay, I want you to understand that I'm reading your documents as if I were the judge. To be frank, I would probably be harsher than your judge -- not just on you, but on your respective attorneys.

Frankly, I don't even find an enforceable child support order -- though it may be found in some other document. The stipulation presented reads:

- additional income of workers comp. settlement assigned to M for a period of 12 months, as additional income for the purposes of calculating support. This period will run from 4/1/12 - 3/31/13.

- Parties to cooperate in modifying updating support when mother obtains employment.

- Additional support per bonus schedule to be paid to other parent within 5 days of receipt (based on gross amt.) or interest shall accrue at the then legal rate currently 10% simple.

- the parties recognize that each has the right to request the other's income information one time per year by [unreadable].

- M agrees to submit to vocational eval. with Patrick Sullivan at F's request. M to contact evaluator within 15 days of notice.

END STIPULATION

Okay, let's dissect this "order," shall we?

1. - additional income of workers comp. settlement assigned to M for a period of 12 months, as additional income for the purposes of calculating support. This period will run from 4/1/12 - 3/31/13.


A: That's pretty clear, really nothing to do, unless and until there is a new motion to modify support, at which time, the court can assign the workers comp. money to M. Impossible to violate this, unless you're the judge, and the judge isn't going to find himself in contempt.

2. - Parties to cooperate in modifying updating support when mother obtains employment.


A: This order is unenforceable. There is no definition of what cooperate means -- and, without a definite and certain meaning, defendant can argue that, "I cooperated, when I gave M my statement that I haven't filed my taxes. The orders don't require that I file my taxes at any particular time -- therefore, I cannot be held in contempt." Judge: Not guilty.

3. - Additional support per bonus schedule to be paid to other parent within 5 days of receipt (based on gross amt.) or interest shall accrue at the then legal rate currently 10% simple.

A: Who is "the other parent?" The order does not identify the obligor. If I were the judge, I would rule that the order does not clearly require the Father to pay child support, therefore, no support on bonus income is required.

4. - the parties recognize that each has the right to request the other's income information one time per year by [unreadable].

A: This is a right which is already granted by statute (Fam. Code 3664(a)). It's not ordered, and the language of the order doesn't do anything other than confirm that the parties are aware of their respective right. Moreover, the statute doesn't make a violation subject to the court's contempt power. The most that the claimant can get is the costs of filing for a modification plus attorney's fee (which you don't have, because you don't have an attorney). There is no contempt here, because there is no order to violate.

5. - M agrees to submit to vocational eval. with Patrick Sullivan at F's request. M to contact evaluator within 15 days of notice.

A: This, it turns out is the only enforceable order -- and it's only enforceable against you!

Comment: This sort of crap litigation skill pervades the California family law profession. Everyone does it, so it must be okay.

BotXXXXX XXXXXne, and it's not what you want to read, but I'm telling you, that you will never get a contempt out of those orders, you need to file an RFO (FL-300) to modify support, and have the court expressly order whatever it is you want done to clear up all this mess. No stipulations in courthouse hallway. The judge makes the orders, and you want them to be absolutely enforceable, so no vague/ambiguous orders. Once you have that, you can file for contempt. Until you do, you are wasting your time.

PS. You can delete your pleading from mediafire if you like. I already have a copy.

Hope this helps.
Customer: replied 1 year ago.

a few questions:

 

3. - Additional support per bonus schedule to be paid to other parent within 5 days of receipt (based on gross amt.) or interest shall accrue at the then legal rate currently 10% simple.

A: Who is "the other parent?" The order does not identify the obligor. If I were the judge, I would rule that the order does not clearly require the Father to pay child support, therefore, no support on bonus income is required.

 

The new child support order was made at this time and the bonus schedule was added to that. (I will send a new link). Even though you don't like the language (and I agree with you), the intent was clear that we were each to pay each other a portion of any bonuses received.


Father has filed to modify support - this is what our hearing is for on Monday. Issue 1: Father has not provided or paid bonus info. 2:My botXXXXX XXXXXne is that he misrepresented his tax filing status and my child support from 4/2012 to 4/2013 was lowballed because of it. I was told that there is no backdating of support so I possibly had a chance at asking for this money as a sanction of contempt. Advise me from this place....

 

How can I get the backdated support? Respectfully, XXXXX XXXXX think filing an RFO is going to get it done.

 

If you have no other filing suggestions then is there another way to present this to the judge in my hearing on Monday?

 

Here is the link for the orders. I did not include all pages of the bonus schedule.

http://www.mediafire.com/?rr6rb6bugpb8j46

 

 

Expert:  socrateaser replied 1 year ago.

Okay, here's an "almost" enforceable order: "The parties shall exchange W2s and taxes upon receipt and annually. Any outstanding support due per bonus schedules to be paid by 4/15/12."

The order should have said, "The parties shall exchange W2s and federal and state tax returns.... Ordering the parties to exchange "taxes" is meaningless/unenforceable.

