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-   -   Cal Support Modification- in pro per (https://www.askmehelpdesk.com/showthread.php?t=280761)

  • Nov 14, 2008, 12:58 AM
    paintmadman
    Cal Support Modification- in pro per
    Hello all,

    I have filed a motion to modify support based on changes in circumstance, 1. cohabitation of my ex-wife, 2. based on her income and expense declaration he is supporting her big time 3. She finally after 3.5 years and an EEO has a job 4. I am unemployed but still have to pay support.

    I have filed declarations and exhibits, including a P.I.'s video, a witness that saw them together even before she filed separation papers over 4 years ago, his drivers license and car registered to her house. I was truly the last to know.

    My questions are, what should I prepare for? And what are my chances of terminating support? What is the latest case law? And how do I look it up? I am in Santa Clara County, CA. Her attorney is very sharp and has been brutal to my two attorneys (since been fired, the incompetents, don't they have to pass the bar anymore?). After $30,000 in fees I'd rather do it myself, no matter how much research I have to do.

    Thanks
    PMM
  • Nov 14, 2008, 10:07 AM
    cadillac59

    Your chances of modifying support sound good. The cohabitation issue creates a presumption of reduced need, it's not necessarily a basis to terminate support (or support jurisdiction) but you might get support set at zero.

    Having said that, cohabitation as an issue in caes like yours is a big pain to try to make use of; people deny it left and right and it can be hard to prove (you might be able to if she admits support on her I&E and based on the other evidence you have accumulated)... ah what else... Your unemployment ought to be enough. Also, what about asking her for support (you didn't terminate jurisdiction to have it awarded to you I hope)?

    Everyone hates litigating spousal support because it is an area of huge judicial discretion and the outcome can me hard to predict if for no other reason than so much depends on your judge. Just go through the Family Code 4320 factors step by step. California Courts has case law but there's nothing really new that comes to mind on the issue of cohabitation as a basis to reduce support.
  • Nov 14, 2008, 12:03 PM
    cadillac59

    Oh and another thing. I hate these spousal support mod cases on long-term support. Every time I get on in my office I want to gag.

    Expensive, frustrating, time-consuming, very broad judicial discretion, difficult to predict the outcome of, parties are often unhappy with the outcome etc. etc.

    They are hard for me and I'm a California family law attorney and a Certified Family Law Specialist.
  • Nov 14, 2008, 12:50 PM
    paintmadman

    Thanks for your response. She didn't actually admit being supported by Boyfriend. Her Income Expense Declaration says her ACTUAL Expenses are $3900 per month (on at least three FL-150's). Her only reported income is $2000 per month. I am hoping the judge agrees with my claim the difference is being supplied by Boyfriend. Otherwise she has committed perjury.

    I have a declaration from a friend in St. Louis who witnessed my ex and the boyfriend together four years ago. My ex left St. Louis last year where she had been living with her sister and bought a house in South Carolina. Just AFTER permanent support was awarded, the boyfriend followed her and now lives with her. According to the Post Office his mail is being forwarded to her address. His car and driver's license are registered to her address. I have video of him coming out in his bathrobe to get the paper and of a regular sitings of them both leaving for work and coming home and spending the night. Is this enough evidence for cohabitation?

    I would ask for support except my unemployment benefit is almost the same as her full time job pay. If my EDD pay runs out then I may make the motion.
  • Nov 14, 2008, 01:59 PM
    cadillac59

    It sounds pretty convincing but you know this is going to have to be set for a trial. Maybe 2 hours at least.

    Of course if your unemployment benefits are less than what she receives working it's hard to imagine a court not granting the mod on that basis alone, never mind the cohabitation issue. You should not just ask for a mod of support to zero but termination of jurisdiction as well unless you want to keep the door open for yourself. The length of the marriage is a big issue, as I'm sure you know.

    Her expenses seem a little high, particularly for South Carolina (4K a month for one person? ). But again, sounds like you have a pretty decent shot at making support go away.
  • Nov 14, 2008, 03:33 PM
    paintmadman

    The marriage was 24 years. It took 3 years to get a judgement, aided and abetted by both sides attorneys. Why end the gravy train when daddy's paying the fare? I kept asking for a trial, over and over, but I never got one. My attorney never questioned her expense statements. I said, "isn't there some penalty for lying, insinuating and insulting me freely?". My attorney just said that's how it's done.

    In my declaration I ask for suspension or termination of Alimony. It is possible I will get another job although not likely in this economy and my age of 60. Age discrimination is alive and well in this state. I also ask for new EEO since she is an educated woman and obviously underemployed. She had a Vocational Evaluation and clearly states what she should be making if living here.

