Affidavit with no Motion?

[TJRodolph]

I don't know if you remember my history here....but I am having problems with the custodial mom paying her 1/2 of the court ordered transportation costs. I took your advice and am filing on Wed. a mod to  child support downward since mom refuses to pay her 1/2 and that is equivalent to an increase in her child support award.

I just received an Affidavit in Support of Motion regarding Travel Costs from custodial mom in OH. No motion attached. Affidavit of Mail Service is attached stating they mailed a copy of the Affidavit (no motion mentioned).

Everything is notorized in OH. Obviously no court date since no motion. I thought all motions have to be filed in person (or by lawyer) in the court house.

Case is in MN. Affidavit states she wants her portion of travel costs to be reduced from my arrears because she cannot afford to pay anything. I already pay the extra 20% for arrears every month for over 3 years now. She makes more money than me and judge already said she took into account our finances and that she is the one who moved withOUT court order or consent.



Questions:

1. Can/would the judge even consider this affidavit with no motion?

2. Can a motion be filed from out of state, such as by mail?

3. Can/Would the judge consider this when we go to court for MY motion to reduce child support?

[socrateaser]

>>Questions:
>
>1. Can/would the judge even consider this affidavit with no
>motion?

Family courts generally cut litigants the kind of slack typical in small claims, if both parties are pro se. As soon as one party is represented, the court will force the other one to toe the line, which usually forces them to get a lawyer and evens the playing field.

So, yes, if she filed the affidavit, it's likely the court will accept it. She doesn't need her own motion -- she only needs to request affirmative release as a response to yours. However, an affidavit should be attached to a Responsive pleading, and not just fly in on its own. I'm surprised the clerk filed it. Maybe the doc wasn't actually filed, and was only sent to you. If so, then you can just pretend you never received it, and the court won't know that the other party responded until the hearing, at which point, whatever evidence was to be offered won't be before the court, so it probably won't consider it.

I'm betting that mom's response didn't have any evidence anyway, and it was just a trail of tears, demanding justice without any understanding of the legal foundations.

Like I said -- very typical.
>
>2. Can a motion be filed from out of state, such as by mail?

Yes.

>
>3. Can/Would the judge consider this when we go to court for
>MY motion to reduce child support?

Yes. See above.

[TJRodolph]

Both parties are pro se.

To clear things up, I have not filed my motion yet. Mom only knows that I plan to file one because thats what the Parenting Time Expeditor told her I was planning on doing.

As far as I know, this affidavit was never filed with a court clerk. No stamp on it, no motion. I think she just typed it up, and mailed me and the court a copy. She wouldn't want to pay a filing fee for it.

There is no basis to the mom's affidavit anyhow. She is just requesting her share come off my arrears, and listed her bills. At the hearing in March, the judge "loudly" told her she WAS to pay her 1/2, that the order was not intended to have it come off my arrears and all financial issues were already addressed and if she cannot pay her share she needs to address the correct properly by filing a motion.

So mom is still trying to bring up old issues, trying to get the judge to change her mind. The judge is already pizzed by the mom not following her orders or court procedures.

Questions:

1. If mom mailed in a copy of that affidavit, and the clerk puts it in the case file...is that considered "filed"?

2. Is it then just held in that file until someone files an actual motion?

3. When I get to my hearing....would most judges just figure out an average based on a plane ticket to reduce the monthly support by....or would they allow me to send in a copy of the ticket receipt (4 times a year), and have the following month's support decreased for mom's share?

2. Is there any other kind of resolution to this issue the judge may order on her own?

3. Can (the likelihood??) the judge find mom in contempt while we are at the hearing or do I specifically have to file a contempt motion?

[socrateaser]

>Questions:
>
>1. If mom mailed in a copy of that affidavit, and the clerk
>puts it in the case file...is that considered "filed"?

Yes, but without a motion, the court won't know what hearing the affidavit is prepared for. Nevertheless, it's possible that a clerk may file it, and if you file a motion later, then the affidavit would be admissible into evidence.

>
>2. Is it then just held in that file until someone files an
>actual motion?

The clerk should send it back as improperly submitted. But, that doesn't mean that the clerk "will" send it back. No way to know, except to look in the file.

>
>3. When I get to my hearing....would most judges just figure
>out an average based on a plane ticket to reduce the monthly
>support by....or would they allow me to send in a copy of the
>ticket receipt (4 times a year), and have the following
>month's support decreased for mom's share?

You should print out proposed itineraries from an airline website (e.g., //www.itn.net), and also provide copies of actual travel expenses. Then you argue that the reasonable cost of annual transportation is $X, that mom refuses to contribute, and therefore the court should reduce your support obligation from the guideline accordingly, because it is more judicially efficient than to use the court's contempt powers to enforce mom's obligation.

>2. Is there any other kind of resolution to this issue the
>judge may order on her own?

Could just find mom in contempt and toss her in jail for a couple of days. I don't really know.

>
>3. Can (the likelihood??) the judge find mom in contempt while
>we are at the hearing or do I specifically have to file a
>contempt motion?

If you hear or read mom stating that she cannot afford to pay, then you can suggest to the court that:

"Your honor, (petitioner/respondent) knows that a valid and enforceable order for her to contribute to the cost of transportation incident to my exercise of visitation/custody exists, and absent her carrying the burden of the affirmative defense of inability to pay, the court must find her in contempt.

At the moment, I submit that (petitioner/respondent)'s bare statement of her inability to pay is not sufficient to carry her burden of production to fairly place her defense before the trier of fact, and therefore the court should enter a contempt order."

