Appealing A Child Support Ruling

[CloudySkies71]

What is the name of your state? TN

Can someone explain to me how an appeal process works, and the pros and cons to going Pro Se?

Thank you.

 

[Golfball]

Appellate rules/procedures will vary from state to state, however, in all states, there must be an actual mistake of law for an appeal to be successful. In addition, the issue(s) being appealed must be in the record, and they cannot have been waived in any fashion.

Deadlines are VERY important.


Pro se is not the easiest way to go, but it can be done if you familiarize yourself with the relevant case law (both state and federal) and know the rules of procedure for the appellate court very well.

 

[CloudySkies71]

Thank you for your response!

Appellate rules/procedures will vary from state to state, however, in all states, there must be an actual mistake of law for an appeal to be successful.

Mistake in law... is it a "mistake" if the judges ruling deviated from the guidelines, ruling a child support obligation on an income that is TWICE what I make per year.... and is nearly 17k per year MORE than I have ever made in my entire life? He based his ruling on sympathy for the mother, who cried if her CS payments were reduced she would be forced to go back on welfare. The judge stated he did not "wish to do that to her."

In addition, the issue(s) being appealed must be in the record, and they cannot have been waived in any fashion.

Can you elaborate on this part?

 

[Golfball]

Thank you for your response!



Mistake in law... is it a "mistake" if the judges ruling deviated from the guidelines, ruling a child support obligation on an income that is TWICE what I make per year.... and is nearly 17k per year MORE than I have ever made in my entire life? He based his ruling on sympathy for the mother, who cried if her CS payments were reduced she would be forced to go back on welfare. The judge stated he did not "wish to do that to her."

It might be, it might not be, it would depend on a wide variety of factors.

For example:
* How old is the child?
* Was this a modification or an initial order? If this was a modification, how long has it been since the last modification, and how much was it then?
* How much do the guidelines say, and how much is the deviation?
* When and why did your income drop, and what training do you have? (If you've been voluntarily unemployed/underemployed, the state may impute an income to you in excess of your actual income.)
* How much does the mother make, and what job training does she have? (The state does have an interest in keeping the welfare rolls as small as possible, so yes, the fact that she might have needed to go on welfare would be a relevant factor, if supported by her financial statements.) Does the mother have other children, and do the TN guidelines consider it?

Not enough information to say one way or the other.

Can you elaborate on this part?

Pretty much you cannot bring up an issue for the first time during the appeal, it has to have been raised during the initial hearing, and raised properly.

 

[CloudySkies71]

* How old is the child?

the oldest is 16, the youngest is 10.

* Was this a modification or an initial order? If this was a modification, how long has it been since the last modification, and how much was it then?

It was a modification, and it's been five years since the last modification took place. In 2003 it dropped from $1100.00 per month to $800 per month due to my job change. We both agreed to the job change and reduction- no attorneys were used except to draw up the papework.

* How much do the guidelines say, and how much is the deviation?

There was an upward deviation of $450 per month. Guidelines say $200, judge ruled $650 per month.

* When and why did your income drop, and what training do you have? (If you've been voluntarily unemployed/underemployed, the state may impute an income to you in excess of your actual income.)

I changed jobs in 2003 for two reasons: Stress on the job was affecting my health, and I wanted a schedule that would allow me to spend more time with my children. But we've been to court several times over other things and my income was never an issue until I requested a review.

* How much does the mother make, and what job training does she have? (The state does have an interest in keeping the welfare rolls as small as possible, so yes, the fact that she might have needed to go on welfare would be a relevant factor, if supported by her financial statements.)

She makes over 2k per month. Currently has about one year job experience in her field. Five years ago when we reduced support it was based on her income of zero. She was a stay at home mom because our children were still young.

Does the mother have other children, and do the TN guidelines consider it?

No, she does not. But I do, two.



I hope some of this helps. I really don't want to borrow the 6,000 retainer my attorney is saying it will cost to appeal... but if there is some chance at getting this overturned...

 

[Golfball]

It was a modification, and it's been five years since the last modification took place. In 2003 it dropped from $1100.00 per month to $800 per month due to my job change. We both agreed to the job change and reduction- no attorneys were used except to draw up the papework.


There was an upward deviation of $450 per month. Guidelines say $200, judge ruled $650 per month.

So your support was lowered from what you were previously paying? I'm seeing that you were paying $800/mo, and now you are paying $650/mo? What did the guidelines say when you were ordered to pay $800/mo?

I hope some of this helps. I really don't want to borrow the 6,000 retainer my attorney is saying it will cost to appeal... but if there is some chance at getting this overturned...

What are you hoping to achieve w/ your appeal?

 

[CloudySkies71]

So your support was lowered from what you were previously paying? I'm seeing that you were paying $800/mo, and now you are paying $650/mo? What did the guidelines say when you were ordered to pay $800/mo?

Yes. And I AM grateful for that small bit of a reduction. But it's so small compared to what the guidelines state it should be. But for the second question, I am not sure how to answer that, because when we figured it under the old guidelines, in 2003, in TN, which for 3 children was a flat 41% of the NCP's income without any consideration for the Primary parents income. Now my state uses Income Shares... but the judge didn't go by the new guidelines AT ALL.

What are you hoping to achieve w/ your appeal?

To have child support ordered at a lower, more reasonable amount closer to the guidelines so that I can breathe for once... I spend a lot of time with my children. We have 50/50.

 

[CloudySkies71]

I was also wondering... is there ANY way my attorney can handle this without formally requesting an all out appeal? Like, write a letter, stating "You set CS as if my client makes $60k per year, he only makes $30k. Even at the peak of his career, the highest he ever earned was $42k. Please review your numbers to make sure they are accurate?"

