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This question is for Socrateaser... When you went off line

This question is for Socrateaser... When...
This question is for Socrateaser...

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.

You:

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.

Me:

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?

You:

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.

Me:

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.?

You:

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).

Me:

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.
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7/1/2013
socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
Verified
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: I feel like s***, and my thought processes are down 50%. But, my fingers work.

You:

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.

Me:

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?

A: You can't go back further than the date of father's modification filing -- unless you are able to have the previous order set aside on grounds of fraud. The, you can go back to the filing date of the modification for the order that was set aside.

You:

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.

Me:

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.?

A: A motion can be in writing or oral. Most times, if the issue is great, the court will set a matter moved for orally, for a separate hearing, or ask you to file a separate motion. If your goal is to have the present order set aside, then consider an RFO for relief from that 4/2012 order, and then contact opposing counsel and ask that he agree to postpone the hearing voluntarily, otherwise, you would move for a continuance on grounds that you have a set aside motion pending which would effectively nullify the reasons for the current hearing.

You:

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).

Me:

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.

A: Then, you need to subpoena his payroll records from the employer, so that you can review them. This should have been your first move. If the employer is out of state, then you have to decide whether or not the cost of production is worth the child support that you would receive if your beliefs are confirmed.

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.

A: When is this hearing?
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Customer reply replied 4 years ago

So sorry you feel sick and poopy! Lucky for me, your fingers still work.


 


Ok, the fraud angle is where I'm going.


A: A motion can be in writing or oral. Most times, if the issue is great, the court will set a matter moved for orally, for a separate hearing, or ask you to file a separate motion. If your goal is to have the present order set aside, then consider an RFO for relief from that 4/2012 order, and then contact opposing counsel and ask that he agree to postpone the hearing voluntarily, otherwise, you would move for a continuance on grounds that you have a set aside motion pending which would effectively nullify the reasons for the current hearing.


 


Yes, my goal is to have the present order set aside. Please send me the RFO form link. There's NO opposing counsel - Dad is now self-represented and will not agree to postpone. The hearing in tomorrow afternoon! This was a June hearing that the judge rescheduled to a trial because I said I had filed a contempt motion (Well tried anyway). I need to get a ticket to file this with the open DCSS case asking this issue be addressed at the trial.


 


Stay with me Nyquil...


In the event - my issue isn't heard at the trial, can I still file the RFO for the backdated period of 4/12 to 4/13 -once a new support order is filed tomorrow? Does this thing die if it's not heard tomorrow?


 


A: Then, you need to subpoena his payroll records from the employer, so that you can review them. This should have been your first move. If the employer is out of state, then you have to decide whether or not the cost of production is worth the child support that you would receive if your beliefs are confirmed.


 


No s*** it should have been my first move but the courts hung me up holding on to the contempt order. I'm no lawyer and Law is one tough gig. I get why layers cost so much and earn every penny! To keep this thing moving...Let's take the bonus piece out of this for now. I believe I can file a request for Order w/ corresponding Subpoena, at a later date focussed just on the bonuses. That is easier to chase. The employer is local - Headquarters is out of state. That isn't a worry, I have all the details I need for that. For now I just want my backdated support based on him misrepresenting his tax filing status.

Ok, the fraud angle is where I'm going.

A: A motion can be in writing or oral. Most times, if the issue is great, the court will set a matter moved for orally, for a separate hearing, or ask you to file a separate motion. If your goal is to have the present order set aside, then consider an RFO for relief from that 4/2012 order, and then contact opposing counsel and ask that he agree to postpone the hearing voluntarily, otherwise, you would move for a continuance on grounds that you have a set aside motion pending which would effectively nullify the reasons for the current hearing.


Yes, my goal is to have the present order set aside. Please send me the RFO form link. There's NO opposing counsel - Dad is now self-represented and will not agree to postpone. The hearing in tomorrow afternoon! This was a June hearing that the judge rescheduled to a trial because I said I had filed a contempt motion (Well tried anyway). I need to get a ticket to file this with the open DCSS case asking this issue be addressed at the trial.


A: All Judicial Council approved forms are at this link.

Stay with me Nyquil...

 

A: No. Only aspirin (650mg qqh)

 

In the event - my issue isn't heard at the trial, can I still file the RFO for the backdated period of 4/12 to 4/13 -once a new support order is filed tomorrow? Does this thing die if it's not heard tomorrow?


