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Its my understanding that a motion can be in writing or oral.

It's my understanding that a...
It's my understanding that a motion can be in writing or oral. I have a court hearing tomorrow afternoon - my ex filed to be released from paying our kids private school tuition. I filed for a continuance of the hearing but I assume it was not approved as I have not heard anything from the court. Since I filed the continuance and expected it to be granted, I did not file a response to his motion.

My question is if I explain my situation will I likely be given an opportunity to state my objections in court?

Also, what are some valid reason's that father may be excused from paying the school tuition? (I realize the court does not have to order it). I don't feel the reason's he is giving are strong: 1) his wife needs restorative dental work post-tongue cancer, although she can not eat & is on a liquid diet. 2) He claims he can not afford it specifically due to legal bills - over 10k, but stated his legal bills to be 3k on his I&E form. Thank you.
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Answered in 29 minutes by:
7/10/2013
socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
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My question is if I explain my situation will I likely be given an opportunity to state my objections in court?

A: Yes. Moreover, I have been handed a responsive pleading at the courtroom door on more than one occasion, and the judge simply tells me to go read it for 10 minutes and then come back and defend my client's position. So, you could still file the pleading, and the judge is likely to leave it in the court file.

Also, what are some valid reason's that father may be excused from paying the school tuition? (I realize the court does not have to order it). I don't feel the reason's he is giving are strong: 1) his wife needs restorative dental work post-tongue cancer, although she can not eat & is on a liquid diet. 2) He claims he can not afford it specifically due to legal bills - over 10k, but stated his legal bills to be 3k on his I&E form. Thank you.

A: It is well established under California law, that unless parties have agreed in a stipulated order that private school will be used and paid for in a particular manner, or the child has some special physical or emotional need that cannot be provided for in a public school setting under an IEP -- that public school is all that's required, and the court cannot force a parent to pay for private school.

The botXXXXX XXXXXne is that the arguments that both you and the child's father are using appear to be irrelevant, and the court cannot consider aany of them. The only relevant reasons are:

1. Child has special needs that cannot be met in public school;
2. Parent has agreed in a stipulated order (or marital settlement agreement) to pay for private school.

If the judge is competent, the the above two factors will be all that are on the table, and unless one or the other is proved, then there will be no private school payments ordered.

I'm not trying to be difficult -- however, California case law and statute is determinative on this issue, so there's really not much to argue about.

Hope this helps.

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Customer reply replied 4 years ago

Hi, I thought you were away. It's good to hear from you.

1) Your response tells me to I assume I can confidently go forth, expecting to be heard in court.

 

You said:

 

The botXXXXX XXXXXne is that the arguments that both you and the child's father are using appear to be irrelevant, and the court cannot consider any of them. The only relevant reasons are:

1. Child has special needs that cannot be met in public school;
2. Parent has agreed in a stipulated order (or marital settlement agreement) to pay for private school.

If the judge is competent, the above two factors will be all that are on the table, and unless one or the other is proved, then there will be no private school payments ordered.

 

2a.) Can you reference the civil code section that refers to this info? I would like to have it to reinforce the Judge's competence. For my own strength in knowledge. I haven't heard back on my Peremptory Challenge so this might be the same judge I am trying to remove, for all I know.

 

2b.) My MSA (12/2011) does stipulate that father pay the private school tuition. In April 2012 at support adjustment hearing he "agreed" to continue paying tuition- captured in order minutes. This hearing was continued to Aug 2012 when he was ordered to pay more support. He retorted that as a result he could no longer pay the tuition. My lawyer had allowed the language that addressed this in the MSA to be a loophole. Aug 2012 - I took him back to court and he was ordered to pay 2/3 of the tuition for the 2012-2013 school year, which was to be assessed each year.

 

I can send you links to the MSA page, & Aug tuition order if that helps.

 

As I've said, I have two prior orders. I can send you links to the MSA page, & Aug tuition order if that helps. Given this info, how do you suggest I most simply make my case?