    I also argue that cost of living in South Carolina is 38% less than San Jose. She moved there of her own free will and of course the pay is lower, and fewer jobs but also the cost of living is lower. The judge never cut me any slack on that issue.

    My best option if all goes south is wearing her down. In pro per I have little cost but each motion she defends costs her plenty. Eventually she may make a deal. But not counting on that. She is a stubborn woman who thinks I am the cause of her lost youth.
  • Nov 14, 2008, 04:05 PM
    paintmadman
    Btw: What is the difference between a trial and a hearing? I have been doing research on the PLOL site and all the appellate cases I have studied derived from a trial. And yet I have never had a trial. The judge made orders during a hearing. Is that the same as a trial? If I want to appeal do I have to insist on a trial first? If I think this judge is biased, do I have a chance for another judge?

    Things I worry about
    PMM
  • Nov 14, 2008, 04:53 PM
    cadillac59

    That's a good question. A support modification request starts as a motion which is set on a short cause calendar (they are typically limited to 20minutes). The judge has discretion to treat this hearing as a trial and take testimony or receive evidence if he wants to and make a decision on the spot. Judges often do this if they feel there is only a simple issue that can be disposed of relatively quickly. At the same time the judges don't have to accept any evidence and can decide the matter based only on the declarations the parties filed in advance of the hearing (this is called "reiflerizing" from a case by that name, Reifler). If you feel the court cannot do justice to your case on the short cause calendar, or if the judge feels he needs to hear more evidence, or hear from withnesses who are not present, then you can ask for a trial (often called "evidentiary hearing" or "long cause" matter) or the judge will just order it and the matter is then set for a hour or longer,based upon what you think you need or the judge allows. A spousal support mod (on long-term post-judgment support) is surely going to be set on a long calendar, i.e. set for trial. If the parties show up and have an agreement at the short cause hearing then that agreement goes on the record and that ends the case.
  • Nov 14, 2008, 08:47 PM
    paintmadman

    Wow, you have given me more information in one paragraph than two attorneys did in three years. Thanks so much. Every time I walk into that courtroom I feel like a walking target. Of course they can't take the time to explain every little thing to me but just the basics (like you laid out) would be so helpful.

    I feel I am taking advantage of your kind knowledge sharing but if I may ask another question. In my recent declaration I did not formally address the fourteen points in family code section 4320. My last attorney hardly bothered arguing them at the permanent support hearing last year. Should I submit a supplemental declaration arguing those points again but more thoroughly? Some of those arguments don't really qualify as changes in circumstance which is what the basis of the motion is now about.
  • Nov 14, 2008, 10:02 PM
    cadillac59
    Quote:

    Originally Posted by paintmadman View Post
    Wow, you have given me more information in one paragraph than two attorneys did in three years. Thanks so much. Every time I walk into that courtroom I feel like a walking target. Of course they can't take the time to explain every little thing to me but just the basics (like you laid out) would be so helpful.

    I feel I am taking advantage of your kind knowledge sharing but if I may ask another question. In my recent declaration I did not formally address the fourteen points in family code section 4320. My last attorney hardly bothered arguing them at the permanent support hearing last year. Should I submit a supplemental declaration arguing those points again but more thoroughly? Some of those arguments don't really qualify as changes in circumstance which is what the basis of the motion is now about.

    You brought up a really good point. First, legal argument does NOT belong in a declaration. It belongs in what are called "Points and Authorities" or "P's and A's" for short. Family law attorneys make this mistake all the time: writing up a declaration and citing the law in it and making argument! No, no, no! In fact, there is a recent case (the name of which escapes me at the moment) in which an appellate court scolded family law attorneys for doing this and advising that, although it is common, it is sloppy practice, is unprofessional and should stop. Declarations are only suppose to contain facts. No law. No citation to law. No argument. Again, that's for P's and A's, and these are optional in family law in California anyway (I use them once in a while if I have a novel legal issue or if I think I'm before an inexperienced judge just to educate the judge. But, the 4320 factors are the basics any family law judge should know and really shouldn't need to be cited). You can argue the 4320 factors in a trial brief, that's fine and a good idea in fact. Don't do it in a declaration. And you don't need to file P's and A's just in the initial motion for modification of long term spousal support. These sorts of motions are commonplace. Hope this helps.
  • Nov 15, 2008, 03:50 PM
    paintmadman

    Is the format the same as a declaration? Just remove the wording and replace it with Points and Authorities? Or is it much more complicated. Is there a place that I can look at one for some pointers? And can I submit now after the fact? If I don't need to file it, do I just mail it to the judge and OPC before our hearing? And is a trial brief considered a P and A?