Even if he was imputing an income to me, which he didn't state that he was but that's obviously what happened, can he impute an income that I have no hopes of achieving??? I can understand imputing MAYBE what I was earning 5 years ago, but one for 17,000.00 MORE? How is that... reasonable?

Could the judge have made a mistake in his figures? There was a lot of paperwork in front of him... what if he made an honest mistake? Why should I have to pay 6k to fix it?

See what I'm trying to verbalize?

 

[Golfball]

Yes. And I AM grateful for that small bit of a reduction. But it's so small compared to what the guidelines state it should be.

Judges usually can deviate (upward or downward) if they find sufficient reason to do so.

But for the second question, I am not sure how to answer that, because when we figured it under the old guidelines, in 2003, in TN, which for 3 children was a flat 41% of the NCP's income without any consideration for the Primary parents income. Now my state uses Income Shares... but the judge didn't go by the new guidelines AT ALL.

I'm not convinced of an abuse of discretion on the judge's part, though, since reducing child support (and not due to a plannable event, such as a child aging out) by 75% doesn't serve the childrens' best interests, nor the interests of the state. (It's in the state's interest to keep people off the welfare rolls.) Losing $7k/yr in income would definitely be problematic for the CP (about a 20% drop or so?), and if you're current on your support obligation, you've certainly been able to afford the amount you're currently ordered to pay.

To have child support ordered at a lower, more reasonable amount closer to the guidelines so that I can breathe for once... I spend a lot of time with my children. We have 50/50.

I think you're tilting at windmills, and it may not serve any useful purpose at all, and there may be other costs (such as your relationship with your children) that may also be incurred.

In addition, appeals can take a loooooong time. By the time the appeal finishes winding its way through the appellate courts, you may already have one child (possibly) aging out of child support.

 

[CloudySkies71]

In addition, appeals can take a loooooong time. By the time the appeal finishes winding its way through the appellate courts, you may already have one child (possibly) aging out of child support.

That's a very good point.

As far as always proving I can make the child support payments for this long, it's because I signed up for voluntary wage assignment years ago. Even if I have other bills or a mortgage payment, I am lucky that I am not tempted by reducing support that week to pay it instead. But, there have been times when my hours have been cut back at work, and the entire amount of support was not garnished for that week. When that would happen, I would send in the difference within the month, but having over $800 taken from my income each month really did create financial hardship on my children while in my home. I don't qualify for welfare, I am remarried and my wife makes a very modest income. If the courts want to keep people off of welfare, why is it only the mothers they favor? It seems that people who work hard are punished, while those who do just enough to get by are rewarded. But I'm only basing that on what I've experienced with my ex.

 

[Golfball]

I was also wondering... is there ANY way my attorney can handle this without formally requesting an all out appeal? Like, write a letter, stating "You set CS as if my client makes $60k per year, he only makes $30k. Even at the peak of his career, the highest he ever earned was $42k. Please review your numbers to make sure they are accurate?"

It doesn't quite work like that, you'd be making (I think) something along the lines of a Motion to Reconsider. Depends on what the court paperwork actually says.

Even if he was imputing an income to me, which he didn't state that he was but that's obviously what happened,

Imputing an income is one of the ways a child support judgement can be based on a higher income. But since the guidelines have changed (apparently signficantly) since your initial order, that's a different ball of wax, and wasn't obvious in your first post.

From what I've read (by pawing through Google) a hardship deviation is permissible for the first modification since the implementation of the new guidelines, which this appears to be.

 

[Golfball]

That's a very good point.

As far as always proving I can make the child support payments for this long, it's because I signed up for voluntary wage assignment years ago.

Good for you.

If the courts want to keep people off of welfare, why is it only the mothers they favor?

It's a bias towards CP's. I could be wrong, but IMNSHO, it's, erm... easier for a guy not to be present at birth than the woman.



And in any case, the stuff I've found online indicates that the court can (at least for the first modification in TN) deviate from the new guidelines if the court finds it would not be in the childrens' best interests to adhere strictly to them, or if the obligor's support obligation significantly increases.

 

[CloudySkies71]

I totally understand looking out for the childrens best interests. I get that, and agree with that. But it seems, in my case, that the judge is only thinking of the childs best interests while in the mothers care. What about when they are in MY care? I care for them the same amount of time as the mother, but unlike her, I also have two additional children from my second marriage. What about the childrens best interest while in MY home?

With what I make and what she makes, after child support is paid, she is "making" $600 more a month than me, leaving me with very little to care for the kids the same amount of time she does, plus feed, clothe and care for two other children. And unlike her, I do not have access to state insurance. So it's not cheap.

 

[Ohiogal]

Yes. And I AM grateful for that small bit of a reduction. But it's so small compared to what the guidelines state it should be. But for the second question, I am not sure how to answer that, because when we figured it under the old guidelines, in 2003, in TN, which for 3 children was a flat 41% of the NCP's income without any consideration for the Primary parents income. Now my state uses Income Shares... but the judge didn't go by the new guidelines AT ALL.


To have child support ordered at a lower, more reasonable amount closer to the guidelines so that I can breathe for once... I spend a lot of time with my children. We have 50/50.

Please find a poster named LEFT OUT and read her posts. I think you may be her ex.

 

[Just Blue]

Please find a poster named LEFT OUT and read her posts. I think you may be her ex.

I thought the same thing when I read his first post!!!

CloudySkies...Did you mother recently pass away? Did you inherit some property?