Hi....here are the facts as best I can get them out:
3/2/1988 Order states that my husband pays child support $317 per month until child reaches 18, finishes high school, whiever comes later; should child pursue post-secondary education or vocational training, each parent contributes as appropriate at that time.
Child turned 18 in 8/2001. Father informed mother that support was ending. For two years, mother (sole custodial parent) allowed daughter to not attend school between the ages of 15 and 17. Mother finally got daughter into an alternative program sometimes in 2000 on a regular basis. We don't know where or anything else about this program. We are then informed by the daughter that she's going to take a year of vocational training in addition to the high school curriculum because it is free, making high school take even longer.
We are NEVER told anything about "when" high school will be completed.
Last month, my husband is served with state child support agency papers that ex is having them enforce the order and they are going to garnish wages $500 per month. Take home is $3000 and our house payment is $1445. We have three minor children. There is no one in that house other than my husband's daughter.
We are having a tough time getting a stay of collections and we were told that we need to get a superior court order for clarification of termination of child support. I'm filling out those motion/order/declaration today and tomorrow.
Questions:
1. Any suggested wording and WA law that you might know, that would help us plead our case? We are looking to terminate support as of 8/2001 because of all the extenuating circumstances.
2. Can overpayments of child support all the years from 1988 until 2001 be considered toward relief?
3. Any case law that you are aware of in our state of WA that I could use as precedent/references to in court?
4. And is there anything else that I'm missing here?
Thanks,
Bubbles
Hi....here are the facts as best I can get them out:
3/2/1988 Order states that my husband pays child support $317 per month until child reaches 18, finishes high school, whiever comes later; should child pursue post-secondary education or vocational training, each parent contributes as appropriate at that time.
Child turned 18 in 8/2001. Father informed mother that support was ending. For two years, mother (sole custodial parent) allowed daughter to not attend school between the ages of 15 and 17. Mother finally got daughter into an alternative program sometimes in 2000 on a regular basis. We don't know where or anything else about this program. We are then informed by the daughter that she's going to take a year of vocational training in addition to the high school curriculum because it is free, making high school take even longer.
We are NEVER told anything about "when" high school will be completed.
Last month, my husband is served with state child support agency papers that ex is having them enforce the order and they are going to garnish wages $500 per month. Take home is $3000 and our house payment is $1445. We have three minor children. There is no one in that house other than my husband's daughter.
We are having a tough time getting a stay of collections and we were told that we need to get a superior court order for clarification of termination of child support. I'm filling out those motion/order/declaration today and tomorrow.
Questions:
1. Any suggested wording and WA law that you might know, that would help us plead our case? We are looking to terminate support as of 8/2001 because of all the extenuating circumstances.
2. Can overpayments of child support all the years from 1988 until 2001 be considered toward relief?
3. Any case law that you are aware of in our state of WA that I could use as precedent/references to in court?
4. And is there anything else that I'm missing here?
Thanks,
Bubbles
Sorry Soc, I spoke to this lady and she needs this answered.
You appear to be paraphrasing your court order. I need you to post the EXACT text of the order concerning when support ends.
Well, it's darn close. Here's the paragraph:
The Respondent/husband shall pay for the support and maintenance of the parties' minor child the sum of $317.00 per month until such time as that child reaches the age of eighteen or completes high school, whichever is later, or at such time as the child is sooner emancipated. In the event that Stacy should pursue post high school education or vocational training, each parent will contribute as appropriate at that time.
Thanks, Kiddosmom......I appreciate all good thoughts. I think that they're helping. Husband's employer took $500 instead of the bi-weekly amount of $230 yesterday. The support officer made a one-time arrangement to reimburse us most of the $500 and then assured me that in June (if the daughter REALLY graduates) they would lower the monthly garnishment to like $200. Looks like they've really been looking at the information on this case. Now we just need clarification of the termination date.........
Actually, i'ts not a clarification of termination of child support but a motion for the clarification of termination date (the ambiguity of 18 with respect to age of majority, emancipation, etc. versus finishing high school). We are contending that Stacy is emancipated except for "boarding" with her mother because she's hardly ever there, that her mother failed to educate her and it isn't the states contention that a custodial parent force a NCP to pay for a CP's irresponsibility. He overpaid for years (to well above $10,000) and there just doesn't seem to be "fair" operating here.
