legal help on CS arrears-only case

[davlizM]

Dear Socrateaser,

Please provide direction on how to handle my Child Support arrears-only case.

Facts
~~~
*State of Jurisdiction: Tennessee
*County: Shelby
*final decree of divorce - Circuit Court dated Oct. 1990
*consent to modify final decree of divorce - Circuit Court dated Oct. 1995
*petition to set support - court date set for June 2006 in Memphis, TN
*Juvenile Court is attempting to assume jurisdiction (currently in Circuit Court) on behalf of the custodial parent
*arrears-only case - child is over 18 and graduated from high school
*amount claimed to be past due - $28,000
*amount my records indicate past due - $10,500
*child support payments paid directly to custodial parent from Oct. 1990 through Dec. 1995
*child support payments paid directly to Circuit Court from Jan. 1996 through Dec. 2005
*child support payments paid directly to State of TN, Dept. of Human Services from Jan. 2006 to present
*I currently reside in Colorado.

*letter to appear in court to set support (in June 2006) says:
"Please be present and on time for this hearing. Failure to appear may result in a default judgment. Please be prepared to present to the court proof of income by providing your 2005 W-2 and a recent paystub. Also you may bring any other proof that you wish the court to review for credit."

*Since I reside in Colorado, I asked for a teleconference and was told by the Juvenile Court attorney (representing the custodial parent) that it was not an option - that I have to appear in court.

Questions
~~~~~~
1) I do not currently have a lawyer to represent me. If I hire one, can he represent me in court - in my place? Or do I have to appear regardless?

2) I do not have money to hire a lawyer. I checked with two in Tennessee who specialize in child support cases and they charge $180/hour and a retainer of somewhere around $2,500+. Also, I don't qualify as low-income. Are there other options to get a lawyer to represent me?

3) From 1996 to the present, when making CS payments to Circuit Court and State of TN, there is a very good record of those amounts. From 1990 through 1995, I paid the custodial parent directly. Unfortunately, I do not have cancelled checks to show payment. I have copies of all my bank statements showing the exact amount of the CS payment (with some months not showing a payment). Will the courts admit these bank statements as proof of valid payments? Or will I be forced to pay for those months since I don't have cancelled checks?

4) A friend from Tennessee went to court for back child support in 1996. She said in the original paperwork to file the case, she had to list arrears and sign an affidavit of the amount. Should an affidavit be in my docket from the consent to modify final decree of divorce in Oct. 1995? If so, can I obtain a copy of that without hiring a lawyer to request it?

5) There were at least two times when I paid the custodial parent with cash. I have no record of that. Can I ask the court to question her under oath about that?


Thank you in advance for your responses.

[socrateaser]

>Questions
>~~~~~~
>1) I do not currently have a lawyer to represent me. If I hire
>one, can he represent me in court - in my place? Or do I have
>to appear regardless?

An attorney can represent you without your personal appearance.

>
>2) I do not have money to hire a lawyer. I checked with two in
>Tennessee who specialize in child support cases and they
>charge $180/hour and a retainer of somewhere around $2,500+.
>Also, I don't qualify as low-income. Are there other options
>to get a lawyer to represent me?

Nope. If you don't qualify as low income then the Legal Aid Society won't take your case, either. But, you could call them and inquire just to hear what they have to say.

>3) From 1996 to the present, when making CS payments to
>Circuit Court and State of TN, there is a very good record of
>those amounts. From 1990 through 1995, I paid the custodial
>parent directly. Unfortunately, I do not have cancelled checks
>to show payment. I have copies of all my bank statements
>showing the exact amount of the CS payment (with some months
>not showing a payment). Will the courts admit these bank
>statements as proof of valid payments? Or will I be forced to
>pay for those months since I don't have cancelled checks?

Hard to say. You can show the bank statements and testify that the money was paid to the other parent, and try to get the other parent to admit same. Ideally you'd want to get photocopies of the cancelled checks from your bank, but since it's been 10 years, those checks are probably destroyed or lost by now, so that will probably be a waste of time.

In the end, it will be up to the judge. You could offer to take a polygraph on the question, but opposing counsel would have to agree to that evidence, and since it's the State, it may not agree, since it gets federal matching funds for anything collected from you.

