On discovery...

[DecentDad]

Hi Soc,

Got a few questions about the discovery process for when I go back to modify support and childcare.

I'm mostly going after a few admissions about her current work schedule (show change of circumstance and show childcare isn't needed), checking account statements, 2003 tax return (probably much different than the $200/month she declared to the court), and who has given/loaned her money (and how much).

1.  In post-judgment, is discovery still allowed?

2.  If so, would I need an upcoming relevant hearing on calendar (e.g., an OSC to modify support)?

3.  If I get my OSC on calendar to modify support (I'll put it out a couple months), and I propound discovery on the same day as filing... can I use my Reply as a place to introduce any new evidence to seal my arguments (likely also to counter her response)?

4.  I propounded discovery in 2003 with admissions, interrogatories, and production of documents (each was called Set 1).  Would this round now be called "Set 2"?

5.   Is this excessive for an OSC to modify support?  I feel if she were forthright with her finances, such discovery wouldn't be necessary.

Thanks,
DD

[socrateaser]

>1.  In post-judgment, is discovery still allowed?

Yes, but you must file for the modification before you can request discovery.

>
>2.  If so, would I need an upcoming relevant hearing on
>calendar (e.g., an OSC to modify support)?

Yes (see above), except that you are entitled to a new financial declaration, complete with employer pay stubs, and a copy of the other party's tax returns, once every 12 months. This is your right, not the other party's duty, so you'll have to ask for discovery when the time comes.

>
>3.  If I get my OSC on calendar to modify support (I'll put it
>out a couple months), and I propound discovery on the same day
>as filing... can I use my Reply as a place to introduce any
>new evidence to seal my arguments (likely also to counter her
>response)?

A reply to an OSC in CA is unusual -- you can, but the judge may ignore it.

>4.  I propounded discovery in 2003 with admissions,
>interrogatories, and production of documents (each was called
>Set 1).  Would this round now be called "Set 2"?

No, this is all new business.

>
>5.   Is this excessive for an OSC to modify support?  I feel
>if she were forthright with her finances, such discovery
>wouldn't be necessary.

I'll just fall back on the law of evidence: Discovery is allowed if the request is "reasonably calculated to lead to the discovery of admissible evidence."

Most of the time, there isn't time to obtain discovery other than the automatic discovery requirments of the financial disclosure. But, if you have other documents and you can articulate a reason why they would be ultimately relevant to proving a fact that would bear on child support, then you are entitled to that discovery.

For example, you suggested that you want to know who's loaned or gifted money to your ex. If the gifts are not predictable, and are not likely to reoccur, then they are NOT income for the purposes of calculating child support, and therefore they are not discoverable, because they're not reasonably calculated, unless you have reason to believe that the gift is VERY substantial (i.e., capable of producing passive investment interest that would substantially alter the finanl support calculation), or you have reason to believe that the gifts will routinely repeat (as in a gift of $10,000+ every year as a inter vivos transfer of a parent's estate, so as to avoid gift or estate taxes.

[DecentDad]

Hi Soc,

Got a few questions about the discovery process for when I go back to modify support and childcare.

I'm mostly going after a few admissions about her current work schedule (show change of circumstance and show childcare isn't needed), checking account statements, 2003 tax return (probably much different than the $200/month she declared to the court), and who has given/loaned her money (and how much).

1.  In post-judgment, is discovery still allowed?

2.  If so, would I need an upcoming relevant hearing on calendar (e.g., an OSC to modify support)?

3.  If I get my OSC on calendar to modify support (I'll put it out a couple months), and I propound discovery on the same day as filing... can I use my Reply as a place to introduce any new evidence to seal my arguments (likely also to counter her response)?

4.  I propounded discovery in 2003 with admissions, interrogatories, and production of documents (each was called Set 1).  Would this round now be called "Set 2"?

5.   Is this excessive for an OSC to modify support?  I feel if she were forthright with her finances, such discovery wouldn't be necessary.

Thanks,
DD

[socrateaser]

>1.  In post-judgment, is discovery still allowed?

Yes, but you must file for the modification before you can request discovery.

>
>2.  If so, would I need an upcoming relevant hearing on
>calendar (e.g., an OSC to modify support)?

Yes (see above), except that you are entitled to a new financial declaration, complete with employer pay stubs, and a copy of the other party's tax returns, once every 12 months. This is your right, not the other party's duty, so you'll have to ask for discovery when the time comes.

>
>3.  If I get my OSC on calendar to modify support (I'll put it
>out a couple months), and I propound discovery on the same day
>as filing... can I use my Reply as a place to introduce any
>new evidence to seal my arguments (likely also to counter her
>response)?

A reply to an OSC in CA is unusual -- you can, but the judge may ignore it.

