Child support mod question/interrogatories

[rey]

I'm petitioning pro se for a CS increase in King County, WA. CS last court ordered in '98. Father in army 2/98-1/05. We agreed to an upward mod in 2003 based on increased income (agreed amount was less than guideline would have been; agreed on mod not court ordered). Father reverted to court-ordered amount upon separation from army (as agreed--agreement also entailed revisiting the CS amount a few months after Father left army, giving him time to get a job).

Father has not pursued full time employment since leaving army; he is pursuing a (second) bachelor's degree instead. Both of us are married; his wife is working, my husband is a SAHD returning to school this Fall to complete his (1st) bachelors degree. Father retained an attorney for this mod. We've exchanged settlement letters and are at an impasse. The issue seems to be whether his income will be imputed at the state average for his age (their argument) or on his actual earning capacity (my argument).

I just rec'd interrogatories from his attorney to fill out. I know (from having read these boards awhile) that you can ask for (pretty much) any information in an interrogatory, but you don't necessarily need to amswer every question.

1. As a pro se in this case, should I pick and choose what to answer (i.e. if I don't think it's relevant or *helpful* to my case, should I ignore it, or should I make an effort to be as transparent as possible)? (I don't feel I have anything to hide, but I also don't want to shoot myself in the foot by giving them more info then they need.)

2. Some of the information I want to get from them in the interrogatory I will send him is if he/his wife have other bank accounts then the (depleted) one he's reported (and their balance). I also want to find his wife's income (relevant--shows his ability to pay since he is unemployed student). Suggestions on how to do this? Interrogatory? Subpeona?

3. Any suggestions on how best to frame my argument that the court should impute his income at demonstrated earning capacity? Or, failing that (since army income might be viewed as non-replicable), that they should take into account his education and experience level and impute it higher than the state average for his age?

4. How sympathetic have courts been , in your experience, to imputing an NCP's income at a lower amount than actual earning capacity when NCP is pursuing a degree? (Does it make a difference if it's a second bachelors degree?)

5. Would recent large purchases ($22K cash for a car) have any real bearing on how the court viewed his ability to pay? (I know it wouldn't legally--but dang, that's a heck of a cash layout when he's anticpating 'student poverty'.)

6. To the best of your knowledge, will my having another child to support (mine and my husband's), have any bearing on the determiniation of CS?

7. Can you give me suggestions (other than go to the local law library, which I'll do) on how to search law, administrative code and case law releavnt to issues of imputed income, and in-kind income (since a significant minority of his army income could be viewed as in-kind)?

Thank you for all your help. :)

[socrateaser]

>1. As a pro se in this case, should I pick and choose what to
>answer (i.e. if I don't think it's relevant or *helpful* to my
>case, should I ignore it, or should I make an effort to be as
>transparent as possible)? (I don't feel I have anything to
>hide, but I also don't want to shoot myself in the foot by
>giving them more info then they need.)

You must answer every question, unless privileged by some rule of evidence or constitutional right.

In addition, if you do not know an answer, then you can state that "I do not have sufficient information to answer the question."

You may also state that "I do not understand the question," assuming that you don't reasonably understand what is being asked of you.

Finally, you can answer, "I object to the question as too broad, overreaching and not reasonably calculated to lead to the discovery of admissible evidence," if the question is not only irrelevant, but that your answer is not even reasonably likely to lead to any relevant information. This last answer is the sort of thing that is almost certain to get the other attorney to file a motion to compel discovery, if you use it in a frivolous manner, so be careful about using it unless you are able to explain to the judge as to why this question is entirely without merit.

>
>2. Some of the information I want to get from them in the
>interrogatory I will send him is if he/his wife have other
>bank accounts then the (depleted) one he's reported (and their
>balance). I also want to find his wife's income
>(relevant--shows his ability to pay since he is unemployed
>student). Suggestions on how to do this? Interrogatory?
>Subpeona?

