Finally-- good court outcome, and now a question on imputing income

[DecentDad]

Hi Soc,

So I ended up filing a motion to reconsider while pro per with regard to the above-guideline child support and order of childcare with no finding of need.  It was heard today.

Judge started out saying he appreciates my position, but he has to tell me that regardless of what my attorney told me (i.e., per my pleadings), my attorney never filed any objections to the judgment at any time... it wasn't an issue of timeliness so much as simply an absence of any objections.

He then said that I should just file an OSC to modify support and childcare, so he's not sure why I filed this motion to reconsider.

I explained my concern about having difficulty demonstrating change of circumstance from the time the judgment was entered, versus the ease of showing a change from 2002 when I truly stipulated to these figures.

He said that he doesn't need me to show a change of circumstance, that I just need to file the OSC, and he'll run the numbers and issue new orders... he makes no guarantee that I'll like or dislike the outcome, but he'll run the numbers.

He suggested we go down to mediation today to stip on new figures that he can sign, so we be done with this.  I told him that Petitioner only works four hours per week, so we'd need to review evidence for earning capacity.  He responded, okay, you know what you're doing, so just file the OSC.

I told him that if he's telling me I don't need to meet the threshold for change of circumstance in order to have him consider an OSC to modify support, I'm happy today.  He said, great, we're done, motion denied.

So... cool.  On record.  That hump now done.  Thanks for your guidance on those issues.

Two questions.

1.  On my OSC, is it an actual accompanying motion to impute Petitioner's income?  Or just note in "Additional relief requested" on the OSC form something like "Impute Petitioner's earning capacity up to $X,000" and attach my declaration, along with Points and Authorities, on why she should be imputed.

2.  I sent my prior attorney correspondence requesting a reply by Feb 11 (including the language you previously suggested), and I enclosed a check for what I felt reflected the competent work part of the outstanding debt.  Today, he sent me my rights to ask for arbitration (but I don't have any complaint from him).  Any point in telling him about what the judge said on record today (i.e., that my attorney never filed any objections)?  Or next move?

Thanks, Soc!  I'm chipping away bit by bit, making progress bit by bit.  Just gotta accept that it all takes time.  But I resolved more in one silly little hearing than my attorney did in 8 months.   :)

DD

[socrateaser]

>Two questions.
>
>1.  On my OSC, is it an actual accompanying motion to impute
>Petitioner's income?  Or just note in "Additional relief
>requested" on the OSC form something like "Impute Petitioner's
>earning capacity up to $X,000" and attach my declaration,
>along with Points and Authorities, on why she should be
>imputed.

On FL-310, Section 10, check both boxes and attach your declaration in support. Declaration must be made in the first person, but it can contain specific points and authorities supporting your position. This is how everyone does it in family law -- no one submits a separate points and authority -- the judge will never read it unless everything's in one document. Keep it to the point -- no more than 10 pages, not including exhibits.

>
>2.  I sent my prior attorney correspondence requesting a reply
>by Feb 11 (including the language you previously suggested),
>and I enclosed a check for what I felt reflected the competent
>work part of the outstanding debt.  Today, he sent me my
>rights to ask for arbitration (but I don't have any complaint
>from him).  Any point in telling him about what the judge said
>on record today (i.e., that my attorney never filed any
>objections)?  Or next move?

Get a transcript of the hearing so you have what the judge said. Don't let the attorney know you have it. Testify at the hearing that he never actually did what he billed you for, then let him state that he did, then produce the transcript as rebuttle. Game over.

[DecentDad]

Okay, thanks Soc.  I've already ordered the transcript, and I see the value of your approach.

That said, the arbitration paperwork that my ex-attorney sent me is blank.  He included a blank form (i.e., didn't check that he is proceeding with action or intends to proceed with action) on top of the client rights to arbitration.

His cover letter just acknowledged receipt of my bill dispute and told me that he's enclosing info about arbitration.

Arbitration costs $50 plus 5% of dispute (i.e., $450 in my case).

In the arbitration paperwork, I see it says I waive my right to arbitration unless I do something within 30 days.

1.  But without my attorney filling out any part of the arbitration paperwork, isn't this just random blank paperwork that has no bearing on a time limit yet?

2.  Do I just blow him off and wait for him to initiate arbitration in a formal manner?

Thanks,
DD

[socrateaser]

What does your retainer agreement say EXACTLY? That is the dispositive legal instrument. There is no State law that forces you to submit to arbitration.

[DecentDad]

PAYMENT OF FEES AND COSTS

... Unless you furnish our office a written objection to any bill or statement within 15 days from and after the date thereof, that bill or statement shall be deemed to be totally acceptable to you...


BINDING ARBITRATION OF DISPUTES

MALPRACTICE CLAIMS
You agree that any disputes between us relating to the interpretation; or performance of this agreement, or any dispute regarding the nature and quality of the service provided hereunder, including any claims for damages against the firm or any of its principals and/or associates, whether on a theory of malpractice, negligence, breach of contract, fraud, breach of fiduciary duty or otherwise, shall be submitted to BINDING ARBITRATION in Los Angeles County before a retired California Superior Court judge following the procedures set forth in CCP Sections 1282 and 1286.  The initiator of the proceedings shall do so in writing by submitting two names of retired California Superior Court Judges to the responding party, and if the responding party does not agree to any of the two nominees, within ten (10) days the responding party shall provide two names of retired California Superior Court Judges from which the initiating party may choose one.  If the parties cannot agree to an arbitrator, one shall be chosen by a court of competent jurisdiction from the four nominees.  Judgment on the arbitration award shall be final and binding and may be entered into any competent court in Los Angeles County.