>4.  I propounded discovery in 2003 with admissions,
>interrogatories, and production of documents (each was called
>Set 1).  Would this round now be called "Set 2"?

No, this is all new business.

>
>5.   Is this excessive for an OSC to modify support?  I feel
>if she were forthright with her finances, such discovery
>wouldn't be necessary.

I'll just fall back on the law of evidence: Discovery is allowed if the request is "reasonably calculated to lead to the discovery of admissible evidence."

Most of the time, there isn't time to obtain discovery other than the automatic discovery requirments of the financial disclosure. But, if you have other documents and you can articulate a reason why they would be ultimately relevant to proving a fact that would bear on child support, then you are entitled to that discovery.

For example, you suggested that you want to know who's loaned or gifted money to your ex. If the gifts are not predictable, and are not likely to reoccur, then they are NOT income for the purposes of calculating child support, and therefore they are not discoverable, because they're not reasonably calculated, unless you have reason to believe that the gift is VERY substantial (i.e., capable of producing passive investment interest that would substantially alter the finanl support calculation), or you have reason to believe that the gifts will routinely repeat (as in a gift of $10,000+ every year as a inter vivos transfer of a parent's estate, so as to avoid gift or estate taxes.

[DecentDad]

Thanks, it's getting clearer, but I'm still not clear on the timing of how it all happens.

Interesting that you mentioned that Reply to OSC in CA is rare.  All three of my past attorneys in L.A. have done replies.  All six of my ex's attorneys have done them.

I've always filed my supporting evidence/declarations at the time of putting my OSC on calendar, so that's what's throwing me.

Because... I want to propound discovery to cement my argument that we have a change of circumstance on financial matters; but I need a pending action to propound discovery (right?); yet I rely on the response to that discovery for my pending action.

I feel competent to do each step, but not sure how it all comes together.

A.  File OSC to put on docket (I think I'd want it 60+ days out to allow for discovery response or possible motion to compel production?).

B.  File declaration/evidence supporting OSC (and maybe I'm confused because this always has happened with step A)

C.  Propound discovery

D.  Get discovery responses, and incorporate new evidence into argument supporting the OSC... called supplemental declaration of me?  I don't know.


Re: cash gifts or loans... in June 2003, she claimed in discovery response that she had received about $60k in "loans" from friends and family during prior two years; loans that were never repaid.  In Nov 2003, she said in depo that she gets around $800 per month support from her family.  In Aug 2004, on her I&E declaration, she claimed $200/month net income (12 month average) with "0" expenses paid by others.  Then judgment was entered.  If regular cash gifts (or family support) is still the case, I think it shows that she ain't at $200 anymore (per her Aug 2004 I&E declaration), so change of circumstance.

Questions...

1.  Can you list how the above steps A, B, C, D work together?

2.  Am I barking up a worthless tree worrying about info for the cash gifts/loans?

3.  On the tax forms, pay stubs, and I&E declaration to which I'm entitled every 12 months-- is that also a type of discovery that requires a pending action, or can it be requested at any time?... and would it be requested in an official manner (e.g., propounding discovery) or simple correspondence?

Thanks,
DD

[socrateaser]

>Interesting that you mentioned that Reply to OSC in CA is
>rare.  All three of my past attorneys in L.A. have done
>replies.  All six of my ex's attorneys have done them.

Just so we're clear, the nomenclature is:

petition/complaint/motion/OSC, followed by response/answer, followed by reply (usually not favored, except in federal court, or without leave of the court to reply).

>
>I've always filed my supporting evidence/declarations at the
>time of putting my OSC on calendar, so that's what's throwing
>me.
>
>Because... I want to propound discovery to cement my argument
>that we have a change of circumstance on financial matters;
>but I need a pending action to propound discovery (right?);
>yet I rely on the response to that discovery for my pending
>action.

You're worrying too much. When was the last time you read an "honest" affidavit in support of anything. You want your motion, because you "...believe, based on conversations with the other party, that their financial condition has materially changed since entry of the last support order."

That's all you need -- then you can get discovery to try to prove it.

>A.  File OSC to put on docket (I think I'd want it 60+ days
>out to allow for discovery response or possible motion to
>compel production?).
>
>B.  File declaration/evidence supporting OSC (and maybe I'm
>confused because this always has happened with step A)

Yes, you have to file your declaration with the OSC.

>
>C.  Propound discovery
>
>D.  Get discovery responses, and incorporate new evidence into
>argument supporting the OSC... called supplemental declaration
>of me?  I don't know.

Yes, you can file a supplimental declaration in support of OSC to modify support, after obtaining discovery.

