Christmas break

[awakenlynn]

I hope I remember all of your guidelines.

My husband's ex wrote us today that she is not putting her daughter on the flight we purchased for the Christmas stay back in October.  While she notified us today of this change of plans while walking out the door, she notified friends last week that she was leaving today.

We purchased a round trip airline ticket, from the day Christmas break starts until it ends.  We purchased the ticket in October after we had verified the dates and flights with the ex.  We notified her before and after we purchased the ticket.

I contacted the airlines and they have told me that we can not use the return portion of the ticket because the outbound portion was not used.  They will cancel, but there will be a fee to re-issue a ticket at any later time.

According to the visitation order, we get all of Christmas break on odd years(such as this) and Thanksgiving on even years.  We also get eight weeks in the summer(not using the 1st week after school lets out or the week before school starts).  

We are responsible for the winter breaks, and spring break transportation.  She is responsible for the summer visit.  There is nothing in the order that spells out what happens if a party changes plans.

We reside in Iowa, ex and family resided in Texas, ex's parents live 3 hours away in Illinois and the case jurisdiction is in IL.

1.  Is my husband's ex now responsible for the travel expenses since she changed agreed upon plans?

2.  Will we have to give the daughter up early during break if ex decided to drive back?

3. Can we take her to small claims court to get reimbursed for the unused ticket?

Thank you.  I hope I met all your requirements.

[socrateaser]

>1.  Is my husband's ex now responsible for the travel expenses
>since she changed agreed upon plans?

No. You have relied to your deteriment on the other parent's promise and if that other person fails to perform, they can be "estopped" by their promise to pay for your damages. This is known as "promissory estoppel," and it means that a court will find a contract even though none was actually entered into, and then it will order the other parent to pay for the breach of this implied contract.

>2.  Will we have to give the daughter up early during break if
>ex decided to drive back?

I assume this means that the other parent has determined that flying is unsafe and that they will instead drive the child to your location (as if this were a safer option, which statistically it is not). If so, then that parent would be in contempt for not transferring the child(ren) on the date which you are entitled to parenting time, and you would have no obligation to return the child until the court ordered date, even if that meant that the other parent was several days late getting the child back to school.

>3. Can we take her to small claims court to get reimbursed for
>the unused ticket?

You could, or you may be able to charge the other parent with contempt and obtain reimbursement in family court. I would need to read the exact text of the orders re transportation to know whether or not there's a contempt here.
>
>Thank you.  I hope I met all your requirements.

Pretty much. Thanks.

[awakenlynn]

Hi, I do not understand the answer to number 1.  Who is responsible for the travel expenses?  Us- who paid the intial agreed expenses or ex-who changed plans with no notice.

Also, she is still going to allow us to pick his daughter up on the agreed upon date and time that she would have flown.  She just wants pick-up in her hometown-it doesn't change us from having to drive.  It's 3 hours to Chicago and 3 hours to her parents residence.  

Ex just changed the transportation that we were responsible for.  We now have to drive to her hometown while we have a fully paid for ticket sitting there.  

We figure ex is going to want to drive back and will want us to to drop his daughter off at her mother's house(childs grandmother) about 2 days early.  Ex will argue that if we don't his daughter will miss school, which she pulled the daughter out 3-4 days early anyways.

Ex suggested that we switch transportation responsibilities-our Christmas for her summer, but she pulled that before.  She said she would drive up the 22 and 23 and drop daughter off on 24--3 days into the visit and have her picked up on the 5th--3 days early.  We immediately said no, we would just pay the ticket for her to fly.

I copy/pasted from the court record in regards to the transportation: (we are plaintiff, she is defendent)

The Plaintiff shall be allowed minimum visitation as follows: Commencing in the Summer of 2004, the Plaintiff shall have eight weeks of uninterrupted visitation at his place of residence. This visitation shall be scheduled on 90 days written notice to the Defendant, and shall not include the week after the end of the school year, or the week  
before commencement of school. The Defendant shall provide all transportation for this visitation. The Plaintiff shall have alternating Thanksgiving and Christmas holiday visitation, to coincide with the school calendar, commencing with Christmas 2003, at his residence. The Plaintiff shall have visitation every "spring break" holiday, to  
coincide with the school calendar, commencing in 2004, at his  
residence. The Plaintiff shall provide all transporation for these  
visitation periods.