The mother drives a very new Camaro and her husband drives an even newer Corvette. I have a 1988 Honda (clearly on it's deathbed) and my husband drives a 1992 F150. If support is based on both parent's income, it's clear to me that the mother is making more money than my husband. We have three minor children, they have none. We have one income, they have three.
This woman never even told my husband that their daughter had an abortion and the order specifically says that no medical expenses that are non-emergent should be incurred by her. I would think that something as serious as abortion should have been discussed and him be given an opportunity to do whatever.
But I digress.
Margaret
>1. Any suggested wording and WA law that you might know, that
>would help us plead our case? We are looking to terminate
>support as of 8/2001 because of all the extenuating
>circumstances.
There's lots of important facts missing that could impact your circumstances. According to your 2nd post, your original order states:
>The Respondent/husband shall pay for the support and
>maintenance of the parties' minor child the sum of $317.00 per
>month until such time as that child reaches the age of
>eighteen or completes high school, whichever is later, or at
>such time as the child is sooner emancipated. In the event
>that Stacy should pursue post high school education or
>vocational training, each parent will contribute as
>appropriate at that time.
It is nearly 3 years since the child turned 18, but I can't tell from your post if she has been out of school all that time or whether she ever completed high school or what? However, the order states that support shall terminate "at such time as the child is sooner emancipated," and it may be arguable that a child who has not attended school for several years after his/her 18th birthday, is emancipated. I don't have enough facts. If the child has been employed full time, even at minimum wage, during this time, that might constitute an emancipation, or if she pays her mother rent, or has lived out of the home during the intervening years.
There is probably some WA case law in addition to statutes on when emancipation occurs, but I don't have time to do the research at the moment. If you want to snoop yourself, buy a one month subscription to //www.versuslaw.com and search the WA state appellate court database.
The statement in the order re vocational training is extremely open ended, and if your original order was ordered by the court rather than stipulated (agreed) to by the parents, then the order may be unlawful. Once again, this is a VERY complex situation, and all kinds of facts and law enter into it, not the least of which is that I personally believe that I can make a very credible argument that ALL post secondary "adult" child support violates the 5th Amendment's "public takings clause" of the U.S. Constitution.
There have been a number of constitutional challenges to post-secondary child support in the past -- all but one has failed, however, NONE of them has used a "public takings" argument -- rather they have all been based on "equal protection" arguments, which almost always fail (and frankly, based on the stupid arguments of the attorneys who have previously advanced these arguments, we are now further away from getting rid of this particular communist (yes, communist) baloney, than we ever have been in the past).
If you want to REALLY send the State into a tizzy, and if I ever had time, I could write a brief on this issue and you could try to challenge the whole system, but, without an attorney, you'll probably be dismissed as trying to practice brain surgery without a license.
>
>2. Can overpayments of child support all the years from 1988
>until 2001 be considered toward relief?
Nope. The court has no authority to credit overpayments or retroactively modify a support award, prior to the filing date of the motion to modify, which from what I can glean from your facts, you are only now getting around to filing.
>
>3. Any case law that you are aware of in our state of WA that
>I could use as precedent/references to in court?
//www.versuslaw.com $11.95 per month.
>
>4. And is there anything else that I'm missing here?
Besides a winning Powerball ticket? Not that I'm aware of...
...you're venting. If you do this in court, the judge will get annoyed and you'll lose your ass.
I wrote a lot of comments in my 2nd response to your original post. Your case is extremely complex, both in law and fact. If you want to start over, then give me the exact dates and times to your knowledge of the child's educational/living/work status at various points -- or just post your proposed motion, which better have all of those facts -- I'll review it.
MOST of the facts that you are stating, like the vehicle issue, and how the mom has spent the money, and the differences in your relative lifestyles, is irrelevant, and will annoy the court, because it's the kind of thing that self representing litigants always do, and it wastes the court's time, because none of it states a claim for which relief may be granted -- wish it did, but it don't -- write your state legislative reps and complain that the system sucks. Anyway, try to stay with the singular issue of emancipation and the facts to support it.
I don't really think you have a very good case, regardless. If you had actually filed a motion to terminate support back in 2001, and the court had allowed it, then you would have better chance of fighting this thing now. Of course, maybe you did all this, but I don't see it in your facts.
>It is nearly 3 years since the child turned 18, but I can't
>tell from your post if she has been out of school all that
>time or whether she ever completed high school or what?
