Need help with child support appeal please

[IceMountain]

Hi Soc,

I submitted a request for modifying my child support in February in the state of Iowa.

I received the paperwork back, which was dated 4-6-04.  The support was modified in my favor, however I appealed the decision because they used my overtime pay and did not use my ex's earning capacity or the Federal Median Income.

My ex does not work, but I do not believe she is receiving state assistance.

I received the appeal paperwork back today and they have denied my appeal because of the following:

*** Income used was year to date as overtime was included in 4 out of 5 pay periods.

(according to Iowa Code overtime cannot be used if it is speculative and uncertain and cannot be used unless it is mandatory.  I submitted a letter from my employer stating I was currently working overtime, but that it was uncertain how long it would last.)

*** Income information supplied by the custodial parent and verified through other sources.  Median income cannot be used.

I contacted CSRU of Iowa for an explanation and was told using median income 'is not necessary' and that my worker would review the information and call me back.

The paperwork states the following:
If we decided not to conduct a second review and you do not agree with our decision, you have the right to request a court hearing through the Unit or you may petition the court yourself.  To request a court hearing through the Unit, send your request in writing to this office within 30 days of te first Notice of Decision which explained our original decision.  (this was dated 4-6-04).  The Unit will then supply necessary materials to the court for judicial review.  The court will notify persons subject to the order of the time and date of the hearing.

Here are my questions:

1.  Why wouldn't they have to use my ex's earning capacity or median income?  Could there be special rules that apply since she has been on state assistance in the past?

2.  Can they legally use my overtime pay?

3.  If I request a court hearing through the CSRU, it is my understanding that I do not need to file any paperwork, is this correct?

4.  If there is a court hearing, do I need a lawyer to represent me?

[socrateaser]

>1.  Why wouldn't they have to use my ex's earning capacity or
>median income?  Could there be special rules that apply since
>she has been on state assistance in the past?

If you had overtime in four of five work periods, then the reasonable conclusion is that you receive overtime more often than you do not, therefore it is applicable to your support obligation.

The state has no obligation to use earning capacity of an obligee parent - it's up to you as the obligor parent to prove that the other parent's earning capacity exceeds her actual income. I can't tell from your facts whether you submitted proof of earning capacity, or if you only alleged that the obligee parent has greater earning capacity.

>
>2.  Can they legally use my overtime pay?

Support can be calculated based on any amount of overtime, however, you cannot be ordered to work more than 40 hours per week. So, if you are working more than 40 hours, you can reduce your work and move for a downward modificiation. But, if you work more than 40 hours, you must pay based on the extra hours worked.

>
>3.  If I request a court hearing through the CSRU, it is my
>understanding that I do not need to file any paperwork, is
>this correct?

I have no idea of how IA handles this process. Every State is different.

>
>4.  If there is a court hearing, do I need a lawyer to
>represent me?

I don't know. Do you?

[IceMountain]

OK, I understand the overtime issue and that I had 4 out of 5 paychecks include overtime.  I guess I had hoped that they would also pay attention to the variance in hours, which ranged from 74 to 106 in a two-week pay period.

I did not provide any proof of my ex's earning capacity.  While she was receiving state assistance they paid for her to go to school for CNA training, and paid her daycare during training and for employment after training.  They also purchased a car for her so she could work, so I 'assumed' they would be well aware of her earning capacity.  

I guess what I didn't consider is that Child Support Recovery Unit is not DHS.

1.  How do I prove her earning capacity when I do not have any legal rights to her records?  

Thanks Soc

[socrateaser]

>1.  How do I prove her earning capacity when I do not have any
>legal rights to her records?  

Why do you think that you have no rights to her records?

EVERYONE is presumed to be able to earn minimum wage at 40 hours per week, so she has that earning capacity no matter what. The problem is you seem to believe that the State has some obligation to unearth the facts that prove your case. The State's SOLE duty is to advance the STATE's interest in the child's welfare.

It's up to you to prove the legal theory under which you can prevail.

Earning capacity is (1) Talent and ability to work, (2) Availability of work commensurate with the person's talent and ability, and (3) Willingness to work. If you prove a certain #1 and #2, and further prove that the person is unwilling to find the work that you have proven to exist that he/she is qualified for, then the court MUST impute that income as earning capacity.

Hope this helps.

[IceMountain]

Thanks for putting everything into perspective for me!

Yes, very helpful!