It is not stated here, but her attorney asked about what transportation could be defined as.  Judge told him we can do anything(fly, drive, train) to pick daughter up and drop her off.  Nothing in the decree can really be used to argue contempt, I believe.

She does say they left because of a "family emergency", even though friends knew about it last Sunday and they let us know.  

1.  Can we make her prove there was a family emergency?  
2.  And if we do go to court, can she say family emergency and the judge would dismiss it?
3.  Do you think we would have a better chance in small claims court? It would make her come to IA instead of her home town?

Thank you.

[socrateaser]

>Hi, I do not understand the answer to number 1.  Who is
>responsible for the travel expenses?  Us- who paid the intial
>agreed expenses or ex-who changed plans with no notice.

If you can prove that the mother agreed to put the child on a plane, and based upon that agreement, father purchased an airline ticket, and subseqently, mother changed her mind, and consequently you have a worthless ticket, then she has breached an implied contract created by her promise to fly the child combined with your actually paying for the ticket.

The question is, what are your damages for her breach? You have a ticket that can be reused at a later date, which means it still has future value if you use it to fly the child during summer vacation. You may incur a fee from the airline to modify the flight date, and if so, then your damages will be that fee amount.

And, that is the amount that you can be awarded in small claims, including a statutory attorney fee, assuming that you can prove that the mother failed to honor her agreement to fly the child. I don't know what proof of this you have, so I can't tell you whether it will be sufficient.

>Also, she is still going to allow us to pick his daughter up
>on the agreed upon date and time that she would have flown.
>She just wants pick-up in her hometown-it doesn't change us
>from having to drive.  It's 3 hours to Chicago and 3 hours to
>her parents residence.  

According to the court order, "defendant is to provide all transportation." Therefore, if you are forced to pick up the child, then the mother is in contempt of court -- assuming that you can prove beyond reasonable doubt that she willfully and with conscious disregard of the court orders, failure to provide transportation for the holiday.

>We figure ex is going to want to drive back and will want us
>to to drop his daughter off at her mother's house(childs
>grandmother) about 2 days early.  Ex will argue that if we
>don't his daughter will miss school, which she pulled the
>daughter out 3-4 days early anyways.

So what? It's her duty to provide transportation. If she doesn't, then you have no obligation to provide it for her.

>Ex suggested that we switch transportation
>responsibilities-our Christmas for her summer, but she pulled
>that before.  She said she would drive up the 22 and 23 and
>drop daughter off on 24--3 days into the visit and have her
>picked up on the 5th--3 days early.  We immediately said no,
>we would just pay the ticket for her to fly.

This is irrelevant. The court orders do not provide that the parents can negotiate the transportation at will. The orders expressly state that defendant provide transportation. Court orders are not negotiable. They are ORDERS that must be followed at penalty of contempt.

>It is not stated here, but her attorney asked about what
>transportation could be defined as.  Judge told him we can do
>anything(fly, drive, train) to pick daughter up and drop her
>off.  Nothing in the decree can really be used to argue
>contempt, I believe.

You believe wrong. If she doesn't provide transportation and deliver the kids on the date you are entitled to have them, she is in contempt. Period.

>1.  Can we make her prove there was a family emergency?  

At a small claims hearing, the emergency will not be relevant. She's still obligated to pay your damages, because her emergency cost you money, and you're not responsible for her emergencies -- she is.

At a contempt hearing, you must prove that she willfully failed to follow the orders. If you show that she didn't put the kids on the plane as ordered, then it becomes her obligation to prove that her actions weren't willful, i.e., that some independent event prevented her from complying with the court order. An "emergency" is unpredictable. She can't know today, that there is an "emergency" coming tomorrow, unless she is psychic, and that excuse will not cut it. She will be in contempt.

>2.  And if we do go to court, can she say family emergency and
>the judge would dismiss it?

If the judge dismisses on that ground, then you didn't prove your case very well, or the judge is mentally ill -- one or the other.

>3.  Do you think we would have a better chance in small claims
>court? It would make her come to IA instead of her home town?