>However, the order states that support shall terminate "at
>such time as the child is sooner emancipated," and it may be
>arguable that a child who has not attended school for several
>years after his/her 18th birthday, is emancipated. I don't
>have enough facts. If the child has been employed full time,
>even at minimum wage, during this time, that might constitute
>an emancipation, or if she pays her mother rent, or has lived
>out of the home during the intervening years.
>
She has been in school but she "restarted high school" after she turned 18 (I'm pretty sure). She's been in it ever since but no word since April 2000 from the mother regarding any of this. When dad would ask the daughter about when she would finish, it was always screaming and yelling, "I don't know" "stop pressuring me", etc. Then we're told about the insertion of the beauty school which took time away from finishing high school. I just don't believe that WA provides for this manipulation of court orders for the financial benefit of the custodial parent.
>The statement in the order re vocational training is extremely
>open ended, and if your original order was ordered by the
>court rather than stipulated (agreed) to by the parents, then
>the order may be unlawful. Once again, this is a VERY complex
>situation, and all kinds of facts and law enter into it, not
>the least of which is that I personally believe that I can
>make a very credible argument that ALL post secondary "adult"
>child support violates the 5th Amendment's "public takings
>clause" of the U.S. Constitution.
>
Interesting to say the least. Frankly, while the wording of this support order is "black and white" it's very vague. I've never heard of public takings and I will look at this, as I'm researching the rest. I did find a "free" website with appellate/supreme court findings in WA State. I'll post that URL at another time. It just shows too much old stuff.....nothing really recent as I find at this moment.
>There have been a number of constitutional challenges to
>post-secondary child support in the past -- all but one has
>failed, however, NONE of them has used a "public takings"
>argument -- rather they have all been based on "equal
>protection" arguments, which almost always fail (and frankly,
>based on the stupid arguments of the attorneys who have
>previously advanced these arguments, we are now further away
>from getting rid of this particular communist (yes, communist)
>baloney, than we ever have been in the past).
>
>If you want to REALLY send the State into a tizzy, and if I
>ever had time, I could write a brief on this issue and you
>could try to challenge the whole system, but, without an
>attorney, you'll probably be dismissed as trying to practice
>brain surgery without a license.
I fully intend to pursue working for new legislation with regard to this open-ended wording in support orders. This just isn't right or fair. I'd be interested to see what you would write. I've already contact several organizations and a legislator to find out how to go about this.
>Besides a winning Powerball ticket? Not that I'm aware of...
From your lips to the ears of the higher power.........
We're just concerned that while Stacy is under the assumption that she graduates in June, that it won't really happen and we'll still be paying current support until after she's 21.
Thanks,
Bubbles
Sorry for being all over the place. I will state that I'm a guardian ad litem and have done three pro se cases, winning in all....and all of them family law. I do not "vent" in court.
Until 1997, daughter was living with mom. That year, my husband's mother died and the ex made a play for my husband while I was out of state. Daughter thought they were getting back together but was also leary. It didn't happen and daughter had a huge falling out with her mother, started doing drugs, drinking, refusing to go to school. Mother allowed the daughter to live here from summer of 1998 until April of 2000. The daughter did not want to go to public school and the mother supported that. So, I homeschooled her so that she was doing "something" educational. I'm a teacher, too.
In Feb 1999, my husband started a custody proceeding which the mother wanted dropped after the GAL recommended that the daughter live with the father and the mother would have been ordered to pay child support. This was dropped in May 1999.
In April 2000, when daughter was 17, she left our home to return to her mother's home. There has been no visitation, other than very brief ones here in our home but certainly none the way that they were before.
We don't know anything about her schooling except that she didn't restart high school until after she was 18. We believe that she was enrolled but didn't start until after she was 18. She has always worked either in a salon or in a barista since 2000. She presently has completed vocational training and all but one credit of high school. She is working in a salon.
Other than that, we know nothing about the situation. We never asked in 2001 for a cessation of support. We were naive in that. I was in a cross-country child custody battle (won) and then we changed the whole parenting plan with my stepson's mother (2nd wife).
We've been told by two attorneys that mother might not be able to claim this support, as the child is an adult but also perhaps that the statute of limitations in this state has run out. State agency enforcing the order says that the child isn't emancipated at all but I find many references to our very points that would indicate that she is. Care, custody and control.....
I will post my motion with references to the emancipation. We apparently need to file a declaration as well but the motion will be concise and refer to only the facts since perhaps 1997 but certainly 2000 to the present.