A: Yes. An equitable set aside for fraud can extend back one year. But, it will be more difficult because if the judge rules tomorrow, then you will have to set aside two orders. Otherwise, there would be a gap during which a new order would take over and would be valid, unless/until you set it aside.

 

A: Then, you need to subpoena his payroll records from the employer, so that you can review them. This should have been your first move. If the employer is out of state, then you have to decide whether or not the cost of production is worth the child support that you would receive if your beliefs are confirmed.

No s*** it should have been my first move but the courts hung me up holding on to the contempt order. I'm no lawyer and Law is one tough gig. I get why layers cost so much and earn every penny! To keep this thing moving...Let's take the bonus piece out of this for now. I believe I can file a request for Order w/ corresponding Subpoena, at a later date focused just on the bonuses. That is easier to chase. The employer is local - Headquarters is out of state. That isn't a worry, I have all the details I need for that. For now I just want my backdated support based on him misrepresenting his tax filing status.

 

A: I cannot draft the motion. You must do that yourself. Practice of law in this forum is illegal.

 

Hope this helps.

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Customer reply replied 4 years ago

It helps immensely. I know you cannot draft the motion. I can draft it. If it is not filed for inclusion I will attempt to make the motion orally.


A: Yes. An equitable set aside for fraud can extend back one year.


 


The last support hearing was Sept 2014, backdated effective to April 2012. We are now over one year. Does the equitable set aside for fraud idea end here?


 


Also, am I correct in thinking that I must be filing an Order or Motion of some kind in order to request a Subpeona?


 


Thank you for all your help. You are fantastic, flu, cough and all!

The last support hearing was Sept 2014, backdated effective to April 2012. We are now over one year. Does the equitable set aside for fraud idea end here?

A: Sept. 2014 is in the future. I assume you mean Sept 2013. Any motion filed within the last year before filing the motion for relief is within the statute of limitations. Family Code 2122(a).

Also, am I correct in thinking that I must be filing an Order or Motion of some kind in order to request a Subpoena?


A: You don't need an order to request a subpoena. You just fill out the subpoena forms, and then have the family court clerk stamp it with the judge's signature.


Note that I am heavily trivializing this issue. Subpoenas in California are a giant pain in the a**! Moreover, it occurs to my feverish brain that I already walked you through this process previously. If that's not correct, please let me know.


Thank you for all your help. You are fantastic, flu, cough and all!

 

A: Wish that news were more well known on the internet, because I think I have something to offer here that no one else can match. Anyway, I'm flattered. Thanks.

 

Hope this helps.

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Customer reply replied 4 years ago

I've been in front of this computer so long that now my brain is checking out. Sorry for mixing up the dates. Let me clarify:


 


The last support hearing was Sept 2012, backdated effective to April 2012. Are we now over one year or does the does the court go by the actual filed date Sept 2012? I think you are saying I'm still good time wise.


 


Thank you, XXXXX XXXXX all clear on the Subpeona. I even have one that is nearly filled out - but I thought I had to have a corresponding motion. I will get it filed ASAP.


 


By any chance do you have a sample of a completed RFO you can send me?


 


 

One year back from today is June 29, 2012. Anything earlier is off limits.

Re a filled out RFO, I don't have anything applicable -- but, maybe it's irrelevant, if you can't set aside the April 2012 order.
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Customer reply replied 4 years ago

But the April 2012 order was filed in September 2012. What are the specifics on the time for filing the RO for a fraud situ? Calendar year, one year from file date? I'm hoping on a prayer here.

It's complicated, but for your purposes, we will say the date that judgment was entered by the court. So, if that was Sept., then you're still good. FC 2122(b); 2122(e).

Hope this helps.
socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
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Customer reply replied 4 years ago

Last thing (Hopefully) and you'll be free of me for the night. :)


I found the RO- FL300 form number. Thanks, again.

Bless your heart I hope you are well soon!

Me2 later...
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Customer reply replied 4 years ago

I just opened the FL300 form and I know that form. I was thinking far more complicated. So I just ask for relief for the 2012 to 2013 term based on him misrepresting himself in regards XXXXX XXXXX filing status. Use some of my exhibits from my contempt motion?


 


He is going to say that he thought he was filing married separately and didn't know otherwise until he filed his taxes in Oct 2012 on an extenstion. It's still fraud isn't it? He never notified me or anyone of his filling status. I'm going to present as him misrepresenting himself. Any last tips?

Please open a new Q&A session.
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