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Support arrearage

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M

marisunshine21

Guest
What is the name of your state? CA
My ex was behind some 10k in child support for several years and in 2002 after waiting and being strung along, my atty filed a wage garnishment(levy) through the courts. I was notified that the courts served his company papers for wage garnishment and were taking care of it starting Dec of 2002. i was informed they would charge him 25% of his wages twice a month plus interest. It was my understanding that he was credited for everthing he should have been at the time the order for arrears was made. His company sent me three checks one in dec 02 and two in jan 02 to pay this arrearage. Three days after the third check was sent to me and deposited, my ex called me(he works as the controller at his company) and tells me they have not been following the instructions to pay it off correctly and they are stopping payment on the last check. I received a $15 stop payment fee and the deposit reversed in my checkbook. This screwed up my finances and i didn't hear anymore about this. The courts sent checks directly to me, regularly after this.
Now, as of june 15 he will have paid the 10k off plus interest. The problem is he wants me to go down to the courts and have the garnishment stopped early so he wont be overpaying (because they are not counting the checks they did not receive, the two that were sent directly to me). I dont feel like i should do anything until the garnishment is paid in full and then we will look at what was overpaid. To make things even more messy is that he moved jobs in 9/02. In the previous job, he had a wage assignment that was paid by the head of human resources, since he worked in the finance dept and because he typically would not pay his support or hold checks for a week and so on. However, I didnt seek another wage assignment at his new work because he is the financial controller and it was a very small company. So starting in 9/02 he was once again lowering amounts he paid on his child support and stopping payment and playing games. His child support obligation amount changed in 9/02 also.
My question is should i stop the garnishment (levy) because he is threatening to having my wages garnished for the $900 he says he has overpaid, if i dont stop the garnishment now? He is also threatening that his company will take me to small claims court. I just want some time to shuffle through all my bank statements and court documents stating what child support levels were back then, and to research and see who owes what. One other question, who would have to seek repayment if he has indeed overpaid, the company who sent me the checks, or him?
:confused: thanks for any insight on this.
 


I AM ALWAYS LIABLE

Senior Member
marisunshine21 said:
What is the name of your state? CA
My ex was behind some 10k in child support for several years and in 2002 after waiting and being strung along, my atty filed a wage garnishment(levy) through the courts. I was notified that the courts served his company papers for wage garnishment and were taking care of it starting Dec of 2002. i was informed they would charge him 25% of his wages twice a month plus interest. It was my understanding that he was credited for everthing he should have been at the time the order for arrears was made. His company sent me three checks one in dec 02 and two in jan 02 to pay this arrearage. Three days after the third check was sent to me and deposited, my ex called me(he works as the controller at his company) and tells me they have not been following the instructions to pay it off correctly and they are stopping payment on the last check. I received a $15 stop payment fee and the deposit reversed in my checkbook. This screwed up my finances and i didn't hear anymore about this. The courts sent checks directly to me, regularly after this.
Now, as of june 15 he will have paid the 10k off plus interest. The problem is he wants me to go down to the courts and have the garnishment stopped early so he wont be overpaying (because they are not counting the checks they did not receive, the two that were sent directly to me). I dont feel like i should do anything until the garnishment is paid in full and then we will look at what was overpaid. To make things even more messy is that he moved jobs in 9/02. In the previous job, he had a wage assignment that was paid by the head of human resources, since he worked in the finance dept and because he typically would not pay his support or hold checks for a week and so on. However, I didnt seek another wage assignment at his new work because he is the financial controller and it was a very small company. So starting in 9/02 he was once again lowering amounts he paid on his child support and stopping payment and playing games. His child support obligation amount changed in 9/02 also.
My question is should i stop the garnishment (levy) because he is threatening to having my wages garnished for the $900 he says he has overpaid, if i dont stop the garnishment now? He is also threatening that his company will take me to small claims court. I just want some time to shuffle through all my bank statements and court documents stating what child support levels were back then, and to research and see who owes what. One other question, who would have to seek repayment if he has indeed overpaid, the company who sent me the checks, or him?
:confused: thanks for any insight on this.