    PMM
  • Nov 15, 2008, 05:35 PM
    cadillac59
    Quote:

    Originally Posted by paintmadman View Post
    Is the format the same as a declaration? Just remove the wording and replace it with Points and Authorities? Or is it much more complicated. Is there a place that I can look at one for some pointers? And can I submit now after the fact? If I don't need to file it, do I just mail it to the judge and OPC before our hearing? And is a trial brief considered a P and A?

    PMM

    The format can look like a declaration somewhat but there is no actual pre-printed form for it. Yeah, it's more complicated than a declaration . You have to do it on a pleading (you know the paper with the numbers down the left side) with the name of the court in the center on line 8 or 9 and the case name on the left, "Memorandum of Points and Authorities of Petitioner [or Respondent]in Support of... " on the right, then the introductory sentence. There is usually a factual summary with brief history of the case to start, this is sort of the introduction, then point by point legal argument. If you can get friendly with any of the court clerks in the family law division ask one of them if they can think of a case where someone filed P's & A's and ask for a copy. Divorce cases are all public records and the clerks are use to seeing P's & A's and know what you are talking about if you ask. That will give you the format to copy. Or you could go to the law library and ask the librarian to help you find an example. They could do that.

    I don't know what you mean about submitting P's and A's after-the-fact (you mean after a motion is filed?) .If you have an upcoming hearing watch the time limits. A motion and all supporting paperwork (including P's & A's) are suppose to be filed and served a minimum of 16 court days (Mon-Fri excluding holidays and weekends) before the hearing plus 5 calendar days if mail served (in a post-judgment motion personal service is required a minimum of 16 court days before the hearing). The other side always has to be served with anything filed in the case and a proof of service must be filed as well to show you did serve it (if you are pro per you need someone over 18 to serve for you and sign the proof of service). If you filed the motion with no P's & A's (and don't forget you don't need them) you can always supplement your motion with them later as long as you do so within the time limits I described. That's fine.

    No, a trial brief and P's &A 's are two different things but I think it's OK to put them in a brief. I think you can combine them. A trial brief is more an outline of your case and what you want to show or prove.
  • Nov 16, 2008, 09:21 AM
    paintmadman

    Yes, I was asking about after the motion has been filed. My hearing is the 23rd of Dec so I have some time. Sounds like what I need to do is visit a law library. Many thanks.

    PMM
  • Nov 16, 2008, 11:29 AM
    cadillac59

    Yeah, take a trip to the law library and you'll be okay. There's a series of books called "Forms of Pleading and Practice" that is kind of a how-to reference for putting together various legal documents. It's a really old-school series but it should help. Good luck.
  • Nov 17, 2008, 10:29 AM
    paintmadman

    So, if I understand you correctly, I fill out my P and A's and simply mail it to the judge and have it served to the OPC? Since I have already filed my motion, there is no clerk filing, is that right?
  • Nov 17, 2008, 12:31 PM
    cadillac59

    No, you don't mail P's and A's to the judge but instead file them with the clerk's office, just like you did with your motion, and also file a proof of service to show you mailed a copy to the other side. Be sure someone else signs the POS whose over 18. There's a form POS you can use. If you can get the P's and A's together the clerks will kind of help to be sure you have everything you need to file on file.
  • Nov 20, 2008, 06:32 PM
    paintmadman

    So just to get this entirely clear, I just need the "Memorandum in support of" (that's what the books called it) and POS' and I go to the clerk?

    Oh, I found a case that might help me but it is unpublished. I looked up rule 8.1115 and it says the case may be cited "when the opinion is relevant under doctrines of law of the case, res judica, or collateral estoppel" What the heck does that mean?

    PMM
  • Nov 20, 2008, 07:47 PM
    cadillac59
    Quote:

    Originally Posted by paintmadman View Post
    So just to get this entirely clear, I just need the "Memorandum in support of" (that's what the books called it) and POS' and I go to the clerk?

    Oh, I found a case that might help me but it is unpublished. I looked up rule 8.1115 and it says the case may be cited "when the opinion is relevant under doctrines of law of the case, res judica, or collateral estoppel" What the heck does that mean?

