Contempt

[TJRodolph]

Hello again Soc,

Once again I am asking for some advice.

Just to refresh your memory, I took your advice and filed a motion to modify child support downward on grounds that the custodial mom refuses to pay her court ordered transp. costs and that it would be more judicially efficient than using the court's contempt powers to enforce compliance.

I'm in MN and custodial mom is in OH.

A magistrate heard the case, not the usual referee we have. Clerk said that was because only magistrates hear the child support cases. Court order came in today, denied.

Order stated it was approving the mom's request to keep the child support as is, and denying dad's request to lower as dad "has failed to state a basis in fact or law for reduction of his support obligation as a result of the obligee's noncompliance with the visitation payment provisions."

I believe my only other option is to file a contempt charge now. I believe I can prove her contempt as she has not paid anything toward airfare...there is also another area of contempt too that I have her written statement of willful disregard and that she is fully aware of what the order states because the judge verbally told her so at the last hearing.  

For remedies in the contempt affidavit I'd like to request mom be ordered to pay a $500 civil penalty, that mom be orderd to give me the info I requested in the interrogatory that judge ordered her to answer right there in the court room, and that mom be ordered to attend anger management classes and a more indepth co-parenting class (we were ordered to attend one at our first hearing. I went, but don't know if mom ever did.

It also stated it this cased was an IVD case, and remains an IVD case until applicant notifies in writing that services are no longer needed. The mom is not on welfare or getting any public assistance.  She has in the past though.

I just want the mom to pay her 1/2 of the airfare as court ordered.

When I filed the motion to change custody earlier this year, the Referee left my request open, as she felt I was entitled to the interrogatory answers first, and that after receiving that info I could submit an amendment to the custody motion. I have not submitted an amendment.

Questions:

1. What is an IVD case?

2. How can a contempt get mom to pay her court ordered transp costs?

3. Would a custody reversal be easier now on grounds that mom is continuing to frustrate my parenting time by refusing to pay her share of airfare?

4. What is the best course of action here?

[socrateaser]

>Questions:
>
>1. What is an IVD case?

Title IV-D (Roman Numeral "IV"=4 dash "D"), which refers to federal government public assistance, i.e., "welfare." The court is stating that your support obligation may only be modified with notice provided to the state, because apparently, at some time in the past, the obligee parent (applicant) applied for public assistance, and assigned her right to support in exchange for that assistance.

>2. How can a contempt get mom to pay her court ordered transp
>costs?

The contempt order will only get you paid for previously unpaid transportation costs. You can ask the court to sanction the other party made payable to you for the amount unpaid, if the sanction amount is less than or equal to the statutory amount that the court can order as a contempt sanction. You can also ask that the court issue a money judgment in your favor for the amount owed.

You could take the other parent to small claims also, and just prove that you have an order and are entitled to a judgment. But, as she's out of state, you'd have to sue her where she lives and then try to collect there, which would be a stupendous pain.

Either way, nothing other than a support modification will get you ongoing payment for future transportation costs.

Frankly, the magistrates order is horseshit, although you may not have expressly stated why you are entitled to a reduction. The basis in law is that, per federal law, every state must provide for the court to be able to deviate from the uniform state child support guidelines, where imposing guideline support would be "unjust or inappropriate" under the circumstances of the case. I don't have the exact federal code handy, but every State has words to this effect in its state law, to provide the court with some limited discretion where discretion is needed.

So, while I don't know exactly what you wrote, you may have grounds for an appeal to a judge, assuming that such an appeal is permitted as part of the state's support hearing system.

Under the circumstances, your current support order is unjust and inappropriate because the other parent routinely avoids sharing the cost of transportation, and it's (to repeat myself) not judicially efficient to continue to issue judgments for failure to pay past transport costs, when the court could simply modify support to credit you with the ongoing costs.

Of course, you might still lose because the court might say that it's not unjust or inappropriate, but, considering your facts, I don's see HOW (except that this is family law, and courts frequently massage the law to achieve an end. In your case, I'm thinkin' that the magistrate just didn't do a very good analysis, and took your argument at face value without considering the discretion that the magistrate must know exists (well, "should" know, anyway).

>3. Would a custody reversal be easier now on grounds that mom
>is continuing to frustrate my parenting time by refusing to
>pay her share of airfare?

Failure to pay transportation is "in the nature of support," not custody, so it is not a basis for requesting a custody change.

