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anieve · Jul 27, 2009, 06:22 PM

My husband lived in Colorado and his child in California. He got a divorce in Colorado Dec 6, 2003. When he filed for the divorce his exwife turned him into San Luis Obispo child support enforcement. He spoke little English at that time and did not realize he was supposed to go to court, so San Luis Obispo issued his child support amount and made it final Dec 13, 2003. He paid the child support faithfully that was agreed upon in the divorce. Last year his ex-wife contacted the San Luis Obispo child support enforment agency and I guess reopen the case or something. So they started garnishing his wages for the amount they had ordered, it was higher than what was agreed upon in the divorce by $46. The San Luis Obispo County now said he had an arreage balance of $1, 500. I have contact the child enforcement agency and they say that since their court order was done at the later date that was the amount to be paid and what was in the divorce decree did not matter. He has paid the arreage balance off and now His exwife has now again asked for a modification order and San Luis Obispo has raised the child support order by $850. They garnish his wages so there is no way to avaiod paying. The problem is we will have to sell our house and vehicles just to make ends meet. I am so confused how this justice system can put a family out on the street because the other parent wants more money she doesn't even need. She is remarried and still lives with her parents.

cdad · Jul 27, 2009, 07:14 PM

Originally Posted by anieve

My husband lived in Colorado and his child in California. He got a divorce in Colorado Dec 6, 2003. When he filed for the divorce his exwife turned him into San Luis Obispo child support enforcement. He spoke little English at that time and did not realize he was supposed to go to court, so San Luis Obispo issued his child support amount and made it final Dec 13, 2003. He paid the child support faithfully that was agreed upon in the divorce. Last year his ex-wife contacted the San Luis Obispo child support enforment agency and I guess reopen the case or something. So they started garnishing his wages for the amount they had ordered, it was higher than what was agreed upon in the divorce by $46. The San Luis Obispo County now said he had an arreage balance of $1, 500. I have contact the child enforcement agency and they say that since their court order was done at the later date that was the amount to be paid and what was in the divorce decree did not matter. He has paid the arreage balance off and now His exwife has now again asked for a modification order and San Luis Obispo has raised the child support order by $850. They garnish his wages so there is no way to avaiod paying. The problem is we will have to sell our house and vehicles just to make ends meet. I am so confused how this justice system can put a family out on the street because the other parent wants more money she doesn't even need. She is remarried and still lives with her parents.

The bottom line is that its not your problem its his problem. From the sounds of it he's not making an effort to show up in court and they are just sticking it to him. He really needs to find out what's really going on. You would do best to hire a lawyer in that area and he can help with the numbers. It sounds odd that they would raise it by that much without having something to go on. Also do you have any children with him ?

Fr_Chuck · Jul 27, 2009, 08:08 PM

Support is based on his income ( and sometimes her income)
That is why he needs to go to the court dates, or even file for a modification of support if he is paying more than he is suppose to.
His lawyer should put his income into a formula and know within min if he is paying close to correct.

And almost every family that pays thinks it is unfair. Here it is normally about 15 percent of his gross income.

anieve · Jul 27, 2009, 08:34 PM

I am aware that it is his problem, but now is both of ours because it will affect our family. Yes we have one child together. The first court date in 2003 he was unaware of having to make an appearance and they issued it. He was in court today and still raised it $850. So even though the divorce was done in Colorado, California has jurisdiction to imply the child support? Can he have the child support modified to the state we now live in which is Nevada? Now with this increase we are unable to afford a lawyer and very possibly our small house as well. Thanks for the feedback, anything helps to try and figure this situation out.

Fr_Chuck · Jul 27, 2009, 08:38 PM

The court where the child support order is in place.

He will need to file a motion to modify the child support, based on his earnings. Many of the forms can be found on the courts web site.

anieve · Jul 27, 2009, 08:47 PM

That's why I'm so confused the original child support order was done in the divorce decree in Colorado Dec 6, 2003. And California's was Dec 13, 2003. California has told him that theirs is the correct one even though Colorado court ordered the child support first.

cadillac59 · Jul 27, 2009, 10:08 PM

Originally Posted by anieve

Thats why I'm so confused the original child support order was done in the divorce decree in Colorado Dec 6, 2003. And California's was Dec 13, 2003. California has told him that theirs is the correct one even though Colorado court ordered the child support first.

It's difficult to answer your question because we need more detail on who filed what action, where, and who served the paperwork first on the other side. What date was the dissolution in Colorado filed, and what date was it served? On what date did the mom respond?