>4) A friend from Tennessee went to court for back child
>support in 1996. She said in the original paperwork to file
>the case, she had to list arrears and sign an affidavit of the
>amount. Should an affidavit be in my docket from the consent
>to modify final decree of divorce in Oct. 1995? If so, can I
>obtain a copy of that without hiring a lawyer to request it?

Sure. Call the court clerk and request that they unearth that file. It will take a while, cause it's not likely in the courthose anymore, and frankly, it's probably lost, too. Everything that gets sent to Iron Mountain for storage usually disappears after a while. Long term storage is always a dicey proposition.

>
>5) There were at least two times when I paid the custodial
>parent with cash. I have no record of that. Can I ask the
>court to question her under oath about that?

The court is a neutral decision maker. You can question the other parent, but what do you think that she will say? ;-) I know what I would say, knowing you have no proof to the contrary.

[davlizM]

Dear Socrateaser,

Thanks for the responses. For some additional follow-up.

6) Can I request (subpeona) the custodial parent's bank records?
As outlined in my #3, I only have bank statements as proof of payment from 1990 - 1995. If I'm able to obtain a copy of the custodial parent's bank statements showing matching deposits, seems that would make it clear the payments were received.

7) Would I be able to request her bank statements if I have her social security number (and possibly banking account info) - even though I wasn't on the account? Are there ways to obtain that info? And would it be admissable to court?

Thanks.
DavLizM

[davlizM]

Dear Socrateaser,

My apologies, but I have one more question.

8) From 1993 to 1995, I had a financial advisor handling my affairs - including paying all my bills. He sent the Child Support payments to the custodial parent during this time. I doubt he still has the detailed records (although I will try to contact him), but could I get a letter (notarized or something) from him saying it was paid - and would that be admissable in court? Would it make any difference if I asked him to join me in court at the hearing?

[socrateaser]

>Dear Socrateaser,
>
>My apologies, but I have one more question.
>
>8) From 1993 to 1995, I had a financial advisor handling my
>affairs - including paying all my bills. He sent the Child
>Support payments to the custodial parent during this time. I
>doubt he still has the detailed records (although I will try
>to contact him), but could I get a letter (notarized or
>something) from him saying it was paid - and would that be
>admissable in court? Would it make any difference if I asked
>him to join me in court at the hearing?

If you can get a sworn affidavit from him for the preliminary hearing, as well as supoena him for testimony at a final hearing, that would be very credible evidence in your favor. Obviously, if he has documentary records, that would be even better. But, his testimony would probably be sufficient.

[socrateaser]

>Dear Socrateaser,
>
>Thanks for the responses. For some additional follow-up.
>
>6) Can I request (subpeona) the custodial parent's bank
>records?
>As outlined in my #3, I only have bank statements as proof of
>payment from 1990 - 1995. If I'm able to obtain a copy of the
>custodial parent's bank statements showing matching deposits,
>seems that would make it clear the payments were received.

Yes, but if the parent doesn't have the records anymore (and, she won't), then you''ll need to subpoena the bank, and if it doesn't have the records, then you're SOL.

>7) Would I be able to request her bank statements if I have
>her social security number (and possibly banking account info)
>- even though I wasn't on the account? Are there ways to
>obtain that info? And would it be admissable to court?

See above.

You could also plead laches, and claim that her unreasonable delay in enforcing her rights has unreasonably prejudiced you due to the loss of accurate records by the banks and your opponent.

The "gotcha" is that laches is generally not available against a sovereign, in this case, the State, if it's coming after you. However, you could argue that the mother is the "real party in interest," and that it would be inequitable for her to be permitted to hide behind the artifice of a state action to collect arrears on her behalf, when the money sought is not actually earmarked for the State.

This is a pretty sophisticated argument, which may have been foreclosed by state statutes, so talk to your attorney.

[davlizM]

Socrateaser,

I was able to contact the party who paid my bills during the period 1993-1995. Unfortunately, he does not have documentation he can provide, but he is willing to agree to say he paid the child support during that timeframe.

1) What exactly is a "sworn affidavit" and how to I obtain one from this person to take with me to the preliminary hearing?


Also, I received an e-mail from the custodial parent claiming she plans to bring up at the hearing that
"I WOULD LIKE TO BRING UP THE FACT THAT YOU WERE COURT ORDERED TO COVER HER WITH INSURANCE IN THE AMMENDED DIVORCE DECREE, WHICH YOU NEVER DID.  I AM SEEKING HALF OFF ALL DENTAL AND MEDICAL EXPENSES AS WELL AS CHILD SUPPORT ARREARS."

