Friday, September 22, 2006

My reply brief

I just filed this appellate brief.
This appeal focuses on some narrow legal issues, mostly concerning what justifies a deviation from child support guidelines. Here, I just address a few points from AngryMom's opposition brief.

Discovery is not an issue on this appeal
I have supplied all tax returns, 1099 forms, bank statements, income and expense statements, etc. promptly when requested. There is no discovery dispute pending, nor is there any finding that I ever withheld any documents. There is no discovery issue in this appeal, so this court must assume that my income was adequately documented for the lower court.

My house does not justify a deviation from guideline
I object to the $3,000 per month of nontaxable income being added to the Dissomaster calculation, based on not having a mortgage and Marriage of Loh. AngryMom cites Judge Kelly explicitly rejecting the figure at a hearing, and anticipating that AngryMom would later make some sort of motion to reconsider. (AngryMom's brief, p.13) There was no later hearing that addressed the merits of the $3,000. Comm. Joseph reinstated the $3,000 on his own, and mailed us the order. I had no notice that he was even considering it.

Even if there had been a hearing on the $3,000 (after the hearing in which Judge Kelly rejected it), there is no way to use Marriage of Loh to justify it. Marriage of Loh stands for using tax return figures. The judge cannot deviate from guideline just because I don't have a mortgage.

The court must use accepted definitions of income
As AngryMom says in her brief, I have argued for using a definition of income that is used by the tax authorities. The tax code has hundreds of pages of regulations defining what is and is not income. It is not so easy to just throw that all away and replace it with a new definition. When Comm. Joseph suddenly declares that $3,000 of nontaxable income must be added to my actual income because I don't have a mortgage, then I have no idea what definition of income he is using. It is reversible error for him to just invent his own definition of income.

AngryMom does not propose any definition of income, and tries to justify what the court did based on some alleged confusion about my income. It is true that I got "hammered" at the Aug. 30, 2004 hearing because AngryMom's lawyer blindsided me with lies about my income and I was not fully prepared to rebut them. (AngryMom's brief, p.15) I naively thought that income and expense statements and three years of tax records would be sufficient for the court. But any confusion about my income should just be a reason to conduct more discovery or to hold a fact-finding hearing. Instead the court just accepted the erroneous and unsourced figures from AngryMom's lawyer, and made all the support orders indefinitely retroactively adjustable. And the only retroactive adjustment it made was to add in the $3,000 that Judge Kelly explicitly rejected.

Dance classes do not justify guideline deviations
AngryMom claims to justify the $500 child support add-on by citing "diminished ability to provide for things" like dance classes. Divorce causes all sorts of hardships to couples as they try to maintain two households on income that previously supported one household. The child support guidelines already have formulas that specifically increase the fraction of income that must be spent on the kids if the kids are divided between two households. Attending dance classes is at the discretion of the parents, as are a hundred other parenting decisions. The law merely uses a percentage of income as a support obligation. It says nothing about whether the kids should attend dance classes, or how such fees might be paid. Child support is based on income, not the cost of food, housing, or clothes, and certainly not the cost of dance classes.

The $6,500 fee appeal is timely
My appeal is on Comm. Joseph's orders dated "Dec. 20, 2005 et seq". I wrote it that way because the Dec. 16, 2005 order was not final, as Comm. Joseph invited me on that date to file additional papers in order to have my arguments heard. He then heard (and rejected) my arguments in Feb. 2006, and I took that as when the order became final. I've tried asking appellate attorneys how to tell when a family court order becomes final, and no one could tell me. The family court seems to like to dribble out orders in bits and pieces, and retain jurisdiction over retroactive modifications for indefinite periods of time. Even though this case started three years ago, it continues today in the lower court with no end in sight. I believe that I have picked a reasonable date for this appeal, and that it should be regarded as being in compliance with the rules.

As argued in my opening brief, the lower court's monetary orders must be reversed. The deviations from child support guidelines have not and cannot be justified. The attorney fee order is contrary to the record.

1 comment:

Anonymous said...

I do not understand.... If your wife wants the girls to have expensive dance classes, (much cheaper alternatives are available through local park and recs. programs and the YMCA in most areas), this seems elective on her part, not necessary. If she is a working lawyer and re-married, what is her explantion as to why she and her new husband can't just pay for dance classes, enjoy her life with her children, and just get on with living a happy fulfilling life with her new home and family? I do not understand what she hopes to gain by dragging this on and on and on. Not only is this frustrating and time consuming for you, but I imagine her quality and quantity of time she is wasting on this must negatively affect the kids when they are with her, and her new husband. It is too bad that a judge cannot see that angry mom should just stop spending all her energy and hours being angry and writing hundreds of pages of briefs - and instead, dedicate herself to her primary responsibility of being a present for her kids mom. If I was a judge, I would just say stop all this spiteful drama already, live life, be happy with your new husband, your house, your health, your daughters - let go, and move on! Then you too could move on and just be the best dad possible to those girls. Why can't a judge see the simplicity and truth of it all. This drawing out the process in courts is bad for everyone. You pay child support. You gave her money and compensation after the marriage dissolved which you say she agreed upon in writing. You care for the kids financially and physically 50% of the time, thus cutting down on her child related expenses/time, etc. - Why is she doing this?