child support mod CA

[mishelle2]

Soc,

 have court date for CS mod, in CA (orange county), bm/cp didnt respond to requests for I&E's from DCSS, therefore DCSS submitted to courts the one they have on file,  which is almost 2 years old, You previously said I could write letter to DCSS requesting updated I&E's.

1. I am unsure what to say in this letter, Can it be pretty short and to to the point?
2. I would also like to know, when we go to court can I ask that I claim child on taxes every other year? (parents never married, mother has child 80% father(me) 20%)
3. any other insight?



thanks again..

Oh and previously I told you I was on reserve list for court, I called again and asked what that meant, they said that they had no clue, and that it now showed me on calendar.

[socrateaser]

>1. I am unsure what to say in this letter, Can it be pretty
>short and to to the point?

Tell them you want current documents, and that if you don't get them, that you will ask the court to temporarily modify support downward, based on a presumed income increase for the other parent during the past two years, and further ask the court to continue the matter of setting any permanent support award until such time as you are provided with current I&Es.

>2. I would also like to know, when we go to court can I ask
>that I claim child on taxes every other year? (parents never
>married, mother has child 80% father(me) 20%)

As I already mentioned, there is no economic value to the tax exemptions because the guideline calculations automatically factor for taxes and adjust against them. So, if you get th exemptions, your out of pocket support will be the same as if you didn't have the exemptions.

The only time that there is a benefit is when the custodial parent is not working at all, or so little that her tax liability is negligable.

So, don't waste time on this issue, because it's irrelevant. However, what IS relevant, is making certain that the court recognize that FL has no state income tax, and so the court must manually set Dissomaster to not use the automatic CA state tax calculations in computing the other parent's income.

>3. any other insight?

DCSS has no incentive to get current I&Es, because if your support is lowered, then that's less federal matching dollars for them. I told you that, even if they decide to produce the documents, it will probably happen in the hallway to the courtroom, so that you don't have time to prepare to meet the evidence.

You should have filed your own motion to modify, and demanded discovery directly from the other parent.

[mishelle2]

Soc,

new issue.. CS mod hearing is in April in CA, however, we will have a hearing in FL prior to that date for Visitation issues as mother is refusing visitation. Bm asked Fl court to set support at guideilne amount, my attorney has told her attorney CA has jurisdiction. The only reason I am hesitant to go to Fl guideline is I do not know what the laws are, as mother is asking for college expenses, orthodontic expenses, and that I pay all travel expenses, BM and I were Never married, nor lived together. BM filed this  Aug of 2004, we have been coming to stipulated agreements regarding visitation but nothing on support, she has sent me notes saying if I leave CS where it is she will get creative with the arrears, but to date nothing "creative" has been done.

1.what happens if Fl sets support at Fl guideline prior to CA hearing?
2. Will Fl court set child support with CA having jurisdiction?
3. With bm filing so long ago, would support be retroactive to that date?

[socrateaser]

> she has sent me notes saying if I leave CS
>where it is she will get creative with the arrears, but to
>date nothing "creative" has been done.

What kind of notes? if you can prove this statement, it could be found to be an attempt at extortion, because the other parent is apparently suggesting that you have a right to CS where it is, but that if you manage to succeed, that she will find away to create an unjust arrears. This is something that your attorney should be aware of, because if this were admitted on the stand it would go directly to that parent's character and fitness to parent, and to her credibility and honesty as a witness.

>1. what happens if Fl sets support at Fl guideline prior to CA
>hearing?

FL cannot use FL to set your support, because you have never lived in FL, and you lack the necessary minimum contacts with the jurisdiction to make it fair that you be subject to FL law. FL can, however, calculate support based on CA guidelines and make an order in consistent with CA law.

And, that order could be submitted to DCSS with a request to withdraw its modification action on grounds that the issue is moot, and has already been decided by another court of appropriate jurisdiction.

>2. Will Fl court set child support with CA having
>jurisdiction?

It can, as long as it does so consistent with CA law. However, the FL court may simply defer the matter to CA for consideration, in which case, your CA CS hearing would determine your support obligation.

>3. With bm filing so long ago, would support be retroactive to
>that date?

Yes, and if you believe that you will be hit with a large arrears, then I suggest that if the FL filing is more recent than the CA filing, that you seriously consider expressly submitting to FL jurisdiction for support calculations (which will be cheaper, as CA is the most expensive jurisdiction for child support). In return, the other parent must agree to withdraw her action. Then, the date of the FL action would take precedent as to the date for retroactivity.

