Repeat Motion - Medical Support

[myrtle]

All parties reside in Wisconsin

Motion was filed in Jan. 2005:
   "That XXXXXXX pay 17% of his gross income for child support in the amount of XXX per month effective the date of the filing of this action
   That both parents shall name and maintain the child under any health insurance that is available at a reasonable cost
   That both parents divide equally any uninsured medical and dental expenses."


May 2, 2005, the judge made his decision.  His ending statement is as follows:
   "Accordingly, although I conclude that the parties' circumstances have changed significantly since the divorce, the changed circumstances, when considered together with all of the facts in the record, support XXX (ME)  position rather than XXX (EX-Wife).  Thus, I deny the motion."

Please note he did not say he denied only a part of the motion.  Since that decision, there has been no change of circumstance.

Now Child support has filed an amendment, it reads:

"The State of Wisconsin move the court to order:
   
    That both parents shall name and maintain the child under any health insurance that is available at a reasonable cost
   That both parents divide equally any uninsured medical and dental expenses."

Child Support Agency is claiming the Judge was silent on the medical issue.  But when the Judge said "Thus, I deny the motion".  I believe he denied everything in that motion or he would have worded it different.

A new hearing is now set for November.  This has been going on since September, 2004.



1.  Wouldn't the defense for this be Res Judicata?

2.  Did Child Support Agency have the right to make this amendment when the decision was already made and the very same issues were in the first motion?

3.  Isn't Child Support Agency required to wait 36 months before any amendments or reviews can be made unless there is a significant change of circumstances?

4.  Would it be considered a change of circumstance if we would relocate to a different state even though income nor anything else will change?

Sorry, this was so lengthy.  I did try to be as brief as possible, but it's a rather complicated matter.

Thank you!
Myrtle  

[socrateaser]

>1.  Wouldn't the defense for this be Res Judicata?

Yes, but CSA is trying to get around that by claiming that the issue wasn't decided on the merits. Your argument is that the court did determine the issue on the merits, assuming that it actually did.

I don't know what was argued or evidenced in the action, so I can't say if it's actually been decided. You may need to get a transcript of the hearing(s) unless there's a very clear statement that the insurance issue was already decided that it should remain. However, you could also play the reverse game, i.e.:

The Child Support agency seeks to impose an order for insurance that was just denied by the court in its order of ??/??/????. The court therein found that a change in circumstance had occured, but denied any modification to the insurance orders. Therefore, it now falls to the movant to demonstrate (1) that a new change in circumstances has occurred since the last order was entered, and (2) that the court did not already decide this issue on the merits.

Movant should not be permitted to merely assert that its motion should be granted without providing evidence to support both of the above factors. In the absence of such supporting evidence, the court should deny the instant motion.

>2.  Did Child Support Agency have the right to make this
>amendment when the decision was already made and the very same
>issues were in the first motion?

Who knows. CSA will do whatever it wants and there's not much you can do to stop them other than to try to prove that they don't know what they're doing.

>
>3.  Isn't Child Support Agency required to wait 36 months
>before any amendments or reviews can be made unless there is a
>significant change of circumstances?

Don't know, that would be a matter particular to WI law.

>4.  Would it be considered a change of circumstance if we
>would relocate to a different state even though income nor
>anything else will change?

Only if CSA wants to argue that the new state's support guidelines should be used in preference to WI, and you agree to that stipulation. Otherwise, the court must use WI guidelines.

[myrtle]

Thank you, you've extremely helpful!!