(state of CA) Family Court vs Small Claims Court???

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Latest post 02-20-2013 2:54 PM by Hearst86. 29 replies.
  • 02-19-2013 2:02 PM In reply to

    • Cicijo
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    Re: (state of CA) Family Court vs Small Claims Court???

    I'm not a lawyer and I may be completely wrong, but as I understand it a small claims court judgement could allow you to go after her assets such as car and home. It takes a lot of work and more court visits, if I'm not mistaken, but you would have options available to you if your ex doesn't pay up voluntarily. I don't know if those same options are available to you with the child support judgement that you have. Even though the men's legal aid center don't normally help dad's in your situation that is something they may be able to answer for you. It doesn't hurt to make an appointment. Regular legal aid may be able to give you some advice too. Sometimes legal students will volunteer their time to help so checking with a nearby law school may be worth it too.

    A small claims suit also has, hopefully, a pressuring effect on your ex. If you're coming at her from every angle she may just pay up to make it stop. What's not disputable is that what you've done so far isn't working. I'd spend the $70 or whatever it is to file to suit.

  • 02-19-2013 2:27 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Drew:
    As I see it as a layman I don't see any reason you are prevented to try to get award of  $ judgement in SC court

    It's forum shopping and the small claims judge will NOT hear it.  That's why.  He'll be out his filing fees and the cost of service which he cannot recoup.  You can't sue in small claims to collect on a family court order.  The poster can file a contempt citation and pursue it in family court.  THAT is his only avenue.

  • 02-19-2013 2:35 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Cicijo:
    I'm not a lawyer and I may be completely wrong .

    You are completely wrong.

    Cicijo:
     as I understand it a small claims court judgement could allow you to go after her assets such as car and home .

    A judgment is a judgment.  The manner of enforcement doesn't change.  The only difference is for civil or small claims judgments or family court judgments that are not for child support such as out of pocket medical expenses, a tax refund can't be intercepted and driver and/or professional licenses can't be  suspended.  ALL judgments can be recorded to place a lien on real property and against the person and all the other mechanisms for collecting such as writs against bank accounts, wage garnishments, etc., are available.  If the poster's child support is being handled by the family support office, there is already a lien recorded for that child support.

  • 02-19-2013 5:52 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Cicijo:
    I'm not a lawyer and I may be completely wrong, but as I understand it a small claims court judgement could allow you to go after her assets such as car and home.

    The family court judgment allows you to go after exactly the same things as a small claims court judgment. A money judgment is the same regardless of which court issued it.

     

     

  • 02-19-2013 7:41 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    Taxagent:

    I do not practice in CA, but I'll tell you my take on the CA small claims jurisdiction rules found in Code of Civil Procedure section 116.220. In a nutshell, the rules allow you to sue in small claims court for a money dispute of no more than $5,000 (which may increase to $7,500 or $10,000 in some circumstances). There appears to be no restriction on what the debt is based upon, so you may well be able to sue for the out-of-pocket expenses she owes you in small claims court.

    In general, the small claims court cannot grant equitable relief. Ordering her to provide health insurance for the child is a form of equitable relief, so if you just asked for that, the court cannot grant it. Moreover, there is already an order from another court that requires her to provide that. So, the claim would be barred anyway under principles of res judicata.

    do you think they would/could provide me a judgement for the premium i have had to pay, in order for my daughter to have the insurance?  or even 50%, seeing how the premiums are technically "out of pocket" expenses???

  • 02-19-2013 7:46 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:
    do you think they would/could provide me a judgement for the premium i have had to pay, in order for my daughter to have the insurance?  or even 50%, seeing how the premiums are technically "out of pocket" expenses???

    Listen carefully.  I am a CA attorney.  Small Claims court absolutely 100% CANNOT hear your case.  You MUST go through family court. Period.  If you have a court order that she pay 50% out of pocket and she hasn't, you file a contempt citation.  If you want to change the order to require her to pay the increase cost of premiums due to including the child, you go back to family court and modify the order. 

