Pay Close Attention, Read and Understand. This Advice Could Be Worth $13,000.00.
MissouriGal said:
Yes.
But no one can tell you how a judge would actually rule on it.
My response:
Well, nothing is ever 100%, but I can pretty much tell you how any judge would rule on this issue. The ex thinks he's "hit the Lottery", and now he believes he's entitled to more than $13,000.00, plus interest! Right?
Wrong. First of all, the ex-husband has waived his right to the support money by losing sole custody, and by virtue of the
Affirmative Defense of
"Laches" (la-cheese), which means he "sat on his hands and rights", by failing to prosecute his contractual and legal rights under the order for the past 8 years since custody was changed. The judge will see that he was "laying in wait", and judges don't like that.
Second, the judge will merely re-date the current order, "nunc pro tunc", Latin for: "I'm turning back the hands of time", to the date of the 8 year old custody order. Entry of a judgment "nunc pro tunc" (literally, "now for then") makes the judgment
final as of the date it would have become final had it been entered when it could have been entered. The nunc pro tunc power
is a remedy to avoid injustice that would result
to a party whose rights are threatened by a delay (in entering the judgment) that is not his or her fault. "Threatened by the delay" - - a very important concept; and, that's where the Laches defense comes into play. It's one thing to pay $143.00 per month. However, is it fair for someone to pay over $13,000.00 in one lump sum, when there was a remedy he could have used years earlier? Of course not. To pay $13,000.00, when custody has been changed, would also be "fundamentally unfair".
If the judgment as entered inadvertently fails to conform to the settlement terms,
the trial court retains the inherent power to correct the judgment at any time, nunc pro tunc. Application for nunc pro tunc entry should be made by notice of motion, supported by declaration showing appropriate grounds and a memorandum of points and authorities.
Although custody and visitation arrangements have no effect on the parents' basic child support obligation , an order reducing or terminating support payments may be entered, nunc pro tunc, as to those periods during which the children reside with and are cared for by the obligor (noncustodial) parent (case law) "(i)t is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children"
So, don't tell him ANY of this. Merely file your motion to have the child support amount changed "nunc pro tunc", and let his jaw drop when he discovers, via your motion, he can't buy that new pick-up truck!
The guy thinks he's so smart when, in fact, he'll have mud in his face.
IAAL