You have a lower burden of proof in small claims court, than you will in family court on a contempt, but the contempt could get you closer to a custody mod, if that's what you're ultimately after, whereas small claims will get you a judgment, that the other parent will probably refuse to pay voluntarily, and you'll have to garnish her and it will be a big pain in the arse to collect. And, let's be clear, unless your ticket is worthless, and I doubt that it is, your recovery will only be the fee charged by the airline for changing the reservation to a later date.

As for your last statement that you can force the mother to come to IA for the small claims hearing, that isn't a dead certainty, either, and I don't know why you think it is one. But, assuming you're correct, or that she inadvertantly submits to IA jurisdiction and you get a default judgment against her, you will have to enforce it in her State, which means registering the order there and then getting a writ of execution and having the Sheriff garnsh the mother's wages, or seize an asset or bank account and like I said, it's a big pain in the ass to collect on something other than a child support order.

So...I suggest that you wait and see what actually happens and make certain that you have some really really good proof that she fails to deliver the kids according to the order, and then file a contempt motion against her, because it will be worth a load more than any small claims action.

[awakenlynn]

Thank you.  I have all the printed e-mails showing our communications between each other for the visitation.  SD is almost 13, and mother has been decent raising her, not the best and she has made choices that we don't approve, but nothing that would be alarming or change a family court judges mind.

Thank you for your help. I will keep everything in mind and try to look through it as things come up.

[awakenlynn]

Hello,

Ex e-mailed us that she had taken the ticket we had purchased and had it reissued from a round trip and made it a one way ticket.  She did pay the difference.

1.  Was this legal?  It was in SD's name as required, but we purchased it.

2.  Should she have contacted us prior to changing it?

I am feeling there is nothing left for us to do know but get over it.  We still pick SD up on the original day.  We have also talked with airline and had this ticket and any future ones passworded.

Thank you.

[socrateaser]

>1.  Was this legal?  It was in SD's name as required, but we
>purchased it.

First, I need to apologize because I misread your order. I didn't realize that you were supposed to provide transportation for the winter break.

Regardless, you did provide the transportation, and the other parent has unilaterally modified it. Technically, her changing the transportation and assuming responsibility is contempt in itself, but the question that the court would ask is whether you are injured by her actions in violation of the court order. So, if those kids don't arrive at your home by the time that they would have reasonably arrived based on the original itinerary (round trip ticket, which I hope you have a receipt showing when that time would have been), then that would be contempt,  because the other parent will have willfully violated the court order.
>
>2.  Should she have contacted us prior to changing it?

As I am fond of saying, "Shoulda, woulda, coulda, don't mean nothin, and the phrase should have, 'should' be banned from the English language as misleading and dangerous."

What matters in life is not what "should" happen, but what actually happens (you, know, "Life is what happens when you're makin' plans.")And, in this case, the other parent has changed the ticket and taken it upon herself to arrange transportation in violation of the court order. Once again, court orders are not voluntary, they are orders. So, if someone violates the orders beyond reasonable doubt, the court is entitled to obtain vindication and administer a punishment.

Apparently, you're not out any money, because you will return the kids by air as you intended and your money for the othe flight will be refunded. If this is the case, then you have no suit for damages, but if, as I already said, the kids arrive unreasonably late to your home, then that is contempt, and you're entitled to something as compensation, i.e., more visitation.

Of course, it's gonna be a staggering pain in the butt to enforce this contempt, if only because no one lives in the state where the original order was issued, and you would have to register the order in TX and then enforce the contempt therein.

So, is it worth it for the make up time? I guess it depends on how much time you lose as the result of the other parent's actions. If none, then you have no complaint, and it's not worth getting upset over.

Actually, it's not worth getting upset over anyways, because life's too short and divorced/never married parents continuously mess with each other -- it's just the way of the world, and as you said, you'll just have to "get over it," unless you have a real good complaint.

[awakenlynn]

Actually we were not refunded any money.  She took our ticket, had it cancelled, reissued and only paid difference.  She continues to bring the daughter to our town, we even offered to meet half way and she refuses.  Because she will only accept non-stop flights, we must drive to Chicago, and she feels since we would have had to drive there, we can drive to her.  We will be dropping papers off at the attorney since, we will be in town anyways.

Thank you for helping clarify issues.  Sometimes, when you are mad, (or sick) things don't click right in the brain.