My response:

Tell him to stick it in his ear. Who's making the new laws, him?

First, it's out of your hands. It's the county who is garnishing his wages. Second, it's up to him to stop the garnishment by proving that his arrearages have been paid in full, FIRST! Third, his company can't take you to court because: A) it's not the company money - - it's HIS earned wages. B) He would have to take you to court to prove overpayments, and then obtain a judgment against you. He's the one with "legal standing" and no one else.

Shhhsh. Don't tell him any of this. Let him spin his wheels and spend his money.

The guy sounds like a dufus.

IAAL
 
M

marisunshine21

Guest
thanks

CA
Thanks IAAL He is a dufus, so i will hold out and see if he takes me to court to try and prove his overpayment. If and when he does, can i subtract any child support he was delinquent on since the levy was started ? and can i also subtract out the stop payment fee? Also while i am adding up all this stuff could i take into account that i had to seek an atty and had legal fees because he wouldnt pay the arrearage on his own? ;) hehehe ok ok maybe i am a little overboard! lol but hmmmm maybe......then again.... :D
 

I AM ALWAYS LIABLE

Senior Member
marisunshine21 said:
CA
Thanks IAAL He is a dufus, so i will hold out and see if he takes me to court to try and prove his overpayment. If and when he does, can i subtract any child support he was delinquent on since the levy was started ? and can i also subtract out the stop payment fee? Also while i am adding up all this stuff could i take into account that i had to seek an atty and had legal fees because he wouldnt pay the arrearage on his own? ;) hehehe ok ok maybe i am a little overboard! lol but hmmmm maybe......then again.... :D

My response:

Actually, you're not "going overboard". You have the right to be "made whole" - - and if his recalcitrance and contempt for the court order has damaged you, you have the right - - nay, you have a duty - - to file a cross-complaint against him for your damages.

Don't tell him any of this. Make it a surprise to your ex-husband - - or should I say, the self-appointed Legislator of new laws?

IAAL
 
M

marisunshine21

Guest
i feel good

lol ok I will take your advice and "Tell him to stick it in his ear" and that is it.
thanks i am feeling very smug and good about this situation.
:D :D :D
 
M

marisunshine

Guest
for IAAL

marisunshine21 said:
What is the name of your state? CA
My ex was behind some 10k in child support for several years and in 2002 after waiting and being strung along, my atty filed a wage garnishment(levy) through the courts. I was notified that the courts served his company papers for wage garnishment and were taking care of it starting Dec of 2002. i was informed they would charge him 25% of his wages twice a month plus interest. It was my understanding that he was credited for everthing he should have been at the time the order for arrears was made. His company sent me three checks one in dec 02 and two in jan 02 to pay this arrearage. Three days after the third check was sent to me and deposited, my ex called me(he works as the controller at his company) and tells me they have not been following the instructions to pay it off correctly and they are stopping payment on the last check. I received a $15 stop payment fee and the deposit reversed in my checkbook. This screwed up my finances and i didn't hear anymore about this. The courts sent checks directly to me, regularly after this.
Now, as of june 15 he will have paid the 10k off plus interest. The problem is he wants me to go down to the courts and have the garnishment stopped early so he wont be overpaying (because they are not counting the checks they did not receive, the two that were sent directly to me). I dont feel like i should do anything until the garnishment is paid in full and then we will look at what was overpaid. To make things even more messy is that he moved jobs in 9/02. In the previous job, he had a wage assignment that was paid by the head of human resources, since he worked in the finance dept and because he typically would not pay his support or hold checks for a week and so on. However, I didnt seek another wage assignment at his new work because he is the financial controller and it was a very small company. So starting in 9/02 he was once again lowering amounts he paid on his child support and stopping payment and playing games. His child support obligation amount changed in 9/02 also.
My question is should i stop the garnishment (levy) because he is threatening to having my wages garnished for the $900 he says he has overpaid, if i dont stop the garnishment now? He is also threatening that his company will take me to small claims court. I just want some time to shuffle through all my bank statements and court documents stating what child support levels were back then, and to research and see who owes what. One other question, who would have to seek repayment if he has indeed overpaid, the company who sent me the checks, or him?
:confused: thanks for any insight on this.
ok here is an update on this.
I called the courts friday to see where the last check is and the lady told me that he hasn't made any payments since may 15. he has about $900 left on the levy. (knowing he is not going to pay this, because this is close to the amount that he says he already paid me.) i asked the lady if he or the company is responsible for the levy payments and she said "well i guess the company since it is a court ordered levy" i asked her if it is enforceable to make them finish paying it, and she didnt really know. She did confirm he is being charged interest at 10% compounded daily.
I have not asked him yet about not paying. He doesnt know that i know he isnt paying it off.
Is this contempt of court? if so who is in contempt? Reminder: he is the company's head of finance and accounting and the whole dept cuz it is a very small tech company and some of the people working with him are relatives! So he may be pulling strings and controlling the paychecks, so that the 25% is not being pulled out of his checks.
What do i do next, my old atty is not retained and i dont really want to retain him for $900 left on the levy? Also another bit of info is that his atty committed suicide and now he doesnt have anyone representing him.
can the company or him try to prove that they paid me directly but incorrectly at the start of the levy for two months? Or will they have to pay the levy off then pursue the overpayment, if there was one?
one more question for now. Does this levy affect his credit? if not how do i tell the credit bureaus about this debt?
Thanks in advance for any help.
 
