Dismissed With Prejudice

Hi,

After three petitions for the reduction of an existing support order, the third was dismissed for the following:

1. I did not meet burden of demonstrating a clear picture of present financial circumstances
2. Self-employed pay stubs are not pay-stubs
3. Business income used for personal expenses
4. I did not make a diligent effort of securing additional business

I am self-employed. As requested by the courts, I provided all requested documentation; pay stubs identifying current salary, 1099 tax filing. I provided my 2008 tax return and profit and loss statement. I also provided an affidavit from my single client indicating reduction in per diem requirements by 65%. Client is a dealer-broker and suffered significant lossed dues to the overall economy.

I did not provide any details on my ongoing search for additional or alternate employment as I was not asked, nor saw at the time, the necessity to bring this up.However, I have documentation demonstrating an ongoing effort is being made to substantiate my existing income.

I am in the process of writing my objection - to be filed before December 1, 2009; 1) What can I do to help clarify what is unclear to this court? 2) What provisions are available by NYS to clarify ALL parties income? My revenue is still significantly less than at the time of the current order was made and my personal and business finances are in shambles and I am in significant arrears.

Any help helps!

NYSMustChange:

1) What can I do to help clarify what is unclear to this court?

Can't even begin to answer that without having a clear explanation of what you do for a living, how you do it, and how you get paid for it.

How can you call yourself self employed when you have only one client and collect a "salary"?

Seems like somebody is using the independent contractor dodge to avoid payroll taxes, unemployment taxes, and workers compensation premiums.

NYSMustChange:

2) What provisions are available by NYS to clarify ALL parties income?

NYS has no obligation to "clarify" ANY party's income?

The party asserting the income level has to prove the income level to the satisfaction of the courts. It's clear from your questions that you haven't met the burden.

Perhaps if you got a job with verifiable income, you wouldn't have this problem.

Thanks for follow-up.

Additional information:

I am a risk manager. My company partners with another firm owning the contract that I work on. The partner firm invoices the client for services provided on a per diem basis, my company subsequently invoices the partner firm. I pay myself an hourly rate to cover my personal/non-business expenses.

My tax status still requires payment of payroll taxes and UI (one employee, no worker's compensation) - no avoidance there.

so my question was really - after providing what I already have (including bank statements personal and business), what else can I provide to satisfy the courts? Would an income audit by NYS Division of Child Support Enforcement Financial Investigations satisfy the burden?

Thanks!

you sort of need to scramble to make a timely appeal--otherwise the order is sort of set in concrete against you .

you sort of gotta use skilled counsel! You are destined to blow it w/o same---logical economic points may NOT be useful legal points. And you sort of need a pro to present it in fashion that makes sense to court per its expectations .

1. Like it or not you have burden to present clear picture.

2. In a situation where you don't get pay stub/W-2 you are still left with need to make it crystal clear what you are being paid.

3. There is always the smell that in situations like yours you can use business to offset some personal expenses--it even borders on assumption that you do hide income.  Court may be saying without so saying--we smell a rat until you show otherwise.

4. I fail to see where to work harder is a legal requirement. To voluntarily work less however is a problem . In your post it seems there was less work available--but burden is for you to so present it. (And there may be admissibility of mere affidavit as a hearsay problem )

   4.1 In your situation I think you were wrong not to close the door on speculation of your work reduction being voluntary or under your control by a clear demonstration of seeking to preserve income by seeking new clients (Unless under some noncompete clause as sole provider)  Int s natural economic thought if you business with client A falls off 50% that you be seeking new business clients B, C, D and so forth --and you sort of need to show you searched hard but B,C,D are not out there in 2009--better yet to show you searched and did find B but to date B is only adding  5% of the 50% gap. .

The view of court is probably to protect child---and by itself your being a bit of a business mess is not a reason to leve kid high and dry via lower support.  Current problems are not a good excuse as to past debts--so be careful.  Current problems may be an affirmative defense as to inability/impossibility to pay

It appears you have a window to reposture your case by curing gaps etc--I strongly suggest you use skilled counsel NOW!  Your results absent same are predictable --failure!

NYSMustChange:

what else can I provide to satisfy the courts?

Have you provded copies of all the invoices you billed to the partner company? That should show your gross revenues and you could work down from there by showing receipts for business expenses to determine what's left.

NYSMustChange:

Would an income audit by NYS Division of Child Support Enforcement Financial Investigations satisfy the burden?

I don't know. I don't work for them or the court.

Seems to me, though, that if you got shot down three times already, then there's a serious wall in your path that's not coming down.

If you took a rubber knife to a gunfight 3 times isn't it time you learned to take the best gunfighter in a 50 mile radius?