Arrearage double dipping

[Haunted1]

Dear Mr. Socrates:

History:

My husband and his ex were divorced in FL in 1991.  There was much ongoing litigation.   There were some arrears.  However he made many direct payments to her.  We have all the receipts, cancelled checks, money orders.  All this happened in FLORIDA.

A few years back (97-98) during active (and expensive) litigation in Florida, the EX requested that we settle it out of court to avoid further attorney fees and to be amicable. She promised to credit him  for ALL direct payment.

Things went quiet for a few years when we had 2 babies and I fell very ill with multiple sclerosis and ultimately disabled and homebound.  We simply could not stay "on top of her".  

Location:

WE live in NC.  The EX and daughter in NY.  He is up to date and in perfect compliance with support.

Recent history:

She never made good on crediting him for the direct payment and the record in FL still showed exaggerated arrears.  2 years ago, she started to come after him for it.  NC said that he must reopen it in Florida so they could correct their own records.  He tried and they kept dismissing it (on jurisdictional grounds).  Three times, in fact.  NC claims that even with his ample evidence they must register it "as is" the way it comes from Florida.  Since the FL judge would not hear him, yesterday, it got registered "as is" here in NC

NC judge claims his hands are "tied"  because this is the law.  I have no way of knowing if this is a fact.

Bottom line is that he is being held responsible for about 6K of arrears that he has already paid. All the proof is there.  Receipts with her signature, endorsed checks, money orders, sworn certified deposition, even a motion filed by her own lawyer in FL stating that she admits he paid her.  The judge suggested he take her to small claims court.

QUESTION:

1. My question, where does he take her to small claims?  NY?  NC?  The People's Court? does this cost money?  we don't have any.

2. As you can see from the original date of the divorce we have suffered a long time with this, do we let the injustice go and eat the thousands? let her double dip and not have to kep going back to court.  I cant tell you how many holidays we have spent in courtrooms... Is it worth it?

3. I also ask because there are also horrific issues of PAS, the kids think that dad *never* paid.  They have not spoken to him in over a year and it was only to insult him and to say they never see any money.  If he could prove he paid , would it make a diffrenece to them, prove he was telling the truth?  Right now they think he is a "deadbeat".

Thank you and God Bless

M

[socrateaser]

>1. My question, where does he take her to small claims?  NY?
>NC?  The People's Court? does this cost money?  we don't have
>any.

I'm very confused, did you have a hearing on the registration and did you move to quash the order as already satisfied?

Do you have an attorney?

It's an interesting jurisdictional problem. Ordinarily you would need to sue in the State where the defendant resides, i.e., NY., but, as she has registered an order in NC, I think you could use that as a demonstration that she has what is known as the "minimum contact" with the forum jurisdiction, NC, to sue in NC. You have nothing to lose on that one.

What you are suing on is called "quasi contract" or "unjust enrichment," which means that another person has received an unjust benefit at your expense, and you should be entitled to restitution. If the court agreed, it could order your debt to her satisfied as restitution for the unjust benefit that she would obtain if you are forced to satisfy her registered order.

>
>2. As you can see from the original date of the divorce we
>have suffered a long time with this, do we let the injustice
>go and eat the thousands? let her double dip and not have to
>kep going back to court.  I cant tell you how many holidays we
>have spent in courtrooms... Is it worth it?

I dunno. If it's not, then pay her twice and be done with it.

>
>3. I also ask because there are also horrific issues of PAS,
>the kids think that dad *never* paid.  They have not spoken to
>him in over a year and it was only to insult him and to say
>they never see any money.  If he could prove he paid , would
>it make a diffrenece to them, prove he was telling the truth?
>Right now they think he is a "deadbeat".

Frankly, this is irrelevant to your case. I understand your pain, but if you permit your emotions to get mixed up with your finances, you will lose again and again, and you'll never understand why.

If you want to get more time with your children, then you need to fight that one as a different issue. From your facts, I doubt you can afford the fight, nevertheless, that's what the law requires, so there's nothing I can do, either -- my hands, like the judge's, are tied, by the fact that "We the People" have permitted our elected representatives the authority to create a draconian and unjust system, and permit it to pretend to be all "in the child(ren)'s best interests."

Write to your legislators and congresspersons and tell them that you don't care about the war in iraq, or terroism, or the environment, or ANYTHING ELSE, except for a revamping of the family laws of your State and the Federal government, and, that until the laws are changed to resolve your personal difficulties, that no matter who they are or what else they may have done in office, that you will vote against them in every election, until they either change the laws or are defeated -- and that you will do the same for any and every one of their successors.

That, sadly is the only way that things will ever change.

