Question on Small Claims

[forthekids24]

Divorce in Santa Clara County, CA

DH and BM Stipulated CS and Private School Tuition.

BM has not paid either since Sept.  

Last payment she made on 10/25 bounced due to insufficient funds.
DH called her on 10/28 and demanded payment within 10 days.
BM's response "you will never get any more money out of me"

We looked up the bad check statue for CA.
Mailed the demand for payment on 11/10.  Included the wording as per the statue.

We are told our next step is small claims to recover the check amount ($780) plus the statutory penalty (in this case $1,500) total of $2,280.  She lives in Yuba County, so we know that we are to file in that small claims court.

The statue says that the check amount plus statutory penalty is due is payment is not made within 30 days of the mailing of the demand for payment.

Questions:

1) Should we file with small claims on 12/10?
2) Will Small Claims tell us to take it to family court since the check is for Tuition and expense reimbursement?

3) Should we attach a copy of the bad check, proof of mailing of the demand and a copy of the letter to the small claims filing?

4) We are assuming that the check was for payment of back CS and Tuition, but we can't match the amounts to anything she owed.  If we recover the money, should we pass on a month of CS to DCSS? (We could reasonably assume that she was attempting to pay one month of CS and Tuition, plus who know what)

5) We are planning on filing contempt on the non payment of Tuition and expense reimbursement after the first of the year; will the small claims case negatively impact the contempt?

Thanks for all of your help!!
FTK

PS - I think a few years back you hinted at some "big" announcement you were going to make... did I miss it or is it still in the works?

[socrateaser]

You're probably going about this all wrong. If the obligor parent is behind in support payments, then you file for contempt in family court, get a judgment of arrears, and ask for sanctions as necessary to encourage the obligor to find employment and pay support. If the bounced check cost you money, then you ask the court to order the obligor to cover your consequential damages (actual expenses flowing naturally from the injury and that were reasonably foreseeable at the time of the injury's occurrance).

Believe me, if you aren't getting your support payments, then you're damn certain to never collect on an ordinary civil judgment, where you have far less powerful and efficient enforcement mechanisms available than exist with child support enforcement.


>PS - I think a few years back you hinted at some "big"
>announcement you were going to make... did I miss it or is it
>still in the works?

Still in the works.

[forthekids24]

Thanks Soc,

We re-opened the case with DCSS for the child support so they can handle that aspect. (She just recently had to get a job since her husband is divorcing her)

Just to make sure I am understanding your suggestion,  we should file contempt for the non payment of the tuition and her 1/2 of expenses and use the bounced check and proof of her complete disregard of the stipulated agreement she entered in to last year.

It isn't that she doesn't have the money to pay support or the tuition, she just doesn't want to pay.

1) With regard to the scanctions, what would be the norm to ask for?

2) Should we just find a lawyer and turn it over to them?

Thanks!
FTK

[socrateaser]

>1) With regard to the scanctions, what would be the norm to
>ask for?

If your court orders payment of the tuition costs as child/family/spousal support, then you can collect it as if it is actually child support, which means that DCSS will do it. If the tuition is characterized as part of the community property distribution, then you will have to file for contempt and use the normal enforcement mechanisms that you would use for a small claims judgment, except for the fact that the family court can order the obligor to pay your attorney fees and costs of suit, which would be a lot more than the amount that you are seeking to recover.

As far as sanctions, the amount of money that's at stake is so small that daily sanctions to encourage performance is probably out of the question. The attorney fees and your out-of-pocket costs should be enough.

However, there's another possibility: if there is a divorce under way between the obligor parent and a new spouse, and there are assets
being divided such that the obligor parent's distribution will cover your costs, then you could ask the family court to issue a temporary order enjoining the obligor from any receipt of assets from the new divorce, until her obligation for tuition costs are paid to you. Then, you could take your temporary order, while you're waiting for your contempt hearing and for a final order, and ask the family court hearing the new divorce to permit you to intervene in that action as necessary to protect your interest in the tutition. And, knowing CA justice, I wouldn't be at all surprised if the other court would permit the intervention (althouth it would be highly unusual). And, if you get a final judgment on the contempt, then the family court would absolutely give your judgment credit and allow the intervention. So, it just depends on how fast the wheels of justice are cranking.
 
>2) Should we just find a lawyer and turn it over to them?

Probably -- and if you're gonna do that, then I would probably turn the DCSS matter over as well. It's hard to say without reading your entire court order.

[forthekids24]

Stipulation and Order (filed 10/2003) for Tution is worded:
*********
14.   EXPENSES OF THE CHILDREN:  Expenses for the children shall be shared as follows.
Expense   Mother   Father
Health Insurance Premiums   50%   50%
Medical (uninsured, co-pays, etc.)   50%   50%
Dental, Orthodontic & Vision   50%   50%
Psychological    50%   50%
Educational – Including Private School Tuition   50%   50%
Extraordinary expenses (car insurance, etc.)    50%   50%

a.   The Father will provide Health Insurance coverage for the children.
b.   Uninsured Medical costs from new out of network providers will be the sole responsibility of the parent who utilizes that out of network provider.  
c.   Medical and dental expenses shall NOT include elective or solely cosmetic medical and dental procedures. The cost of elective or solely cosmetic medical and dental procedures shall be the sole responsibility of the parent obtaining or requesting such procedure.
d.   Extracurricular Activity costs will be the sole responsibility of the parent who signed the child(ren) up for the activity.  Extracurricular Activities include, but are not limited to Soccer, Dance, Gymnastics, and Summer Camps.
e.   All bills for shared expenses shall be submitted to the other parent within 90 days of the date of service. A parent who fails to submit a copy of a bill for a shared cost to the other parent within 90 days of the date of service shall be solely responsible for all out-of-pocket costs, including but not limited to all uninsured costs and co-pays, for that bill.  The Other Parent shall reimburse the Parent submitting the bill for reimbursement within 30 days of submitting the bill.
f.   Effective November 2003 the Mother shall reimburse her share of the Private School Tuition directly to the Father.  The Father will provide a payment schedule for the current school year to the Mother within 1 week of the effective date of this agreement and at the beginning of every subsequent school year to the Mother.

************

Schedule for 2004- 2005 school year mailed with delivery confirmation.  (BM doesn't pick up Certified letters).

Stipulation and Order for CS entered in May 2004.

She is currently deliquent on:
Tuition payments for Sept, Oct, and Novemeber.  As well as reimbursement of expenses for August, Sept, Oct and November.

Total amount outstanding is approx $2,500. (not including CS that is oustanding from Sept also)

She has verbally stated that she will not be paying anything anymore.  
She also left DH a voicemail saying that she deposited money in her account for the check she wrote and bounced in October.  (Obviously a lie since the check bounced)

DH really likes your suggestion to intervene.

Would it complicate things that her new divorce is in a different county?

I am really thinking that this is becoming more than we can handle on our own.

Any suggestions on a good lawyer in Santa Clara County, CA?
Thanks
FTK

[socrateaser]

>Would it complicate things that her new divorce is in a
>different county?

Well, you'll need an attorney to appear at the hearing in that county, but you can file the motion to intervene without actually being there.

You could actually just file a motion in the other family court based on the NSF check itself. It would be interesting to see how the judge would react. In an ordinary civil action you would be well within your rights, and you should be in a family law action, too, but the judge may never have been confronted with this situation before, and he/she may not want to admit that authority actually exists to let you intervene -- but it does.

>Any suggestions on a good lawyer in Santa Clara County, CA?

Nope. Sorry.