Questions on the $$ part of it all

[DecentDad]

Hi Soc,

Okay, opposing counsel has been doing a great job so far tightening up language in final judgment to ensure intent is also specific in detail.  

Undiscussed previously, he threw in a repeat of CS orders that were stipulated in 2001 when custodial time was much different, and biomom's imputed (stipulated) income was much lower than she recently agreed in deposition she could be making, and she also agreed in recent deposition that she has willfully avoided full-time work for two years in order to be a full-time mother.

New language altogether (as compared to prior orders we've had), part of that CS clause he drafted was that both parties know their rights, that the CS is adequate, that it serves best interest, and that the CS agreement made outside of judicial ruling is not under duress.

I've run the figures in a California CS calculator for the current timeshare, my current net income, and an imputed net income for biomom based upon what she said she could earn in deposition.

Using imputed income for biomom based upon what she says she could earn, the difference between the old figure and the new figure is about a third lower (i.e., the new figure done by CA guideline is a third lower).

Using the 2001 stipulated imputed income for biomom would make the new CS figure about 10% less.

1.  If I sign this judgment -- including the repeated CS clause -- and then immediately return via OSC to modify CS due to the significant difference with guideline, does the court have any discretion to say that it's too soon after the final orders to try to modify CS?

2.  If I sign the judgment without the repeated CS clause included, and then immediately return via OSC to modify CS, is it a different scenario to the judge?

3.  If I start dickering with opposing counsel about CS in these final orders, does it open up discussion for dickering on issues to which we already both signed via the handwritten stipulated forms?

4.  My timeshare, excluding the period that daughter is in preschool, is 37%.  My timeshare compared solely to all times daughter is not with me is 34.5%, but that would presume that daughter is in mother's custody during preschool (though sometimes I pick up or drop off daughter there).  For calculating CS, which figure is arguably more appropriate?

5.  At trial, neither party argued recovery of attorney fees or reallocation of evaluator fees (hallway discussion was agreed that judge's discretion could make it worse for either party).  Can either party ever again open that issue up for fees incurred prior to final orders?

Thanks for your thoughts, as always.

DD

[socrateaser]

>1.  If I sign this judgment -- including the repeated CS
>clause -- and then immediately return via OSC to modify CS due
>to the significant difference with guideline, does the court
>have any discretion to say that it's too soon after the final
>orders to try to modify CS?

Changing CS requires proof of a material change in circumstances, i.e., a change of income or earining capacity or hardship of a parent. Your facts suggest that you are now aware that the other parent's income or earning capacity should produce a figure different from that which you are about to stipulate. Thus if you return to court you cannot allege a change in circumstances, because those circumstances existed prior to your stipulation. Therefore, should deny your motion to modify.

>
>2.  If I sign the judgment without the repeated CS clause
>included, and then immediately return via OSC to modify CS, is
>it a different scenario to the judge?

The clause is irrelevant. See #1, above.

>
>3.  If I start dickering with opposing counsel about CS in
>these final orders, does it open up discussion for dickering
>on issues to which we already both signed via the handwritten
>stipulated forms?

No, you have already made a partial agreement. ALWAYS a bad idea, in my experience, but those items are not negotiable, unless both parties agree to do so.

>
>4.  My timeshare, excluding the period that daughter is in
>preschool, is 37%.  My timeshare compared solely to all times
>daughter is not with me is 34.5%, but that would presume that
>daughter is in mother's custody during preschool (though
>sometimes I pick up or drop off daughter there).  For
>calculating CS, which figure is arguably more appropriate?

The difference in money is di minimis. If you run your numbers at 5% intervals, from 0 to 50%, you will find that the guideline changes very little except at the extreme of either end. In short -- who cares?

>
>5.  At trial, neither party argued recovery of attorney fees
>or reallocation of evaluator fees (hallway discussion was
>agreed that judge's discretion could make it worse for either
>party).  Can either party ever again open that issue up for
>fees incurred prior to final orders?

You're giving me new facts in a question. I shouldn't answer, but I will.

Attorney fees are always submitted after the fact in writing to the court, unless already stipulated in the settlement. Attorneys rarely argue over them in court. Bad form and all that. Better to pretend that the attorney money is a trivial issue. (yeah, right).

[DecentDad]

Thanks, Soc.

I just want to make sure I don't blow the route to modify CS.  This is what I'm understanding:

If I want to modify CS due to change of circumstance (i.e., the new info on earning capacity and wilfull un(der)employment); I only have one of two routes...

A.  Settle the issue with opposing side with new CS amount, and use these orders to also modify the CS amount; or

B.  Refuse to sign the orders until opposing side removes the reference of the CS amount that has not been discussed since 2001; and this will let me ask CS modification from the court based upon change of circumstance regarding info demonstrating her income potential?


Is that right?

Thanks,
DD

[socrateaser]

If you agree to the lower imputed income, when you already know that number is incorrect, and then return to court and ask for a support mod, the other attorney will ask you when you became aware of the fact that the mother's earning capacity would produce a materially different guideline support award.

If you say that you discovered it during a deposition that predates your stipulated order, then your opponent will assert that there is no material change since the entry of the previous order, because the mother's actual earning capacity was known to be different prior to the signing of the order.

Therefore, you must (1) remove any reference to child support from the stipulation, or (2) negotiate for a different support amount now, or (3) try the issue before the court now.

[DecentDad]

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