What is important in a reply?

[DecentDad]

Hi Soc,

Hope your turkey day was a good one.

Update on my pending hearing scheduled Dec 6...

I had initially suggested to my attorney (in correspondence) to vacate the judgment in part, under 663, solely on the aspects that dealt with child support.   For reasons not discussed with me prior to him filing my motion, my attorney moved to set aside the entire judgment and enter the proposed judgment he had me file after petitioner filed hers.

In this instant motion, points in support were for 663 and 473, though my attorney's declaration admitted no neglect nor blame (i.e., recall my previous posts that he was far from timely on filing objections).  He insists that he was timely on everything in his declaration, and it's all opposing counsel's fault for not sticking to the settlement.

Petitioner (opposing side) went pro per right before I filed this.  Her response arrived... she's obviously got someone helping her in her pro per status.

Her points against 473 are focused on my attorney being "asleep at the wheel", and not objecting in a timely manner.  Given that my attorney's declaration doesn't state excusable neglect, and that he had opportunity to see the proposed judgment before it was filed (i.e., he sat on it for a week), there's not much surprise or neglect that was admitted on my side.

Her points against 663 is that the court received a proposed judgment, received filed objections before entering the judgment, and hence the  court must have considered all sides before entering the judgment.

Her explanation for including new orders on child support based upon a 2 year old stipluation are 1) it was "simply convenient" to restate them, and 2) including child support is required in a judgment on child custody.  She argues that the court merely entered orders that were already stipulated to in 2002 with neither side moving to modify it in 2 years (and I suddenly want to because I'm so litigious).

If it matters, I wasn't personally informed about the proposed judgment and its subsequent filing until 8 days after my attorney received it (and sat on it).

I have emails between Petitioner and I, me asking her to keep the judgment conformed to the settlement so we can avoid a return to court, and she refused.

1.  Does it matter if petitioner (now in pro per) was aware that I personally had provided her with objections to her proposed judgment well before her attorney filed it, even if my attorney didn't advise her attorney?  

2.  In your opinion, based upon how I paraphrased, is there any meat to her response?

3.  Anything important to include a reply?

DD

[socrateaser]

>1.  Does it matter if petitioner (now in pro per) was aware
>that I personally had provided her with objections to her
>proposed judgment well before her attorney filed it, even if
>my attorney didn't advise her attorney?  

I don't see how any of this is relevant. Here are the issues:

Judgment doesn't conform to the stipulated agreement. Under Rule 391, you have 5 days to object or the other attorney can submit the order to the court. The facts show that you didn't object timely, so the other attorney submitted and the court signed. Therefore, you have no objection to the court here, but you may have a malpractice, ethics  or fee dispute action available against your own attorney for not responding to your requests in a timely manner.

Under CCP 473, you can move to set aside on grounds of mistake, inadvertance, etc., committed by YOUR attorney. But, we know your attorney messed up, therefore your motion will be denied here.

Under CCP 663, you can move to set aside on grounds of incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts. Here, the facts are that the judgment does not conform to the stipulated settlement, and is not supported by any facts with regard to child support. The statement that the other attorney merely "restated" the previous orders because it was "convenient," is essentially an admission of a material falsification, because there is a difference between "restating" existing orders, and stating that "the prior orders of the court shall remain in full force and effect." That difference is, that a change in circumstances for child support will now be required from the date of entry of the new judgment, rather than the date of entry of the old orders.

As for the statement re support orders needing to be included in a custody order, well, the "prior orders shall remain in full force..." language should have covered that requirement, so this argument is without merit.

The better argument is that you were presented with an opportunity to object and you didn't, timely, so the court was authorized to enter the judgment, because, by your silence, you tacitly accepted everything in the proposed order as accurate! This is a valid argument, and the court could find against you on it.

However, if non-guideline CS is entered and there is no explanation from the court as to why, or the CS is based on no facts in evidence, then that is conclusive ground, by itself, for setting aside the CS portion of the judgment, but it doesn't appear that either side is arguing this point. Paraphrasing the appellate court, "There's no way around it, the court just has to run the dad-blasted thing [numbers, dissomaster, etc.]!"

It's not clear to me what, if any, facts are in evidence, or attached to the judgment to support the child support award.