>4. What is the best course of action here?

If you can appeal the magistrate's order to a judge for a hearing de novo, that's what I'd do, based on my argument above. To tie up the strings, you would need to find your state code that covers deviations from the support guidelines and present the argument as I've outlined here.

Otherwise, you should file for contempt and then ask for sanctions and a judgment of arrears on the transport costs not yet paid.

[TJRodolph]

Yes, the mom received some daycare assistance and 'welfare' about 7 or 8 years ago...but hasn't for many years. A copy of my motion was served to the child support office, but they neither showed to represent nor submitted an affidavit.

My words on my motion were "I request a change in the existing child support order downward on grounds that the Petitioner's steadfast refusal to pay her court ordered transportation costs, is the equivalent of an increase in her child support award and that it is therefore entirely just and appropriate that my support be lowered to compensate for her failure to pay because it is more judicially efficient than to use the court's contempt powers to enforce the petitioner's obligation."

Then in the affidavit I listed more details regarding the circumstances of her not paying for a couple tickets now. The hearing only last 5 minutes.

The order does list some MN Statutes, and I am in the process of looking those up right now and reading. I will check into an appeal.

Mom was allowed to phone in for this hearing.

Question:

1. If I get an appeal,  is the process any different than the 1st hearing, or is it just a new hearing with a new magistrate?

[TJRodolph]

Ok, MN Statute 484.702 refers to Expedited Child Support Hearing. All IVD cases have to have an Expedited Child Support Hearing to modify. It doesn't give instructions though on how that process works, or what to file.

There is about $1000 of my $8000 arrears that is labeled for state arreages, as that is the money the state paid for birthing costs at hospital (welfare) 8 years ago. State has been applying my arrears payments to the mom's arrearages, and not the state's.

Questions:

1. What forms do I file for an Expedited Child Support Hearing?

2. What is the process for the above hearing?

2. How can I get the child support case unlabeled as an IVD as mom/applicant is NOT on welfare and lives in another state, assuming mom will not cooperate to voluntarily send a written letter to child support office stating so?

[socrateaser]

>Questions:
>
>1. What forms do I file for an Expedited Child Support
>Hearing?

You probably just had one, because the court didn't dismiss for lack of jurisdiction, it denied your motion on grounds that you didn't state any basis for granting relief. You could just go back and file again and use the basis I just gave you, or you could see whether you are entitled to a de novo hearing on appeal to a judge. I would very much expect that you are entitled if you appeal quickly enough.

As to how it's done in MN, I have no clue. It's a narrow areal of local law.

>2. What is the process for the above hearing?

No clue.

>2. How can I get the child support case unlabeled as an IVD as
>mom/applicant is NOT on welfare and lives in another state,
>assuming mom will not cooperate to voluntarily send a written
>letter to child support office stating so?

Well, you could offer to pay her a lump sum against your arrears now, in exchange for her paying the state the remaining money that it's owed and cancelling her obligation. Other than that, it appears that the state is playing fast and loose with the law, like a credit card company, by applying your payments against the least onerous obligation, so as to maintain the most oppressive one.

You could file an equal protection or due process action, on grounds that the state's actions are unfair, arbitrary and capricious. But, you'd lose, because the state need only show any reasonably conceivable rational basis to maintain its apportionment of your payments.

I don't really see what you have to gain by fighting this issue anyway. It doesn't get you in any better position procedurally at court.

[TJRodolph]

Ok, I understand. Looks like my only other recourse is to file contempt.

If I do nothing, custodial parent will never pay her 1/2 of transp. costs, as she is never held accountable for it. If she doesn't pay her 1/2...then I won't get my 4 visitations as I cannot afford 4 tickets every year at $500 a pop.

The way the magistrate denied my motion, strongly suggests to me that he thinks I am just out to lower my child support and did not read the case file very carefully at all.

Order states that my current support is $267 a month. It states my current hourly wage, and that based on MN guidelines, my support would be $432 a month, however there is no pending motion to increase my support.

Order mentions how court reduced my obligation by $60 a month without stating a rational for the downward deviation in 2004 (it states in previous order it was reduced because mom didn't provide any documentation that she still pays daycare, so the daycare portion was reserved.) And it mentions in 2005 that the court stayed the interest on my arrears (I had been paying arrears and full support for over a yr, MN statute allows for no interest if been over one year.

