child support modification and denial of due process.

In Sept. 2008 my ex-wife filed a modification motion with the Superior Court where we were divorced.  I have since remarried and moved to Texas.  In the order, the ex was seeking to modify, it was a temporary order, which was I had been paying.  I had asked the CSA to review the file for modification as part of the agreement for the temporary order.  The CSA stated the obligee, my ex would have to request the modification.  At the time she didn't because I was involved with helping one of our children with private school and assisting in other expenses because I was fairly local and active in their lives.  In August of 2008 my obligation to my son is completed as well as his school and is no longer being calculated as part of the support.  I did remarry, in 2007, and my ex is remarried.  I say this as it pertains to the background of the case at hand.  In&nb... August, my wife and I decided to move to Texas, and we made plans to be there in early Oct... So all of a sudden, I get a modification motion, with the reasoning "substantial change of circumstances". &...

Lets look at the history.  The original support order was for approximately 560.00 per month, 3 dependents.  and it was calculated using the support guidelines in the State of NH.  Now I didn't argue that, and in fact I was having this matter dealt with by my employer who had to file with the Child Support Enforcement Agent, and it was in process.  Now as it turns out this did not happen as fast as my ex wanted, due to no fault of my own, and she filed a default motion for contempt.  I was locked in county jail for 14 days, even though I had proof that my employer had filed the documentation requested by the CSEA.  I didn't make an attempt to make bail, as at that time I had nothing to draw from.  My employer had just payed me, and my expenses were such that I didn't have any extra money to remedy the problem, in fact 2 days prior to my being incarcerated I took a part time job to help offset my needs.   So needless to say, I lost both jobs as a result of her being too impatient.  Immediately I filed a motion to modify due to my loss of income and it was adjusted.  Beginning in December of 2006 until Sept of 2008.  During that time I had regained my position at half my previous pay with the understanding that if I brought the company back from the hole that it was in as a result of my lack of supervision, I would regain my standing.  Unfortunately, this could not happen, other company members put pressure on the ownership to make poor business choices that were insurmountable and the company folded.  So in a really short time i went from good pay to none to a little back to none.  I went from February 07 until August without a job.  Then I took a job in another state, close by.  They filed the papers with the CSEA and I called them and they told me they would not alter the order, she would have to petition for that.  As I stated above in Sept. of 2008 she did.  In light of the fact that I was moving, which she was aware of, and in light of the fact that I would be without a job until i got situated i made her an interim offer, which was denied.   So I filed a protest to the modification based on there not being substantial merit. The court didn't make a ruling nor was there any response to the protest.  I motioned for a telephonic hearing, which again went unanswered and they held a merits hearing without my presence and established a temporary order which increased my support obligation while i had less to work with than before.  My move to Texas was based on an offer from a former employer of my spouse, and it seemed to good to ignore, and it would allow my spouse access to her family and her daughter, 12.  In her motion she asked for support retroactive to the date of the first order, and asked the support order be calculated using income imputed, money I should be able to make in my profession.  All that being said it was certain this was not going to be a case that would be simple to resolve. 

After the temporary order was granted a date was set to hold a hearing, because the merits hearing found that there was substantial change.  And certainly there was not.  As a result of not having a response to the motion for a telephonic hearing I motioned for a delay, as I had just started a new job which looked to have some promise of being good economically for me, and it was granted.  But a month before the date I lost the position and had to take a job right away to avoid being sunken financially.  My wife was working and had lost her job, and she had found a new job but was just starting out. 

I have read in the laws governing child support that guideline support is not mandatory and in cases it is not unreasonable to have the income of the current spouse factored into a support order.  The petitioner wants essentially 850 per month and an additional 300 for retroactive support.  In addition to the medical expenses and health insurance. 