On balance, then, it's a judgment call, and I'm fairly certain that the judge wants you both to "work it out."

As for any other issues that are in error in the judgment, I don't remember what they were, so I can't comment.

>
>2.  In your opinion, based upon how I paraphrased, is there
>any meat to her response?

See above.

>
>3.  Anything important to include a reply?

See above.

[DecentDad]

Thanks, Soc.

There was no clause akin to "all prior orders shall remain in effect" or even addressing the prior orders.

Neither side has submitted evidence to support the child support and child care clauses in this judgment.  Our settlement didn't address it, and Petitioner makes reference to the 2002 orders on child support as support for parties continueing to agree to it.

The only filing related to child support in this judgment are my objections filed with the court 31 days after draft judgment was filed.  My objections state that there is change of circumstance since 2002, that parties didn't agree to this amount anew during settlement.

My attorney did object to opposing counsel (via correspondence) more than once during the process of drafting the judgment.  There were two prior versions before the final version, and the issues of objection on the prior versions weren't addressed in the final version.  So... the objections that remain today were presented to opposing counsel.  He just kept sending over new versions, and filed the final version when my attorney didn't respond in 5 days.

I personally objected to Petitioner in email, coincidentially within the 5 day period for objections (i.e., I didn't know that a new draft had been simultaneously sent to my attorney).

1.  Is it relevant that opposing counsel knew of my attorney's objections to prior drafts of the judgment, and the final version of the judgment failed to address those objections?

2.  I'm looking at a potential savings of $300/month for a 5 year old child if 2002 is the most recent CS order.  I can't reduce CS if October 2004 is the most recent CS orders.  If the outcome in this matter prejudices my ability to reduce child support due to Oct 2004 being the new threshhold for change of circumstance, would it be reasonable that my attorney would be liable for the anticipated lost savings in CS?

3.  What about FC 2124 in this situation?  I'm potentially gonna pay the price for my attorney's neglect?

Thanks, Soc.

[socrateaser]

>1.  Is it relevant that opposing counsel knew of my attorney's
>objections to prior drafts of the judgment, and the final
>version of the judgment failed to address those objections?

It's not relevant to getting the order set aside, unless your attorney is gonna admit that he thought/assumed opposing counsel had remedied the errors in the final draft, and that your attorney just missed the fact that the changes weren't made.

It might be relevant to getting a malpractice judgment against your attorney.

>2.  I'm looking at a potential savings of $300/month for a 5
>year old child if 2002 is the most recent CS order.  I can't
>reduce CS if October 2004 is the most recent CS orders.  If
>the outcome in this matter prejudices my ability to reduce
>child support due to Oct 2004 being the new threshhold for
>change of circumstance, would it be reasonable that my
>attorney would be liable for the anticipated lost savings in
>CS?

Yep, but getting him to pony up is the trick.

>
>3.  What about FC 2124 in this situation?  I'm potentially
>gonna pay the price for my attorney's neglect?

That section tells the court not to punish you for your attorney's wrongful actions, but it's not grounds for a set aside, in and of itself. You still need actual fraud, perjury or a basic and material mistake of fact or law, and you must be found to not impliedly bear the risk of the mistake, or the other party must be shown to have known or caused the mistake.

And, you could certainly argue that the other attorney knew that the judgment was not as agreed to, because it appears that he did know.

Maybe one of the reasons that your ex is in pro per now because her attorney doesn't want to take a chance of personally admtting any fault on the record.

I dunno, I'd have to read the entire motion and response.

[DecentDad]

Obviously, I have no idea how the court will rule on Dec 6.

If it's clear that it's not going my way, should I say anything on the record to protect my ability to appeal or use in a malpractice complaint?

My relationship with my attorney will be over after this hearing, regardless, so I'm not worried about peeving him by speaking directly to the court.

Also... in assessing possible ways out from a bad ruling on this... I'm curious on what constitutes a change of circumstance with regard to CS.

My ex and I agreed by email that beginning January 1, I'll be providing health insurance for my daughter because I can get much better coverage through my employer.  This will cost me an additional $52/month.  Ex agreed via email that I can lower CS by $25 (not a court-ordered reduction) beginning Jan 1.  Current orders state that ex provides health insurance.

