Your opinion please

[wysiwyg]

Soc,

I have posted bits and pieces of this situation to you in the last few weeks, however it is now coming together and I would like you opinion.  

Details:

BM received house in divorce that was 100% paid for.
BM has had 3 filings against her subsequent to divorce for failure to pay debts.
2 filings resolved as paid.
Third filing resulted in judgement and garnishment hearing was last week, in excess of 10K and at last minute a filing to vacate as all debt and costs paid.
BM found in contempt in spring and ordered to pay my attorney's fees within 3 months or result in automatic judgement in favor of the firm, she did not pay, I paid attorney - and I instructed attorney to file a motion to collect so that I could recoup the fees I paid him.  Hearing is in 3 weeks.
Went to court house and found in public records that BM has taken a revolving line of credit on the house for 75K of which only 2 K is left to be borrowed.  (NOTE: the loan was only for 75% of the appraised value of the house)
Prior to her paying off 10K, BM filed a petition that I have failed/refused to pay my CS, this is ridiculous as I am under an income with holding order and CS has been paid and even when I changed jobs, I have been paying so all CS is 100 current.  Her petition also stated she is without funds to bring the action to court and asked for me to pay her attorney fees.  THis is set for a hearing in 6 weeks.  

1.  How would you handle the hearing for garnishment in three weeks?  
2.  Would you present the documents that BM has paid the 10K and has some $ left on her revolving loan to pay the $800 in attorney fees?
3.  Would you argue that she does have the ability to pay since she has paid her debts off (all three of them), paid all the taxes on the house and paid for the child to attend elaborate camps and trips in the last few weeks?
4.  How would you argue the hearing set in 6 weeks regarding the refuse/failure to pay cs and request for attorney's fees?
5.  Would you also provide documentation of what BM has claimed her annual income is and that I continue to pay towards day care even though the child has not been in day care for 3 years?

Any insight you can provide is greatly appreciated since my attorney will have a sub for the hearing in three weeks.

Thanks.

[socrateaser]

>1.  How would you handle the hearing for garnishment in three
>weeks?  

The other parent's response is a material falsification if you are paid in full for support. I'd ask for another contempt citation right in the hearing based on that falsfication. As for paying your attorney fees, the other parent has no right to attorney fees for a garnishment hearing, which is an action at law for which attorney fee reimbursement is not permitted.

In short, your opponent has no case. Evidently there is some money hidden somewhere. But, if the home still has 25% LTV and the state's homestead exemption is insufficient to prevent you from having the sheriff seize the property and sell it, then that's what I'd do. Have the home sold at public auction and get your dough.

>2.  Would you present the documents that BM has paid the 10K
>and has some $ left on her revolving loan to pay the $800 in
>attorney fees?

You can show whatever you want. I'd want to know what happened to the proceeds from the 2nd loan on the house, because if it's being hidden, that's a fraud, and you're entitled to payment from the money. More important, if she refuses to tell you where the money is, then the judge can keep her in jail until she agrees to tell you.

>3.  Would you argue that she does have the ability to pay
>since she has paid her debts off (all three of them), paid all
>the taxes on the house and paid for the child to attend
>elaborate camps and trips in the last few weeks?

Not enough facts. She has the ability to pay if there is money/assets to pay with. And, it appears that there is money still available in the home.

>4.  How would you argue the hearing set in 6 weeks regarding
>the refuse/failure to pay cs and request for attorney's fees?

It's very straightforward. She was ordered to pay, and she hasn't paid. There is money from a loan somewhere and money in the home, therefore if she doesn't have the ability to pay and/or refuses to tell you where the money from the loan is, then the court should hold her in contempt and jail her until she cooperates, and should issue a writ of execution to have the home sold by the sheriff so as to recover your losses.

Unfortunately, it's unlikely that the court would order the home sold to get you $800. Depending on the law of your jurisdiction, you might be able to go back to the family court and ask that the court set aside the original judgment of dissolution and reapportion the property distribution on grounds that the other party failed to do what was required under the original judgment. This assumes that the other party didn't do as required, and as I don't know what she was required to do, I don't really know if you have a case here or not. But, I'm just musing about possibilities.

You can also just ask for credit against your future support obligation.

Obviously, if the mom is jailed for refusing to cooperated in the judgment debtor hearing, then you may suddenly find yourself with custody, which would give you huge leverage going forward. But, unless that happens, then you will have future support owed, and you should be able to get some of it credited for the other party's failure to pay.


>5.  Would you also provide documentation of what BM has
>claimed her annual income is and that I continue to pay
>towards day care even though the child has not been in day
>care for 3 years?

This is irrelevant. If you have a gripe about this, then you need to request a support mod.

>
>Any insight you can provide is greatly appreciated since my
>attorney will have a sub for the hearing in three weeks.

Attorneys...sheeze. If the attorney will have a sub, then you need to have a meeting with the sub before the hearing and make sure that the sub knows what the hearing is all about. Otherwise, I can practically guarantee that your hearing will come to a bad end because the sub won't care and won't know and everything will blow up in your face.