I requested the clerk ask the Judge to make a ruling on the telephonic petition and the opposing party was amenable and it was agreed and finally we had a date for the hearing.  In Nh as in many states a financial affidavit is required for any appearance involving child support, in fact it is to be in the hands of the parties ten days prior to court, and I had complied when the court date was in April but May as the opposing party had not provided one to me i did not provide one to them in May, which was the date of the telephonic hearing.  I called at the appointed time to the court and the marital master denied me access to court on the basis that i had not provided the financial affidavit, which again I had not received one from the opposing party so we were on equal ground, but i did have one prepared and they did as well.  The order was issued for the support modification and I was not able to be heard.  My rights were denied and I filed a 2 motions.  One for due process and one to contest the modification.  Neither were ruled on and and yesterday I received the notice from the CSEA that I will have to comply, or I will have 15 days to appeal with them, or I can appeal it with the court at anytime, which I thought I had.  I am looking for a little direction here.  I have attempted on 2 occassions to make a settlement, and none was even considered. 

To summarize,  my main concerns

1 why would a court allow retroactive support when the law clearly states it is not allowed she may only get support from the date of the filing for modification?

2 when there economics of this current climate do not make it remotely reasonable for me to earn what I used to earn, how can a court force me to produce from what I can't have?

3  why would a court ignore a reasonable request to have a telephonic hearing?

4 what measures should I take to remedy this injustice?

I didn't read your post because it was way too long.

But I can still answer your questions.

GPaul09:

1 why would a court allow retroactive support when the law clearly states it is not allowed she may only get support from the date of the filing for modification?

What law clearly states that?

Here's a link to the statutes. Show me where it says a court cannot award retroactive child support.

http://codes.lp.findla...

GPaul09:

2 when there economics of this current climate do not make it remotely reasonable for me to earn what I used to earn, how can a court force me to produce from what I can't have?

The court can impute income based on a variety of factors.

GPaul09:

3 why would a court ignore a reasonable request to have a telephonic hearing?

Because it has no obligation to allow telephonic hearings. The courts expect everybody to show up.

GPaul09:

4 what measures should I take to remedy this injustice?

Look, you weren't denied due process. You got your day in court. That the decision went against you just means that you didn't prove your case.

You can appeal the judge's decision.

I didn't read the whole thing either, but in your 1st paragraph you state that the cs was a temporary order;  the support modification went back to the time of filing that petition since there was never a final order.

Has it dawned on you that maybe you need to retain counsel in NH?

Hi Jo,

I have no doubt that obtaining counsel is prudent, and were I in a position to do that I would, I unfortunately am not of the fiscal means to undertake this expense.  I have provided support over the years in excess of the amount awarded in the final decree.  As I understand the law there should be merits to any action taken.  I did contest the modification order after being denied telephonic access with credible documentation as well as filing for lack of due process.  I have not received a notification from the court on either action but I did receive the modification notice from CSEA for a 15 day advance waiver.  I will have to contest this as there is evidence that my ex has sufficient means.  I have been given tax records from their 2007 and 2008 returns that shows there is no merit for an increase, especially now where my visitation costs have escalated tremendously.  I have to fly to NH, rent a car, sleep in the car or get a hotel to have a few hours of time with my daughter and none of that is considered.  In the past year i was able to see my daughter 3 times, all in a time when the amount of support was set at $215.00 per month.  I have offered to double that amount, even though I have struggled with the amount currently set, due to economics here for me in Texas.  I have taken on my spouses daughter, livning with us full time, and to date not receiving more than 2 months in support from the non-custodial parent there.  She left her job to stay at home with her daughter and essentially I absorbed the cost of all this as well as my obligations and paying 200.00 per month for my children's cell phones which is not mandated but I have done that in good faith that I would be considered an above average dad.  I am now uncertain how to proceed because in fact while there are laws that would allow for the consideration of the circumstances I find myself up against, it seems clear there will not be any simple way to get them to be applied.  And it seems I am not the only parent who endures unfair hardship.  I am a dad who is supportive and I have a good record with the CSEA but this will all change I can't pay the amount demanded.  I recently lost the good job I had.  I have found another job but it will take me 3 months to recover what I lost in the mean time, not even including an increase in support.

