Can she do this?

[Benjaline]

What is the name of your state? California

My boyfriend recently was served with a Notice of Delinquency from his ex-wife stating he is almost $7000 in arrears with his child support. She is claiming that from Nov. 2002-Mar. 2003 he did not pay the court ordered child support. Although the divorce was filed in Oct. 2002, his ex-wife and he agreed to live together through the school year, for financial reasons mostly. He worked and supported her and the 4 children through March of 2003 and when she and the sons moved up North, we live in L.A., he started paying a full child support amount. He has always paid child support and has had a wonderful relationship with his children despite the dissolution of marriage. Recently, his ex-wife violated the child custody and visitation order by not allowing the children to see him after their 5 week summer visit here last year. We begged, borrowed and stole enough money to acquire an attorney up North who got the D.A. to call his ex-wife and explain that she was going to allow the kids to visit as per the divorce decree arrangement, two weekends a month, summer visits and Christmas visits, etc..etc... She, of course, obliged the D.A.'s order, but immediately after, the following week filed this false claim that he did not pay her. We replied and filed it with the court last week as well as sent a copy to our attorney, but just wondered if this is legal. Can she do this? We were able to order and acquire all copies of checks paid to rent, car, and all other living expenses during that 5 month period. All payments come out of my boyfriend's personal checking account-they both had separate checking accounts at the time...they are all written in her handwriting, which can be proven, but again out of his checking account. Everything we read gives us the impression that this claim will not be heard or thrown out, but we are still curious. Can she do this? If they throw it out, will she be reprimanded and how? When fathers don;t pay child support they are hit with arrears as well as interest which accrues and never stops accruing until paid in full, but when a mother makes a false claim, possibly out of retaliation that the D.A. forced her hand, what happens then? Just curious.

 

[LdiJ]

What is the name of your state? California

My boyfriend recently was served with a Notice of Delinquency from his ex-wife stating he is almost $7000 in arrears with his child support. She is claiming that from Nov. 2002-Mar. 2003 he did not pay the court ordered child support. Although the divorce was filed in Oct. 2002, his ex-wife and he agreed to live together through the school year, for financial reasons mostly. He worked and supported her and the 4 children through March of 2003 and when she and the sons moved up North, we live in L.A., he started paying a full child support amount. He has always paid child support and has had a wonderful relationship with his children despite the dissolution of marriage. Recently, his ex-wife violated the child custody and visitation order by not allowing the children to see him after their 5 week summer visit here last year. We begged, borrowed and stole enough money to acquire an attorney up North who got the D.A. to call his ex-wife and explain that she was going to allow the kids to visit as per the divorce decree arrangement, two weekends a month, summer visits and Christmas visits, etc..etc... She, of course, obliged the D.A.'s order, but immediately after, the following week filed this false claim that he did not pay her. We replied and filed it with the court last week as well as sent a copy to our attorney, but just wondered if this is legal. Can she do this? We were able to order and acquire all copies of checks paid to rent, car, and all other living expenses during that 5 month period. All payments come out of my boyfriend's personal checking account-they both had separate checking accounts at the time...they are all written in her handwriting, which can be proven, but again out of his checking account. Everything we read gives us the impression that this claim will not be heard or thrown out, but we are still curious. Can she do this? If they throw it out, will she be reprimanded and how? When fathers don;t pay child support they are hit with arrears as well as interest which accrues and never stops accruing until paid in full, but when a mother makes a false claim, possibly out of retaliation that the D.A. forced her hand, what happens then? Just curious.

I think an attorney would have to answer that one for you. Technically he didn't pay the court ordered child support to her during that period. Yes, he supported her and the children and can prove that, but its a legal technicality and I am not sure that she couldn't get away with the claim.

 

[rmet4nzkx]

Please post the exact wording of the child support order w/o names, please include dates and whether this was put through CSE. So, even if there was a court order the fact that they agreed to pay for it this way during this time, in direct payments and like for kind should cover it, she is not entitled to double payment or to deny or interfere with visitation. Has he filed contempt charges yet?

