Objections to Order & Tax Return Question

[rickdad]

Soc,

I am in NY, X is in AZ.  Daughter lives with me and has for 3 years.

We had a hearing b/c X refuses to pay her share of uncovered medical for daughter.  Judge will be issuing money judgment to me for arrears for amount X is responsible for.  X says she is currently on disability & not working, doesn't know how long she will be out of work, atty. says X is 'not well' so judge sets arrears to be paid through NY SCU at $5.00/wk. no admin costs to be added (X's wages garnished through SCU).

It will take over 3 YEARS for X to pay this off going through SCU. I asked the judge if that amount will change when X is off disability - she said not unless I come to court again. Judge says I don't have to accept this but then we need to go to full blown trial....definitely strongly suggesting I accept this w/o saying those words.

X's atty. also mentioned X asked him to file modification petition in AZ.

After hearing, X's atty. shows me a petition for downward modification he claims X wrote, & asked him to file (petition not yet filed). In it, it states X is expected to be on disability from 7/22/05 to 8/5/05, only 2 wks! I am guessing either A) X lied openly about being on disability yesterday or B) perhaps X is still on disability, but obviously this is expected to be a short-term thing & I think she & atty. deliberately misled the court.

Questions:

1) Can I subpoena work records, etc. to verify disability?

2) When order is rec'd., can I object based on the info I learned immediately after the hearing (that the disability was short-term, and possibly already over) and that I would never have accepted the term of $5 wk. if X were not on disability?

3) Would AZ be able to obtain jurisdiction if X's atty. files a modification there?

4) If a modification is in the future, is there a way to verify that the tax return X provides is really the one she submitted to the IRS?  I have strong reason to believe she pulled a fast one regarding this once before.


Thank you.

[socrateaser]

An attorney must not permit the client to use the attorney's services to perpetrate a crime or fraud upon the court. Opposing counsel showing you a document from his client, clearly demonstrates that his client was materially falsifying testimony, because that document would otherwise have been considered confidential information that the attorney could not have disclosed to you without a formal discovery request or or court order compelling production of the document. Therefore, attorney's actions are a tacit admission that his client has committed a fraud.

You should object to the current order, on grounds that opposing counsel has just shown you documentary evidence proving that his client has committed a fraud upon the court. Then you should demand that the court order a hearing to reconsider its prior order based on the newly discovered evidence, and further order opposing counsel to produce the document to the court.

The court should find your ex in contempt and modify the support award accordingly.

Opposing counsel knows that he's being used to perpetrate a fraud, and by disclosing that information to you, he has relieved himself of the possibility of being sanction by the court or disciplined/suspended/disbarred by the NY Court of Appeals.

So, don't get lost in technicalities -- you just got a birthday present.

[rickdad]

Thanks very much.  

X did not specifically say how long she would be out, but between her "I can't work, I have no income...." and the atty's "she's not well comment" it certainly came across as not being short-term.  When the judge said I would have to come back if X came off disability to change the garnished amount for arrears, judge actually stated she couldn't predict how long X would be out.  It appeared to me the judge certainly didn't take the disability as a short-term thing.

1) I don't have a copy of the petition the atty. showed me - can I compel him to give me a copy or perhaps just call and ask for a copy?

2) Aslo, if SCU shows 'normal' wage garnishments (in terms of amount), then wouldn't that also prove X is not getting disability but getting her normal wages? (I'm assuming the garnished amount would decrease if she is not receiving full salary but I know assumptions are dangerous!)

3) Any thoughts on the tax return question?  I know I am getting ahead of myself, but I'm sure there will be a modification petition from X sometime soon.

thank you again - sorry to be a pain.

[socrateaser]

>1) I don't have a copy of the petition the atty. showed me -
>can I compel him to give me a copy or perhaps just call and
>ask for a copy?

You need to take my previous post to an attorney and have him explain what's up, because your questions here indicate that you don't understand the issue, and perhaps I'm not doing a proper job of explaining it to you. If that petition says what you say it says, then that is a very very serious matter and you have an easy contempt order and set aside of your new order.

[rickdad]

>>1) I don't have a copy of the petition the atty. showed me
>-
>>can I compel him to give me a copy or perhaps just call and
>>ask for a copy?
>
>You need to take my previous post to an attorney and have him
>explain what's up, because your questions here indicate that
>you don't understand the issue, and perhaps I'm not doing a
>proper job of explaining it to you. If that petition says what
>you say it says, then that is a very very serious matter and
>you have an easy contempt order and set aside of your new
>order.


Thank you.  I believe I understand the issue as you have explained it, but perhaps I overestimate my comprehension of the matter.  However, having been burned in the system time and time again, I'm very skeptical that without tangible proof in my hand to show the court, the as yet unfiled petition I saw yesterday will disappear as soon as X's atty. receives a copy of my objections.

I can't afford to incur add'l legal fees at this point; I am only pro se out of economic necessity rather than choice.  While the awarding of a money judgment in my favor yesterday would seem to be a victory, the reality is that X has obtained an almost 4 year interest free loan (from the time the medical bills began to accrue until her payment of same).

While still before the magistrate, X's atty. did ask X (who appeared telephonically) if he could discuss her medical condition with me. X agreed and atty. then showed me her petition (in the hallway after the hearing), pointing to a sentence that read she would be on "FMLA leave from 7/22/05 to 8/5/05".  This now makes sense in light of your clarification re: the confidentiality of the document.

I thank you for your time.

[jilly]

FMLA and disability are 2 different things.  From what you said, the attorney didn't tell you anything about her medical condition  All he did was show you she's out of work under the Family Medical Leave Act.  That's up to 12 weeks off from work without pay.  You can do a search on Family Medical Leave Act and find what circumstances an employee is allowed to use it.

I'm not an attorney and don't want to appear to be giving you legal advice.  Soc can (and should) clarify this for you.

[rickdad]

>FMLA and disability are 2 different things.  From what you
>said, the attorney didn't tell you anything about her medical
>condition  All he did was show you she's out of work under the
>Family Medical Leave Act.  That's up to 12 weeks off from work
>without pay.  You can do a search on Family Medical Leave Act
>and find what circumstances an employee is allowed to use it.
>
>I'm not an attorney and don't want to appear to be giving you
>legal advice.  Soc can (and should) clarify this for you.


Thanks Jill.  I actually deal with FMLA at work quite a bit.  In NY, NYS disability is an approved FMLA absence.  I would assume it is similar in all states.  We are told that even mentioning someone is on approved FMLA leave could potentially violate the HIPPA laws, so maybe that's why the atty. got her permission to 'discuss her medical condition', even though you are correct in that he disclosed no medical details about that condition by showing me that paragraph.

X has been at this job <1 year, so she's not actually afforded the protections of the FMLA yet.

But I think I have digressed quite far from my original inquiries - my apologies to all!!

[socrateaser]

I am fairly certain that my analysis of your case is correct. The x's attorney had no reason whatsoever to show you that petition, because NY has jurisdiction, and AZ cannot obtain it under any legal theory, other than your express consent.

Don't get sidetracked. This has nothing to do with anything other than the fact that the mother is willfully misrepresenting her ability to work and that is contempt + perjury + fraud. The lawyer has relieved himself of his duty to disclose facts as necessary for you to protect yourself from the fraud. The lawyer has no other obligation, in fact, he can not lawfully aid you to prosecute his client. All he can do is mitigate the fraud, by giving you the necessary evidence to prove fraud.

[rickdad]

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