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I need some directions on how to proceed with an appeal on a…

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I need some directions on...
I need some directions on how to proceed with an appeal on a final order for child support.
My ex and I had an agreement on an amount lower than the normal 20%
We were just supposed to return to court to show that I had my child on my health insurance. The AG office presented my ex with some report that I was making twice as much as I am. My ex felt I was lying about my income and then wanted the full amount. On top of that, the court calculated my gross resources based on this false estimate of my earnings. I showed the judge my YTD income on my most recent paystub and he told the AG to use that amount and recalculate it. The AG still did not fix the error and the judge signed it, even though I refused. I asked to speak to the judge again and the AG said, there is no more debate. That's the order.
Submitted: 7 months ago.Category: Family Law
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Answered in 45 minutes by:
10/5/2017
Family Lawyer: Ely, Counselor at Law replied 7 months ago
Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 103,550
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.

I am sorry to hear about this situation. Please tell me when did the Court sign the decree? What date?

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Customer reply replied 7 months ago
October 2nd
Family Lawyer: Ely, Counselor at Law replied 7 months ago

Thank you. Since it has not yet been thirty days, someone in your situation wants to use Motion for New Trial and file that within 30 days with the Court that has been assigned the situation. The AG cannot stop a parent from doing this. Once this is done and the motion is set for hearing or submission, hopefully the Judge will agree to set it aside.

"I STRIVE FOR FIVE!" My goal is to answer your question to your satisfaction. Please rate with five stars (★★★★★) and click SEND. It does not cost anything extra to rate. You may need to scroll left/right/up/down to see these stars. Rating my answer the bottom two stars or failing to submit the rating reflects poorly on me, even if my answer is correct. If you are not satisfied for whatever reason, or, have follow up questions, please simply reply with SEND before or after rating and let's continue to chat until you are satisfied. This is what I am here for.

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Customer reply replied 7 months ago
Ok thank you. When I file it, how should I write it up? Something like "based on inaccurate calculations of gross income" or how do I frame the argument?
Family Lawyer: Ely, Counselor at Law replied 7 months ago

A party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has
come to his or her knowledge since the trial, (2) the failure to discover the evidence sooner was not due to a lack
of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a
different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 7 months ago
My next question is about how the court calculates my income. I have a set hourly rate plus multiple shift differentials that I may or may not get in a pay period. Example: weekend pay, holiday pay, call back pay, etc. Also, can I ask that the calculations be based on my scheduled hours, not overtime, which again is sporadic
Family Lawyer: Ely, Counselor at Law replied 7 months ago

Sure. The court (at the Judge's discretion) will:

1) Determine the average income over the course of several months/year, and make the monthly income that, or

2) Use a more sophisticated method, such as adding on the average/median of your shift differentials to the base rate pay.

In short... it is very subjective. Court has a lot of leeway here.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 7 months ago
Yeah, it seems to keep leeway-ing away from my side. I've been to court three times and each time they calculate a new number that I owe in child support. First $800, then $700, then $1100, now $900
Family Lawyer: Ely, Counselor at Law replied 7 months ago

I am sorry to hear about that. May I suggest using an attorney? I know how it sounds, but keep in mind - this is their job and a good attorney should be able to minimize the damage.

The AG is not on your side. Do not think for a second that they are. They will never really reason with you.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 7 months ago
What would be valid grounds to request a modification of the divorce agreement where neither of us pays child support and we just individually pay for our own lives and provide for our son with our own finances?
Family Lawyer: Ely, Counselor at Law replied 7 months ago

Does the ex approve of not wanting child support?

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Customer reply replied 7 months ago
No, she goes back and forth constantly. I'm struggling financially after paying child support, insurance, rent and bills. On paper, I bring home ~ $5k gross. After it's all said and done, I have a few hundred to live on for the month.
Family Lawyer: Ely, Counselor at Law replied 7 months ago

Then that would not be a good argument to make. It would be best to fall back on the standard mentioned before:

A party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has come to his or her knowledge since the trial, (2) the failure to discover the evidence sooner was not due to a lack of diligence, (3) the evidence is not cumulative, and 4) the evidence is so material it would probably produce a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).

Said evidence being new documentation which would change the income level (downward).

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 7 months ago
there is no legal precedent to divide the financial burden equally, unless the other party is just feeling generous?
Family Lawyer: Ely, Counselor at Law replied 7 months ago

For child support? No, there is not. The amount is based on what the visiting parent earns without the custodial parent's income.

Unless she agrees to lessen it, there is no such precedent.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 7 months ago
Well, I don't know what to do. I can try to pick up overtime to offset this increase, but then that raises my gross income and puts me in a tough spot where she could raise child support once again. Eventually, there is only so many hours I can work in order to make it every month
Family Lawyer: Ely, Counselor at Law replied 7 months ago

Filing the motion for new trial and attempting to argue that the case erred in calculation and there is new evidence is a good idea.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 7 months ago
Where can I find a blank/generic form or even an example of a Motion for New Trial?
Family Lawyer: Ely, Counselor at Law replied 7 months ago

HERE is a very generic, very short motion. Obviously this would have to be modified a lot to be used.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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