It further states "obligor's motion to furhter reduce his monthly child support obligation as compensation for the obligee's non-payment of her share of trans costs is speculative and contrary to the remedial provisions set forth in the prior order. Paragraph 14 of prior order states that "should obligee not reimburse obligor for her share of the ticket cost, ogligor's support arrearages shall be reduced accordingly", therefore the obligor's motion is denied."

It does not mention how the hearing after the one listed above, states "Plaintiff's contention was that she thought paying her 1/2 of airline tickets was an option and could just be reduced from Defendant's arrearages. This was not the intention of the court. The court's intention is that if Defendant actually incurs a charge for purchasing a plane ticket and plaintiff does not pay, then Defendant can have his arrearages reduced accordingly. If plaintiff cannot afford her share of plane tickets, then she needs to file the proper motion to address that issue."

Plaintiff (mom) has not filed a motion to address the issue. Her excuse being that she cannot afford to file.

Questions:

1. Is it worthwhile to file a contempt?

2. If I do file contempt and we are in front of our usual Referee, won't she be highly offended by the magistrate's recent order?

[socrateaser]

>Questions:
>
>1. Is it worthwhile to file a contempt?

You did not read your orders carefully enough. Your action and any contempt would be a waste of time because:

>Paragraph 14 of prior order states that
>"should obligee not reimburse obligor for her share of the
>ticket cost, ogligor's support arrearages shall be reduced
>accordingly", therefore the obligor's motion is denied."

Thus, your remedy is already included in the prior order. Keep copies of all of your transportation costs and then when your arrears are getting close to equal those costs, file a motion to have the arrears recalculated and offset against your costs.

The above part of the prior order is the real reason for the denal of your motion. The statement that transport is speculative is an error in findings and conclusions, because all child support is completely speculative in every aspect and as transport is in the nature of child support, the fact that it is speculative is irrelevant to applying it to reduce child support.

Regardless, you have no grounds for contempt, until such time as your arrearages owed are less than your accrued cost of transportation, because until then, the other parent is not obligated to pay anything to you. Also, make certain that you keep your evidence of costs safe, because if you should die or become legally incompetent, someone managing your estate, will need to show the probate court why the other parent shouldn't be entitled to collect on the entire arrears.

>2. If I do file contempt and we are in front of our usual
>Referee, won't she be highly offended by the magistrate's
>recent order?

Irrelevant. Your arrearage is a debt to the other parent so your paying her portion of transport costs is in satisfaction of a portion of that debt. If you cannot afford to pay transport now, then you need to try to borrow sufficient funds from some other source and pay off the entire arrearage, so you can enforce ongoing transport costs.

Everything else will be a lost cause. You have no case as long as you owe the arrears in an amount greater than the transport costs owed by your ex.

[TJRodolph]

I realize the orders say the remedy of reducing arrearages...but at the last hearing with our usual Referee....she said it was not the intention of the court for the Plaintiff to just not pay her share of airfare and it come off the arrears, that if she cannot afford to pay her 1/2, to file the proper motion to address it. She also said to mom that "keep in mind that I already took into account both parties income and the fact that you are the one who moved out of state without court order or permission."

To me that means....She IS obligated to pay, that she is not off the hook by the remedy, that is is MY remedy, not hers.

If mom is never forced to pay her 1/2 of airfare, the child will miss some visitation times with me. With that remedy, it would be forcing me to pay on my arrearages more than what is required by law. Thats unreasonable and not fair.

Question:

1. How can I get this issue addressed with our usual Referee?

2. Would a Motion to Clarify this issue be effective?

[TJRodolph]

p.s. If I could get a loan for $8000, believe me I would pay off that arrears in a heart-beat.

Thanks again for all your advice Soc, it is much appreciated.

[socrateaser]

>Question:
>
>1. How can I get this issue addressed with our usual Referee?

Don't know.

>2. Would a Motion to Clarify this issue be effective?

Based on your statements about the referree's prior comments, very effective, but you had better have a transcript of the hearing and the ref's comments on this issue as part of your motion, so that there will be no mistaking the grounds you are attempting to use.

Then if the other parent continues to not pay, you can file for contempt and it will be a slam dunk. But, as of right now, your orders effectively preclude contempt, because a reasonable judge would interpret them to mean that the other parent does not need to pay ongoing transport costs.