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child support mod in Orange County CA

Started by mishelle2, Jan 25, 2006, 09:26:18 AM

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mishelle2

Soc,

 my fiance filed for a child support mod in Orange County CA, via DCSS after 3 months, he received an email from his case worker stating modification has been approved and a hearing will be set, and he would send notice via mail, well its been a few weeks and weve heard nothing. He would like copies of I & E's that were sent in by bm. We are a little confused by this process as we have never done this through DCSS.

Questions:

1. What happens next?

2. How does he get copies of bm's I & E's?

3. Could DCSS be stalling on setting hearing as there is going to be a large decrease in support?

4. Email from DCSS said he will need to file new I&E's prior to hearing, however, court doesnt allow you to file via fax and we live 11 hours away, and bm lives in FL.   What happens if neither parent can file addtional I & E's can they go by ones all ready sent in to DCSS?

5. any other input???

thanks a million

socrateaser

>Soc,
>
> my fiance filed for a child support mod in Orange County CA,
>via DCSS after 3 months, he received an email from his case
>worker stating modification has been approved and a hearing
>will be set, and he would send notice via mail, well its been
>a few weeks and weve heard nothing. He would like copies of I
>& E's that were sent in by bm. We are a little confused by
>this process as we have never done this through DCSS.
>
>Questions:
>
>1. What happens next?

Don't know. Seriously, DCSS has its process for when it will hear a case. If you want to kick it up, you could file a motion to modify with the court and serve the other parent and DCSS to appear. That would definitely speed up the process. Knowning the backlog of DCSS, they probably wouldn't show up, and your final order from the court would stop the DCSS action.
>
>2. How does he get copies of bm's I & E's?

Several ways. Under CA law, you are entitled to a copy of the I&E Declaration once every 12 months directly from the other parent, and this includes the last tax return. So, you can just send her a letter requesting the info per CA law (I forget the FC section number, but you can look it up pretty easily online).

Also, you can request the info from DCSS under the Uniform Interstate Famly Support Act, and you can ask for more than just last year's tax return. The grounds are that this information is relevant to accurate determination of the parties' support obligation. DCSS must provide. I would copy the other parent on a letter request to DCSS, so you have proof that everyone knows what's up.

And, if you file your own motion to modify, then you can request everything directly from the other parent, and ignore DCSS completely, because you will be brining the other parent in as a party.

There are a couple of issues that can make a separate motion to modify a good or a bad idea. When DCSS is the party to the case, the other parent is only a witness, which measn that she has no attorney-client privilege and must tell you everything that DCSS tells her, and produce any documents that DCSS gives her. On the other hand, as a witness, she is not subject to a deposition notice or notice or to personally appear in Superior Court.

Since she's in FL, your forcing her to show up in court, or hire an attorney could give you some leverage.

Ultimately, what you really want is to settle on the support amount with the other parent. The guidelines are usually pretty rigid, so once you know how much the other parent makes, and how much parenting time you're both exercising, then the only other details are transportation and daycare, if at issue.

Anyway, if I suspect serious foul play by the other party, there is an advantage to the DCSS procedure, because the other party can't hide behind some claim of privilege to confidential communications. Otherwise, I go to court. Your mileage may vary.

>3. Could DCSS be stalling on setting hearing as there is going
>to be a large decrease in support?

If you believe that there will be a large decrease, then get your butt into family court and file for a modification.

>
>4. Email from DCSS said he will need to file new I&E's prior
>to hearing, however, court doesnt allow you to file via fax
>and we live 11 hours away, and bm lives in FL.   What happens
>if neither parent can file addtional I & E's can they go by
>ones all ready sent in to DCSS?

If you live 11 hours away, then I would file a motion to modify, and for a change of venue to your county. Then OC DCSS will be out of the loop and probably will just drop out of the case, assuming that the court allows your request. I think you could make a pretty good argument that with the other parent in FL and you in a different county, that OC is simply not an appropriate venue for a support hearing.

mishelle2

soc,  I recently requested copies of bm's I&E's via DCSS, they said I can not have them until filed with court, that theyre not public record till then.
 I received a call today from DCSS telling me when hearing was, it is 4 months from now. I have tried to get a change in venue before however there is back owed support for welfare arrears therefore they would not agree to change.  DCSS  told me today, they are not a party in the case as mother is not on aide and the courts will take over modification.

