Tried to emancipate, CP denies, how to proceed?

[Darryl]

Hello Soc,


     On 4/11/06 I filed a pre-printed form with the court entitled "Affadavit of termination of Child Support". I checked the block stating child graduated college and noted actual graduation was 5/06/06 which then was in the future (irrelevant). Cp was served on 4/24/06. She had 30 days to respond.

     Believe it or not she filed her own pre-printed form entitled "Answer objecting to termination of child support", on 5/19/06. Her stated reasons were that NCP (me) has not paid 60% of college per court order, blah, blah, blah.

     Yes, I still owe her some reimbursement for college tuition but I have been paying (court order only states that I am to reimburse her, with no stated amounts or schedules). That has absolutely nothing to do with Child Support. Missouri statutes state clearly that my daughter is emancipated upon graduation from college.

     My daughter is moving out of state this Saturday on her own with a full time job paying $23.00 to $24.00 an hour.


     So, I will continue to be garnished until we can go back to court (garnishment is for CS only).

     The court clerks letter to me states that if I want to proceed any further with this termination, I will have to talk to an attorney and file a motion to modify.


    1. Does it have to get that complicated and open up the entire judgement to modification, instead of just emancipation?

    2. Can I just request a hearing on the one issue I raised with the court which was termination of CS?

    3. How do I respond to the court?

    4. How/when  do I ask for repayment of overpaid CS after the emancipation is cleared up?


    5. If I do in fact have to file a motion, does that mean I could only recover overpayments made after the date she is served with the motion to modify?


Thank you Soc!

[socrateaser]

>    1. Does it have to get that complicated and open up the
>entire judgement to modification, instead of just
>emancipation?

The other parent is entitled to a judgment of arrears on the remainder of your debt. The court can order you to continue to pay the back support by support garnishment, but must terminate future support for the child.

Substantively, this means that your support obligation will probably remain exactly what it has been until you have paid the arrearage in full.

But, you should still get the termination for future support, because if you don't, you will not be applying your existing obligation amount to the arrears, but rather to continuing support, that you should owe.

>
>    2. Can I just request a hearing on the one issue I raised
>with the court which was termination of CS?

See above.

>
>    3. How do I respond to the court?

Respondent YOURNAME, pro se, hereby appears and moves for an order terminating ongoing child support for the parties' adult child, on grounds that the child has graduated from college, moved to the State of ___, and obtained full time employment. Responded further moves that the court enter judgment of arrears for any remaining balance due Petitioner.

However, the easier move would be to enter a stipulated order signed by both you and the other parent agreeing to the above. Not sure if you have that level of communication, but that would be the ideal. Then you wouldn't need to appear in court at all.

>    4. How/when  do I ask for repayment of overpaid CS after
>the emancipation is cleared up?

N/A.

>    5. If I do in fact have to file a motion, does that mean I
>could only recover overpayments made after the date she is
>served with the motion to modify?

N/A

[Darryl]

There is no child support arrearage. I am paid in full and current.


If I continue to pay "child support" that does not apply towards what I owe for college reimbursement.

I just want to emancipate and stop child support.

There is no specific judgement for the amount I owe for reimbursement of college, just that I reimburse 60%.

   1. This is a separate issue, no?

   2. Re-asking same questions based on there being no arrearage of child support.

[Darryl]

Missouri Revised Statutes 452.340

In part:

This states what happens when obligor files affadavit and obligee denies. It says the court shall treat the affadavit as a motion to modify, and shall proceed to hear and adjudicate such motion.........etc.



(4) The obligation shall be terminated as provided by this subdivision by the court which entered the order establishing the child support obligation, or the division of child support enforcement, when the parent paying child support files a sworn statement or affidavit with the court which entered the order establishing the child support obligation, or the division of child support enforcement, stating that the child is emancipated and reciting the factual basis for such statement; and which statement or affidavit is served by the court or division on the child support obligee. If the obligee denies the statement or affidavit, the court or division shall thereupon treat the sworn statement or affidavit as a motion to modify the support obligation pursuant to section 452.370 or section 454.496, RSMo, and shall proceed to hear and adjudicate such motion as provided by law; provided that the court may require the payment of a deposit as security for court costs and any accrued court costs, as provided by law, in relation to such motion to modify.




   1. I therefore should not have to file any additional motion, correct?

   2. Therefore, unless she raises issue of college reimbursement seperately it will NOT be up for discussion? (This happened to her last time when only issue raised was CS and she tried to rant about college).