If de facto arrangements change on who's providing health insurance, and if I'm incurring some/all of that cost, is that enough change of circumstance to file an OSC to modify CS per state guideline (i.e., a significant reduction beyond the impact of just health insurance)?

Thanks for all your help.  I'll let you know what happens Monday.

DD

[socrateaser]

>If it's clear that it's not going my way, should I say
>anything on the record to protect my ability to appeal or use
>in a malpractice complaint?

The court's not gonna let you independently start talking unless you move to withdraw your lawyer right in the courtroom. If it gets that far, then you've probably lost on the merits, and your only recourse will be against your own attorney. In which case, you can get the court record, so I'm not sure that you really need to say anything.

>Also... in assessing possible ways out from a bad ruling on
>this... I'm curious on what constitutes a change of
>circumstance with regard to CS.

What follows is a quote from In re Leonard, 119 Cal.App.4th 546, 14 Cal.Rptr.3d 482 (Cal.App. Dist.6 06/15/2004):


The duty of a parent to support the parent's child or children is a fundamental parental obligation." (Moss v. Superior Court (1998) 17 Cal.4th 396, 405; see also § 3900.) Our state has a strong public policy that favors adequate child support. (See, e.g., County of Kern v. Castle (1999) 75 Cal.App.4th 1442, 1455; Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 1754.)

 
[47]     Our statutes clearly reflect this policy in their uniform child support guideline. (See §§ 4050-4076.) " `The guideline seeks to place the interests of children as the state's top priority.' (§ 4053, subd. (e).) In setting guideline support, the courts are required to adhere to certain principles, including these: `A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.' (§ 4053, subd. (a).) `Each parent should pay for the support of the children according to his or her ability.' (§ 4053, subd. (d).) `Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.' (§ 4053, subd. (f).)" (Cheriton, supra, 92 Cal.App.4th at p. 283.) Further, there is a presumption that the custodial parent "contributes a significant portion of available resources for the support of the children." (§ 4053, subd. (i).) As an overarching concern, "[c]hild support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared to other states." (§ 4053, subd. (l).)

 
[48]     An order of child support "may be modified or terminated at any time as the court deems to be necessary." (§ 3651, subd. (a).) Statutory procedures for modification of child support "require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification." (Cheriton, supra, 92 Cal.App.4th at p. 298; see also In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1292.) The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse. (See In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 77, 83, fn. 7 [modification of spousal support].)

 
[49]     "Ordinarily, a factual change of circumstances is required [for an order modifying support] (e.g., increase or decrease in either party's income available to pay child support)." (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2004) ¶ 17:26, p. 17-10.) "There are no rigid guidelines for judging whether circumstances have sufficiently changed to warrant a child support modification. So long as the statewide statutory formula support requirements are met (Fam. [Code,] § 4050 et seq.), the determination is made on a case-by-case basis and may properly rest on fluctuations in need or ability to pay." (Id. at ¶ 17:40, p. 17-13; see also In re Marriage of Laudeman (2001) 92 Cal.App.4th 1009, 1015.) The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. (Philbin v. Philbin (1971) 19 Cal.App.3d 115, 119.) The reviewing court will resolve any conflicts in the evidence in favor of the trial court's determination. (In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951.)"

END QUOTE

Clear as a 15 year old boy's face, huh?
 
>
>My ex and I agreed by email that beginning January 1, I'll be
>providing health insurance for my daughter because I can get
>much better coverage through my employer.  This will cost me
>an additional $52/month.  Ex agreed via email that I can lower
>CS by $25 (not a court-ordered reduction) beginning Jan 1.
>Current orders state that ex provides health insurance.

Hey, I'd JUMP at that, if she agrees to a stipulated order modifying the amount, because you can put something in stating that the parties agree that for the purposes of future modification, that no material change in circumstances shall be necessary.

And then, you can move to modify support. (sneeky).

>If de facto arrangements change on who's providing health
>insurance, and if I'm incurring some/all of that cost, is that
>enough change of circumstance to file an OSC to modify CS per
>state guideline (i.e., a significant reduction beyond the
>impact of just health insurance)?

The case law basically allows a support mod, when one atom of hydrogen disappears from the atmosphere into space. Unless, it's for a downward mod and you're the obligor parent, that is, when all of a sudden, you need to bring a nuclear weapon into the courtroom in order to get the judge's interest.

[DecentDad]

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