 

Below is the MSA language:

 

12. CHILD SUPPORT:

 

 

12.1 Husband shall pay to Wife guideline child support of $1,111 per month beginning October 1,2011 which shall be paid in two equal installments twice a month in conformity with Husband's schedule of pay. Husband shall set up automatic bill pay for payment of child support to Wife. Husband shall also pay the school tuition for the minor children to attend S1.John Vianney school so long as Wife's income is $20,000 less than Husband's income. Once Wife's income is within $20,000 (ie. $62,000 or more for Wife and $82,000 for Husband), Wife shall pay one-half of the minor children's school tuition. Neither Party may cease payment of the children's school tuition without a 30 days notice of intent to cease payment to allow the Parties time to address the issue of cessation of tuition payments with regards to support and continued enrollment of the children in private school.

 

 

2a.) Can you reference the civil code section that refers to this info? I would like to have it to reinforce the Judge's competence. For my own strength in knowledge. I haven't heard back on my Peremptory Challenge so this might be the same judge I am trying to remove, for all I know.

A: Where the parents' duty to educate their children (Fam.C. § 150) is discharged through public schools, support required for education will ordinarily be negligible throughout most of the children's minority (and thus is accounted for in the formula amount of support). However, if private schooling is needed or desired (e.g., in the case of “exceptional” children—whether handicapped or gifted), those above-average costs should be added on, consistent with ability to pay (Fam.C. § 4053(d)). See Marriage of Aylesworth (1980) 106 CA3d 86; Straub v. Straub (1963) 213 CA2d 792, 798.

A downward modification of stipulated child support that was above the guideline formula level is subject to the proof of a material change in circumstances rule... even if the targeted reduction is to the presumptively-correct formula amount. Marriage of Laudeman (2001) 92 CA4th 1009, 1016.

2b.) My MSA (12/2011) does stipulate that father pay the private school tuition. In April 2012 at support adjustment hearing he "agreed" to continue paying tuition- captured in order minutes. This hearing was continued to Aug 2012 when he was ordered to pay more support. He retorted that as a result he could no longer pay the tuition. My lawyer had allowed the language that addressed this in the MSA to be a loophole. Aug 2012 - I took him back to court and he was ordered to pay 2/3 of the tuition for the 2012-2013 school year, which was to be assessed each year.

 

A: Then he will have to prove that their has been a change in circumstances. The court has discretion to modify child support by allowing a deduction from income (in the formula child support calculation) of a parent who is suffering “extreme financial hardship” resulting from (i) extraordinary health expenses, (ii) uninsured catastrophic losses, or (iii) the birth or adoption of new children from another marriage or relationship (deduction here is for minimum basic living expenses of such children who are living with the hardship parent). Fam.C. §§ 4059(g), 4070–4072.

 

I do not believe that a new spouse's hardships necessarily satisfy proof of a material change in circumstance. If there are already existing health care expenses, which are necessaries for which your spouse is liable, then that would justify a modification. However, discretionary expenses, not yet incurred do not make for a hardship, because they are not being forced upon the supporting parent. A similar argument would apply to legal expenses.

 

Hope this helps.

socrateaser
socrateaser, Lawyer
Category: Family Law
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Customer reply replied 4 years ago

Always helpful. I am blessed to have access to your resources.


 


You:


 


A: Then he will have to prove that their has been a change in circumstances. The court has discretion to modify child support by allowing a deduction from income (in the formula child support calculation) of a parent who is suffering “extreme financial hardship” resulting from (i) extraordinary health expenses, (ii) uninsured catastrophic losses, or (iii) the birth or adoption of new children from another marriage or relationship (deduction here is for minimum basic living expenses of such children who are living with the hardship parent). Fam.C. §§ 4059(g), 4070–4072.


 


For the underlined items above I want to be sure I understand (i)(ii)(iii).


 


(i) Am I to understand extraordinary health expenses as being currently incurred expenses resulting from his own health needs - above and beyond his existing health care expenses which are currently only (his portion/cost of the standardized monthly health care insurance provided by his employer)?


 


ii. uninsured catastrophic losses - he will argue that since his insurance denied payment of his wife's restorative dental work, (which he is appealing) that this is an uninsured loss. I assume catastrophic to mean severe losses such as property loss from flood, uncovered emergency surgery, etc. and as you pointed out, he has not yet "incurred" a loss as she has not had the work done yet, correct? Also, do you agree that her situation would not be "catastrophic" in the conventional sense?


