Capitalize on her mileading the court?

[reagantrooper]

Soc:

State in NH.

If you will please give me some ideas on how to capitalize on my opponents dishonesty and her misleading of the court. This is a very confusing and convoluted matter so I will try to give you the facts and a brief history. I have posted on this issue before.

Final decrees says the marital home will be foreclosed on and both parties shall be equally responsible for any deficiency. The home was sold for a loss at auction the bank wrote off the loss and the deficiency became $0. However the IRS attached the $43K loss as income only to my EX and taxed her on it.

Years later (spring 04) the EX filed a motion to compel me to pay her ½ of her taxes,penelies and interest that she "paid" the IRS. I objected to this on the grounds that the deficiency was zero therefore I owe her nothing. Basically her taxes where hers and hers alone.

Well I lost that argument and was ordered to pay some $7K – $8K within 90 days. I was only ordered to pay the actual tax assessed no interest and no penalty.  I filed a motion to reconsider that was denied.

August 04 I filed a motion to modify to give me 6 years to pay. I also filed a motion to clarify because the dollar amounts on the courts order and the evidence that my EX submitted did not add up. The EX objected and asked the court to order me to pay her legal expenses as result of my frivolous motions.

 As a result of this motion the court responded in part with the following "The court is concerned about the accuracy of the amount paid by Ms. ***** to the IRS and cited in the courts order. The courts order was based on Ms. **** representation that she incurred a liability with the IRS which she paid. Ms. ***** is therefore ordered to file an affidavit under oath with supporting IRS documentation establishing the amount she paid the IRS. Assuming her representations at hearing as to the above matters are accurate, her request for cost will be granted".

She filed this affidavit reaffirming the numbers she first gave to the court. Months passed and I heard nothing from the court. I asked you about this delay and I called the clerk she did not have an answer for me but said she will get back to me. I never heard anything from her or the other side until I filed to change my summertime "visit".

Along with her objection to my motion she filed another affidavit on the same issue as she did back in Aug,04 however this one has totally different number than the first one.

She seems to "come clean" about a $5200 refund she got from the IRS in 03 with regards to this issue she claims that she "did not know what this money was for and did not associate it with the issue before the court.

She also seems to come clean about a earned income credit of $1200she received during this time frame and had to pay back. This $1200 was also included in the amount she wanted me to pay and included in her first affidavit.

I know its confusing for me and its my thing. I hope I have made the situation clear for you.

To sum it up as I see it. She filed a motion to make me pay her a specific $$$ amount she won that motion. When called on her numbers she filed a ironous and misleading affidavit. For whatever reason there was a 8 month delay in the process. Now she files another affidavit on the same issue claming she made a "mistake" with her numbers.

I believe she was trying to bilk me for money and lied to the court both verbally and in writing and I want to capitalize on her deceitfulness to the court. She knew she got the $5200 and she knew she got the $1200 and tried to hide these monies from the court and myself.

We will be before the court on this matter in June.

1.   Any ideas on how best for me to approach this and use it to my advantage?

2.   Based on these facts how can I get the court to vacate its original order and find that I don't owe her a dime?

Thanks for what you do!

[socrateaser]

>1.   Any ideas on how best for me to approach this and use it to
>my advantage?

Depends greatly on the exact text of her affidavits and testimony, which I haven't read. The court may believe that it was an honest mistake, or that it was an intentional fraud. Fraud requires clear and convincing evidence, so that's hard to prove. Contra is that she signed an affidavit with two different sets of numbers and that is pretty clear evidence. Whether it's convincing evidence to show that she knew what she was doing, and not just ignorant of the tax laws is unknown.

But, your better argument is that her error should entitled you to have her pay your court costs for the whole affair, and if there's any discrepancy, that you will pay it. However, I would also ask the court to order her to sign an IRS form that permits you to get copies of all her returns and status directly from the IRS, as it was filed, so as to finally dispell any possibility of another "mistake."

>
>2.   Based on these facts how can I get the court to vacate its
>original order and find that I don't owe her a dime?

You owe what you owe. You could get her fined for contempt if you could prove the fraud, and the court might tell her that she had unclean hands, so it was not ordering you to pay. But, once again, this depends heavily on her exact testimony, both written and oral, and I cannot possibly analyze the strength of evidence that I have never seen

[reagantrooper]

Soc
My X is still not being completly honest with the court.

Dispite this new and revised affidavit there remains a $750 EIC that she got in 97. Part of what the IRS charged her for was this $750. So she got this money when she was not entitled to it and had to give it back. This $750 is included in the ammount she is trying to get from me.

I know this as fact based on an IRS form that she gave to me and the Court. I see an optorturnity to show yet another deciet on her part.

1. Do you consider This pety?

2. If your answer to 1 is no, how would you use it against her?

3. If your answer to 1 is yes, how would you use it against her?

4. I have been pro-se on this issue. How could I determine my court cost?

5. Do court look at time off from work as "cost"?

Thanks a BUNCH!

[socrateaser]

>1. Do you consider This pety?

No, it's material.

>
>2. If your answer to 1 is no, how would you use it against
>her?

If you say you can prove that she received the EIC with the evidence that you currently have, then tell me what you would offer the court.

>3. If your answer to 1 is yes, how would you use it against
>her?

N/A

>
>4. I have been pro-se on this issue. How could I determine my
>court cost?

Your court costs are only your out-of-pocket costs, i.e., filing fees, copying, books to educate yourself on the law, etc., but not value for your time expended, unless you actually can prove that lost income as the result of having to deal with this case.

>5. Do court look at time off from work as "cost"?

Yes, if you can prove that you actually lost wages as a consequence (i.e., non-exempt/hourly employee). If you are an exempt/salaried employee, then forget it.

[reagantrooper]

Soc

I have a letter from the IRS to my X titled "we are proposing changes to your 1997 tax return". It gives her various instructions and options.

On page 2 it list "our Proposed changes to your tax computation" it has 7 line items that list the changes it includes her new tax amount, her interest, her penalty and the EIC in question its clear that she was paid it and has to pay it back. The EIC is actually $790 .

1. At what point in the hearing should I bring this up?

2. How would you tell the court about this to make the point that this person is not being forthwright with the court now or in the past?

Thanks!!!!!!!

[socrateaser]

>1. At what point in the hearing should I bring this up?

Motions are usually heard on affidavit/declarations and documentary evidence, rather than witness examination, so I suggest that you read through the other party's affidavit, figure out where the numbers don't work, and then submit your own affidavit stating that the the other party's numbers are incorrect by $790, and attach the IRS letter as supporting evidence to your declaration.

I know this is not a very "Perry Mason" kind of solution, but I'm concerned that if you hold your evidence back for the hearing, that you will not be permitted to introduce it at all. If this were a trial, I would ask to cross examine the other party on her affidavit, and then I would go through it methodically, and try to get her to admit her certainty about all of the amounts including, specifically the EIC. Then when she has just stated that she was never paid the EIC, I would pull out the IRS letter and ask that it be admitted into evidence. Then I'd hand it to her and ask her to read it to the court.

Then I'd take the letter from her and say, "No further questions, your honor," and I'd immediately move to deny her motion as her numbers cannot be trusted in view of her obviously perjured testimony.