This is just like taxes, btw. If you believe that you will have a substantial arrears amount, then you should be saving a reasonable estimate of that money every month with the idea that it's not yours, and that you will eventually have to pay it out.

If you don't, you're gonna be one unhappy camper when you get the bad news -- and it will definitely be bad.

[mishelle2]

soc,

I received a letter from her attorney to my atty stating if I agreed to leave current support as is bm would get creative with arrears, I owe her arrears, from not being able to make full current cs payment and everytime I tried to modify I was denied due to no change in circumstance, even though the amount was set at a proposed income. However I have paid full current amount + some of arrears every month for past 5 years, so arrears is from 6+ years ago.

So as for the filing date being Aug 2004 in FL,  I would be getting a credit towards arrears and interest for last 2 years would have to be earased, as CS will be going down. I wouldnt have to pay her. Fl filed in Aug 2004 CA in Nov 2005 I filed for mod in CA  through DCSS her in Fl through court.

It appears that regardless of who has the case the support amount will be modified downward, I just dont know what FL usually gives for addtional support.
questions.

1. Could I (my attorney) submit guideline papers from nolotech to Fl court and ask that they set support amount according to CA guideline during visitation hearing?

2. Should  I just submit to FL jurisdiction?

3. any other suggestions?


one more ..
 4> Could I present the letter from her atty to the CA courts as evidence that she knows of the current case, and is intentionally withholding I&E's as she knows she will get less support.?

 ( we know she is aware there is a mod in CA taking place, however she is ignoring it thinking that if she doesnt respond with new I&E's they will not decrease her support. )

[socrateaser]

>1. Could I (my attorney) submit guideline papers from nolotech
>to Fl court and ask that they set support amount according to
>CA guideline during visitation hearing?

First, federal law prohibits retroacdtive modification for support for any date prior to the date of filing for the modification. However, when support is modified downward, all courts do not give any retroactive credit for support paid or due after the date after filing for the modification. That is, the court will apply the law so as to maximize the amount of support to the child -- upward mod, full retroactivity to the date of filing -- downward mod, no retroactivity.

Yes, your attorney could submit the nolotech paperwork.

>2. Should  I just submit to FL jurisdiction?

I would go with whatever is less expensive, and I'm betting that's FL.

>3. any other suggestions?

no.

>one more ..
> 4> Could I present the letter from her atty to the CA courts
>as evidence that she knows of the current case, and is
>intentionally withholding I&E's as she knows she will get less
>support.?

If you intend to submit to FL jursidiction on the support question, then whether or not she discovers the I&Es is irrelevant. If not, then you can use the letter as evidence of her knowledge of the CA case. However, CA law provides that any formal request for discovery re support (but not custody) served on DCSS is rebuttably presumed to be effective service on the other parent, so, it's up to her to show that she never received notice from DCSS. And, your letter doesn't actually show knowlege that she must provide I&Es, however, if she's had to do this in the past, there's no reason to think that she should have forgotten.

[mishelle2]

First, federal law prohibits retroacdtive modification for support for any date prior to the date of filing for the modification. However, when support is modified downward, all courts do not give any retroactive credit for support paid or due after the date after filing for the modification. That is, the court will apply the law so as to maximize the amount of support to the child -- upward mod, full retroactivity to the date of filing -- downward mod, no retroactivity.


1. The filing date for the mod in FL was Aug 2004, but since it will go downward, no retroactive credit?

Thanks for all the help, I will ask my atty in Fl to present the nolotech to the judge at our visitation hearing, and ask him to set support according to CA guideline, hopefully my atty will be comfortable doing this, if not I have the other hearing in CA in April. (which I am pro se)

[socrateaser]

>1. The filing date for the mod in FL was Aug 2004, but since
>it will go downward, no retroactive credit?

Nope. Not, unless you can show bad faith on the part of the parent, and even then, public policy favors support to the child, so I would be surprised if the judge would order retroactive in your favor. The cards are seriously stacked against you.

>Thanks for all the help, I will ask my atty in Fl to present
>the nolotech to the judge at our visitation hearing, and ask
>him to set support according to CA guideline, hopefully my
>atty will be comfortable doing this, if not I have the other
>hearing in CA in April. (which I am pro se)

You should check the difference between FL and CA support, because if you submit to FL jurisdiction for support, then you may end up with a lower bill, because FL support guidelines are lower. In other words, it may be better to let the FL court use FL guidelines, even though you are entitled to force the court to use CA guidelines.

