Appealing a child support order

[flgirl2u]

What is the name of your state?What is the name of your state?What is the name of your state? Florida

I had a hearing for a mod of cs in front of the cs hearing officer (magistrate) yesterday. I brought the motion pro se, the dept of revenue is involved because my ex opened a case with them. The motion was made prior to the case with dor. Dor was present, they helped my ex fill out his paperwork and they had received information from him that I did not have until I was shown the information at the hearing. The Dor ran the cs guidelines, but did not include a portion of income that was on my exs financial affidavit, (some overtime). At the hearing I questioned my ex about the overtime calculation and he said it was an average of what he receives per month (sometimes more, sometimes less). In the confusion of some things added in and deducted, I did not realize until after the hearing that the overtime amount was left out. I went to dor today and they said they just "sat in" but weren't involved, they ran the guideline because most people don't know how to do them. They never asked me, they just ran it so I thought it was the normal procedure. Dor said I had to go to the courthouse to make any changes. So, I went to the courthouse and the self help department stated I couldn't do anything until the order is final and signed by an actual Judge. At that point I can appeal the order or ask for a rehearing on the child support. I just want to verify that this is true and there isn't something I should do before it becomes a final order. Or, am I likely out of luck all the way around? I do realize it was an increase, but I am still carrying a much larger percentage of the financial obligation for the kids and the overtime offsets that somewhat. Any experience is appreciated.

 

[Gracie3787]

What is the name of your state?What is the name of your state?What is the name of your state? Florida

I had a hearing for a mod of cs in front of the cs hearing officer (magistrate) yesterday. I brought the motion pro se, the dept of revenue is involved because my ex opened a case with them. The motion was made prior to the case with dor. Dor was present, they helped my ex fill out his paperwork and they had received information from him that I did not have until I was shown the information at the hearing. The Dor ran the cs guidelines, but did not include a portion of income that was on my exs financial affidavit, (some overtime). At the hearing I questioned my ex about the overtime calculation and he said it was an average of what he receives per month (sometimes more, sometimes less). In the confusion of some things added in and deducted, I did not realize until after the hearing that the overtime amount was left out. I went to dor today and they said they just "sat in" but weren't involved, they ran the guideline because most people don't know how to do them. They never asked me, they just ran it so I thought it was the normal procedure. Dor said I had to go to the courthouse to make any changes. So, I went to the courthouse and the self help department stated I couldn't do anything until the order is final and signed by an actual Judge. At that point I can appeal the order or ask for a rehearing on the child support. I just want to verify that this is true and there isn't something I should do before it becomes a final order. Or, am I likely out of luck all the way around? I do realize it was an increase, but I am still carrying a much larger percentage of the financial obligation for the kids and the overtime offsets that somewhat. Any experience is appreciated.

If the overtime income is substancial enough to make a large difference in the CS you can file a motion for a rehearing. Rehearings aren't awarded very often, but in some cases where something very important was left out of an order, a rehearing is the best way to fix the problem.

You can go to www.flcourts.org/ to find some forms and the Family Law Rules.

You cannot do anything though until the order is signed by a Judge. Also, you should do the calculations to see if adding the OT will make much of a difference in the payment. If it will be only a very small amount, you would be better off leaving it as it is.

 

[flgirl2u]

THANK you! I have no problem pulling the forms and filing the motion, I was just unsure whether I needed to do something before the order was signed. I did the calculations and it does make a significant difference, about a $200 difference.

 

[Gracie3787]

THANK you! I have no problem pulling the forms and filing the motion, I was just unsure whether I needed to do something before the order was signed. I did the calculations and it does make a significant difference, about a $200 difference.

Are you sure that your figures are correct? for overtime to add $200.00 a month to the CS payment, your ex must working a whole lot of OT.

Are you using the average OT claimed on his Financial Affidavit, or are you using an amount that you believe should be used?