Ok, your a professional. That sort of changes things.
I'm gonna write a "public takings" argument right here and now. It will require some polish and the addition of some substantial case law cites, before placing it before a judge. But, that, I ain't gonna do for free.
Nevertheless and because this issue annoys me particularly -- here goes nuttin:
Can the state create a legal duty that obligates one adult to pay another, based only on the need of the recipient, absent proof of breach of contract, quasi contract, tortious or any other harm or injury, without violating the "public takings clause" of the 5th Amendment of the U.S. Constitution?
We say it cannot. Adults are not children. They are entitled to the full pallet of constitutional rights, and no longer subject to gaurdianshipa and custody of their parents. For the state to create a legal duty that forces one adult to pay for another adult's post secondary schooling, based on nothing more than the fact that the parent was once obligated to pay child support for the adult child's benefit, is nothing short of a private taking, i.e., a government-coerced transfer of property from adult person to another, without any showing of liability on the part of the obligated person other than the artificial creation of a statutory duty.
If such a legal contrivance can exist, then there is nothing to stop the state from creating a legal duty to transfer any property from any person to any other, at any time and for any reason, and without just compensation.
It would be one thing if the child were still subject to the parent's custody and guardianship -- for example if the state were to increase the age of majority to 21 years of age, as it once was in the past. Under this circumstances, it could be reasonably said that the parent has a duty to raise his/her child to adulthood, and the child is an innocent.
But an adult child is no innocent. The child is free to leave the state, to marry, to contract -- in short, the child is free to pursue life, liberty, and property, in exactly the same manner as his or her parent, or any other person in the U.S.
The law as constructed does not even suggest the classic test of civil liability, that "but for" the parents divorce, or failure to marry, the child would have had financial support for a college education. Instead, the law simply dictates that a parent will pay for the adult child's education, because the law says so.
Were this adult child an unrelated person, say, the obligated parent's next door neighbor, could the state create such a duty and not violate the "takings" clause? Of course not. No one would ever suggest that one adult has some inherent duty to render up his property to his neighbor simply because that neighbor wishes to get a college educaton. To suggest this is nonsensical.
Yet, an adult child is, in every meaningful legal way, no different than a neighbor to the obligated parent. It may be convenient to say that it's the parent's child. But what of it? Suppose the state passed a law mandating the duty of a parent who is a homeowner to pass title to that home to his or her child at the age of the child's majority for the sole reason that there is a parent-child relationship between the parties. Would that not qualify as a "taking" under the 5th Amendment? Of course it would.
Well that is EXACTLY what the state is doing by creating a duty to pay for an adult child's college education. There is NO difference whatsoever.
And, as there is no difference, the state cannot do it. It is an absolute violation of the 5th Amendment based on well-established case law precedent that makes such transfers prohibited as private takings.
For all of the foregoing reasons, we hereby request that the court declare that the current order obligating (Petitioner/Respondent) to be a violation of the 5th Amendment to the Constitution of the United States of America, and vacate the offending provisions of the aforementioned order forthwith.
Hmmm...not too bad, if I do say so myself.
Did you hear my jaw hitting the floor? This is beautifully written and I think my eyes are going to fall out of my head, I'm so stunned.
Hope that it wasn't my meandering (at times) posts that annoyed you. But you're right, the whole situation is just annoying for us (there are much more personal things that I did leave out that point this as revenge on the part of the mother). Now and then I can't help but get emotional on the part of this particular ex-wife.
Thank you for bearing with me and your thorough"ness". I will put my motion together over the weekend; it will take some thinking to put together the other factors with this beautiful addition.
Again, thank you.
Bubbles(Margaret)
If you're gonna try to declare a law unconstitutional, you need to serve the motion on the county District Attorney, and probably the State Attorney General, also (not sure about WA law on this issue, but a courtesy copy may be appropriate).
Like I said, there's a lot of stuff that ought to be in this argument, to make it really solid. I haven't distinguished between public and private takings, as they are different issues, but both prohibited under the 5th Amendment. Private takings are particularly interesting because the U.S. Supreme Court citations inevitably refer to Justice Oliver Wendel Holmes, arguably the most important jurist in the history of American Law.
Anyway, be careful making this argument without an attorney, unless, of course, you are one. Judges treat people who make constitutional challenges without representation, sort of like they would treat a garage-door installer who tries to practice brain surgery -- not that I have anything against garage-door installers, mind you.