What date was the California child support case filed and on what date served? Where were the parties and the child living at the time? Did the dad file a response to the California child support action? If so, when ? I can answer your question on who has jurisdiction with more facts.

I could cite the law (the Uniform Interstate Family Support Act [UIFSA]) on concurrent child support jurisdiction if you like, which is the relevant statute.

In any event, if the mom and kid live in California now and you and your husband live in Nevada you CANNOT modify the child support order in Nevada. Nevada's not a possibility.

cadillac59 · Jul 27, 2009, 10:54 PM

Let me try to give you a little better answer to your question. The law that controls on the specific question you ask is California Family Code section 4908 [Colorado has the identical statute so never mind that I am using California's version].

It reads as follows:

4908.

SIMULTANEOUS PROCEEDINGS IN ANOTHER STATE

(a) A tribunal of this state may exercise jurisdiction to
Establish a support order if the petition or comparable pleading is
Filed after a pleading is filed in another state only if all of the
Following circumstances exist:
(1) The petition or comparable pleading in this state is filed
Before the expiration of the time allowed in the other state for
Filing a responsive pleading challenging the exercise of jurisdiction by the other state.
(2) The contesting party timely challenges the exercise of
Jurisdiction in the other state.
(3) If relevant, this state is the home state of the child.
(b) A tribunal of this state may not exercise jurisdiction to
Establish a support order if the petition or comparable pleading is
Filed before a petition or comparable pleading is filed in another
State if all of the following circumstances exist:
(1) The petition or comparable pleading in the other state is
Filed before the expiration of the time allowed in this state for
Filing a responsive pleading challenging the exercise of jurisdiction by this state.
(2) The contesting party timely challenges the exercise of
Jurisdiction in this state.
(3) If relevant, the other state is the home state of the child.

Let me try to explain how it works. Let's say your husband lived in Colorado when he filed for divorce but the mom and kid lived in California . He files and serves the petition. Two weeks later the mom opens a case with DCSS and they serve husband a copy of their action. He ignores the DCSS case and it goes to a default judgment. Mom later files her answer to the divorce petition and the final judgment is entered on 12/6/03. The DCSS default judgment is entered 12/13/03.
Under the above facts, California would not have jurisdiction because its action was the second-in-time to be filed and there was no timely challenge to Colorado jurisdiction.

As you can see, the answer to your question is very fact specific and who filed first is the starting point in the analysis. To successfully challenge a support action filed first in one state, you must file a competing action in another jurisdiction, timely move to quash or stay the action in the first-filed jurisdiction and then be prepared to show that the state in which the second-in-time filed action is pending the child's home state to prevail. Otherwise, jurisdiction will remain in the state in which the first-in-time-filed action is pending.

As you probably can see, this is fairly complicated for lawyers and judges; but, the few facts you presented make it impossible to answer your question.

But my hunch is that, if the Colorado divorce case were filed before the California case, Colorado has jurisdiction. The problem is no one at the California DCSS is aware of this or cares, which means your husband must go into court and argue his case based upon Family Code section 4908.

anieve · Jul 28, 2009, 10:07 AM

First thank you so much for your help. I've dug out the paperwork. It looks the DCSS paperwork was filed by the mother in San Luis Obispo March 26, 2002 I'm not sure when it was actually served. Then the judgement for the amount of child support was filed Dec. 30, 2002. Which he did not respond to. As for the divorce papers the father signed those in Colorado July 29, 2002 and the mother signed Aug. 5, 2002 then the papers were actually filed by the father in Colorado Aug. 22, 2002. And the divorce was finalized Dec. 6, 2002. So if I understand correctly since she filed the paperwork first then California has jurisdiction, and he really screwed himself by not responding to the first judgement entered. And the amount listed in the divorce decree for child support becomes irrelavant because she filed the paperwork first in California.

anieve · Jul 28, 2009, 10:09 AM

The child and mother always lived in California.

Chey5782 · Jul 28, 2009, 10:22 AM

You need to file to have a modification of child support if you guys are having such issues paying his support. It is possible, but it will go strictly from his income and not the things you are paying on as well. This isn't a matter to brush aside, especially if you are at a point where bankruptcy is becoming a reality just to pay for this. You need to contact an attorney, most will sit down with you and give you a consultation for free. Take your husband so that they can explain the situation under no uncertain terms.

cadillac59 · Jul 28, 2009, 04:06 PM

So if I understand correctly since she filed the paperwork first then California has jurisdiction, and he really screwed himself by not responding to the first judgement entered. And the amount listed in the divorce decree for child support becomes irrelavant because she filed the paperwork first in California.