Sorry Soc, if I am way off base here just let me have it straight!


Thanks again.

[socrateaser]

>   1. I therefore should not have to file any additional
>motion, correct?

Correct, based on the statute, your affidavit operates as a motion to modify, so you should go back to the clerk and ask for a hearing date based upon the objection of the other parent and the statute, and then send notice of that date to the other parent, and file the notice with the court.

>
>   2. Therefore, unless she raises issue of college
>reimbursement seperately it will NOT be up for discussion?
>(This happened to her last time when only issue raised was CS
>and she tried to rant about college).

If you haven't paid your portion of the tuition costs, then the court can give judgment of arrears on that amount, while simultaneously terminating ongoing support. Which is what I already wrote eariler.

[Darryl]

    I'm aware she has the right to a summary judgement of what I still owe for college. Currently I am following the order by reimbursing her. That portion of the order is vague.

    I'm also aware she could then obtain a garnishment for the college reimbursement.

    My biggest fear is that a summary judgement will somehow result in redefining the 'arrearage' as a "child support arrearage" and then I am in a world of hurt with credit bureaus etc......

    The original judgement ordered xx amount of child support, and petitioner (me) is to also reimburse Respondent (her) 60% of college tuition, books etc......


   1. Tell me please that these are two seperate entities and cannot (reasonably) be relabeled and entertwined as a dreaded "child support arrearage"?

    2. Also, I spoke with the court clerk and read the statute to her. She still maintains that I have to file a seperate motion to modify (supposedly she consulted with the judge). How do I proceed without P.O'ing the judge (they are not inclined much for a layman to tell them how the law works.)?

[socrateaser]

>   1. Tell me please that these are two seperate entities and
>cannot (reasonably) be relabeled and entertwined as a dreaded
>"child support arrearage"?

A money judgment, be it for child support, credit card default, or for any other reason, will still be picked up by Equifax, Experian, and Transunion, via their sytematic requests to all county and federal courts.

So, if it's your credit report you're concerned about, you need not be concerned, because your credit will be equally and negatively impacted by the judgment whether it is styled as a child support arrearage or arrearage for an ordinary debt.

The only difference in the judgments is that an ordinary debt may generally be discharged in bankruptcy, whereas a child support arrearage may not.

>
>    2. Also, I spoke with the court clerk and read the statute
>to her. She still maintains that I have to file a seperate
>motion to modify (supposedly she consulted with the judge).
>How do I proceed without P.O'ing the judge (they are not
>inclined much for a layman to tell them how the law works.)?

File the motion to modify. It may be that without your filing a motion, the court has no process to grant you a hearing. Legally, the court is violating the statute, but until someone sucessfully wins an appeal or mandamus action on the question, or the judge realizes that he violating the statute, you'll just have to play along.

[Darryl]

>File the motion to modify. It may be that without your filing
>a motion, the court has no process to grant you a hearing.
>Legally, the court is violating the statute, but until someone
>sucessfully wins an appeal or mandamus action on the question,
>or the judge realizes that he violating the statute, you'll
>just have to play along.


As a reminder, the applicable Missouri Statute:

452.340.11(4) RSMo.    

   The obligation shall be terminated as provided by this subdivision by the court which entered the order establishing the child support obligation, or the division of child support enforcement, when the parent paying child support files a sworn statement or affidavit with the court which entered the order establishing the child support obligation, or the division of child support enforcement, stating that the child is emancipated and reciting the factual basis for such statement; and which statement or affidavit is served by the court or division on the child support obligee.  If the obligee denies the statement or affidavit, the court or division shall thereupon treat the sworn statement or affidavit as a motion to modify the support obligation pursuant to section 452.370 or section 454.496, RSMo, and shall proceed to hear and adjudicate such motion as provided by law; provided that the court may require the payment of a deposit as security for court costs and any accrued court costs, as provided by law, in relation to such motion to modify.


 Soc, was referred to the judges secretary after the court clerk stated I needed a seperate motion. Secretary did not care to discuss my interpretation (i.e. plain language) of the statute. Said they could not advise me on legal matters or on how to proceed.

   So, as you stated I will file a motion. I just don't want to lose the original date of service on my ex because I'm afraid I won't be credited for any cs paid between emancipation (which has already occured), and prior to the new date of service.  