How can you say Due Process was not denied?  I was not able to introduce any of the matters for consideration.  How can a Marital Master make an award when I did have a telephonic motion granted, then denied to speak while the other party having the same non-compliance as they stated was my deficiency and grounds for denial is not even considered.  I don't have the income, nor do I have available the means to accomodate an order even close to the amount awarded, never mind the additional expense for seeing my daughter.  My ex stated she would pay for her to visit me once a year if the new order is approved.  Her husband has ample resources, and in tax records that can be proven.  We are talking about one child 15 years old, who is not lacking anything.

in the Handbook for child support enforcement, do you want the specific page, this is the federal guideline for Title IV-D agencies.

"I have taken on my spouses daughter, livning with us full time, and to date not receiving more than 2 months in support from the non-custodial parent there.  She left her job to stay at home with her daughter and essentially I absorbed the cost of all this as well as my obligations and paying 200.00 per month for my children's cell phones which is not mandated but I have done that in good faith that I would be considered an above average dad. "

This isn't what you want to hear but the court can't consider ANY of that when deciding YOUR child support payments. If you moved out of state and your costs to see your daughter are higher because of it that does not reduce your child support either.

Second:  NO kid needs a $200 a month cell phone.  That should stop ASAP.  I won't even go there.  My cell phone bill isn't even that high.  Third:  Mom needs to get a job.  While it's great to be a stay at home parent if the household is in financial straights then EVERYONE contributes.  Your primary obligation to your daughter does not end because your wife wants to be a stay at home parent and you started a new family.

thanks, and it is multiple children, my eldest daughter in college, and my youngest daughter who i provide cell phones to.  As for visitation there are considerations for travel written in support guidelines.  The ex-wife, while claiming I am under employed is voluntarily charging her clients fees far below market value to make her Affidavit look more favorable while her husband has more than enough.  It is not unreasonable, if it can be shown, and it is certainly factual, that there is no lack and I as a father can be shown to have provided support consistent with the previous orders, and have absorbed 100% of the cost of traveling as well as clothing expenses, sporting equipment, cars, etc.  If there was fairness in the order I would not hesitate for a moment to pay.  This is not about wriggling out of a responsibility.  I will be jailed it is that simple.  There are no assets to seize, there are no bank accounts to liquidate, this is a simple case of a woman with an axe to grind, and no reasonable attempt at a realistic solution has been entertained.  Her mission simply, sink the ship, she doesn't need the money.

I just wanted to add that you moving to Texas is a hardship you caused on yourself. Since you moved, it is your responsibility to come up with travel costs and to go to court.

 "Her mission simply, sink the ship, she doesn't need the money."

You seem to be under the impression that your obligation to your child is less because ex re-married someone with $.  Unfortunately, it doesn't change your CS at all...your CHILDREN need the money; they are not the obligation of the new husband.

Hi Kath,

forgive me if that is what is the case.  Let me state clearly, I am not unwilling to pay a fairly calculated support.  This is, simply put, a woman with an extremely understated income, and an over inflated estimate of what my income is.  The guideline support would peg my monthly obligation around 560.00 per month.  The order, which I was delivered from CSEA is double that.  She has added additional, again estimated retroactive support going back 20 months prior to her filing for a modification.  I hope this is clear.  I would hope people could see this is not about a father not wanting to be supportive.  I would never do that. I may be in jail shortly if something doesn't get resolved.  My issue is that the court has not even acknowledged the contest, nor have they addressed the "due process" motion. 

The best thing would be to actually be there in court; courts do not like telephonic testimony- how do they know it's you?  Also courts want litigants there to testify so they can assess credibility, etc, something you can't do over the phone.  I think that may be the crux of your issue with the court.