Because OT is subjective, the court will use only the average OT, not all of it.
You might want to recheck your figures because OT shouldn't add $200.00 to the CS payment.
Gracie

Edit: I almost forgot, you have ten days from the date the order is signed to file a motion for a rehearing, so file as soon as you get the order.

 

[betterthanher]

Are you sure that your figures are correct? for overtime to add $200.00 a month to the CS payment, your ex must working a whole lot of OT.

Are you using the average OT claimed on his Financial Affidavit, or are you using an amount that you believe should be used?

Because OT is subjective, the court will use only the average OT, not all of it.
You might want to recheck your figures because OT shouldn't add $200.00 to the CS payment.
Gracie

Edit: I almost forgot, you have ten days from the date the order is signed to file a motion for a rehearing, so file as soon as you get the order.

I am wondering if the OP meant $200 bucks yearly.

 

[SMURFEELAW]

Just a heads up....... I would check into if Fl take OT into account. It states on the AZ form that CS obligation should not preclude a paying parent from working OT if they want to and the OT should NOT be taken into account if not guaranteed and a consistent monthly amount. You may be wasting your time so I would check that out if I were you. Trust me it is personal experience. My hubby took a second job and worked a little OT at first job to catch up on some bills when he was out of work for a broken back and the ex tried to have that added and up CS. The Court said no b/c it wasn't guaranteed (the OT) plus he had a right to make more through OT w/o fearing being pulled back into Court every month for a modification and as for the second job, b/c it was temporary, just long enough to get us out of the hole it could not be used. She also didn't get the fees she requested for filing.

Just look into it FL could be different.

 

[Gracie3787]

Just a heads up....... I would check into if Fl take OT into account. It states on the AZ form that CS obligation should not preclude a paying parent from working OT if they want to and the OT should NOT be taken into account if not guaranteed and a consistent monthly amount. You may be wasting your time so I would check that out if I were you. Trust me it is personal experience. My hubby took a second job and worked a little OT at first job to catch up on some bills when he was out of work for a broken back and the ex tried to have that added and up CS. The Court said no b/c it wasn't guaranteed (the OT) plus he had a right to make more through OT w/o fearing being pulled back into Court every month for a modification and as for the second job, b/c it was temporary, just long enough to get us out of the hole it could not be used. She also didn't get the fees she requested for filing.

Just look into it FL could be different.

In Florida the average OT that a party canreasonably expect to earn is used in the calculations. It is very subjective, so the courts usually use what the parties list on thier financial affidavits.

As my husband's ex found out, when she complained that they didn't use ALL of his OT, trying to change an order or complain about OT is useless. It may have also had something to do with the fact that she understated her regular pay and according to her paystubs, she averaged $680.00 a month OT, but claimed only $120.00 in OT.

I asked the OP if she was using ALL his OT, or just the average because she's claiming that including the OT will add $200.00 to the payment. Whether OP meant monthly or yearly, I don't know. But if it's monthly, my educated guess is that she is using all of the OT, and could be putting herself in some trouble when trying to go back to court.
Gracie

 

[SMURFEELAW]

In Florida the average OT that a party canreasonably expect to earn is used in the calculations. It is very subjective, so the courts usually use what the parties list on thier financial affidavits.

As my husband's ex found out, when she complained that they didn't use ALL of his OT, trying to change an order or complain about OT is useless. It may have also had something to do with the fact that she understated her regular pay and according to her paystubs, she averaged $680.00 a month OT, but claimed only $120.00 in OT.

I asked the OP if she was using ALL his OT, or just the average because she's claiming that including the OT will add $200.00 to the payment. Whether OP meant monthly or yearly, I don't know. But if it's monthly, my educated guess is that she is using all of the OT, and could be putting herself in some trouble when trying to go back to court.
Gracie

I figured it was something like that, in AZ they really don't use it except in rare cases. Honestly this is one of those posts that reminds me of one of the popular lines used by one of the regulars on here (I can't remember who)

To the OP "Is this a hill you really want to die on?" Cut your losses and let it go...... Somethings are not worth the hassel yeah it might gain you a little $$ but what will it cost in time, hassel and strain????