[mishelle2]

1.Do you know of a Fl Child support Calculator? So I can run the numbers.
2. If I choose to let Fl Court use Fl guidelines, then what happens to court date in CA?
3. Would I just submit order to CA DCSS prior to hearing?
Thanks

[socrateaser]

>1.Do you know of a Fl Child support Calculator? So I can run
>the numbers.

No, sorry. Except for CA, other state guidelines use tables or fixed percentages, so they are much easier to calculate and a spreadsheet program will generally suffice. So, check the web and see what's out there.

CA support guidelines are incredibly complex, based on a linear multivariate formula, plus the effect of federal and state income taxes, exemptions and deductions. Thus, they cannot be done without a computer (at least not without substantial time and effort).

>2. If I choose to let Fl Court use Fl guidelines, then what
>happens to court date in CA?

You withdraw your request for the modification on grounds that you voluntarily submitted to the jurisdiction of the FL courts, the court has ruled, and so the CA action is moot (no justiciable controversy).

[mishelle2]

Soc,

ok, so I checked into the Fl guidelines and since bm mother makes 1500+ more per month than me, and FL guideilnes use combined net income to determine child support I would actually pay more in Fl.

So I will send DCSS letter asking for updated I & E's from bm and go from there.
Thanks

..Ok I sent request for updated I&E's for bm,

questions:

1. How long before court hearing do they have to give me copies of new I&E's?  
2. Since it is a phone hearing will they have to send them to me prior to date, so I am properly served?
3. What happens if they do not receive updated I&E"s from bm?

4. If I put in amount for presumed income, what is a reasonable % of an increase for 2 years? 10% raise? or more?

5. Do I send in a supporting dec asking for the presumed income and send in copies of guideline calcs with those numbers?
6. Do I put in Travel expenses, or should I leave them out and let judge decide on Travel?

thanks

[socrateaser]

>questions:
>
>1. How long before court hearing do they have to give me
>copies of new I&E's?  

Two days prior.

>2. Since it is a phone hearing will they have to send them to
>me prior to date, so I am properly served?

Yes.

>3. What happens if they do not receive updated I&E"s from bm?

Nothing, unless you object at the beginning of the hearing. I suggest that you propose to impute income based on evidence that you present, and request that the 2 year old I&Es be disallowed into evidence as proof of current income, but admitted only to prove earning capacity as of two years ago.

>4. If I put in amount for presumed income, what is a
>reasonable % of an increase for 2 years? 10% raise? or more?

You can't pull a number out of the air. You need evidence to base your numbers on. Go to websites of U.S. Department of Labor, the Federal Reserve Board, FL Dept. of Labor, etc., and try to determine the cost of living changes in FL for someone who works in the same locale and job as the other parent. Salary.com may be able to help, as well. You could also print out advertisements for similar work in the area where the other parent lives, and you could contact a temporary work company and tell them that you need work in that field and try to get them to tell you what kind of money you can expect to earn. Unforntunately, this last step would require something in writing from them for the hearing, and you're not likely to get that.

After you put together all of your evidence, then you need to submit it to the court as a supplimental affidavit in support of your motion to modify, because CS hearings are done entirely on evidence submitted in advance with the pleadings, and it's almost a certainty that if you try to offer any evidence that wasn't served on DCSS in advance, then you will be denied.

>
>5. Do I send in a supporting dec asking for the presumed
>income and send in copies of guideline calcs with those
>numbers?

Yes, but you need supporting evidence to impute income. You must ultimately prove:

1. That the other parent has talent, ability, and experience to work in a certian field;
2. That work in that field is available in the locale where the parent resides, and;
3. That the parent is not working to the earning capacity proven in #1-2, above.

If you prove all three with credible evidence, then the court MUST impute income based on your calculations, unless the other parent demonstrates that it is not in the child's best interests that he/she works to earning capacity. And there is a strong presumption in the case law that both parents must work if work is reasonably available, and that children will just have to deal with that reality.

Only parents with VERY young children get a break, generally, and not for too long.

So, you need your proof, and you need to show that you've done all your homework, and that the other parent is basically hiding something, because she either won't produce the required I&Es, or her I&Es have some major defect, which is why I suggest that you try to keep them out, if they are even one second later than two days before the hearing, on grounds that you haven't had any time to analyze them for their accuracy.