[Haunted1]

FIRST I APOLOGIZE FOR THE CAPS.  1. I AM HAVING EYE PROBLEMS DUE TO MY MS AND 2. THIS REPLYING GOT CONFUSING AND THE CAPS MADE IT EASIER FOR ME... SORRY

>>1. My question, where does he take her to small claims?  NY?
>
>>NC?  The People's Court? does this cost money?  we don't
>have
>>any.
>
>I'm very confused, did you have a hearing on the registration
>and did you move to quash the order as already satisfied?
 YES WE DID AND HE DENIED IT.  HE SAID THAT SINCE FLORIDA DENIED US A HEARING (IN EFFECT REFUSING TO CORRECT THEIR OWN RECORDS), NC WOULD ONLY RECORD IT "AS IS" (AS IT CAME FROM FLORIDA.  DESPITE ALL THE EVIDENCE WE SHOWED
>
>Do you have an attorney? NO, CANNOT AFFORD ONE. AND NO MATTER HOW HE BEGGED THEY WOULD NOT APPOINT HIM ONE.
>
>It's an interesting jurisdictional problem. Ordinarily you
>would need to sue in the State where the defendant resides,
>i.e., NY., but, as she has registered an order in NC, I think
>you could use that as a demonstration that she has what is
>known as the "minimum contact" with the forum jurisdiction,
>NC, to sue in NC. You have nothing to lose on that one.
>
>What you are suing on is called "quasi contract" or "unjust
>enrichment," which means that another person has received an
>unjust benefit at your expense, and you should be entitled to
>restitution. If the court agreed, it could order your debt to
>her satisfied as restitution for the unjust benefit that she
>would obtain if you are forced to satisfy her registered
>order.
THE SMALL CLAIMS LIMIT IN NC IS 2K, IS THERE ANOTHER COURT THAT IS A "STEP ABOVE" THAT WE COULD GO TO FOR THIS?  I KEEP HEARING THE WORD "CIVIL COURT" BUT I DONT KNOW THE DIFFERENCE, PLEASE PARDON MY IGNORANCE, I AM FEELING CONFUSED AND DEFEATED. ANY IDEA?

ONE MORE QUESTION MR SOCRATES, IF YOU PLEASE?

WHEN THIS CHILD TURNS 18, CAN HE MOVE TO HAVE THE PAYMENTS MADE OUT TO HER SO THAT THE MOM CAN'T TAKE THEM?  WE KNOW FOR SURE THAT THE KID GETS NOTHING.. SINCE THEY HAVE SADDLED HIM WITH THIS SUPPOSED ARREARAGE HE WILL BE PAYING HER PAST 18, AT LEAST HE WOULD LIKE THE MONEY TO GO TO THE DAUGHTER.
>
>>
>
>If you want to get more time with your children, then you need
>to fight that one as a different issue. From your facts, I
>doubt you can afford the fight, nevertheless, that's what the
>law requires, so there's nothing I can do, either -- my hands,
>like the judge's, are tied, by the fact that "We the People"
>have permitted our elected representatives the authority to
>create a draconian and unjust system, and permit it to pretend
>to be all "in the child(ren)'s best interests."
>
>Write to your legislators and congresspersons and tell them
>that you don't care about the war in iraq, or terroism, or the
>environment, or ANYTHING ELSE, except for a revamping of the
>family laws of your State and the Federal government, and,
>that until the laws are changed to resolve your personal
>difficulties, that no matter who they are or what else they
>may have done in office, that you will vote against them in
>every election, until they either change the laws or are
>defeated -- and that you will do the same for any and every
>one of their successors.
>
>That, sadly is the only way that things will ever change.
IT IS SAD, I TOOK THE TIME TO WRITE TO EVERY ELECTED OFFICIAL IN FL, NC AND NY.  i DO NOT KID YOU WITH MY DISABILTY, THIS UNDERTAKING TOOK ME MONTHS. I GOT ONE LETTER TELLING ME "THANKS FOR WRITING TO ME ABOUT GAY MARRIAGE" (I SWEAR IT IS TRUE, I SAVED THEM ALL), STACKS OF THEM SAYING "SORRY NOT MY PROBLEM AND MORE STACKS REFERRING ME TO THE LAWYER REFERRAL SERVICES IN THOSE STATES.  VOTE? WHY BOTHER?

THANK YOU SO MUCH

[socrateaser]

You should have appealed. The judge made a harmful error. Under the Federal Constitution, the court must give "full faith and credit" to a vaild, enforceable order of another State, however, if you proved that the order is already satisfied, and that the only obsticle to your having it set aside is a refusal to accept jurisdiction by the court of the issuing State, then the court of your home State can quash on grounds that the order is "unenforceable," because a person entitled to enforcement of an order, is only entitled to ONE satisfaction of that order, which according to your facts, has already occurred.

>>
>>Do you have an attorney? NO, CANNOT AFFORD ONE. AND NO MATTER HOW HE BEGGED THEY WOULD NOT APPOINT HIM ONE.

The law only guarantees appointment of an attorney in a criminal matter, where the defendant's life and liberty is at stake. Money and property, under the law, is trivial by comparison.

The fact that you asked at all, demonstrates how unprepared you are to represent yourself in court (like most laypeople are).

>THE SMALL CLAIMS LIMIT IN NC IS 2K, IS THERE ANOTHER COURT
>THAT IS A "STEP ABOVE" THAT WE COULD GO TO FOR THIS?  I KEEP
>HEARING THE WORD "CIVIL COURT" BUT I DONT KNOW THE DIFFERENCE, PLEASE PARDON MY IGNORANCE, I AM FEELING CONFUSED AND DEFEATED. ANY IDEA?