 

[flgirl2u]

Thanks for the responses
It is his average ot. I questioned him about it at the hearing because I wasn't sure on how he figured the monthly amount. He stated that he might work more or less, but that his employer and I think dor (who helped him fill out his forms) told him was the average amount and that is what he put down. I am familiar with running the calculations and it does affect the amounts by that much. Not exactly $200, but maybe closer to $150. Factoring in the ot increases the basic obligation and increases his parental percentage. Florida does allow for ot to be included into the gross income. I do know that I have 10 days to appeal the order (which hasn't even been issued yet) and at this point I'm inclined to hire an attorney to represent me at the appeal, I'm really tapped out by all of this. He had quite a few allowable deductions taken out of income and so adding back the ot evens it up a bit percentage wise between the two of us. Otherwise I honestly would have let it go.

 

[betterthanher]

Thanks for the responses
It is his average ot. I questioned him about it at the hearing because I wasn't sure on how he figured the monthly amount. He stated that he might work more or less, but that his employer and I think dor (who helped him fill out his forms) told him was the average amount and that is what he put down. I am familiar with running the calculations and it does affect the amounts by that much. Not exactly $200, but maybe closer to $150. Factoring in the ot increases the basic obligation and increases his parental percentage. Florida does allow for ot to be included into the gross income. I do know that I have 10 days to appeal the order (which hasn't even been issued yet) and at this point I'm inclined to hire an attorney to represent me at the appeal, I'm really tapped out by all of this. He had quite a few allowable deductions taken out of income and so adding back the ot evens it up a bit percentage wise between the two of us. Otherwise I honestly would have let it go.

Why are you playing an "even steven" game with this? You have the right to an appeal if a MISTAKE has been made (finding of fact), which you would have to prove.

So what if he had 'allowable' deductions. Did you notice the key word there is "allow'? If you were entitled to those same deductions, then you would have recieved them, too. If the factored in the average amount of OT, then that is what will stand. You would have to prove otherwise. Maybe you should let it go because you're just sounding petty and jealous.

 

[flgirl2u]

"Petty and jealous"? That's quite a stretch when you have no idea of the whole situation. When I say deductions, I am referring to my ex's cs and health insurance for another child subsequent to these proceedings which have been drawn out due to several continuations for him not providing his financial information. I don't begrudge those deductions. They ARE allowable as they should be, and I do support that he should provide for the other child as well. When I say "even" things up, I am referring to ME not carrying 60-70% of the financial obligation for the kids. I don't think it's fair for EITHER parent to have to provide a larger percentage for the children as they are the responsibility of both parents equally. Even adding in the ot, I will still have the larger percentage of the cs obligation, it will just be closer to an "even" distribution. It was a mistake that the ot was left out of the calculations because the ot WAS specifically discussed and there was never mention of it being disallowed. You are certainly entitled to your opinions and presumptions ,but next time please keep it to yourself, as your post had nothing to offer. I won't waste my time in the future responding to accusations.

 

[Gracie3787]

Thanks for the responses
It is his average ot. I questioned him about it at the hearing because I wasn't sure on how he figured the monthly amount. He stated that he might work more or less, but that his employer and I think dor (who helped him fill out his forms) told him was the average amount and that is what he put down. I am familiar with running the calculations and it does affect the amounts by that much. Not exactly $200, but maybe closer to $150. Factoring in the ot increases the basic obligation and increases his parental percentage. Florida does allow for ot to be included into the gross income. I do know that I have 10 days to appeal the order (which hasn't even been issued yet) and at this point I'm inclined to hire an attorney to represent me at the appeal, I'm really tapped out by all of this. He had quite a few allowable deductions taken out of income and so adding back the ot evens it up a bit percentage wise between the two of us. Otherwise I honestly would have let it go.