Bm is also attempting to modify support via Florida court, however CA maintains jurisdiction. My atty in FL says I would be better off here in CA as they do not consider other children or travel expenses.

Also, parents were never married, can mother ask for college expenses and orthodontic expenses (cosmetic purposes only)
Questions:

1. To settle on an amount with other parent should I just use the CA support program on nolotech (you told me about that one before) print up a bunch of scenarios and send her a letter? (she currently receives 200+ above guideline but I am willing to negotiate.)

2. If DCSS is not a party to the case, will bm have to appear or hire an attorney to appear for her?

3. any other suggestions?

thanks a ton.,..

jcsct5

I wanted to add the following as a suggestion for calculating CA child support. Xspouse offers a demo version of their software for free.
 
The only difference between it and the version the courts use (at least the courts in PLACER and SACRAMENTO Counties) is that you can't save and it says NOT FOR COURT USE at the bottom. Their website is

http://www.xspouse.com/default.htm

and the software has a function called Wiz/Pro that will walk you through what to put in each input area.

It is great, I have used it for several years now in my own case and recomend it to anyone in CA. You do have to download a new version each year though.


socrateaser

Please repost with all your questions numbered at the bottom. You're writing too fast for me! LOL!

socrateaser

>I wanted to add the following as a suggestion for calculating
>CA child support. Xspouse offers a demo version of their
>software for free.
>
>The only difference between it and the version the courts use
>(at least the courts in PLACER and SACRAMENTO Counties) is
>that you can't save and it says NOT FOR COURT USE at the
>bottom. Their website is
>
>http://www.xspouse.com/default.htm
>
>and the software has a function called Wiz/Pro that will walk
>you through what to put in each input area.
>
>It is great, I have used it for several years now in my own
>case and recomend it to anyone in CA. You do have to download
>a new version each year though.

Looks interesting, however, in OC court they use Dissomaster(r), so no one should rely on this program as absolutely definitive, despite its author being the original author of Dissomaster. It should be fine for a stipulated order, though.

mishelle2

1. To settle on an amount with other parent should I just use the CA support program on nolotech (you told me about that one before) print up a bunch of scenarios and send her a letter? (she currently receives 200+ above guideline but I am willing to negotiate.)

2. If DCSS is not a party to the case, will bm have to appear or hire an attorney to appear for her?

3. any other suggestions?

socrateaser

>1. To settle on an amount with other parent should I just use
>the CA support program on nolotech (you told me about that one
>before) print up a bunch of scenarios and send her a letter?
>(she currently receives 200+ above guideline but I am willing
>to negotiate.)

CalSupport(tm) is good. This Xspouse software that the other poster mentions looks good too. Either would be ok. The good thing about CalSupport is that one license can be distributed to both parents so they can both run the numbers separately.

>
>2. If DCSS is not a party to the case, will bm have to appear
>or hire an attorney to appear for her?

Yes. And, you can still subpoena DCSS's records after your other case is filed.

>
>3. any other suggestions?

You should file before DCSS does (i.e., NOW). If you wait, you will lose the opportunity for a downward mod during the 4 months that intervene. DCSS is trying to sucker you.

There's no impediment to your filing. The fact that DCSS is investigating does nothing to assert any jurisdiction over you.

mishelle2

ok, Im confused.. DCSS said today on phone that they have set a hearing, they also said they are not a party, they are just passing the modification on to the courts as it has been approved from there office, but they are not a party in the case.

question:
1. If they say they are not a party,  I just proceed with Mod motion, that is all ready on court Calendar?

2. Do I just send bm letter saying here are numerous choices, choose one.. (I know probably pretty funny.. cause if she was so nice, we wouldnt need a hearing :) )

3. Can I petition court to move date up?

socrateaser

>question:
>1. If they say they are not a party,  I just proceed with Mod
>motion, that is all ready on court Calendar?

Call the court clerk and see if a hearing has really been set or not. If not, then file a motion to modify.

>
>2. Do I just send bm letter saying here are numerous choices,
>choose one.. (I know probably pretty funny.. cause if she was
>so nice, we wouldnt need a hearing :) )

Just tell the other parent that you would like to try to negotiate a settlement without resort to litigation and offer to get her a copy of the calculation software so that you can both run the numbers.

And, ask for the I&E declaration and her most recent tax returns.