>6. Do I put in Travel expenses, or should I leave them out and
>let judge decide on Travel?

You ask for EVERYTHING YOU WANT AND MORE, and take less. If you ask for only what you want or less, you will get less than less than what you want.

[mishelle2]

Soc,

1.Can I request current I&E's from the bm?
2. Since she did not respond to request from DCSS , they may not have her current address, Should I email her and tell her to contact DCSS as they need current income information for her?

[socrateaser]

>Soc,
>
>1.Can I request current I&E's from the bm?

Sigh...we're starting to go around in circles, so I'm gonna try to explain EXACTLY how the system really works so that you can go do whatever you want, because I can't keep telling you the same thing over and over, and have you ignore my advice, which is what you've been doing, even though you're probably not aware of it. So, please read carefully, because you've just reached the outer limits of my charitable nature:

You can "request" anything you want, but the other parent has no legal obligation to provide you with the documents, UNLESS you file a motion to modify with the court, so as to join the other parent to the action as a party.

This is complicated but it's like this: federal law imposes requirements on the states to get matching tax dollars from the feds for collecting support. One of those requirements is to offer legal services on the child's behalf to obtain support for the parent. In this way, the government avoids the equal protection and due process clauses of the 14th Amendment, because if the state were to offer legal services to one or the other parent, then that would violate fundamental fairness unless the state provided legal services to both parents. So, instead, the state provides legal services to the CHILD.

When you file an action with DCSS (or CSE or whatever it's called in other jurisdictions), you are asking the state to initiate a support action for the child's benefit. The other parent is only a witness to this action, and you are effectively the defendant, with the state as prosecutor. In short, when an NCP files for help from DCSS, that NCP is asking the government to act as the child's representative in an action against the NCP.

You may as well throw a rock at a policeman.

However, the parents both have the independent legal right to ask a court to modify CS, and if you do this, then the other parent is converted from a third party witness in the case of the DCSS v. YOU, to the other party in the case of YOU v. HER.

And, when a person is a party to a case, that person must produce discovery documents, such as the I&Es on request, or face contempt sanctions for failing to do so.

But, as you decided to not follow my advice and chose instead to deal through DCSS, the only way that you can obtain the requested documents is through DCSS, because they are the other party, and they have the only duty to discover relevant information, without a subpoena.

You could subpoena the other parent to produce the documents, but as she doesn't live in the county where the action is occuring, you would have to file a commission for a deposition in the FL county where she does live, and then obtain a local subpoena and depose her and copy the documents in FL. All of which is incredibly expensive, and is the reason why all of this federal law was created -- to permit parents to avoid traditional due process requirements and get at the other parent, wherever he/she resides so as to obtain child support, without any extra expense.

So, that's where it's at. You can legitimately demand that DCSS produce the I&Es, but if the other parent, who is currently only a witness to the DCSS action, refuses to comply, then there's nothing that DCSS can do about the uncooperative nature of its witness. Your only options then are to either ask the court to impute the other parent's income based on some well-reasoned set of facts, and because DCSS doesn't have the real facts, on account of their witness hiding those facts, the court will be highly disposed to grant your request, IF YOU DO WHAT I AM TELLING YOU TO DO as far as putting your evidence together in a manner that will permit the court to make a reasonable decision.

If you don't, the court will smile, and use the 2 year old I&Es and advise you to seek legal counsel the next time you want to modify support.

Or, you can file a separate action to modify support and withdraw your DCSS action, and put yourself in the position where you should be: as a party in an action against the other parent, rather than as a party in an action against the State of California, with the other parent as a witness.

>2. Since she did not respond to request from DCSS , they may
>not have her current address, Should I email her and tell her
>to contact DCSS as they need current income information for
>her?

This question is a non sequitur. Why in the world would you think that the other parent will do anything to help you make your case against her? Undoubtedly, someone at DCSS has told her that if she refuses to produce the I&Es, that there isn't squat you can do about it, because, DCSS doesn't know that you have access to someone like me who is trying desparately hard to explain how this !@#$%^ up system works, so you don't get squashed like a bug during the hearing.

Now, I've given you about $2,000 worth of legal advice in this thread, and I think it's time for you to start doing what I advise rather than trying to come up with ways to avoid doing the hard work of preparing for your hearing -- so, go now, my child and get thoust shiteth togetherith before it is too late.

[mishelle2]

:)