Child Support contempt questions

[torimac]

What is the name of your state (only U.S. law)? CA

My other thread is closed for some reason. The history is here:
https://forum.freeadvice.com/divorce-separation-annulment-36/understanding-contempt-489024.html

Long story short, my ex owes 34k in arrears. So, I filed for contempt in the fall of 2009. After a few delays, we have a court date in the middle of December.

Since the initial court date, he has made four payments totaling $450. He is ordered to pay $680 a month (1/2 daycare and child support). He is not really in good graces with the judge due to skipping the last court date and other issues (see history).

He had to submit proof of income for the summer quarter. He is a 1099 contractor. For the quarter, he earned $8865. Some of that is in job related fuel costs for which he is reimbursed, but he did not specify how much. His car is really his only expense. He lives at home for free room and board (he stated this).

He is paying a small amount, but not the full amount ordered. He is earning about 2900 a month, but some of that goes towards taxes and basic living expenses (car insurance, etc). Legally, if he is paying any of the child support, can he be found in contempt if he is "trying" to pay?

 

[CourtClerk]

A contempt citation requires the court to be able to find that he has the ABILITY to pay and is WILLINGLY not paying...

 

[torimac]

definition please...

We had court today and I have not heard of the results. For a brief past history, I filed for contempt in fall of 2009. Over the past 16 months or so, court has been delayed 4 times: once due to his lawyer, three times due to him not showing. The last time, he did not show because he was having car issues and did not feel it could make the trip. I was not sure if he would show today.

I was not able to fly back to CA. I looked for an update on the court website. It says:
03/25/2011 1:30 PM SPECIAL SET HEARING ON: REVIEW OF CONDITIONAL SENTENCE SET DISPOSITION: OFF-CALENDAR

What does off-calendar mean?

 

[CourtClerk]

Off Calendar means they didn't have a hearing... it was taken off the court's "schedule"

 

[Proserpina]

Off Calendar means they didn't have a hearing... it was taken off the court's "schedule"

Perhaps because neither party was present?

 

[CourtClerk]

Perhaps because neither party was present?

Most likely... or the moving party (which would have been OP) wasn't present. Or... a settlement... or (seriously) they just didn't want to (parties, not the court)

 

[EnforceSupport]

A contempt citation requires the court to be able to find that he has the ABILITY to pay and is WILLINGLY not paying...

Not always. There is no 'finding' required re ability in many circumstances because it is presumed as part of the prima facia case and must be asserted as an affirmative defense by the citee. (in other words, the citee must prove inability.)

 

[torimac]

called the court

Well, I finally found out what happened. My ex did not show up, evidently due to weather. He did not want to drive in the snow and refused to use other forms of transportation. I know the trains were running from Reno to Oakland.

How often can this be continued before the court gets annoyed? I realize there may be no set rule, but this is now the fourth time he has not shown up for court. It is just driving my costs up, while he is provided with a free lawyer. Can this be continued indefinitely?

 

[EnforceSupport]

Well, I finally found out what happened. My ex did not show up, evidently due to weather. He did not want to drive in the snow and refused to use other forms of transportation. I know the trains were running from Reno to Oakland.

How often can this be continued before the court gets annoyed? I realize there may be no set rule, but this is now the fourth time he has not shown up for court. It is just driving my costs up, while he is provided with a free lawyer. Can this be continued indefinitely?

It sounds like your attorney may be able to be a bit more demanding upon the court to ensure your rights are protected.

Also, please note. Consult with you attorney, but, it is my opinion that if you don't attend the contempt trial, you will likely lose. Your live testimony is critical to the issue as to whether he has paid, or not. He has a right to cross-examine witnesses (like you) and if you're not there, he can move to exclude your written declarations and if that occurs, your case will fail.

 

[torimac]

Actually, my testimony was given. This was to be a final decision and sentencing hearing. Initially, he was given time to find work and make an attempt to pay. My case is handled through the child support agency, but I decided to take it to court on my own as they said it was unlikely they would due to lack of funds.

My old thread closed, so I was not able to append, but here's the basics:
He had a job in 2006-7 and paid for a few months.
The order for wage withholding went through and a few months later he lost his job.
He received a settlement of over $20k; he spent it on cosmetic surgery and used none of it to pay arrears.
He did not hold a job until May 2010 when a judge ordered him to look for work.
During the time he was working, he made 3 partial payments.
In 2011, he lost that job. He is currently not working.
He is about 37k in arrears.

I had not planned to fly out because he has a history of not showing, so it would be a waste of needed money. I was layed off my job in July of 2010. I am currently contracting, but I want to save money where I can in case I need to live off my savings again. I have already given the court all the information, answered all the questions from both lawyers.

 

[EnforceSupport]

Ok, ignore what I said before. If you're already at the sentencing phase, your presence is not all that important.

 

[TinkerBelleLuvr]

Have your attorney ask that your attorney fees be paid by your X.

 

[torimac]

Update

So, we had another court date today. I had hoped it would be the last, but it was not.

He actually has paid $200 in the last year. At the last court date, he had to turn in paycheck stubs. I put my math (soon-to-be) degree to work and created a pretty little spreadsheet for my lawyer that showed that working only an average of 12 hours a week, he had paid about 1% of his income toward child support for 2011. I showed what he could be earning if he had a second job at minimum wage that would total 30 hours and another column for 40 hours. I put my statistics class info to work.

The bottom line is that the judge was 'extremely angry' according to my lawyer. She made the comment that he could pay $20,000 for 'something else' but not for his daughter was not right. She said she would give him one more opportunity to attempt to make payments. He needs to pay at least $300 a month and proof of 20 job applications a month. She did threaten him with jail time if he did not make attempts to comply with the court order.

Our next court date is in September. He currently owes $39,000 in arrears. We will see what happens in September.

 

[torimac]

Update...

I have court on Tuesday, what I hope is the last one for this case. The ex actually paid $300 in June and July, voluntarily. In August, I received an odd amount (XX.21 dollars) for two weeks instead of the $300 even, so I called Child Support Services and the wage garnishment is finally in place.

So, after about $3000 in lawyers fees, for a short time at least, there is a garnishment in place. It will pay the base amount from the original order plus $10, which I imagine will be applied to the 42k in arrears. As there is also a garnishment in place for the student loans he never paid, I am hoping this will last a bit. He had explained in court that he could not pay child support because he had to pay his student loans or deal with the legal consequences of that. Which evidently scared him enough to pay the student loans.

I have asked for my lawyers fees to be paid. It really annoys me that he gets a free lawyer and I had to hire one to convince him to follow a court order that he knew existed but chose not to follow. So, we will see how that goes.

So, hopefully on Tuesday, the case will finish in CA and we will have it transferred. It has been delayed five times (four by my ex).

 

[torimac]

wage garnishment in place

Well, finally, after almost two years of court and four years of a court order, there is a wage garnishment in place. I was told it was not possible because of the fact that the ex was a 1099 employee. I am not sure if it is voluntary or not.
The judge did not rule for lawyer's fees, because she said she wanted any available money to go towards child support payments and arrears.

I have asked that the case be moved to Texas, where I and the child now reside. My ex said he would fight this. Neither of us reside in California. I have not lived there for a year and he has not lived there for over four years. Is it realistic that he could fight the move to Texas?

Does anyone know the forms I fill out to move the case to Texas? Is it possible to just call up child support and ask them to move the case? This is in Contra Costa County.