Default Judgement

[pancakes]

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

I, as CP, live in VA. I have full physical and legal custody of 1 1/2 y/o son. NCP lives in CA and did not fill out the financial paperwork the state sent to him despite repeated reminders on my part for him to get it done.

As background, NCP and I were in committed relationship which ended due to DV on his part (and me moving). He is a veteran and suffers from PTSD and TBI. Hasn't seen his son in 14 months and although I offer pictures, videos, phone conversations - he only acccepts if I push.

I gave the state (to the best of my knowledge) his income from when we were together even though I can only imagine it has increased since then. The financials I gave were entered by default because he never filed a response.

He is no longer employed because he didn't show up to work (or call out) for two weeks. Two months after losing/quitting his job the default judgement was entered and now he has requested a modificiation due to being unemployed. He is in a PTSD treatment center which the court ordered him to go to for DV on his wife, is declared financially incompetant by the VA, refuses to collect unemployment because he can live off of his wife's earnings.

I know a modification can be done if you lose your job... but is it likely to be granted in the above circumstance?

He also repeatedly says he wants to relinquish his parental rights. As much as his lack of emotion towards his son breaks my heart, if he were truely serious about not wanting anything to do with him wouldn't it be better to join him in that petition?

He is now $1,130 in arrears and says he will pay the court-ordered medical insurance for son "when he feels like it". I have yet to see a dime. I can make barely make ends meet but if it means having 3 jobs I am stubborn enough to make it happen! It isn't a matter of just getting money it's more which direction should I go in? Should I ask a judge to 'release' him of his responsibilities so that he can work on himself as a person?

 

[pancakes]

Update

I have more information to add to this, and would really appreciate any feedback that you can offer...

He has repeatedly confirmed that now he wishes to stay a permanent part of our son's life..so that is a non-issue..

The default judgement was entered Jan 11 2011 and made retroactive to Dec. 1, 2010. Default set his support amount and that he was to provide health insurance as well as 50% of reasonable uninsured health care costs.

He requested a modification.
3/2/11 - received letter from CA stating that the child support order can not be changed because (NCP) "did not complete and return the required income and expense forms or requested documents to our office".

3/26/11 - received letter from CA advising me that a hearing has been set and that I may be able to attend telephonically. Attached is a notice of motion to set aside child support provisions and reset according to proof.

The proof (errors and all) is as follows:
"Respondent/father has provided documentaiton showing that he has been housed in a veteran's transition center since December 1, 2010; Staff psychologist's letter indicates that he has cognitive impairments that interfere with completion of daily tasks. The order obtained was based on his previous employment."

First off... he was court ordered to be at Pathways dec 1 due to dv against his wife and as a condition from the judge for the CPO to be dropped. He didn't check in until Dec 6 (confirmed by posting on fb and verbally). Is that perjury? Would his check-in date be only accessible through an attorney or the court?

Would I be able to get a copy of this letter and his "proof" of housing? I'm trying to be as objective about this as possible and I'm unsure if I am allowed to request things such as: keeping the default order in place from dec 1 - time of filing for new hearing (march 18), and him maintaining health coverage responsibility (he is waiting to be rerated by VA and if 100% our son will be covered by ChampVA).

He has told me that while at this facility he receives 100% disability compensation. He has already taken the rerating tests and is merely waiting on results (currently 80% disabled). Does not collect social security because that would be "more money for [me] to take". He currently receives the 80% figure but will receive backpay when he actually graduates for time spent there. Does that count? Or would we just have to go back to court in a few months to modify agan?

I'm not trying to be petty and I would appreciate any and all advice - even to say that I'm overreacting.

 

[TinkerBelleLuvr]

Disability income WILL factor into a child support order.

 

[CJane]

BUT. If you FILED / he was required to return the paperwork while he was housed in this facility (it IS an inpatient center, correct?), then he has a reasonable defense for why he did not get everything returned to the courts.

I'm guessing Dad has an attorney at this point?

 

[muchneededhelp]

BUT. If you FILED / he was required to return the paperwork while he was housed in this facility (it IS an inpatient center, correct?), then he has a reasonable defense for why he did not get everything returned to the courts.

I'm guessing Dad has an attorney at this point?

That is a very big question in my mind; when did you originally file for child support? Your statements are confusing, a date would be helpful.

I, as CP, live in VA. I have full physical and legal custody of 1 1/2 y/o son. NCP lives in CA and did not fill out the financial paperwork the state sent to him despite repeated reminders on my part for him to get it done.

He is no longer employed because he didn't show up to work (or call out) for two weeks. Two months after losing/quitting his job the default judgement was entered and now he has requested a modificiation due to being unemployed. He is in a PTSD treatment center which the court ordered him to go to for DV on his wife, is declared financially incompetant by the VA, refuses to collect unemployment because he can live off of his wife's earnings.

How much time actually elapsed?

 

[pancakes]

Disability income WILL factor into a child support order.

What I'm trying to figure out is:

he is currently being compensated for 80% but will receive 100% in backpay for that time after he graduates....so do I request the 100% pay be used in the calculation or the 80%?

 

[pancakes]

BUT. If you FILED / he was required to return the paperwork while he was housed in this facility (it IS an inpatient center, correct?), then he has a reasonable defense for why he did not get everything returned to the courts.