Civil Court is the general court of a State that handles claims for money, personal or property damages and/or restitution, beyond the limits permitted in Small Claims Court. Technically, small claims is also a civil court, but in small claims, you must represent yourself without an attorney. In civil court, the parties can, and in your case, should, have an attorney represent them.

You also have a claim in Federal Court, on the issue of whether a State court, under the Federal Constitution, can lawfully refuse to rule that one of its own orders is satisfied. This would be another way out, albeit, one that could be even more expensive to litigate, because you would have to sue the Florida Court (ya, like you're gonna do that).

My suggestion is that you sue in NC Small Claims for the maximum, and then, if you win, pay the remainder. Or, find some way to hire a lawyer.

>WHEN THIS CHILD TURNS 18, CAN HE MOVE TO HAVE THE PAYMENTS
>MADE OUT TO HER SO THAT THE MOM CAN'T TAKE THEM?  WE KNOW FOR SURE THAT THE KID GETS NOTHING.

No, the right to payment of an arrerage is a property right of the custodial parent, not the child, and the arrearge is for support that the custodial parent has supposedly already given in the past, therefore the arrerage is compensation for that support already provided (even though you argue that no support was provided, you've already lost that argument because the arrerage exists, thus the court didn't accept your argument).

[socrateaser]

Not thinking very lawyer-like at the moment, I guess.

If you have actually paid this bill, and the other parent is actually attempting to obtain a second satisfaction, then you have an action for "Wrongful Institution of Civil Proceedings," (WICP), defamation, and probably for "Actual Fraud," as well.

WICP requires proof that the party institutes a civil action for a purpose other than for what the action is designed. On your facts, the other party wishes to obtain a second satisfaction of a debt already paid, therefore, your case is a slam dunk. You would be entitled to substantial punitive damages, in addition to restitution, to discourage this sort of behavior in the future.

Actual Fraud requires clear and convincing evidence that the defendant (custodial parent) made a misrepresentation of a material fact, and that it was intended to and did cause detrimental reliance, and that the plaintiff (you) were damaged as a result. Your facts show that the other parent has registered a material order in your state, intended to misrepresent that she is entitled to collection of judgment, already satisfied. That you are required to defend this action is absolutely damage, therefore, once again you would be entitled to restitution and punitive damages against the other party.

Defamation is a false statement of fact, published to a third party, causing injury. If the judgment is already satisfied, then registering it for a second collection is a false statement of fact, published to a third party (the general public and the court), and you are certainly injured, and, once again, you are entitled to restitution and punitive damages.

I STRONGLY suggest that you visit with a Tort lawyer in your jurisdiction. If the other parent has substantial equity, i.e., A HOUSE, then you could get a lien against it to satisfy your judgment.

Obviously, if the other parent has nothing, then you can't squeeze blood from a stone, no Tort lawyer will take the case, and I would be back to suggesting the small claims route.

Good luck.

[Haunted1]

WHAT IS A TORT LAWYER?

AND..  MY STATEMENT...THANK YOU.

I CONFESS.. I DONT KNOW MUCH ABOUT YOU.  SOMEONE SUGGESTED  I COME HERE WHEN I ASKED A LEGAL QUESTION THAT WAS OVER HER HEAD.

YOUR COMPREHENSIVE AND COMPASSIONATE REPLIES HAVE MEANT A LOT.  AFTER THE OUTCOME LAST WEEK, MY HUSBAND HAS BEEN DISTRAUGHT TO A POINT WHERE HE IS UNREACHABLE.  I AM TERRIFIED.  I DONT KNOW WHAT WE WILL DO. AS IT IS, WE CAN BARELY FEED OUR LITTLE FAMILY. MY 2 YEAR OLD WENT WITHOUT MILK FOR 3 DAYS,SHE JUST GOT SOME TODAY WHEN SOMEONE SENT US MONEY.  AND THANK GOD FOR FREE SCHOOL LUNCHES FOR MY 5 YEAR OLD.

I HAVE NOT BEEN ABLE TO TAKE A STEADY STEP SINCE LAST FRIDAY, MS IS LIKE THAT.  AND I HAVE NOT SPOKEN TO A SOUL.  IT HAS BEEN VERY HARD. HARD TO SMILE FOR MY LITTLE ONES..
YOUR MESSAGES HAVE GIVEN ME SOME HOPE.

SO REALLY, REALLY THANK YOU

[socrateaser]

>WHAT IS A TORT LAWYER?

A tort is one of the legal causes of action that has descended to the U.S. from the Court of England. Modernly, this means, Product Liability, Civil Assault, Battery, Conversion, Infliction of Emotional Distress, Interference with Chattel, False Imprisonment, Trespass, Negligence, Defamation, Nuisance, Misrepresentation, Interference with Business Relations, Invasion of Privacy, Wrongful Death, and a few other lawsuits, that I can't think of off the top of my head.

In the phonebook, you may see something like "General Civil Practice."