It is further understood that the initiator of the arbitration proceedings shall advance all costs in connection therewith unless the other party files a cross-action in which event the fees and cost of the arbitration shall be borne proportionately by the parties in the ration that their monetary claims bear to one another subject to the ultimate possible reallocation apportionment at the discretion of the arbitrator.  Service of process in connection with any such arbitration proceeding may be made by certified mail at the last known address of the other party.  The prevailing party in such an action shall be entitled to recover damages, arbitration, and court costs but not legal fees.

FEE DISPUTES
If the dispute involves our legal fees, under California law, you have the right to have that particular dispute be determined by arbitration (binding or non-binding) administered by a local or State Bar association.  If non-binding arbitration is selected by either party, and either party is dissatisfied with the decision, the dispute will be resolved pursuant to this paragraph.  You agree that any disputes between us relating to legal fees and/or costs shall be submitted to BINDING ARBITRATION in Los Angeles County before a retired California Superior Court judge following the procedures set forth in CCP Sections 1282 and 1286.  The initiator of the proceedings shall do so in writing by submitting two names of retired California Superior Court Judges to the responding party, and if the responding party does not agree to any of the two nominees, within ten (10) days the responding party shall provide two names of retired California Superior Court Judges from which the initiating party may choose one.  If the parties cannot agree to an arbitrator, one shall be chosen by a court of competent jurisdiction from the four nominees.  Judgment on the arbitration award shall be final and binding and may be entered into any competent court in Los Angeles County.

It is further understood that the initiator of the arbitration proceedings shall advance all costs in connection therewith unless the other party files a cross-action in which event the fees and cost of the arbitration shall be borne proportionately by the parties in the ration that their monetary claims bear to one another subject to the ultimate possible reallocation apportionment at the discretion of the arbitrator.  Service of process in connection with any such arbitration proceeding may be made by certified mail at the last known address of the other party.  The prevailing party in such an action shall be entitled to recover damages, arbitration, and court costs but not legal fees.

ALTERNATIVE DISPUTE RESOLUTION
You also acknowledge that the firm has explained to you that disputes which may arise in this matter may be susceptible to resolution through alternative means such as arbitrator mediation, negotiation, or "Rent a Judge."



I know now I shouldn't have signed that agreement, feel like my hands are tied.  Recall that I provided written dispute to every bill once I recognized he was correcting his own errors, but I never heard back from attorney until after I dropped him and he invoiced me for full outstanding balance.

So???

:)

[socrateaser]

I see nothing in the contract where you waive your right to arbitration and confirm the bill as acceptable after any particular period of time. Nor is any such limitation of time built into Cal. CCP Sections 1282 or 1286. The contract that you signed merely says that you must inform the other party as to any complaint within 15 days. So, if you can prove that you did this, then you have done everything that you must do to protect your rights.

You could demand an arbitration, but you don't need to do so. You could just do nothing, and wait to see what happens.

Eventually, I suspect that the accounts receivable clerk at the law firm will write you a letter demanding payment. The clerk will not know what's going on, and the attorney will probably not bother explaning. So, when you receive the letter, you tell your side of the story to the clerk and then wait and see what happens. You may just be surprised to find that they let it go entirely.

Or, they may initiate arbitration, but it will be on their dime.

They could, of course ding your credit record and send you to collections, but I think you'd have a pretty good case to sue them for that, because when you sent your letter and the full satisfaction check to the attorney, you were demonstrating your good faith belief that a dispute over the amount of money owed exists, and legally, a credit reporting agency cannot post a negative entry on an unliquidated debt, because it doesn't know how much is owed.

[DecentDad]

Hi,

In brief cover letter from attorney, he acknowledged getting my "bill dispute" letter (i.e., which contained my offer of settlement).  So, that's good.

1.  If attorney never cashes my full satisfaction check, does that change what you wrote?

2.  Would it be beneficial to file state bar complaint at any time given the negligence (not telling me about a proposed judgment adverse to my interests until after it was already filed) and potential misrepresentation (i.e., telling me that objections were subsequently filed though court insists otherwise on the record)?

3.  If attorney starts charging interest at 10% APR on outstanding balance (i.e., a previous invoice threatens this), anything else I should do besides wait to see what their next move is?

Thanks,
DD

[socrateaser]

>1.  If attorney never cashes my full satisfaction check, does
>that change what you wrote?

No, it just means that he doesn't accept your settlement.

>
>2.  Would it be beneficial to file state bar complaint at any
>time given the negligence (not telling me about a proposed
>judgment adverse to my interests until after it was already
>filed) and potential misrepresentation (i.e., telling me that
>objections were subsequently filed though court insists
>otherwise on the record)?

I think I'd wait for a bit and see what the attorney does. If you file the complaint then you will have lost the leverage the attorney knowing that you may file it in the future.

>
>3.  If attorney starts charging interest at 10% APR on
>outstanding balance (i.e., a previous invoice threatens this),
>anything else I should do besides wait to see what their next
>move is?

You've objected to the bill. If you believe that you owe some part of the bill, then you need to pay that part. If you believe that you don't owe the other part, and you believe that you can prove it, then why do you care what the attorney charges. If you receive another bill, you send a letter back saying that you don't owe it and repeat your prior complaint, word for word.

[DecentDad]

.