  • 02-19-2013 7:48 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    Taxagent:
    The family court judgment allows you to go after exactly the same things as a small claims court judgment. A money judgment is the same regardless of which court issued it.

    if this is the case, i think that Small Claims Court would be a better fit.  I am trying to AVOID her dirty attny.  I mean, literally, each time i've faced him, i have been the victor, as the amount of evidence i was able to provide was greater than his slick-talk.  (photos/statements/police reports of the drug-use/negligence that the mother has commited in the past) but his demeanor is what is always so aggrivating for me.  I have to take time off of work (which i cant take any more time off), etc etc etc to pretty much battle somebody who knows that i dont know the legality of it.  I saw where somebody said i should contact local law schools to see if studying students might be able to assist me in this journey.  when i spoke to the Men's Legal Center earlier today, he said i might be able to also be granted reimbursment for my attny fees, seeing how i had provided numerous attempts for her to pay this amount and "would have no other avenue to turn to but to hire an attny".  but im not sure how concrete this would be.

    thoughts??  

    gemini47:

    Generally, those orders are written in such a way that the parent is only required to provide insurance if it's available through their employer or they can find insurance that is otherwise affordable based upon their income.  If she's not working, or working sporatically, there's little you can really do about it.  You can ask the court to order that she reimburse you for some of the additional premium costs you incur in order to include your child on your medical insurance.  But, again, if she'd not working, the chances of collecting are going to be dismal.

    i spoke to my child support case worker today.

     

    she said the same thing you said here, that she is required to provide the insurance it's available through their employer or they can find insurance that is otherwise affordable based upon their income.   so this is my issue - i KNOW she is aware of the california program "healthy families", because she enrolled my daughter into this program years ago.  She is aware that there is "affordable insurance" yet has not enrolled my child in it.  This caused me to include my daughter onto my insurance.  seeing how she did not do what was asked of "providing medical insurance" despite being aware of affordable insurance, i am wondering if i can be reimbursed for either the whole amount or partical amount of my premium.

    gemini47:
    You can ask the court to order that she reimburse you for some of the additional premium costs you incur in order to include your child on your medical insurance
    i think this is what i am going to have to do.  Do you know if this is something that is typically granted by judges?? 

    She started a job in November and the case worker informed me that it seems she is making more money now, as she has been puttin $40 towards the 4K arrears amount each month, after her regular monthly payment.

    (for the person earlier, stating that she has got to have some money, seeing how she lawyer'd-up.... her grandmother pays for the attny)

  • 02-19-2013 8:03 PM In reply to

    • Kivi
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    Re: (state of CA) Family Court vs Small Claims Court???

    Healthy Families is being merged with MediCal. (In fact, I think the merger is complete by now.) It is not an employer sponsored program and never has been. You do have to meet certain low income requirements. They are a little bit higher than MediCal's were, but if she is currently employed, your children may not qualify, especially since you are the custodial parent and you also have an income, I surmise.

    This subject is somewhat complicated, but this change is one of outcomes of what is sometimes called " ObamaCare." I really don't want to go into all of the criteria, etc. Google Healthy Families for yourself to get a better idea of why this probably will not work for her in terms of satisfying a court order that she carry the health insurance on the children..

     

  • 02-19-2013 8:21 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:

    Taxagent:
    The family court judgment allows you to go after exactly the same things as a small claims court judgment. A money judgment is the same regardless of which court issued it.

    if this is the case, i think that Small Claims Court would be a better fit.  

    It's not and you CAN'T go there.  Put the idea out of your mind.  It's NOT an option.

    Mr.DBIA:
    .
    gemini47:
    You can ask the court to order that she reimburse you for some of the additional premium costs you incur in order to include your child on your medical insurance
    i think this is what i am going to have to do.  Do you know if this is something that is typically granted by judges?? 

    It has been done when the payor parent shows the tendency to not follow the order.  It's easier if you can lay out to the judge exactly how much is directly attributed to your child being on the policy.  Then a set amount would be imposed for her to pay.

  • 02-19-2013 9:10 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:

    Taxagent:
    The family court judgment allows you to go after exactly the same things as a small claims court judgment. A money judgment is the same regardless of which court issued it.

    if this is the case, i think that Small Claims Court would be a better fit.

    It's not a "better fit." You have a judgment already. Everything you can do with a judgment you can do with the one you already have. Moreover, the fact that one court has already issued a judgment on the matter precludes another court from hearing it. So this is something you won't be able to do. It won't work, so continuing to try to make it work will only frustrate you further. I understand you don't like that so far you've not gotten what you should from her and that you've not been able to get effective enforcement from the judgment you already have. But small claims court won't be the solution to that here.

    Mr.DBIA:
     I am trying to AVOID her dirty attny.  I mean, literally, each time i've faced him, i have been the victor, as the amount of evidence i was able to provide was greater than his slick-talk.  (photos/statements/police reports of the drug-use/negligence that the mother has commited in the past) but his demeanor is what is always so aggrivating for me.  I have to take time off of work (which i cant take any more time off), etc etc etc to pretty much battle somebody who knows that i dont know the legality of it. 

