S.P.A.R.C.

Separated Parenting Access & Resource Center
crazy gamesriddles and jokesfunny picturesdeath psychic!mad triviafunny & odd!pregnancy testshape testwin custodyrecipes

Author Topic: Appellate Court Reverses Support Order  (Read 1046 times)

Sunny

  • New Arrival
  • *
  • Posts: 1
  • Karma: 0
    • View Profile
Appellate Court Reverses Support Order
« on: Jan 04, 2007, 10:22:38 AM »
In Indiana.

I appealed a child support order and won. Mom falsely claimed support obligation for a prior child who was emancipated and claimed weekly insurance payments which were her husband's payroll deduction for all their children--not ours (we have one child).

Mom's attorney asked the court to take judicial notice of prior born child's support obligation without providing evidence to support it. The trial court granted it on the basis of a child support worksheet prepared by Mom's attorney (who represents her in the other matter) showing Mom's income and her former husband's and Mom's current support obligation calculated.

The appellate court ordered the trial court to remove Mom's claims of weekly insurance and verify Mom had this prior support obligation. If the trial court found Mom did not have the obligation, the trial court was to recalculate support accordingly.

The trial court found Mom did not have this obligation as Mom's prior born child had been emancipated at the time our support hearing. Both Mom and her attorney had to know this at the time of the hearing, but both prepared and signed the support worksheet and used this as evidence of prior born support obligation in our support hearing even though no support obligation existed.

1) At our hearing later this month, can I ask for monetary and professional sanctions against Mom's attorney for what amounts to deception?

2) Can I ask the court to award attorney fees for the expensive appeal I won?


thanks,

Sunny


socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Appellate Court Reverses Support Order
« Reply #1 on: Jan 04, 2007, 12:22:39 PM »
>1) At our hearing later this month, can I ask for monetary and
>professional sanctions against Mom's attorney for what amounts
>to deception?

You can absolutely ask for attorney fees from the other party for time wasted at the trial court level, and you'll probably get them.

On the other hand, Fraud (intentional misrepresentation) requires clear and convincing proof. If the other parent intentionally and materially misrepresented the facts to the court, then you could probably get a contempt sanction on grounds that the support sheet was signed under oath/penalty of perjury.

However, the attorney will almost certainly claim that he was relying on Mom's statements being true, as a rationale for advancing the incorrect position, and then it will be up to you to prove otherwise, or at least that attorney had a duty to investigate further.

I can't say if that theory will fly, without seeing all the evidence, so you'll have to examine your evidence objectively and try to determine whether a disinterested judge would find that the attorney's actions were intentional.

If the attorney was merely negligent, then your case is only against the other party, and you will have to sue in civil court for the other party's negligent or her intentional misrepresentation, and/or abuse of legal process -- your damages being the appellate court costs and attorney fees, not awarded to you at the higher level.

If the actions were accidental, then you don't have any recourse.

>
>2) Can I ask the court to award attorney fees for the
>expensive appeal I won?

The appellate court awards its own attorney fees. If the court didn't award them, you won't get any from the trial court.

Finally, you can file a complaint with the state attorney disciplinary agency (State Bar, Supreme Court, whatever), but this will not get you any money. It will just get the attorney sanctioned, if his actions are proven to be a violation of the Rules of Professional Conduct.


 

Copyright © SPARC - A Parenting Advocacy Group
Use of this website does not constitute a client/attorney relationship and this site does not provide legal advice.
If you need legal assistance for divorce, child custody, or child support issues, seek advice from a divorce lawyer.