Question:

[nosonew]

Background:  In 2000, after numerous dealings with the courts regarding contempt issues, our judge recused himself and our case was turned over to the district judge overseeing a 10 county area.  He has never met us, or seen us in person or in his court.  Upon our case being transferred to him, he ordered all parties to go to a specific Case Manager to oversee things until the minor child reaches age of majority (18).  It was also ordered that the "Case Manager work for the best interest of all parties and would make recommendations to the court and if either party disagreed with her recommendations, they could take it in front of the judge for dispute, however, if the judge agreed with the case manager, the person taking the issue to court would pay all costs associated with that court hearing, including the other parties attorney fees".  The judge also stated in his order, "I will agree with the case manager's recommendations 99.9% of the time".

  That being said, we have had a change of custody of minor child (now living with dad) that was implemented Nov. 2003. During our meeting with case mgr (all present, dad, sm, and childs mom), a new parenting plan was implemented and c.s. was discussed.  All parties were to give case mgr copies of the 2003 tax returns asap, preferrably in Feb 2004 as soon as they could be done.  We did.  She didn't.  The case mgr had written letters to both parties that stated the mom would pay cs in the amt of 250.00 for the months of Dec  03 and Jan 04, which she did 1 month late each time.  Feb-present was not addressed as both parties were supposed to have their tax info to her.  

March 04 dh notified case mgr we had not received any c.s. for Feb/March, thus a letter was sent to the mom requesting her tax info again and for her to pay up.  The mom responded April 15 via email to case mgr and ourselves that she had filed an extension on her taxes .  She did eventually pay Feb/Mar in May 04.  At the end of June, the case mgr sent her a letter stating her visitation with child would be terminated if she did not comply and get her tax info to her, as well as current pay stubs for this year.  A date to comply was added.  She did comply by the date. And also paid c.s. up to May 04.  

Case mgr figured up c.s. based on our tax returns, her tax returns and her new pay amt (which showed an increase of over 10,000 for this year vs last year).  The case mgr set her c.s. at 415/mo with arrears of around 2000.00 (she went back to Dec. 03 and added the difference).  The mom's attorney sent a letter stating it is against cs guidelines to go retroactive in c.s. since "it was never officially filed with the court".  They are also arguing using her OT pay, holiday pay, and call-in pay. *Note, this is a new attorney for the mom, I think #5*

Here are my questions:

1.  Due to the initial order by the court that the case mgr oversees all and the judge will go with her recommendations on everything, the retroactive support should stand, correct? (Her atty is correct that in our state cs is not retroactive past the date of filing)

2.  If the OT, holiday pay, and call in time are regularly received, it should be included, correct? (They stated in letter that her employer is now not allowing overtime as of now.  And she states she isn't going to work anymore holidays this year)

3.  They also state that arrears should they be added, should not be over 50.00 per month (case mgr set it at 200/mo x 10 months) and that "no judge would ever agree to more".  Any thoughts on that one?

Thanks for your input.  

[socrateaser]

>1.  Due to the initial order by the court that the case mgr
>oversees all and the judge will go with her recommendations on
>everything, the retroactive support should stand, correct?
>(Her atty is correct that in our state cs is not retroactive
>past the date of filing)

The prohibition for retroactive support prior to the date of filing of the motion to modify support is mandated by federal law, and is the same in all state jurisdictions. If there is a motion before the court, filed after the date of entry of the last final order/judgment for support, i.e., an order not termed "temporary" or "pendante lite", and the new motion expressly requests a modification of support, then the date of filing of that motion is the date, prior to which, retroactive support may not be ordered.

Whew...hope you're not as confused as me.

>
>2.  If the OT, holiday pay, and call in time are regularly
>received, it should be included, correct? (They stated in
>letter that her employer is now not allowing overtime as of
>now.  And she states she isn't going to work anymore holidays
>this year)

Most support orders demand a fixed amount of payment, because it is too difficult to enforce variable orders. If the order demands payment for OT, etc., then the obligor must pay, otherwise not.

>
>3.  They also state that arrears should they be added, should
>not be over 50.00 per month (case mgr set it at 200/mo x 10
>months) and that "no judge would ever agree to more".  Any
>thoughts on that one?

The court can order whatever amount of support/arrears it wishes, there is no limit, in either direction. However, if there is a deviation from the state guideline, the court must state its reasons for the deviation in writing on the record. On your facts, the judge has stated that he will agree with the case manager 99.9% of the time, and the manager has recommended $200, thus opposing counsel is fighting an uphill battle.

It is interesting that the judge would make such a statement on the record, because by stating that he/she will almost never disagree with the case manager, there is the possibility that an appeal on grounds of abuse of discretion could be lodged. It is an abuse of discretion to fail to consider the FACTS of a case, and simply rubber stamp a witness's testimony.

[nosonew]

In Nov. 03 there was an order filed to stop c.s. from us, and ordered the 250.00 month for Dec/Jan until tax information was disclosed.  I am HOPING this will be the date of the new motion.  

The judge did this considering (I have to assume) our HUGE file with the courts, many, many contempt charges against the mom,  and we literally had problems every single day until this case manager was appointed.  He did make it clear he did not want to see us back in court.  Period.  

Thanks for your help! You're the best!