>3. Can I petition court to move date up?

Yes, but not until you know if a motion has actually been filed (and it's a motion, not a petition).

mishelle2

Soc, heres an update

just received notice of motion for hearing on child support mod, I also received I&E's for bm, her income is twice the amount of my fiance's, on the expense form she states she paid attorneys fees, yet the attorney did not sign the Expense form. According to the Calculator you directed me to on Nolotech the mothers child support will decrease by 250 per month. BM lists her expenses unreasonably high putting her in the negative every month.

Questions:

1. Can fiance call DCSS and come to stipulated agreement? as they are the petitioner in this case, since they are so overloaded with cases this could avoid a hearing

2. Can he ask the DCSS what the guideline support will be with the new I&E's

3. Since she lists her expenses almost 2000 above her income, How does this affect child support calcs?

4. any other input?



socrateaser

>Questions:
>
>1. Can fiance call DCSS and come to stipulated agreement? as
>they are the petitioner in this case, since they are so
>overloaded with cases this could avoid a hearing

You can move to have her joined as an indispensable party, on grounds that joining her will facilitate the speedy negotiated settlement of the matter and thereby increase judicial efficiency.

>2. Can he ask the DCSS what the guideline support will be with
>the new I&E's

Better to provide them with a sheet with your calculations.

>
>3. Since she lists her expenses almost 2000 above her income,
>How does this affect child support calcs?

Most expenses are only relevant for spousal support, and have no effect on child support. The expenses that impact child support are daycare, transportation costs, health insurance, mandatory wage deductions, like union dues, and Federal Income tax deductions, the big one being mortgage interest. A homeowner, for example, will pay significantly more support than a renter with equal wages, because the homeowner's net disposable income is greater due to the mortgage interest deduction.

This is an artifact of CA law and the way that the cacluations are done. No other State imposes the same sort of tax impact on support calculations.

Expenses might be a factor if the other parent were seeking a deviation from the guidelines, but that requires some pretty fancy footwork -- generally, CA courts don't allow hardship deductions unless it's something pretty serious, like you lost a leg in a hunting accident.

>4. any other input?

DCSS will think that you don't know that the other parent's expenses are mostly irrelevant, so you just smile and tell them that you know, and then list the deductions that matter for support purposes. That will take a lot of wind out of their sails.

You can also say that since the other parent is demonstrating a huge negative cash flow, that you are wondering if she might not be hiding substantial income that would actually bring her into the black. So, if you can't negotiate a reasonable settlement, then you'll be forced to seek much more comprehensive discovery so as to do a forensic accounting of the other parent's income and assets.

This will let DCSS know that you're prepared to really make this difficult and costly.

mishelle2

soc,,,

 I took a closer look at bm's I&E's that I received from DCSS, and I figured out that they are from 1 1/2 years ago, when I requested a mod.. but was denied due to no change in circumstance. (strange they are using same I&E's from her now,, and there is a change) Anyways this means that mother did not respond to DCSS's request for new ones, therefore they are going off the ones they have

1. will this give me a better shot at coming to a stipulated agreement with DCSS?

2. How should I address these old I&E"S as she more than likely makes even more by now, and they have current I&E"S for me?

3. Any new imput?

thanks a million..

socrateaser

>soc,,,
>
> I took a closer look at bm's I&E's that I received from DCSS,
>and I figured out that they are from 1 1/2 years ago, when I
>requested a mod.. but was denied due to no change in
>circumstance. (strange they are using same I&E's from her
>now,, and there is a change) Anyways this means that mother
>did not respond to DCSS's request for new ones, therefore they
>are going off the ones they have
>
>1. will this give me a better shot at coming to a stipulated
>agreement with DCSS?

Probably not. You're entitled to current documentation updated to no later than 45 days prior to hearing, so demand updated I&Es and do it in writing, so that you can show the judge that you requested updated docs and you didn't receive them.

Something you need to know is that these hearings are extremely summary in nature. You need to have all your documents and a really thorough declaration stating the facts and why support should be $X filed with the court and served on the other party no later than two days prior to hearing. There won't be much testimony permitted, and if your documents are well thought out, the judge will rule directly on them and not even give DCSS much of an opportunity to rebut.

This is what's gonna happen. DCSS attorney will show up at the hearing and hand you a current I&E, and you won't have had time to even look at it, which means that you'll have to ask for a continuance if you can't figure out what's up. If you keep the letter back, so that when they give you the docs at the last second, and then offer it to the court, then you can either keep the docs out or get a continuance.

