Ex-parte Hearing on Attorneys fees

[forthekids24]

BM and DH were divorced in 1996.  DH is CP, BM moved back to the area in January of this year.  DH has been trying to negotiate with BM to change the parenting plan, she is not cooperating.

DH got "served" (not really, they are not stamped, left on our door step and no court date) of an exparte hearing for attorney's fees.  Her attorney is saying she is eliglbe under FC 2030 to receive $$ from DH.

BM is claiming that she does not have the money to be represented to resolve the issues of modification of support and custody.  BM "lost" her new job in March.  

BM paid a $2,500 retainer to the lawyer that prepared the papers.

Ironically BM currently owes appox $ 2,500 to DH for past due expense reimbursement requests.


BM's income and expense declaration states she had $2,000 in income last month and $167 as the average monthly.  ($167*12=$2k)  Basically she is claiming that from 4/1/2004 - 3/31/2005 she only had $2,000 in total income.

She states in her declaration that the divorce from her most recent husband was finalized Dec 2004.

DH and I got a copy of her MSA from her most recent divorce.  Her ex-husbands declaration states that he was paying her $1,000/ month in spousal support from 4/26/2004 to date of divorce.  Also states she was collecting unemployment compensation of $1,200/ month.

Ex husband paid BM $15K in Oct 2004 at signing of MSA, and $40K in Feb 2005 for BM's share of the interest in the house. (After the date of divorce and the original MSA)

Alot more income than she put on her income and expense declaration.

You used the term "unclean hands" in answering another persons question a short time ago about the opponent being deceptive.

Questions

1) Will this information prove to the court that she has "unclean hands"?

2) How valuable will this information be to prove that she is not credible?

3) Will we be able to use this information in the custody hearings?

4) I looked up FC 2030 (Santa Clara county) it says it is for divorce and separation, does it apply to custody also?

5) Does the fact that she chose to pay a lawyer $2,500 to start a fight with us and neglect the childrens financial needs show she is acting against the childrens best interest?

Thanks a bunch!!!!

FTK

[socrateaser]

>Questions
>
>1) Will this information prove to the court that she has
>"unclean hands"?

The "clean hands" doctrine requires a showing that the party seeking relief in an equitable cause of action has wronged the other party in the action. The posted facts do not show any particular wrong committed against your DH.

However, if you can prove that the other parent is materially misrepresenting her income, then the court will use the proven income to determine support. One time windfalls do not make income of the kind that is used to compute support, so the $55K that you state the other parent obtained is not useful to calculating support, except to the extent that that money produces passive investment income. Interest rates are still very low, so even if the parent has saved the entire $55K, it's likely that the best you could hope for is about $1,500 per year in interest income, and from that only the percentage applicable to child support. Not much money, unfortunately.

The income that you are looking for is the regular and routine income from earnings, plus any regular and routine passive income, or, if you can prove what the other parent should be able to earn in a current job market, then the court can impute child support based upon the parent's earning capacity.

There aren't enough facts about the parent to analyze her earning capacity, so unless you can showt that she has a diploma in some subject and/or experience that will generate a particulare income, then you're probably looking at child support based upon minimum wage times 2080 hours per year divided by 12 months, as the parent's salary.

>2) How valuable will this information be to prove that she is
>not credible?

The fact that she has not reported the windfall income is irrelevant, for child support, but it is relevant on the back support owed. Once again, however, you must prove that she still has the money to make the payments. She may have blown it all or hid it and testify that she blew it.

>3) Will we be able to use this information in the custody
>hearings?

I don't see how any of this is relevant to custody.

>
>4) I looked up FC 2030 (Santa Clara county) it says it is for
>divorce and separation, does it apply to custody also?

CA courts have power to award equitable attorney fees, in all family law actions, on the basis of need and ability to pay. So, if she has a need and you have the ability to pay, then she could get her attorney fees out of you. Of course, if you can show that she has misrepresented her assets and that she still has a considerable portion of the $55K, then her misrepresentation of this to the court would demonstrate "unclean hands" and she would be refused any equitable attorney fees.

>
>5) Does the fact that she chose to pay a lawyer $2,500 to
>start a fight with us and neglect the childrens financial
>needs show she is acting against the childrens best interest?

No. Every person is entitled to obtain counsel to represent themselves in court. No court will penalize a parent for putting the cost of legal representation in front of their child's health and welfare.

Attorneys have to eat, too!