Let me start by stating that I don't know whether or not the new spouse's income is a factor that the court may use to calculate ability to pay. There are frequently a number of other factors that must be met before a judge will find that a person is deliberately underemploying themselves and is relying on a new spouse's income. So, it may NOT be relevant or even "reasonably calculated," which makes it very difficult for me to tell you how to get the info.

Most husbands/wives know about their partner's employment, so you should ask your ex directly in an interrogatory, and see what response you get. Then if that doesn't get what you need, you may need to subpoena the other spouse. However, be advised that there is a marital privilege that prevents a spouse from testifying against his/her partner against the wishes of the party spouse, if the question concerns communication between spouses taking place during a valid marriage. So, if the husband says "I don't know," then you will not be able to obtain the info from the other spouse.

You can, however, subpoena the other spouse's employer, and you can the right to subpoena the other party's tax returns, because they are not testimonial evidence. So, if the returns are jointly filed, then you can get them with a discovery request. However, if they are "married filed separately" tax returns, then you must subpoena the records from the non-party spouse. Then we get into an argument that by producing the returns, you are forcing what, but for the other party's obligation to file a tax return, would be unavailable as privileged as testimonial marital privileged information. So, it ain't cut and dried, and a lot of it depends on specific evidence law of your jurisdiction, and I don't practice WA law, and I haven't investigated this issue (and I don't have time).

I would simply start asking and see what objections you get back, and then take it from there.

>
>3. Any suggestions on how best to frame my argument that the
>court should impute his income at demonstrated earning
>capacity? Or, failing that (since army income might be viewed
>as non-replicable), that they should take into account his
>education and experience level and impute it higher than the
>state average for his age?

You can ask the court to order the person to submit to a vocational evaluation with an expert. You can also just show evidence of jobs from the classifieds or online sources for work that the other party has previously done, and then ask that the court either impute earning capacity or order the other party to "seek" work comensurate with their apparent earning capacity, and then regularly report to the court on progress.

It's tough to prove that the other person can earn more, when it's a borderline case. Imputing income is more useful when there is an obvious and gross disparity between a person's actual income and their past demonstrated earning capacity. You need to try to make your case "obvious" to the court, assuming that it is obvious. Example:

If the other person has $100,000 in their checking account, merely because they don't efficiently manage their money, and you know that there is a savings account with instant access for deposits and withdrawals, that pays an FDIC insured 3.5% interest, then it is "obvious" that the person could be earning money on at least $90,000 without any risk to either their assets or money management requirements (unless they routinely write $10,000 per month in checks).

So, this extra income is clearly imputable, because it's unreasonable to not take money that is lying out on the table.

>
>4. How sympathetic have courts been , in your experience, to
>imputing an NCP's income at a lower amount than actual earning
>capacity when NCP is pursuing a degree? (Does it make a
>difference if it's a second bachelors degree?)

My experience is that the court is more sympathetic to a situation where the child is younger than older, because there is a longer period of child support to which more education may be applied. If the child is 17, and the parent is looking for a new degree when they're 50 years old and have been working in their profession for the past 25, then the court will probably say, "That's nice...go to school if you want, but keep paying support at the imputed rate."

>
>5. Would recent large purchases ($22K cash for a car) have any
>real bearing on how the court viewed his ability to pay? (I
>know it wouldn't legally--but dang, that's a heck of a cash
>layout when he's anticpating 'student poverty'.)

Support is about income not assets. Now, if the person buys a $150K Mercedes for cash and earns $25K per year, then that will likely raise the court's eyebrows. But, $22K for a motor vehicle is about average these days, so the question is, where did the $22K come from, and is it reflected by the person's earning capacity? Cause if it's not, then like with the Mercedes, the court will start disbelieving the assertions of the payor parent about his/her income, where spending far exceeds actual earnings.

>
>6. To the best of your knowledge, will my having another child
>to support (mine and my husband's), have any bearing on the
>determiniation of CS?