In California, verbal contracts are covered under EC 623 which would cover the agreed child support method:
CALIFORNIA CODES
EVIDENCE CODE
SECTION 620-624

620. The presumptions established by this article, and all other
presumptions declared by law to be conclusive, are conclusive
presumptions.

622. The facts recited in a written instrument are conclusively
presumed to be true as between the parties thereto, or their
successors in interest; but this rule does not apply to the recital
of a consideration.

623. Whenever a party has, by his own statement or conduct,
intentionally and deliberately led another to believe a particular
thing true and to act upon such belief, he is not, in any litigation
arising out of such statement or conduct, permitted to contradict it.

 

[Benjaline]

Thank you

Thank you so much for your post. I actually just left town for a family emergency and won't be home until Sunday, but will definitely post what you asked...my boyfriend is meeting me tomorrow night so I may have him bring it and do it then. I appreciate what you posted and will print it since I believe it will definitely help.


Thanks again!

 

[Benjaline]

Child support order posting requested

Please post the exact wording of the child support order w/o names, please include dates and whether this was put through CSE. So, even if there was a court order the fact that they agreed to pay for it this way during this time, in direct payments and like for kind should cover it, she is not entitled to double payment or to deny or interfere with visitation. Has he filed contempt charges yet?

In California, verbal contracts are covered under EC 623 which would cover the agreed child support method:
CALIFORNIA CODES
EVIDENCE CODE
SECTION 620-624

620. The presumptions established by this article, and all other
presumptions declared by law to be conclusive, are conclusive
presumptions.

622. The facts recited in a written instrument are conclusively
presumed to be true as between the parties thereto, or their
successors in interest; but this rule does not apply to the recital
of a consideration.

623. Whenever a party has, by his own statement or conduct,
intentionally and deliberately led another to believe a particular
thing true and to act upon such belief, he is not, in any litigation
arising out of such statement or conduct, permitted to contradict it.

"Child support is ordered as set forth in the attached: Marital settlement agreement, stipulation for judgment, or other written agreement..." The attached agreement states, "...CHILD SUPPORT: The support established by this Agreement is based upon the following: (a) TIME WITH CHILDREN: Under the agreed parenting plan, the children will be in the care of the Husband 16% of the time and in the care of the Wife 84% of the time." (By the way, this has been inaccurate since it was drawn up. The percentages should have stated Husband 23% and Wife 77% as the agreed parenting plan was that father would have children 85 days out of the year, which comes to 23%, not 16% as the Wife had originally calculated) The order continues, "...CHILD SUPPORT PAYMENTS: Husband shall pay to Wife for the support of the minor children $1093.00 per month, commencing November 1, 2002, payable direct to Wife on the first of every month until Husband's wages have been assigned..."

His ex-wife continued to live with him and the children until she moved at the end of March 2003. All bills for rent, car payments, insurance and most if not all other living expenses for all of them were paid directly out of his checking account. His then wife actually wrote out all of the checks and signed them...we have proof from the bank that these checks are all written out of his personal checking account in her handwriting during this time frame that she is stating he owes her child support. He took care of them and provided for her and the children. Child support was not paid to her until April 2003. It was always agreed upon that he would start actual payments to her when she and the chidren moved out. This was okay until he got the D.A. involved to force his ex-wife to drop the kids off for visitation after almost 5 months of her sabotaging the relationship and being an obstacle to the visits. He did not file contempt charges, but went ahead and retained an attorney who got the D.A. to step in and threaten action if she did not comply with the court order. We did send a certified copy of the order to the Sheriffs office in her county who has it on file and states if she again chooses not to comply, he is able to go to any police department in her county or town and file a police report for Violation of a Child Custody/Visitation order. We are going to court this month over this whole matter...her claim that he did not pay for those 5 months as well as him wanting them to adjust the percentages to show an accurate accounting of the time he has spent with the children and of course to lower child support payments.

Hope this helps you to advise us. Do you think he will need to furnish all copies of checks paid to living expenses from those 5 months? We ask because there are at least 30 checks to bills for those months and will cost us $5 a check due to it being a closed account. Thanks!

 

[VeronicaGia]

It will be worth it to get a copy of those canceled checks. Since he didn't pay her directly, it could go either way. Do the canceled checks equal the same amount as the monthly support obligation?