The order, "Any outstanding support due per bonus schedules to be paid by 4/15/12," may be enforceable. But, where in the orders, is the bonus amount described, and how much is to be applied? Are the parties supposed to calculate additional support based upon thee existing custody and income orders and then generate an xSpouse or Dissomaster report, to determine the amount due? It doesn't' say. Therefore, it's not enforceable as contempt.

Note: In a criminal action or a contempt, the court must interpret any ambiguities in favor of the defendant. This is the doctrine of lenity, and it's well-established since the beginning of the nation. Remember, contempt can lead to incarceration -- and under the U.S. Constitution, Due Process clause, the court must give the defendant the benefit of any "reasonable doubt."

Issue 1: Father has not provided or paid bonus info. 2:My botXXXXX XXXXXne is that he misrepresented his tax filing status and my child support from 4/2012 to 4/2013 was lowballed because of it. I was told that there is no backdating of support so I possibly had a chance at asking for this money as a sanction of contempt. Advise me from this place.

A: Federal law prohibits modification of child support, retroactive to a date before the filing of a motion or order to show cause to modify (42 U.S.C. 666(a)(9)(C)). Once a request for modification is filed (or an initial request), the court can go back to that filing date, but not before.

There is an exception where the support order/judgment was procured by fraud. If the obligor parent deceived the court or other parent into making or consenting to an order that does not coincide with reality, then the court can set aside the prior judgment/order, and once that's done, retroactive support can be ordered back to the date when the request for support was filed for that previously set aside order.

So, it's not necessarily a lost cause. If you can show that the other parent knew that he had receive bonus income that he did not disclose before the last order was made, and you had no way to prove otherwise, then you can ask the court to set aside the prior order and establish a new order. But, that doesn't take a contempt affidavit -- a contempt won't get you where you want to go (though, I'm not surprised that someone may have told you that it would).

If you have a hearing coming up, you can explain to the court that the other party has not filed his tax returns, yet, that he has not produced any proof of his bonus income and that you have evidence that he previously misrepresented his bonus income as part of the last child support hearing. Then, you can ask the court to make orders that the other parent file his 2012 tax return, and provide it to you within 30 days, and that he obtain from his employer a printout of his payroll records from ??/??/????, and provide that to you, too. And, you can say that in the alternative, if the court is unwilling to make some or all of these orders, then you ask that the court trail the hearing until you have adequate time to formally subpoena the other party's payroll records from his employer.

 

How can I get the backdated support? Respectfully, XXXXX XXXXX think filing an RFO is going to get it done.

 

A: You won't get backdated support via contempt. One thing has nothing to do with the other. You cannot even get any money via a contempt order. The best you could do would be to have the court order your ex jailed until he agrees to prepare and file the tax returns, and turnover a copy to you. Regardless, I'm still not seeing an enforceable contempt order based upon your current orders "parties shall exchange W2s and taxes," is not an enforceable order.

 

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34857
Experience: Retired (mostly)
socrateaser and 3 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

When you went off line I thought the Flu got the best of you...Happy for your return. Bare with me as I process your info.


A: Federal law prohibits modification of child support, retroactive to a date before the filing of a motion or order to show cause to modify (42 U.S.C. 666(a)(9)(C)). Once a request for modification is filed (or an initial request), the court can go back to that filing date, but not before.


 


Support was set at last hearing effective 4/2012. Father has since filed a request for modification [based on new timeshare], so if requested by me are you saying the court can now go back to that filing date of 4/2012? Is this the key to getting my backdated support? If yes, which motion do I need to file?


 


There is an exception where the support order/judgment was procured by fraud. If the obligor parent deceived the court or other parent into making or consenting to an order that does not coincide with reality, then the court can set aside the prior judgment/order, and once that's done, retroactive support can be ordered back to the date when the request for support was filed for that previously set aside order.


 


I think my exhibits of court filed documents show fraud on his behalf. He deceived both court and I into an order that does not coincide with reality. I need to work this angle/ how does it tie into a motion, etc.?


 


So, it's not necessarily a lost cause. If you can show that the other parent knew that he had receive bonus income that he did not disclose before the last order was made, and you had no way to prove otherwise, then you can ask the court to set aside the prior order and establish a new order. But, that doesn't take a contempt affidavit -- a contempt won't get you where you want to go (though, I'm not surprised that someone may have told you that it would).


 


Great. Let's focus on "not a lost cause." Re: this paragraph. I can't show that he had received bonus income that he did not disclose before the last order was made because he did not inform me. Without going to his employer, I honestly am in the dark. His 2012 W2's don't separate income from bonus income. His recent 2013 paystub does differentiate, but not his 2012 w-2's or taxes. I may have an email where I asked him if he received a bonus in 2012 and he said yes, but that it was before the court ordered bonus inclusion date, which is why I didn't pay you.


 


He also said he hadn't received anything since. Yes, contempt is not going to get me there. I understand and agree. I don't want him jailed etc. I only want him to make financial amends. I want to take action, and file a motion in the morning. If it is heard or not. Please walk me through it. Send form, etc. I can do this, properly advised. Many thanks.


 

Expert:  socrateaser replied 1 year ago.
Please open a new Q&A session. I hope you understand.

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