Yes. You are correct. Even had the dad made a timely challenge to jurisdiction he would have lost because the California action was filed first and California was the home state of the child. (Fam. Code Section 4908(a).)

So what you have been told by the Calfornia DCSS is correct and California does have jurisdiction over child support.

Any modification request must be done in California, of course, because the child and mom still live there and California issued the initial order (thus it has continuing exclusive jurisdiction).

anieve · Jul 28, 2009, 09:02 PM

Thank you so much to everyone that helped figure out this issue.

cadillac59 · Jul 28, 2009, 09:41 PM

Originally Posted by anieve

Thank you so much to everyone that helped figure out this issue.

You're welcome. Good luck.

Fr_Chuck · Aug 8, 2009, 09:30 PM

For support modification, proof of his income, if he claims no income, proof of what he pays for, how he lives.

The hearning ( often they are done merely without a actual hearing) just by looking at the documents each side gives. He will provide W2 or pay check stubs to prove what he makes, normally support is figured by a percent. They may want your income documents also.

If the original case was done in CO, ( did I get that right) and the ex still lives in Co, that is where it has to be done, where it was originally filed as long as one of the parties still live there.
** I would assume your ex or the court approved your moving out of the original state.

anieve · Aug 22, 2009, 09:01 PM

OK, here is a little background. When my husband got divorced the divorce papers state that he can claim his daughter on the even years and his exwife on the odd. After the exwife got remarried she wanted to change this and we told her go ahead we will not contest it, it's a very simply and inexpensive process but she wants to be minpulative and wants us to do, we feel if she wants it done she can do it herself. So 2008 was my husband year to claim his daughter so we did come to find out she had already done her taxes and claimed her daughter knowing it wasn't her year. So when we sent our taxes in we sent a copy of the divorce decree showing it was legally our year. So she claims she had to pay a lot of money back. So because of this she turned my husband into the child enforcement agency and now California is making him pay $1100 per month in child support for one child. She is remarried and still lives with her parents so has not only has her income but 3 others contributing to the household and doesn't need that much child support. So now we are having to sell our home so we don't get behind. He has spoken to her and told her we cannot afford that she has agreed to get the child support lowered but with conditions. She gets to claim her daughter every year on taxes, fine with us just change it already, and the other is instead of buying a plane ticket for his daughter to come visit from one airport that is cheaper now we must buy it from a more expensive airport to save her a 3 hour drive, and we still pay the entire plane ticket. We also have a 3.5 hour drive to the airport so its not like we are making her drive just because. Its less expensive because she never helps or encourages visitation. So my question is, is there anything we can do to defend ourselves against this minipulative woman? Thank you

MsMewiththat · Aug 22, 2009, 10:19 PM

Take your case to court and allow them to modify the amount paid. Generally the amount is based on what is earned. A certain percentage. If this is truly causing you a hardship and you think a judge will see things your way, You should file the motion for modification. You don't need to make a deal outside of what is court ordered if you don't choose to. If she is making a deal and you think it could save you money, money that you need to save in the long run, then put the pride aside and make the extra drive. Difficult choice but the choice is yours and the hubs.

anieve · Aug 22, 2009, 10:51 PM

This amount is what the courts decided, but it was very unfair, we could not afford a lawyer so paid the consequences. They did not take into account all the people contributing financially in her household. Since one of my son"s is not biologically my husbands and I receive no child support they did not take that into consideration as well. We make the drive anyway it will just cost more for us to get a plane ticket so she doesn't have to.

J_9 · Aug 23, 2009, 02:56 AM

When a court orders support, they do not take into account the income of her family that she lives with. They take into account HER income only.

As well, the court cannot take your income into account when determining the child's support. Only the income of the father.

Looks like it's time to find an attorney you CAN afford (look into legal aid in your area), and file for a modification.

cdad · Aug 23, 2009, 06:13 AM

Originally Posted by anieve

This amount is what the courts decided, but it was very unfair, we could not afford a lawyer so paid the consequences. they did not take into account all the people contributing financially in her household. since one of my son"s is not biologically my husbands and I receive no child support they did not take that into consideration as well. we make the drive anyway it will just cost more for us to get a plane ticket so she doesn't have to.

Do you have court ordered visitation ? What is the percentage of time as far as the split ? Was that taken into account when calculating chilod support? Also buying a home or new car isn't a hardship in the courts eyes. Any children not directly related or adopted by your husband can't be used to calculate child support because there is no legal obligation he has to them. What was he paying in child support before ? Did he even show up at the hearing for the change in child support ?