No. The paying parent has no obligation for a child not his own, legally. You chose to have another child with another partner, so it's your problem to support that child.

>7. Can you give me suggestions (other than go to the local law
>library, which I'll do) on how to search law, administrative
>code and case law releavnt to issues of imputed income, and
>in-kind income (since a significant minority of his army
>income could be viewed as in-kind)?

//www.salary.com

[4honor]

Please note:
I am not a lawyer. I do not play one on TV.

in 2002 DH did a Downward modification of CS successfully pro se.

My income was not taken into consideration (they asked for the amount I made a month (but WSSR told me they do not consider the spouse's income unless they have a million or more in assets or the NCP is tring to pay nothing in CS -- neither of which was our situation.)

We have two children and DH has one child from his previous marriage.

Our children have a diagnosis of mild developmental delay -- requiring higher than normal medical bills.  We received a deviation from guidelines due to this.

Also, BM's income had increased alot and DH's had increased by about 30% from when the original order was written, but the W-2's had alot of overtime on it. That year the company had alot of lay offs and there was no overtime to be had. The judge ruled that no overtime would be considered, as it was not guaranteed. DH and BM ended up at 50/50 with BM responsible for $372/yr in un-reimbursed medical expenses prior to Dh paying his half of the expenses. (5% threshhold in the worksheet)  Dh got a reduction of $113/mo for the first 2 years and then it increased by $50 a month when SS turned to teen years. It cost BM $3K to have CS decreased by $1K a year (roughly).

DH was not imputed income, but the case ahead of us the judge refused to because the man was working and paying on at least 40 hours of greater than minimum wage... after leaving the military about a year before. He was also trying to complete a degree. The judge agreed that the child would benefit from the increase in income from the additional education. (don't forget that the GI Bill is now $1,000 a month in addition to any other grants, loans, etc he may receive).

You need to take a look at what you may lose if you go into the court room. Is the difference in the amount you wish to impute and the standard going to cause that much difference. Can you lose a little now to get more in the long run ? impute at standard now to get an automatic increase in 18 months to two years? Only you can decide if trying to negotiate will help you in the long run.

Maybe there are other things that can assist you -- have NCP pay a higher percentage of reasonable unreimbursed medical expenses... that way if there is anythign unexpected, he picks it up while chasing his dreams (for example).

[rey]

Thank you again for your answers. I do, of course, have more questions. ;) If you have time to answer them (they are largely requests for clarification), they are marked with *** below.


>>2. Some of the information I want to get from them in the
>>interrogatory I will send him is if he/his wife have other
>>bank accounts then the (depleted) one he's reported (and
>their
>>balance). I also want to find his wife's income
>>(relevant--shows his ability to pay since he is unemployed
>>student). Suggestions on how to do this? Interrogatory?
>>Subpeona?
>
>Let me start by stating that I don't know whether or not the
>new spouse's income is a factor that the court may use to
>calculate ability to pay. There are frequently a number of
>other factors that must be met before a judge will find that a
>person is deliberately underemploying themselves and is
>relying on a new spouse's income. So, it may NOT be relevant
>or even "reasonably calculated," which makes it very difficult
>for me to tell you how to get the info....I would simply start asking and see what objections you get
>back, and then take it from there.
>

***Is it made more relevant if his reported household expenses exceed *his* reported income? [I.e. His only reported income at this point is $1100/month froma GI Bill. His reported (shared) expenses are roughly $2K/month.