    PMM

    Wow, you're getting into the nitty gritty! I'll get back with you a little later, this is going to take a little time to answer and I'm on my way to the gym.
  • Nov 20, 2008, 10:36 PM
    cadillac59
    Quote:

    Originally Posted by paintmadman View Post
    So just to get this entirely clear, I just need the "Memorandum in support of" (that's what the books called it) and POS' and I go to the clerk?

    Oh, I found a case that might help me but it is unpublished. I looked up rule 8.1115 and it says the case may be cited "when the opinion is relevant under doctrines of law of the case, res judica, or collateral estoppel" What the heck does that mean?

    PMM

    Once you have the Memorandum of Points and Authorities prepared, then prepare a proof of service (POS) (there's a form you can fill out for that); make at least 2 copies of the P's & A's, have someone over 18 sign the POS (that should be completed showing the P's & A's were mailed to the other side on a specific date), make at least 2 copies of the POS. Put one copy of the P's & A's and one copy of the POS in an envelope addressed to the other side with postage and have the person who signed the POS mail it. Then take one copy (you can have 2 if you want, I always do 2) of the P's and A's and one or 2 copies of the POS along with the original of each document to the clerk's office and file the original and the clerk will file-endorse (date stamp) the copies and give them back. That's your proof you filed these documents and served the other side. That's it. Show up at your hearing and argue your case.

    You cannot cite unpublished cases in California. I'll give you a little background. All decisions of the California Supreme Court are published and citable. The appellate courts selectively publish their decisions and only the ones they choose to publish can be cited. I personally disagree with this rule and it has been subject to some controversy lately. There was an action taken in San Francisco not long ago seeking an order that the appellate courts had to publish all of their decisions, which the appellate court denied, in a published opinion incidentally. The arguments advanced were that denying people the right to cite unpublished opinions denied them their 1st Amendment free speech rights, and rights to due process ( a number of people in criminal appeals were arguing for this). But the appellate court was unimpressed and said if they had to publish all of their decisions it not only would be unduly burdensome on them but would more importantly add nothing to the body of law. In other words, they publish cases they think are valuable and set new rules of law that serve to guide lower courts (they said that if they had to publish all of their decisions there wouldn't be enough libraries to house all of the opinions and the bulk of them would be worthless to most people and never be read anyway). Now you can always read the unpublished cases if you want and they are available on California Courts for the first 100 days after they are decided (this was a compromise decision to do this between those who wanted all of their decisions published and the Courts of Appeal that wanted to hang onto the selective publication rule).

    If you really like an unpublished decision you can ask the Court of Appeal to publish it and the Justices might change their minds and do it all the time (this has happened a lot). Once again, I personally disagree with the no citation of unpublished decisions rule and think we should be allowed to cite them as long as a copy of the decision is attached to moving papers, but that's just my opinion (unpublished decisions, since they won't appear in the official reports, can be hard to locate). Frankly, I really like many of the unpublished decisions I've read and have found them helpful on more than on occasion. I can't cite them in something I file in court, but I often cite them to opposing counsel, say they are unpublished, and suggest the rule in that case is possibly how a trial court might decide an issue we are involevd in or the appellate court. Hey, I think my free speech rights allow me to cite them at least to opposing counsel, if not the court. I've frankly learned more from unpublished opinions than from some of the publsihed ones (who knows how these Justices decide what to publish and what not to?)

    The Rules of Court exceptions to citing unpublished decisions are what you asked about. Now I'm not an expert on appellate practice (which is its own speciality), but I think the exception of the rule of the case has to do with citing to your OWN unpublished decision on your own case if the case is litigated once again on remand. That's if you took it up in appeal, got a decision on some part of the case, got a new trial and then in P's and A's want to cite your own case. You know what I mean?

    Res judicata and collateral estoppel are similar concepts but a little different. Res Judicata means that once an action is decided by a court between parties it is over and cannot be re-litigated on the same subject matter. It's a rule of finality. Collateral estoppel says that once certain issues within a broader action are decided, they cannot be re-litigated again, even if the underlying action has not been fully resolved. It's a rule of issue preclusion. I think this is a correct statement of what each means (this is kind of old law school stuff for me) and I may not be 100% directly consistent with Black's Law Dictionary (I'm just going from memory). I think as to your question, these two exceptions to the no-citation of unpublished decisions rule mean something similar to the rule of the case. That you can cite to your own unpublished appellate case involving the same parties and cause of action if need be to apply those rules to some new case someone may be trying to bring if you need to as a defense.


    Hope this helps.
  • Nov 20, 2008, 10:36 PM
    cadillac59

    My gosh, I was long-winded. Excuuuuse me!

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