Them's da magic words. The judge will probably crap in his/her robe.

[TJRodolph]

Since I have not filed my motion yet......can I include "them there magic words" in my affidavit to my motion?

[socrateaser]

>Since I have not filed my motion yet......can I include "them
>there magic words" in my affidavit to my motion?

You can, but you will be putting the cart before the horse, because your opponent has not alleged that she does not have the ability to pay. And, if you show your cards, then she will trump up a bunch of bogus evidence for the hearing. So, I think you should wait and make your argument at the hearing itself.

[TJRodolph]

Oh, but she HAS alleged that she cannot pay.....that plain affidavit that I just received. ....stating she cannot afford to pay, and then listed her bills...and requesting her share come off my arrears. It was notarized too.

(Funny how I can always use her own communications against her)

She listed things like $20 a month for kid's haircuts, $30 a month for HER hair maintenance, $40 a month for yard service, $50 a month for entertainment, $50 a month for cable, co pays (even though order states for ME to carry health insurance and she refuses to use it), her mortgage, property taxes, car note, insurance, etc. She listed what she makes an hour at 36 hours a week.

Her previous letter to me, (answers to my interrogatories) were that she also works another job, on call and can usually pick up extra hours too.

If I showed my bills, and my income, and the fact that I have actually purchased 100% of tickets....she would get laughed at because she makes $5 an hour more than me. Honestly, the only reason I have been able to buy all those plane tickets is due to my wife's income.

The reason I wanted to put all this info in my Affidavit, is because I don't do real well under pressure. I get very nervous in court and don't say what I want to get across.

THANKS again for all your input! Much appreciated as always.

[socrateaser]

>Oh, but she HAS alleged that she cannot pay.....that plain
>affidavit that I just received. ....stating she cannot afford
>to pay, and then listed her bills...and requesting her share
>come off my arrears. It was notarized too.
>
>(Funny how I can always use her own communications against
>her)
>
>She listed things like $20 a month for kid's haircuts, $30 a
>month for HER hair maintenance, $40 a month for yard service,
>$50 a month for entertainment, $50 a month for cable, co pays
>(even though order states for ME to carry health insurance and
>she refuses to use it), her mortgage, property taxes, car
>note, insurance, etc. She listed what she makes an hour at 36
>hours a week.
>
>Her previous letter to me, (answers to my interrogatories)
>were that she also works another job, on call and can usually
>pick up extra hours too.
>
>If I showed my bills, and my income, and the fact that I have
>actually purchased 100% of tickets....she would get laughed at
>because she makes $5 an hour more than me. Honestly, the only
>reason I have been able to buy all those plane tickets is due
>to my wife's income.
>
>The reason I wanted to put all this info in my Affidavit, is
>because I don't do real well under pressure. I get very
>nervous in court and don't say what I want to get across.
>
>THANKS again for all your input! Much appreciated as always.

Use her numbers to construct an income statement. But, if the statement using her numbers shows that she is operating in the negative, then you will be proving that she doesn't have the ability to pay. And, I can hardly believe that she would file an affidavit showing that she does have the ability to pay.

So, you need to show that the numbers leave her sufficient income to pay or that certain expenses that she is incurring are not necessities of life and can be dispensed with in favor of the transportation costs (such as the the insurance that she buys but doesn't need, or alternatively, the insurance that you buy and isn't used which would argue for a reduction in your obligation to compensate vs. imputing income to her, based on her purchasing an unnecessary healthcare policy instead of airfare).

However, I still maintain that contempt is not what you want -- you want to simply modify support to give you the money that she refuses to contribute. Having her found in contempt doesn't really buy you anything, and it will be much harder to prove because the burden of proof is beyond reasonable doubt (>99%) rather than a preponderance of evidence (>50%).

[TJRodolph]

I gotcha....I'm not trying to file contempt, as you said it would be a lot harder to prove. I really just want her to pay her share of the ticket.

I also could provide a list of bills that would show I am in the negative. But my wife and I put our money together to pay bills, and she makes more than me. However, my wife's income is not considered when paying child support or the travel expenses.

Questions:

1. Should I include a list of my bills/income in the affidavit also?

2. If so, should I just list everything and not include my wife's income, but mention that the bills are shared with my wife? My income will show that I make less than 1/2 of the amount of bills.

3. I should just bring copies of my actual bills to the hearing and not attached to the affidavit, correct?

4. What would the judge likely do if both parties show a negative income to bill ratio?.....knowing mom has continually denied visitaiton & moved without consent?

[socrateaser]

>Questions:
>
>1. Should I include a list of my bills/income in the affidavit
>also?

If you want. But, I don't know that I would advance that info as an affirmative part of your case. I'd hold it back and offer it only if the other parent attempts to allege that you should be paying more support, because you have more disposable income than she does.

Your inability to pay is not relevant. The court ordered her to pay and she's not paying. That's the only issue.

>
>2. If so, should I just list everything and not include my
>wife's income, but mention that the bills are shared with my
>wife? My income will show that I make less than 1/2 of the
>amount of bills.

If you plan to present your income and expenses to the court, then you should create an ordinary income and expense statement, of the sort any accountant would prepare. Explaining how to do this is out of scope of this forum.

>
>3. I should just bring copies of my actual bills to the
>hearing and not attached to the affidavit, correct?

Yes, you submit the I&E as a summary of "voluminous writings." (magic words).

>
>4. What would the judge likely do if both parties show a
>negative income to bill ratio?.....knowing mom has continually
>denied visitaiton & moved without consent?

Your income is not particularly relevant at the moment. It only becomes relevant if the court seeks to push the bill back to you.