This just isn't true. The child (now 19 years old) has been covered under insurance for most of the period from 1990 until present. The only period when there was no insurance coverage was from March 2002 until Oct 2005. I worked as a contractor and did not have any insurance for myself, my current wife and three children nor my child from this marriage. Also, I was unemployed for 6 months in 2004.

2) Will she be able to make this argument to the judge? Should I take with me to the preliminary hearing some proof of insurance coverage (just in case)?

[socrateaser]

>Socrateaser,
>
>I was able to contact the party who paid my bills during the
>period 1993-1995. Unfortunately, he does not have
>documentation he can provide, but he is willing to agree to
>say he paid the child support during that timeframe.
>
>1) What exactly is a "sworn affidavit" and how to I obtain one
>from this person to take with me to the preliminary hearing?

Format for about 1/2 of the jurisdictions:

----------------

State of STATENAME, County of COUNTYNAME ) ss.

I, WITNESS'NAME, after first being duly sworn, do hereby depose and say as follows:

1. That I am a disinterested witness, I have been offered nothing of pecuniary value for my sworn statement, and if called upon, I could testify to the matters set forth herein from my own personal knowledge.

2. On, ??/??/????, _____.

3. (more facts -- one important fact for each numbered paragraph)

4. etc.

By: ______________
WITNESSNAME
STREET
CITY, STATE ZIP
CONTACTFONE

Subscribed and sworn to before me, this ____ day of _______, 2006


By: _________________
NOTARY PUBLC
My commission expires: ___________

(notary seal)

-----------------
Format for the other 1/2 of jurisdictions.

Declaration of WITNESS'NAME

I, WITNESSNAME, do hereby declare, that I am not a party to this case, and that if called upon, I could testify to the matters set forth herein, of my own personal knowledge.

1. (same as the previous statement)

2. etc.

3. etc.

I declare, under penalty of perjury, under the laws of the State of _____, that the foregoing is true and correct.

Dated: ___________

By: ____________
WITNESSNAME
STREET
CITY, STATE ZIP
CONTACTFONE

(no notary block necessary -- but, it's a nice touch, especially if you're representing yourself, because then the court won't be suspicious that you invented the document and signed it yourself)

--------------


>
>Also, I received an e-mail from the custodial parent claiming
>she plans to bring up at the hearing that
>"I WOULD LIKE TO BRING UP THE FACT THAT YOU WERE COURT ORDERED
>TO COVER HER WITH INSURANCE IN THE AMMENDED DIVORCE DECREE,
>WHICH YOU NEVER DID.  I AM SEEKING HALF OFF ALL DENTAL AND
>MEDICAL EXPENSES AS WELL AS CHILD SUPPORT ARREARS."
>
>This just isn't true. The child (now 19 years old) has been
>covered under insurance for most of the period from 1990 until
>present. The only period when there was no insurance coverage
>was from March 2002 until Oct 2005. I worked as a contractor
>and did not have any insurance for myself, my current wife and
>three children nor my child from this marriage. Also, I was
>unemployed for 6 months in 2004.
>
>2) Will she be able to make this argument to the judge? Should
>I take with me to the preliminary hearing some proof of
>insurance coverage (just in case)?

She can make any argument she wants, but she's gonna need some receipts for the bills and proof that she actually paid them.

Let's be clear. The fact that she says that you never carried insurance, doesn't make the fact that you didn't carry insurance for part of the time, less true. The question is: were you ordered to carry insurance even though you were self employed? If so, then you could be taxed with one half of the costs during that period.

If you weren't obligated to carry insurance while self employed, then you can argue Laches, which means that your ex's unreasonable delay in enforcing her rights, coupled with the unfair prejudice that results from your no longer being able to assemble the necessary evidence to prove that you already paid these bills, should be good cause for the court to refuse to enforce the bills.

If the Laches argument fails, then you will try to discredit her evidence in support of the bills themselves -- especially if she has receipts but no checks evidencing payment. You don't admit nonpayment -- you just ask her what evidence she has that demonstrates that she actually paid the bills?

Then you produce your sworn affidavit and use it as evidence that you did pay the bills.

That would be enough -- in any ordinary court. But, in family court, it's always a crap shoot if there's any chance that the child's interests were harmed -- the court will go against you. Not the law -- just the way it always seems to go.