But, of course, they know you're coming from far away, so you won't want a continuance, and that will put you under pressure to negotiate a settlement (cave in) in the courtroom hallway before the hearing. So, what I would do, is estimate the other parent's likely income now and make it a really high but "reasonable" estimate. And, I'd give DCSS a letter now asking for the curent I&Es, certified mail, so you have proof of when they got it.

Then, when you get to the hearing, you tell the court that DCSS has just dumped the current I&Es on you in the hallway, and that you requested them a long time ago, and that you request that the new docs be either be excluded from evidence as an unfair surprise for which you haven't had an opportunity to prepare, and that the old docs be excluded as not current and therefore not legally relevant, in favor of your "reasonable" estimate, or that in the alternative, that the court permit a continuance, so that you can investigate the accuracy of the I&E, and sanction DCSS to pay for your reasonable expenses for the unnecessary 900 mile trip, because of their abuse of the legal process.

Everyone will poop their pants, because you'll have the judge in a catch-22. He must act in the child's best interests and have the most accurate financial data, but he can't rule against you because you've been mistreated by your opponent who stalled producing the evidence, so he'll either have to give you your continuance and the money for the unnecessary trip, or use your "reasonable" estimate.

That's the best you can do, because the judge isn't gonna let anyone skate off easy, but he will want the accurate numbers.

mishelle2

soc,

 notice of motion says hearing is by telephone for me, address on bm's I and E's is not bms current address, however I dont feel it is my responsibility to give them her updated address.

1. Is it possible to come to a stipulated agreement prior to the hearing? (like soon?)

2. If so what do I say in letter, or can I just call them?


3. If not what should letter say when requesting new I & E docs?

4. What happens if bm does not send in updated docs?

socrateaser

>soc,
>
> notice of motion says hearing is by telephone for me, address
>on bm's I and E's is not bms current address, however I dont
>feel it is my responsibility to give them her updated address.

By telephone? You must have been born under a lucky start -- that just about happens never. So much for that idea.

>1. Is it possible to come to a stipulated agreement prior to
>the hearing? (like soon?)

I don't read tea leaves.

>
>2. If so what do I say in letter, or can I just call them?

I dunno. You don't have current I&Es. Why do you want to negotiate anything until you have the facts?

>3. If not what should letter say when requesting new I & E
>docs?

Since you are not being greatly inconvenienced by the hearing, I suggest that you just send a letter stating that the I&Es aren't current and that unless you receive new ones immediately, that you will ask for a continuance so that you can obtain further discovery, on grounds that you believe the other parent may be intentionally attempting to hide something concerning her financial condition, because she seems to be making it impossible to accurately assess.

>
>4. What happens if bm does not send in updated docs?

It boils down to how much you care about the timeliness of a new order vs. the accuracy. Eventually, you will get the new order and it will be made retroactive to the date of filing or later, so as to produce the maximum amount of child support during the pendency of the hearing process.

You have the right to accurate docs, and at least the last tax return, updated within 45 days of the hearing. Since it's tax season right now, you could ask for a continuance on grounds that the support order would be more timely if you had access to the latest return.

Or, you could go with whatever you've got.

mishelle2

soc,

notice to appear says:  Included in this package is a blank income and expense declaration, If you have not already done so, this form must be completed & filed with the court 10 days prior to hearing. You must attach latest 3 paystubs.

question:

1 I have already done this (2 times as a matter of fact) So I do not have to fill another one out do I?

socrateaser

>soc,
>
>notice to appear says:  Included in this package is a blank
>income and expense declaration, If you have not already done
>so, this form must be completed & filed with the court 10 days
>prior to hearing. You must attach latest 3 paystubs.
>
>question:
>
>1 I have already done this (2 times as a matter of fact) So I
>do not have to fill another one out do I?

Your I&E must be current within 45 days prior to hearing. So, count backwards from the hearing date 45 days, and if you've provided an I&E within that time, then you're legal.

As for the 10 day in advance time limit, I've had them handed to me in the hallway immediately before the hearing, so the deadline is basically crapola, unless you want to use it as a means of obtaining a continuance against your opponent in the event that he/she misses the 10 day deadline.

mishelle2

ok. soc,... so I did some diggin around.. LOVE the dang internet.. you can find anything on here.

