contempt and show cause - no material facts

[hoosierpapa4]

Indiana, contents of verified information for contempt:

Comes now....blah blah blah under oath and penalties of perjury, states the following:

1. On or about Date in 2003, this Court entered and Order obligating Petitioner to pay Eighty-one percent (81%) of any work-related childcare costs incurred by Respondent.

2. Respondent has incurred work-related childcare costs and has provided Petitioner with documentation pertaining to those costs along with a request for reimbursement.

3. Petitioner has failed to reimburse Respondent for his share of work-related childcare costs.

4. Several months have elapsed since Respondent requested Petitioner to reimburse her for Petitioner's share of the work-related childcare costs.

5. The Petitioner has contemptuously refused, neglected, and failed to comply with the Court's Order dated [two years ago].

6. The Respondent has been compelled to employ her attorney to prepare ....blah blah blah...give me money.


Now the questions:

1) I see nothing material in the Verified Information for Contempt, no EXHIBITS, no information whatsoever including but not limited to:

which children
from when to when
how much $
Who did the sitting
Did you offer the children to father (who works from home) in your absence

2) Isn't it rather odd to put a motion before the Court with no real meat to it?

3) When they go to spring this made up dollar amount and invoices printed on my ex's printer at work, will I be afforded an opportunity to request a continuance on this issue to do further research (like get copies of checks front and back, schedules from the day care providers etc.)?

4) This is from the actual Court transcripts from the Order that is referenced: "q. During the time when you're in need of childcare, would you be opposed to having your ex-husband take care of the kids?", "a. I never had."  "q. okay, so there would be no cost in having the children stay with their father?", "a. during the time that I'm at work, no."

do you think this will add any value as I would assume that the Parenting Time Guidelines which indicates that the other Parent will have the right of first refusal is also in effect?

Thanks in advance.

[hoosierpapa4]

nm

[hoosierpapa4]

nm

[socrateaser]

Thanks to the U.S. Supreme Court in the case of Hicks v. Feiock, proof of contempt for non-payment of support (which includes daycare) requires only the following elements:

1. That there is a valid, enforceable order to pay entered by the court.

2. That the defendant knows of the order.

3. That the defendant didn't pay.

If you prove the above three elements, then the burden shifts to the defendant to prove that they didn't have the ability to pay. That is, they have willfully and with conscious disregard, violated the order unless they didn't have the ability to pay at the time that the support order became due and payable.

So, if you show the court a bill for daycare and a demand for payment, then assuming a valid order and the defendant's knowledge, it falls to her to show that she could not have found the means to pay the bill.

And if she doesn't, then contempt. Period.

So, you don't really need a hell of a lot of evidence to make this case.

[hoosierpapa4]

When you stated: "So, if you show the court a bill for daycare and a demand for payment, then assuming a valid order and the defendant's knowledge, it falls to her to show that she could not have found the means to pay the bill."

It's really reversed, she has entered this motion for contempt, has never offered any proof that she has ever needed day care, has never sent me a bill, has never offered first right of refusal...Has even testified that there would be no need for day care... Yet, just three weeks before a modification of custody and support, she shows up with a bill for day care (assumably printed on her printer at work) and a demand for payment that she "mailed" to me...  This Verified Motion for Contempt has NO details in it whatsoever so we don't even know which year they are talking about.  You get the picture....

Now, when her attorney presents this "bill" and "letter", do I:

1) Ask for copies of cancelled checks front and back

2) Ask for the letters certification of mailing

3) Is there anything that I can do to find out exactly what it is that they are filing this for outside of contacting every daycare provider in my area?

TIA

[socrateaser]

What you are describing is a fraud upon the court. But, let's review:

The fact that she may have never needed daycare or used it in the past is irrelevant. She's entitled to be reimbursed for it under the court order, if she paid for it.

So, if you doubt the authenticity of the bill, itself, then you need to subpoena the daycare center custodian of records, and get that person to authenticate the bill.

I would write to the attorney and state that you doubt the bill's authenticity, however, that if they will provide you with a copy of both sides of the cancelled check showing that payment was actually made, then you will pay your portion of the bill.

If they will not do this, then your only option is to subpoena production of the daycare's copy of the records.

Otherwise, you will be found in contempt. Of course, if you were to later obtain proof that your ex obtained the contempt order via perjury, then you could have the original contempt order set aside, and your ex would be fined severely, and probably thrown in jail for 30-180 days.

But, I would want to avoid the contempt in the first place, because once you're in jail, there's no way to undo it after the fact.

[hoosierpapa4]

The verified motion for contempt has no count them ZERO indications as to what the day care facility is named, how much the bill was for, OR what year the children (or for that matter which children) might have been in a facility (if indeed it was a facility at all).

So, doing this:

"So, if you doubt the authenticity of the bill, itself, then you need to subpoena the daycare center custodian of records, and get that person to authenticate the bill."

Will be a challenge.  Because they have not produced a bill, or letter indicating that they have asked for payment.

Since opposing counsel has not included any of these details, how do I find fact?

Thanks again.

[socrateaser]

I must be missing something. Your ex's attorney has filed contempt against you based on a bill for daycare from no one?

They have submitted a bill to you that does not name the daycare provider?

If that is the status of the situation, then I'd serve a formal request for production of the actual bill, and/or a cancelled check showing that payment was made, and an interrogatory demanding the name of the daycare provider and that provider's tax id.

Actually, my advice hasn't really changed. If your ex paid with cash, then she has the burden of proving that she paid. If she brings in the person who she paid and that person admits to receving the money, then you're in contempt.

If she doesn't then you can object to the introduction of her bill as not the best evidence, and demand that the original invoice be produced.

If this is a criminal contempt hearing, then you have the right to cross examine every witness against you, so if the daycare provider doesn't appear to verify the bill, then you can object to the bill as hearsay.

If the bill is from your ex, then that's objectionable as logically irrelevant -- it doesn't prove that your ex incurred any charges.

[hoosierpapa4]

She has submitted a Verified Information for Contempt.

There are no details on this, only vague statements in the contempt.

"They have submitted a bill to you that does not name the daycare provider?"

In fact, they have submitted NO bill, no details whatsoever, just served me with the contempt papers.

I don't recall any daycare related expenses ever having been brought to my attention, or a demand for payment from my X (in fact, for the last two years, I have had the kids on all working days when she would have been working).

I don't know what she is trying to pull here.  My best bet is that she has decided to cook up a bill for daycare expenses with one of her friends, bring the "invoice" to trial and say that I refused to pay it.

I believe from what you have written, that I have enough information to know how to proceed.  Thanks.

[hoosierpapa4]

I could take my kids to daycare for a few days, pay the bill, keep the bill until 3 weeks before trial....file a contempt and produce at trial a "copy" of the original invoice and letter written to my X that was never sent demanding payment ...  AND she will be found in contempt.

Perfect....