M

marisunshine

Guest
IAAL where are you?

thanks for the link, but i dont know how to read all that legal jargon. i was hoping to hear from IAAL and his expertise. :D
 

I AM ALWAYS LIABLE

Senior Member
My response:

Whenever a support order is made or modified, the court must include in the order an earnings assignment order for support that directs the obligor's employer to pay to the obligee that portion of the obligor's earnings due or to become due as will be sufficient to pay (a) the support amount ordered by the court, and (b) an amount ordered to be paid toward liquidation of any arrearage. [Ca Fam § 5230(a)(1) & (2)] ("Ca Fam §" means California Family Code section).

(An "arrearage" is the amount necessary to satisfy a support order pursuant to Ca Civ Pro § 695.210--i.e., generally, amount of the judgment not paid, plus interest accrued. See Ca Fam § 5201; Ca Civ Pro § 695.210.) ("Ca Civ Pro §" means California Code of Civil Procedure section)

An employer's "willful failure" to comply with an earnings assignment order for the payment of support (Ca Fam § 5200 et seq.) is punishable as a contempt pursuant to Ca Civ Pro § 1218. [Ca Fam § 5241(c)]

But only the employer is subject to contempt in such cases. The support obligor cannot be held in contempt (or subject to criminal prosecution) for nonpayment of support that was withheld by the employer under an assignment order but not forwarded to or received by the obligee. [Ca Fam §§ 5235(a) & 5241(b)]

An employer who willfully fails to withhold and forward support pursuant to a currently valid and properly served assignment order faces the following consequences:

• The employer will be liable to the obligee for the amount of support not withheld, forwarded or otherwise paid to the obligee, including any interest thereon (Ca Fam §§ 5235(a), 5241(a));

• The employer will also be liable to the obligee for any interest incurred as a result of the failure to timely forward the withheld support (Ca Fam § 5241(b)); and

• In addition to any other penalty or liability provided by law, the employer's willful noncompliance is punishable as a contempt pursuant to Ca Civ Pro § 1218 (fine/imprisonment/community service,(Ca Fam § 5241(c)).


File your "Order to Show Cause re: Contempt of Court" against his employer, and have his employer served - - and even if the sum is paid as the result of the filing, DO NOT dismiss the OSC. Appear on the OSC, and let the judge see what is happening, and to take action against whomever is the person responsible within the company for the wage assignment and withholding.

IAAL
 
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