Normally, OT wouldn't add that much, but in your case apparently the OT pushed the combined income total to the next level. That increased the basic obligation and changed the percentages. Since your percentage is higher even without his OT, you are earning more than he is.

You are confusing a Motion for Rehearing with an Appeal.

Motion for Rehearing:
You have 10 days from the date the order is signed in which to file for a rehearing. This is what is called a "ten day motion". A motion for rehearing is the proper and least expensive way to clarify an omission in the original hearing.

An Appeal:
You have 30 days from the date of the filing/recording of the order in which to file an appeal. There has to have been some kind of mistake made BY THE JUDGE before an appeal can be heard. A mistake like what you are referring to is not the kind of mistake that an appeals court will listen to. Filing an appeal is VERY expensive, requires an attorney, and in a situation like yours, would most likely result in a remand to lower court for a rehearing. Which is why I advised to file for a rehearing, why spend alot of money and time, just to get to the same result. Also, if you file for a rehearing, it stays the time to file an appeal, so if the rehearing is denied then you still have time to file an appeal.
Gracie

 

[flgirl2u]

The self help center said that I needed to wait until the order was signed and then file a motion to vacate. I also have to get a copy of transcripts. Is that the same as a rehearing? I do believe it was a mistake of omission that the ot wasn't factored into the final guidelines. There was some questions as how the ot figure was arrived at, everyone participated in the discussion and the magistrate never said that he was disallowing the income, only that the average figure takes into account the fluctuations in the amount per month.

 

[Gracie3787]

The self help center said that I needed to wait until the order was signed and then file a motion to vacate. I also have to get a copy of transcripts. Is that the same as a rehearing? I do believe it was a mistake of omission that the ot wasn't factored into the final guidelines. There was some questions as how the ot figure was arrived at, everyone participated in the discussion and the magistrate never said that he was disallowing the income, only that the average figure takes into account the fluctuations in the amount per month.

My husband filed a motion to vacate for a very similar mistake. At the hearing on the motion the Judge told him that he should have filed a motion for rehearing. The judge issued an order that stated the motion to vacate is being treated as a properly filed motion for rehearing and the rehearing was granted.

So, filing a motion to vacate will probably have the same effect- a rehearing.
You will need a copy of the transcript in court to prove that the OT was discussed but omitted from the calculations.

 

[ceara19]

"Petty and jealous"? That's quite a stretch when you have no idea of the whole situation. When I say deductions, I am referring to my ex's cs and health insurance for another child subsequent to these proceedings which have been drawn out due to several continuations for him not providing his financial information. I don't begrudge those deductions. They ARE allowable as they should be, and I do support that he should provide for the other child as well. When I say "even" things up, I am referring to ME not carrying 60-70% of the financial obligation for the kids. I don't think it's fair for EITHER parent to have to provide a larger percentage for the children as they are the responsibility of both parents equally. Even adding in the ot, I will still have the larger percentage of the cs obligation, it will just be closer to an "even" distribution. It was a mistake that the ot was left out of the calculations because the ot WAS specifically discussed and there was never mention of it being disallowed. You are certainly entitled to your opinions and presumptions ,but next time please keep it to yourself, as your post had nothing to offer. I won't waste my time in the future responding to accusations.

I understand what you're saying about the OT. The field my ex works in has a large amount of OT each year. His hours change continually. The CSE in Texas figured his CS based on his annual salary because of this. He argued that it should be set based on his lowest paying weeks. (His logic was something about that being the minimum amount he will have at his disposal, so when it's slow at work, he wouldn't have the money to pay the higher amount.) CSE informed him it is set at his ANNUAL salary to take in those flucuations and that he would need to put the money away on his "good" weeks to make up the difference on his "slow" weeks. That's just the way it is in his line of work, he's not just working the OT to get caught up on bills. It's required in his line of work. (Doesn't matter, cause he doesn't pay regardless) I DO NOT know what the law is in your state, but you may want to see if it's possible to use his ANNUAL earnings if it makes this big of a diiference.