 


iii. the birth or adoption of new children from another marriage or relationship. He has a step-daughter from his current marriage, but she is age 11 (not newborn or adopted) which rules this out, correct? Last weeks support hearing confirms no hardship deduction to him for her.


 


You said:


I do not believe that a new spouse's hardships necessarily satisfy proof of a material change in circumstance. If there are already existing health care expenses, which are necessaries for which your spouse is liable, then that would justify a modification. However, discretionary expenses, not yet incurred do not make for a hardship, because they are not being forced upon the supporting parent. A similar argument would apply to legal expenses.


 


I want to be clear on the bolded portion of your response. He has existing health care expenses (his portion of the health care insurance provided by his employer) which I assume are necessaries for which he is liable. These expenses would not classify as "extraordinary health expenses," correct?


 


Based on your overall response notating Family Code and Case Histories in addition to my own MSA which states:


 


Once Wife's income is within $20,000 (ie. $62,000 or more for Wife and $82,000 for Husband), Wife shall pay one-half of the minor children's school tuition. Neither Party may cease payment of the children's school tuition without a 30 days notice of intent to cease payment to allow the Parties time to address the issue of cessation of tuition payments with regards to support and continued enrollment of the children in private school.


 


Am I correct in thinking that last year when my income was not within 20k of his (Per MSA) and (Per the Court) he was ordered to pay partial 2/3 of tuition - that the court's order did not encompass/adhere to a "proven" change of material circumstances (He did not present any other than him stating that he could not afford it.) and I should not have been made to share tuition cost?


 


Additionally, per our support hearing of 7/1/13, his income proved to of exceeded what he was claiming at the time of the Aug 2012 tuition judgment order. Clearly no "financial hardship" for him.


 


If yes, how/why does this happen? It seems to me that the law is not always fully applied. If you agree, do I have any recourse other than mentioning the situation today?


 


 

From what you have described, your ex is not alleging any extreme hardship which negatively affects him. The hardships negatively affect his spouse. Creditors are not banging on the door demanding that your ex pay existing uninsured medical bills. Nor are there any such bills that he must incur.

In effect, your ex is asking the court to consider his new spouse's income in making a child support award -- inversely, by considering her expenses. This violates Fam. C. 4057.5(a).

Your ex agreed and the court approved an order for him to pay for private school. This is not an issue where the court is ordering private school costs based upon the child's special needs. The only question is whether or not your ex has the ability to pay, and whether or not his actual earnings or earning capacity has materially changed since judgment of dissolution.

I think that the above succinctly describes an adequate defense against your ex being relieved of the cost of private school.

I could come up with a potential counterargument for your ex, but I won't make it here, because there is always the possibility that he will read this conversation.

Note: To be fair, if I were the judge hearing this RFO, I would be hard pressed to order your ex to pay for private school, because personally, I think that guideline support in California is already pretty onerous without any additional discretionary payments.

But, it still boils down to the fact that your ex agreed to pay. So, unless he can show a material change in his income, what he is effectively requesting is that he be relieved from payment, because his new spouse has medical issues, and her income cannot cover those costs. Ordering relief under the circumstances is a flat violation of Fam. C. 4057.5(a).

Hope this helps.

P.S. We have two different Q&A sessions open. Please consider rating both, so I can pay my own extraordinary expenses.Cool
socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39,498
Experience: Retired
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Customer reply replied 4 years ago

Sorry. Yes I will rate. Couple more questions on this one.


You:


 


A downward modification of stipulated child support that was above the guideline formula level is subject to the proof of a material change in circumstances rule... even if the targeted reduction is to the presumptively-correct formula amount. Marriage of Laudeman (2001) 92 CA4th 1009, 1016.


 


FYI: Child support was not downwardly modified. My spousal support was factored below guideline in exchange for him paying the private school tuition. This is another legal issue for me to address, but it is lower on my "to do" list.


 


Please advise is this FYI changes your response.


Also, should I take copies of the MSA and Order(s) where he agreed to pay support or just refer the judge to them (by dates filed?

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