On cp/bm  I&E she claims she pays 100% of "rent" however I found deed to home, under her boyfriends name purchased under VA loan, and all docs are right there online where it states, that the residence is his primary residence not used for rental. Since she has his income listed as she says she has so many bills that he has to pay a portion of them.   I would understand if she said she paid for 1/2 of payment but to say she is paying 100% of entire payment.


We also have a custody case going in FL, and mother continues to say she cannot afford to pay any transportation costs as she doesnt make very much money, however she has not sent in her I&E for that case, I believe that she is intentionally witholding that info as judge will rule in our favor when he sees she makes 25K more than dad.

questions to first paragraph
1. What bearing does this  have on  CS case?
2. Can she get into trouble for lying on expense dec?


question for second paragraph..
3. Can I use I&E's submitted to CA court as evidence of ability to pay, attorneys fees, (as they are high) and 1/2 of transportation, on case in FL?


jcsct5

Had to share my husbands experience with this. His ex claimed that she was paying 100% of the household cost while her Boyfriend was living with her and she was asking for CS from my husband.

Anyway Judge decided that he would impute Boyfriends share of the household expenses to BM income, therefore increasing her disposable income. Turned out that then she would owe my DH CS.

I don't remember how the judge decided this but it had something to do with extraordinary difference in living costs, I think.

Hope this helps, it may be something to look into. We are in CA too.

socrateaser

>questions to first paragraph
>1. What bearing does this  have on  CS case?

It bears on her support obligation. However, you'll need to be a bit more precise in your analysis if you are trying to imply that the other parent cannot pay 100% of her expenses -- you'll need to put together an income and expense breakdown of your own that shows how you reach your conclusion. I believe you mentioned that the parent's I&E showed her in the red. This may mean that she's borrowing money from a credit card, or somewhere else, to pay for the property. I don't know, but you'll need to exclude most of the other possibilities, in order to make your case.

Which is possible to make, but you can't just throw the papers around and state the conclusion that they "obviously" prove some particular thing. You need to "prove" it by eliminating the other possibilities, until what's left is your conclusion.

>2. Can she get into trouble for lying on expense dec?

Um, yeah. Fraud gets you sanctions. Perjury gets her jail time if the court refers the matter to the DA, for prosecution.

>question for second paragraph..
>3. Can I use I&E's submitted to CA court as evidence of
>ability to pay, attorneys fees, (as they are high) and 1/2 of
>transportation, on case in FL?

You sure can. the I&Es are sworn under penalty of perjury, so the court will treat them as an evidentiary admission, which is rebuttably presumed true, unless the other parent can explain the discrepancy.

socrateaser

>Had to share my husbands experience with this. His ex claimed
>that she was paying 100% of the household cost while her
>Boyfriend was living with her and she was asking for CS from
>my husband.
>
>Anyway Judge decided that he would impute Boyfriends share of
>the household expenses to BM income, therefore increasing her
>disposable income. Turned out that then she would owe my DH
>CS.
>
>I don't remember how the judge decided this but it had
>something to do with extraordinary difference in living costs,
>I think.
>
>Hope this helps, it may be something to look into. We are in
>CA too.

Yes, this is good thinking. CA judges are becoming more disposed to dealing with obligee parents as frequently understating their income so as to obtain more support. This is, frankly, because as time goes on, more judges are getting divorced and discovering that their system is broken.

mishelle2

sOC, when you said :
   
     you'll need to be a bit more precise in your analysis if you are trying to imply that the other parent cannot pay 100% of her expenses --

I believe she can pay all of her expenses, in her I&E she states she cannot and her boyfriend must pay a majority of them, I believe that bm has inflated her expenses in order to receive a higher support, not realizing how CA law works

I called the court clerks office to make sure it is on calendar and dcss is not screwin with me and the clerk said it is on the reserve list...

 questions:

1. What the heck is the reserve list??
2. Is it there just in case we come to an agreement prior to hearing date?

socrateaser

> questions:
>
>1. What the heck is the reserve list??

I don't know. I've never been on it. Ask the clerk and then come back and tell me so we'll both know. My experience is that if you have a hearing date and time set, then it's set. There's no netherworld on the court calendar.


>2. Is it there just in case we come to an agreement prior to
>hearing date?

See above.