Child support objection - New York

[concernedmommy]

Some background:
In 2010, I filed for enforcement against the father of my children for failure to pay support. The judge awarded $8,000 paybel to me, in arrears by default judgement because he chose not to come to court. He objected and they overruled his objection, saying the only way to address it was for him to file a petition to vacate. He never filed a petition.

Fast forward to April 2012, he never paid. A new order was set with new arrears. The judge handling the case messed up I guess, and the arrears were set at $1,000 to be paid through enforcement. The order did not address the old arrears that were not ordered through enforcement, so I assumed it was still owed to me.

Then, in January, I had to file yet again, because he was refusing to pay the medical insurance and his share of the bills (luckily my husband was allowed to put them on his insurance). In that filing, I also asked about the original $8,000 in arrears. The judge basically admitted she messed up, but wouldn't award them back to me. She did tell me if I didn't agree with her choice, I could file an objection.

My lawyer through this sucked, so I fired her. I filed the objection, and mailed a copy to my ex, as directed by the instructions. I get a letter from my former attorney, because she got a letter from his attorney. He basically filed a rebutal saying I was breaking the law by filing an objection so late? (I filed it within 30 days of the January court date) and said I didn't serve him properly because I sent it to him instead of his attorney.

How much of his argument holds water?

Wouldn't that also mean he didn't serve me properly in regards to the rebutal because that lawyer is no longer mine. Is that a violation of privacy laws, to send court documents to someone not involved in the family court case? (This is all in NY by the way)

If my objection is thrown out, is there an appeals process? I really can't afford to keep hiring lawyers to get the money that is owed to me and my children. Since January, his arrears is up to almost $2000 again.

[Friend In Court]

Re: Child support objection - New York

The judge's error should have been brought to her attention immediately so she could have corrected. It is a gross miscarriage of justice for a judge's error to screw a child out of her right to support, and $8,000 is no small sum!

What you can do is wrap up everything you want in one motion -- for her to reinstate the order for back support that she overlooked, tally up the amounts delinquent and when, everything you want in the motion - itemized, with the grounds for each -- and if at all possible back each up with caselaw authority.

If you are in the City, there are several excellent law schools like Columbia, for instance, which should hold law clinics where 2nd and 3rd year law students are able to help those who cannot afford an attorney.

What you want to do is present a solid motion, on solid legal grounds -- and with authorities (cases and statutes) so the judge will be aware you are well set up to appeal. The rules are to be interpreted and applied 'in the interests of justice', so often technical time periods are waived -- 'in the interests of justice.' Courts are prone to give a layman a bit of latitude navigating this complex system of rules, procedures, laws and the intimidation of the courtroom. But do not let the judge blow you off. Fight for what your child is owed.

Once you make a new motion, the entire matter is before the court. With some legal help you just may be able to frame and present a motion to impress your ex's lawyer. And the court!!

As to reopening a judgment, check the NY parallel to the Federal Rules of Civil Procedure (FRCP Court Rule 60). You will find the grounds there to do so,.

[concernedmommy]

Re: Child support objection - New York

Thank you Friend in Court.

My BIL is currenlty a law student, just not in NY. He helped me prepare my objection and we did cite the law that says the arrears can only be erased through him filing a petition to vacate (the exact law escapes me at the moment).

I tried pointing out the mistake to the magistrate, but she didn't want to hear it. I've filed for enforcement 3 times since 2010, the magistrate has ruled in my favor each time, but has issued no punishment to my ex, even though she caught him lying at least 3 times. I'm beginning to think she has something personally against me. Is there a way I can file to get a different magistrate if/when I have to file against him again?