>>
>>3. Any suggestions on how best to frame my argument that the
>>court should impute his income at demonstrated earning
>>capacity? Or, failing that (since army income might be
>viewed
>>as non-replicable), that they should take into account his
>>education and experience level and impute it higher than the
>>state average for his age?
>
>You can ask the court to order the person to submit to a
>vocational evaluation with an expert. You can also just show
>evidence of jobs from the classifieds or online sources for
>work that the other party has previously done, and then ask
>that the court either impute earning capacity or order the
>other party to "seek" work comensurate with their apparent
>earning capacity, and then regularly report to the court on
>progress.
>
>It's tough to prove that the other person can earn more, when
>it's a borderline case. Imputing income is more useful when
>there is an obvious and gross disparity between a person's
>actual income and their past demonstrated earning capacity.
>You need to try to make your case "obvious" to the court,
>assuming that it is obvious.

***Until he left the army in January, he was making approximately $70K/year ($48K/base pay and $22K/allowances). He is now reporting $13K from the GI Bill, and has not reported income from any job (full or part time). Would this be an 'obvious' enough disparity? (Or will the courts ignore it because he was military?)

>>
>>4. How sympathetic have courts been , in your experience, to
>>imputing an NCP's income at a lower amount than actual
>earning
>>capacity when NCP is pursuing a degree? (Does it make a
>>difference if it's a second bachelors degree?)
>
>My experience is that the court is more sympathetic to a
>situation where the child is younger than older, because there
>is a longer period of child support to which more education
>may be applied. If the child is 17, and the parent is looking
>for a new degree when they're 50 years old and have been
>working in their profession for the past 25, then the court
>will probably say, "That's nice...go to school if you want,
>but keep paying support at the imputed rate."

***The child is nine. It will be my ex's 2nd bachelors degree. His income was imputed at $0 for two years while he was pursuing his first bachelor's degree. I hope they won't 'under-impute', but I guess we'll see in November.

>>6. To the best of your knowledge, will my having another
>child
>>to support (mine and my husband's), have any bearing on the
>>determiniation of CS?
>
>No. The paying parent has no obligation for a child not his
>own, legally. You chose to have another child with another
>partner, so it's your problem to support that child.
>
***It may not change the answer, but I'm curious...If an NCP has a child w/a subsequent spouse, the NCP's financial obligation to the 2nd child can reduce his/her 'considered income' in determining CS for thw 1st child. Does it not work the same if the CP has a child w/ a subsequent spouse?

[rey]

Thank you for your answer--I appreciate it. CS was last court ordered in 1998, when ex was an E-3. He subsequently went to OCS and, upon disharge, was an O-3 making ~$48K more than he did in 1998. My income has risen ~$6K in that time.

He left the army in January and is returning to school for his second bachelors degree, using the GI Bill (and living, presumably, on other financial aid and/or his wife's income). To the best of my knowledge, he is not working (full or part time)--he hasn't reported any income from a job.

If they used his army income, his CS obligation would more than double (more than I'm asking for, actually). If they used the imputed income for his age, it would still go up from the court-ordered 1998 amount. The only way I 'lose' (i.e. CS goes down) is if they impute his income at less than the state median for his age. I find this unlikely, as his income was (already) imputed at $0 for two years while he pursued his 1st bachelors degree.

I am disinclined to 'take less' than what I think is a fair and just amount (and that is still anwhere from $175-$300 less than guideline using his army income (depending on what allowances they would consider as income)). I have consistently worked with him and given him breaks when he cried poverty, on the assumption that he was telling the truth and that the consideration would be returned. Based on observation, his perception of poverty is different then mine (poverty for him appears to equal not being able to buy new clothes every month). Based on experience, the consideration is not returned and when I attempted to negotiate an amount that inconvenienced him (nevermind it still being significantly below guideline), he squawked. At this point, I see no advantage to being 'nice'. I know what I feel is fair and just, and I will press for that in court. Trying to reconcile an amount that will leave him walking away happy is no longer a priority.

[wendl]

I am NOT an attorney either BUT.

IN Pierce county when my dh went to have his cs reduced they based the income off of his unemployement checks as he had $$ coming in.

Some commissioners will impute others will go off actual income IF their is somekind of income coming in.

At least that was my expierence in Pierce and Snohomish County WA.


**These are my opinions, they are not legal advice**