    1.  Can it be worded to point to this statute (using the original sworn affadavit as a motion to modify) so as to lead the court down the right path to follow the statute as written? (Nice and respectful of course)


    2. And of course, can I just request a hearing with any hope of getting one?



Thanks a million, don't know what us folks would do without you!!!

[socrateaser]

>    1.  Can it be worded to point to this statute (using the
>original sworn affadavit as a motion to modify) so as to lead
>the court down the right path to follow the statute as
>written? (Nice and respectful of course)

Respondent, YOURNAME, pro se, hereby appears and moves that the court terminate Respondent's support obligation with respect to the parties' minor child, on grounds that the child has graduated from college, moved outside of the jurisdiction, and obtained full-time employment.

Respondent further moves that the court make said order retroactive to the date of filing of Respondent's "affidavit of emancipation of minor child" (or whatever it's officially called), which pursuant to RSMo. 452.340.11(4), operates as a motion to modify support; and that the court credit Respondent with any support amounts paid to Petitioner, during the pendancy of this motion, on grounds that Petitioner is no longer legally entitled to such support, and that she is therefore unjustly enriched.

Respondent further moves that the court enter a judgment of arrears for any college tuition for the parties' minor child, which remains due and payable as of the date of entry of said judgment of arrears.

Respectfully submitted,

Dated, this ____ day of _____, 2006

By: ___________
YOURNAME
Respondent, Pro Se
ADDRESS
CITY, STATE ZIP
CONTACTFONE

>    2. And of course, can I just request a hearing with any
>hope of getting one?

I don't know MO civil procedure or local rules. Some courts automatically set hearing dates and require that you sent notice of hearing to the other party. Other states, take a motion under consideration and the court determines whether a hearing is required.

There may be court required form pleadings, rather than a plain paper motion such as the one I've just constructed.

You may also need to attach a supporting affidavit displaying evidence of the child's graduation, employment, moving, etc. (I would, if I were representing you). I probably would subpoena the child or get a sworn affidavit from her stating that she has graduated, moved, and found a job (if I could).

Anyway, you have the basics -- the rest is up to you.

[Darryl]

Soc,

   Went to the court to file a Motion to Modify as you suggested. Normal court clerk on vacation, found a more sympathetic court clerk that after looking over the situation, put me on the docket for a hearing. Said Judge might also tell me I need to file a Motion but at least I could hear it from the judge.

   I of course will present evidence of Emancipation which I do not expect the other party to deny. But wonder if these two tidbits might be of some help.

   1. Respondent stated no statutory or otherwise relevant facts to   support her objection.

   2. Respondent did not fill out the section "Certificate of Person Receiving Support", which states:

I certify that on ________(date), I filed the original of this answer with the Circuit Clerk of ___________ County, Missouri at ________(address) and mailed a copy of this answer to __________(name), the person paying support at ___________(address), __________(city), _______(state).
                        _____________(Signature pf Person Receiving Support)



 It seems that I am always held to strict compliance with proper procedure.


Here is the exact wording of my "Request For Hearing":


MY NAME, Petitioner
SSN


         Vs.                                                                               Cause No.  XXXXXXXX

HER NAME, Respondent
SSN



Request for Hearing


Comes now Petitioner, MY NAME, Pro Se, Hereby appears and requests a hearing be granted on Month, Day, 2006, In the Circuit Court of XXXXX County, Missouri, Family Court, Division I. In support of said request, Petitioner states to the court as follows:

1.   That Petitioner filed an "Affadavit For Termination Of Child Support", with the Court, on April 11th, 2006.
2.   That Petitioner, through Process Server, Notified Respondent of said Affadavit, on April 24th, 2006.
3.   That Respondent filed an "Answer Objecting To Termination Of Child Support", with the Court, on May 19th, 2006.
4.   That Respondent, in her "Answer Objecting To Termination Of Child Support", stated no Statutory or otherwise Relevant Facts to support said objection.
5.   That Respondent failed to mail a copy of this answer or otherwise properly serve notice to Petitioner
6.   That Petitioner certifies that a Notice of Hearing for MONTH, DAY, 2006, was mailed by U.S. Mail, postage pre-paid to: HER NAME, Respondent, HER ADDRESS, on this 30th day of May, 2006.

Question:

     1.  Will I be able to ask that her "Objection" be dismissed due to irellevancy or failure to properly serve Notice to Me?

     2. Can the judge decide the issue on its merits (or lack of) and stop my garnishment at the hearing?