    Lawyers have studied the law extensively, and lawyers that do trial work have a lot of experience in the court room. It's not a surprise that, generally, they are more effective than non-lawyers who have little experience in such things. But the fact that the attorney is "aggravating" is just something you have to get over. She has a right to have an attorney represent her. The only reason you want to do small claims court is to get her attorney out of the picture, and that's not going to work. Note that even if you were able to litigate in small claims court, she could appeal an adverse determination to the Superior Court. Unlike most appeals, this is an appeal de novo, meaning basically she'd get a whole new trial, and guess what? She'd get to have her attorney represent her there. So, to the extent that your goal is cut out her attorney, that's not going to be very effective. 

  • 02-20-2013 9:06 AM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    If your claim is small enough for small claims court, even if you cannot use that forum, it is possible that her lawyer will advise her to handle it herself or that grandma will decide not to pay for the attorney for this particular issue.

    One thing to understand about judgments. The real battle, as you have discovered, is collecting on them. In family court you have to go the contempt of court route. In most civil judgments if the person does not pay you have to do additional paperwork for a bank levy or wage garnishment or writ of execution and there are legal opportunities for the person (your ex) to oppose youl along the way, potentially allowing her attorney to get involved again.

    Ergo, small claims court is not as easy as it looks.

     

  • 02-20-2013 1:05 PM In reply to

    • Mr.DBIA
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    Re: (state of CA) Family Court vs Small Claims Court???

    Taxagent:

    It's not a "better fit." You have a judgment already. Everything you can do with a judgment you can do with the one you already have. Moreover, the fact that one court has already issued a judgment on the matter precludes another court from hearing it. So this is something you won't be able to do. It won't work, so continuing to try to make it work will only frustrate you further. I understand you don't like that so far you've not gotten what you should from her and that you've not been able to get effective enforcement from the judgment you already have. But small claims court won't be the solution to that here.

     

    this is exactly how the order is written out.   can you tell me (even if it's in family court) if i will 1: be reimbursed for the out-of-pocket expenses and 2: if i would be reimbursed for the amount i have been paying for my daughter to have coverage?

     

     

    THE PARENT ORDERED TO PAY SUPPORT MUST (1) Provide and maintain health insurance coverage for the children if it is available through employment or a group plan, or otherwise available at no or reasonable cost, and keep the local child support agency informed of the available of the coverage; (2) if health insurance is not available, provide coverage when it becomes available; (3) within 20 days of the local child support agency's request, complete and return a health insurance form; (4) provide to the local child support agency all information and forms ncessary to obtain health-care services for the children; (5) present any claim to secure payment or reimbursement to the other parent or caretake who incurs costs for health-care services for the children.  The parent ordered to provide health insurance must seek continuation of converage for the child after the child attains the age when the child is no longer considered eligible for coverage as a dependent under the insurance contract, if the child is incapable of self-sustaining employment because of a physically or mentally disabling injury, illness, or condition and is chiefly dependent upon the parent providing heath insurance for support and maintenance.

    Obligor must pay fifty perfect (50%) of the reasonable uninsured health care costs for the children as provided by Family Code section 4062.

    then, the next page says:

    IF YOU HAVE A CHILD SUPPORT ORDER THAT INCLUDES A PROVISION FOR THE REIMBURSEMENT OF A PORTION OF THE CHILD'S HEALTH-CARE COSTS AND THOSE COSTS ARE NOT PAID BY INSURANCE, THE LAW SAYS:

    1: Notice.  You must give the other parent an itemized statement of the charges that have been billed for any health-care costs not paid by insurance.  You must give this statement to the other partent within a reasonable time, but no more than 30 days after those costs were given to you.

    2: Proof of full payment.  If you have already paid all of the uninsured costs, you must (1) give the other parent proof that you paid them and (2) ask for reimbursement for the other parent's court-ordered share of these costs.

    3: Proof of partial payment.  If you have paid only your share of the uninsurance costs, you must (1) give the other parent proof that you paid your share, (2) ask that the other parent pay his or her share of the costs firectly to the health-care provider, and (3) give the other parent the information necessary for that parent to be able to pay the bill.

    4: Payment by notified parent.  If you receive notice from a parent that an uninsured health-care cost has been incurred, you must pay your chare of that cost within the time the court orders; or if the court has not specified a period of time, you must make payment (1) within 30 days from the time you were given notice of the amount due, (2) according to any payment schedule set by the health-care provider, (3) according to a schedule agreed to in writing by you and the other parent, or (4) according to a schedule adopted by the court.

