Revision of Motion? WA family law question?
On May 4, 2010, we had a hearing for Modification of Support and motion for back support and atty fees (her motion) and a Motion for Reimbursement of overpaid daycare (our motion).
Support was revised as incomes had changed and 2 years had past.
Our Motion for reimbursement was granted in the amount of 7
Her motion for atty fees and back support was denied.
On May 14 they filed a Motion to Revise Commissioner’s Ruling and Notice to Appear (6/10/10).
They are citing RCW 2.24.050 and LR 0.7.(Spokane County Superior Court, WA) Their grounds for this motion are that mom feels like shes being punished because the judge retro’d the daycare but refused the back support. And that their discovery findings were ignored. And states that no child support worksheets were filed with the last amendment of the previous order so they were for all intent and purposes potentially invalid pursuant to the statue. Which is 1/2 right and 1/2 wrong. the last hearing was a contempt motion, which revised the temp child support order in place, adding the daycare to the transfer payment. although, no child support worksheets were filed at that hearing, but they were filed 2 months prior when that same order was amended due to a tax exemption discrepancy. the prior order has been a temp child support order since feb 2008, we began modification and finalization of this order in march 2010 as mother refused every attempt we made to finalize this order.
So….my question is What exactly do I file in response to this?
Do I file a Motion to Deny? Just a declaration? I cant find any local court instructions, rules or forms that tell me what it is I file in response?
I know I am running out of time to file a response so any help would be appreciated. We are pro-se going against a very shady lawyer who knows all the loop holes and knows how to manipulate and take advantage of pro-se people.
One Response
Artemis Gwen
31 May 2010
1. Judges always look more kindly on pro se litigants, so don’t feel as though you are at a complete disadvantage.
2. Motions for Revision are seldom granted. Essentially the ex is asking a superior court judge to make a finding (a very public finding) that the commissioner blew it. This doesn’t happen unless it is crystal clear that there was no reasonable basis for the commissioner to make the decision that was made.
3. The statute is VERY clear that when the overpayment of daycare expenses exceed 20% of the annual obligation, the court is REQUIRED to order reimbursement. There is no discretion permitted. Ordering back support is discretionary.
4. I would recommend that you draft a Memorandum in Opposition to Petitioner’s Motion for Revision.
RCW 2.24.050 just states that a litigant has the right to have a commissioner’s ordered reviewed by a Superior Court judge. The ONLY information that the judge can consider is the information that was before the commissioner. The judge cannot consider anything that wasn’t before the commissioner.
In the Memo, you can break your argument down by sections:
I. Relief Requested
Respondent asks the Court to deny the Petitioner’s Motion for the Revision of the ordered entered on May __, 2010.
II. Support for Requested Relief
The files and records herein.
III. Facts
Provide a VERY brief description of the evidence and arguments presented to the commissioner.
IV. Argument
This will be the most difficult part for a lay person, because this is where you would insert your legal argument. I’m including a snippet from a motion that I recently filed regarding overpayment of daycare in Washington.
An obligor parent is entitled to reimbursement for certain expenses not actually incurred by the obligee parent. RCW 26.19.080(3), Fairchild v. Davis, 148 Wash.App. 828, 207 P.3d 449, 450 Wash.App. Div. 3,2009. “If an obligor pays court . . . ordered day care or special child rearing expenses that are not actually incurred, the obligee MUST reimburse the obligor for the overpayment if the overpayment amounts to at least twenty percent of the obligor’s annual day care or special child rearing expenses.” RCW 26.19.080(3)(emphasis added).
Then you insert the specific facts of YOUR situation.
This might also be a useful statement, depending on what evidence/arguments she presented: The petitioner’s declaration is self-serving and not adequate to prove that she had actual expenses. See, e.g., Fairchild v. Davis, 148 Wash.App. 828, 207 P.3d 449, 451 Wash.App. Div. 3,2009.
You should include separate subsections that contradict the rest of her arguments.
V. Conclusion
This should be a VERY brief summary of your overall Memo.
This is what I used in a recent Motion – this is only specific to daycare expenses. You would probably want to expand yours just a little bit to address the other arguments she is making.
Adequate proof of incurred expenses is necessary to prevent “ ‘a windfall.’ ” Kim v. O’Sullivan, 133 Wash.App. 557, 564, 137 P.3d 61 (2006) (quoting Lavigne v. Chase, Haskell, Hayes & Kalamon, P.S., 112 Wash.App. 677, 687, 50 P.3d 306 (2002)). For the petitioner to prove that she incurred out-of-pocket expenses, she would need admissible evidence like cancelled checks or tax returns. See, e.g. Fairchild v. Davis, 148 Wash.App. 828, 207 P.3d 449, 451 Wash.App. Div. 3,2009.