I'm guessing Dad has an attorney at this point?

Yes I filed through the state. He was served with the papers 11/15/2010 and left and checked in (same day) to the facility 12/6/10. During that time we were in constant communication and I told him I would help him with anything he needed help with. There have been hard feelings in the past and I have tried my best to be impartial (obviously that hasnt always happened but still). His reasoning for not filling out the initial response was that he just didn't get to it. It was defaulted and then he didn't turn in the financials for the modification because "it was too confusing". He has a fiduciary....isn't it simply a matter of contacting the fiduciary for the list of numbers??

No neither of us do. The information we get is mainly from speaking to our caseworkers.

 

[pancakes]

Also, he returned every weekend to his hometown to visit his family from the facility... so it is not as though he is confined there. The excuse that he cannot get help doesn't make sense because why not just ask his wife or his immediate family for help with the papers? Or go to legal aid? He can request time off at any time - they are very lenient.

 

[pancakes]

That is a very big question in my mind; when did you originally file for child support? Your statements are confusing, a date would be helpful.

5/24/10 filed for support in virginia. it was lumped in with the custody because I had no idea that it had to be filed in CA. Couldn't find him to be served. Judge said go to DCSE

Tried to work out agreement in support with NCP - he said he would send what he could every month. Needless to say that didn't happen.

8/18/10 Filed with DCSE
8/27/10 Case sent to CA
10/8/10 NCP lost job to no call/no show (has history of it)
11/15/10 served with papers requesting support from date of filing
11/30/10 ordered by judge to be at facility 12/1/10
12/6/10 NCP checks in
1/11/11 Default judgement ordered - retro to dec 1, 2010
1/31/11 NCP filed for mod
3/2/11 mod dropped because NCP failed to provide documents

 

[muchneededhelp]

What I'm trying to figure out is:

he is currently being compensated for 80% but will receive 100% in backpay for that time after he graduates....so do I request the 100% pay be used in the calculation or the 80%?

If he's currently receiving 80%, then they will only use that 80%. You will most likely have to return to court for a redetermination once he's receiving 100% disability pay.

 

[pancakes]

I'm confused and CA is only making it worse...

I was told that I was not allowed to view the "proof" that he submitted that this hearing is based upon (the housing documentation and the letter) because information given to DCSS is confidential. But**************that is what this hearing is based upon...so....huh?

Also...I was granted permission to participate by telephone but was given an answer I thought strange... the "attorney" will call me on the date of the hearing and I will tell him/her my side of the story, he/she will speak to ncp, and if we agree then YAY....if not, it goes before a judge. To clarify I asked, "So it will be like being before a mediator?" Her response was "No not really" and then she hung up.

This would be my first legal appearance where NCP is actually giving input...so I have no experience here. I hope someone will shed some light on this and I thank everyone for the replies already received.

 

[muchneededhelp]

You have a right to conduct discovery on financial issues whenever there is a pending hearing on financial issues, even if the case is with DCSS. There is a judicial counsel form just for that request that can be found on-line at most California court websites.

If you are concerned that he is lying or hiding documentation, I would suggest getting a lawyer. A lawyer can subpoena those records if you go to court. It becomes a much harder pro-per case and a lawyer would know the ins and outs of getting that information.

 

[pancakes]

Motion to set aside default judgement

So all along I've been thinking that I would just list what I would like for the hearing vs actually fighting the set aside..

From what I have found online, the main legal reasons to be able to have a set aside granted is if there was fraud (I didn't lie on any of my documents), improper service (it was service by substitution), and a few others in regard to inability (he has a fiduciary so I can't see those applying). Not to mention he initially filed for a modification, then for the set aside.

Also for a set aside, aren't there supposed to be points and authorities? Facts in support of the motion were listed but no actual case law. Am I just grasping at straws here?

Unfortunately the lowest retainer I've been able to find is $2500 and I just can't afford that right now.

 

[CourtClerk]

There are a few things I need to say... but I can't right now because I've got some other stuff I need to take care of. I'm only posting so I can remember to come back here later and answer some of these questions...

Note to self: come back and answer some of these questions.

For now, it's a beautiful day. Time to go play for a little bit.

 

[CourtClerk]

I'm confused and CA is only making it worse...

I was told that I was not allowed to view the "proof" that he submitted that this hearing is based upon (the housing documentation and the letter) because information given to DCSS is confidential. But**************that is what this hearing is based upon...so....huh?

That is correct. The information in the DCSS file is confidential and for their eyes only. They don't represent you, they don't represent your ex, they represent themselves and the interests of the county/state/and kind of the kids.

Also...I was granted permission to participate by telephone but was given an answer I thought strange... the "attorney" will call me on the date of the hearing and I will tell him/her my side of the story, he/she will speak to ncp, and if we agree then YAY....if not, it goes before a judge. To clarify I asked, "So it will be like being before a mediator?" Her response was "No not really" and then she hung up.

That's also correct. They are the attorneys for Child Support Services. You'll talk to them, he'll talk to them, they'll take the issue to court and talk to a judge if they can't come to an agreement. They aren't mediators and most of the courtrooms aren't set up for CourtCall so you can't be part of the proceedings. The only way to ENSURE you will be heard IN COURT (if it goes that far) is to either show up or hire an attorney.