    5: Disputed charges.  If you dispute a charge, you may file a motion i ncourt to resolve the dispute, but only if you pay that charge before filing your motion. 

    If you claim that the other party has failed to reimburse you for payment, or the other party has failed to make a payment to the provider after proper notice has been given, you may file a motion in court to resolve the dispute.  The court will presume that if uninsured costs have been paid, those costs were reasonable.  The court may award attorney fees and costs against a party who has been unreasonable.

    6: Court-ordered insurance coverage.  If a parent provides health-care insurance as ordered by the court, that insurance must be used at all times to the extend that it is available for health-care costs.

    a. Burden to prove.  the party claiming that the coverage is inadequate to meet the child's needs has the burden of proving that to the court.

    b. Cost of additional coverage.  if a parent purchases health-care insurance in addition to that ordered by the court, that parent must pay all the costs of the additional coverage.  In addition, if a parent uses alrernative coverage that costs more than the coverage provided by court order, that parent must pay the difference.

    7: Preferred health providers.  If the court-ordered coverage designates a preferred health-care provider, that provider must be used at all times consistent with the terms of the health insurance policy.  When any party uses a health-care provider other than that preferred provider, any health-care costs that would have been paid by the preferred health provider if that provider had been used must be the sole responsiility of the party incurring thoses costs.

    i've also read your reply about trying to get AROUND family court.  i figure, i honestly have nothing to hide, so going against her attorney doesnt really faze me, if we stick to the facts & reasoning for the order.  So thanks for letting me know the SCC was a fantasy and that FC will be where to tackle this. 

    I am just seeing if it is worth me taking two days off of work (without pay) for a measly $115 OR if i would be eligble for the reimbursment of the health care costs i have been providing for my child, seeing how she has not.

  • 02-20-2013 1:38 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Mr.DBIA:
    can you tell me (even if it's in family court) if i will 1: be reimbursed for the out-of-pocket expenses

    Yes, the court will order her to pay her share.

    Mr.DBIA:
    and 2: if i would be reimbursed for the amount i have been paying for my daughter to have coverage?

    Not retroactive.  The court can order her to pay going forward. 

  • 02-20-2013 2:12 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Family court is your only option.

    Reimbursement is not a slam dunk.  Typically, if a party has been court ordered to provide insurance and they fail to do so, your remedy is to file for contempt and enforcement of the court order.  You provided the insurance on your own (which makes sense) but that doesn't necessarily mean you would be reimbursed for it. 

     

  • 02-20-2013 2:54 PM In reply to

    Re: (state of CA) Family Court vs Small Claims Court???

    Agree with splum1 on this one. Some of the state child support formulas give a credit of sorts to the parent who provides the health insurance. In the shared formula that CA uses that might work to your advantage if she is not actually providing the health insurance for the child and you are. It could reduce your income when compared to hers. It might result in a modest increase in her monthly child support payment. (If the disparity in your incomes is great, however, the actual additional amount that she could be order to pay could be relatively modest.) You might want to talk to a local family law facilitor at the family court for more specific guidance how this may or may not apply in your case.

    As Gemini47 noted the order would be NOT be retroactive, but it might worth doing this one going forward.

    You don't get to bill for your time off from work in Small Claims court either.

    Please do not take this wrong. You have to accept that you chose to conceive a child with this woman. I surmise your child currently is five years old. You are going to have to deal with her mother for the next thirteen or so years of your life (until child is 18/graduates from high school or age 19 at the very latest in CA).  You seem to have a lot of smoldering anger towards your ex. The legal system is not going to make her a responsible parent. It can exact certain consequences, but it cannot and will not make her the financially responsible parent that you would like her to be. If the Child Support folks are willing to add the unreimbursed out of pocket medical expenses to her arrears, I would comply with the terms of the order. When she does not pay (say 30 to 45 days after you send that demand letter), then contact them about adding the $115 (or whatever amount it is to the arrears). If they need a court order, then you will have to get it. But, if you can do it without same (i.e, just a copy of your letter and proof that she did not respond or they contact her and she does not dispute), do it that way and be done with it. You won't get reimbursed immediately but generally interest is added to arrears in CA.at the rate of 10%.) Seems to me that you eventually will get your money. Once your child is emancipated, if there are still any arrears, the ongoing support payment ($272 per month or whatever it is 13 years from now) will be entirely applied ot arrears, including interest.

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