>
>Re: cash gifts or loans... in June 2003, she claimed in
>discovery response that she had received about $60k in "loans"
>from friends and family during prior two years; loans that
>were never repaid.  In Nov 2003, she said in depo that she
>gets around $800 per month support from her family.  In Aug
>2004, on her I&E declaration, she claimed $200/month net
>income (12 month average) with "0" expenses paid by others.
>Then judgment was entered.  If regular cash gifts (or family
>support) is still the case, I think it shows that she ain't at
>$200 anymore (per her Aug 2004 I&E declaration), so change of
>circumstance.
>
>Questions...
>
>1.  Can you list how the above steps A, B, C, D work
>together?

Already done above.

>
>2.  Am I barking up a worthless tree worrying about info for
>the cash gifts/loans?

Not necessarily. You need to make a case that she receives substantial moneys from people and never need repay them. If the "loans" are never repaid, that is the legal equivalent of income, not a gift, if the lender forgives repayment. If the lender states that the principal is a gift, then the gift is taxable to the lender, but it's a gift to the recipient.

I'd need to see her bank statements to determine if I think you have a case here.

>3.  On the tax forms, pay stubs, and I&E declaration to which
>I'm entitled every 12 months-- is that also a type of
>discovery that requires a pending action, or can it be
>requested at any time?... and would it be requested in an
>official manner (e.g., propounding discovery) or simple
>correspondence?

No pending action. Just send a letter stating, pursuant to the statute, that you want your 12 month discovery. I can't remember the code number at the moment, but you can look it up in the family code.

Wait until the 12 month anniversary to send letter.

[DecentDad]

Okay, I see FC sections 3663 and 3664 that the I&E declaration can be requested every 12 months.  Cool.

I last "requested" tax returns from her via discovery in 2003.

Not at my request but because her attorney was seeking that I pay her fees, in Aug 2004 she filed an I&E declaration - but it was incomplete-- no tax return, no pay stubs, no profit/loss statement (i.e., she marked that she's self-employed).

Recall that child support was never heard in 2004-- she just snaked in the old 2002 figure and got it rubber-stamped.


QUESTIONS

1.  When you say, "You want your motion, because you believe there's change of circumstance..."; you're referring to my OSC to Modify Support, correct?  If so, I'm golden.  If not, I'm still lost.

2.  I see no restriction in 3663 or 3664 that says I have to wait at least 12 months post-judgment (only restriction is once every 12 months).  Based on above facts, I should be fine to request a completed I&E today, right?

Thanks, as always.

DD

[socrateaser]

>QUESTIONS
>
>1.  When you say, "You want your motion, because you believe
>there's change of circumstance..."; you're referring to my OSC
>to Modify Support, correct?  If so, I'm golden.  If not, I'm
>still lost.

OSC is short for "order to show cause," which is short for "motion for order to show cause." Traditionally, an OSC was used only to obtain emergency relief, i.e., respondent is about to build a barn on my land and I want him and all of his subcontractors stopped NOW, because I have title and here's my proof, so please restrain this guy from building and have him appear and show cause why the temporary order should not be made a permanent injunction.

CA has shortened the name and totally changed the traditional purpose. Don't ask me why. I think it's dumb, and it confuses things. It also is probably a procedural due process violation, because it permits the court to issue a ruling in advance of a hearing on a basis other than irreparable harm, which is the only constitutionally permissible rationale for granting an order prior to a hearing.

But, of course, this is family law, and due process has become a sublime illusion.

Anyway, you're golden.

>2.  I see no restriction in 3663 or 3664 that says I have to
>wait at least 12 months post-judgment (only restriction is
>once every 12 months).  Based on above facts, I should be fine
>to request a completed I&E today, right?

I would interpret the purpose of the 12 month limit to prevent a litigant from being deemed "vexatious" under CA law. Since you just had a final judgment, your next opportunity for discovery without filing an OSC is 12 months from the date of entry of judgment -- that's how I would construe the statute.

However, your question has never been appealed, so it would be entirely at the discretion of your judge to determine whether you were acting within the statute.

[DecentDad]

.

[DecentDad]

Hi, just an FYI, not a question.

Looks like the discovery itself pursuant to 3663 is restricted to once every 12 months.  But per 3664, it specifically includes, "AT ANY TIME..." subsequent to a judgment.  

So I should be fine per this article, as I never employed discovery pursuant to 3663 within past 12 months (or ever).

------------------

Family Code

3663.  In the absence of a pending motion for modification or
termination of a support order, a request for discovery pursuant to
this article may be undertaken not more frequently than once every 12
months.


3664.  (a) At any time following a judgment of dissolution of
marriage or legal separation of the parties, or a determination of
paternity, that provides for payment of support, either the party
ordered to pay support or the party to whom support was ordered to be
paid or that party's assignee, without leave of court, may serve a
request on the other party for the production of a completed current
income and expense declaration in the form adopted by the Judicial
Council.