Child Support Court - Trial Preparation(Part 8)
Going all the way to trial in Child Support Court.
By this point, winter of 2014, we had amassed reams of valuable evidence with more coming in as each subpoena returned documents.
The next step was to tie all the evidence together to support our Petition for Child Support Modification all together with Mr. Ex as the bow on top at Child Support Court.
In fact, Mr. Ex's credibility versus mine was the bow on top.
The documents themselves were only names and numbers on paper; it was up to us to provide the meaning behind them and provide the proof of Mr. Ex's additional income.
How I Tripled My Child Support Payments, Including All My Divorce Papers and Court Documents.
Credibility: what is it and who has it?*
Who wins in court, any court, but for us child support court really depends on the evidence and who is perceived as telling the truth - or being credible.
Credibility is not only about who is talking; it's whether the person talking appears to be telling the truth.
That's what really matters.
If you are credible, people trust you.... the Judge trusts you.
And, in a "he said, she said" situation, all you have is your CREDIBILITY.
I would go so far as to say that if your divorce attorney doesn't mention credibility, be very wary of her or him.
You are considered credible until you, or the other side, gives the Judge a reason to think you're not.
Early in December, Marty issued a Request for Admission of Facts and Genuineness of Document (RTA) to me that included the following: emails I had sent to Mr. Ex (attacking & non-flattering emails sent in my yukiest emotional moments); my blog entry accusing Mr. X and G'friend of hiding money from child support; old medical notes; and an email exchange in which I forced a visitation exchange to occur at the police station.
Seeing all the documents they submitted made me feel anxious.
It took snapshots of me out of context.
I feared admitting to these documents would erode my image and also distract from the case at hand.
But these were communications and documents that I could not deny.
I emailed Karl: (Karl's responses are in bolded italics)
Couple of questions regarding their Request to Admit Facts and Genuineness of Documents and our child support modification case:
I admit to the emails and website posting. However, the email from Mar 2013 is totally taken out of context and is the pent up outburst against Mr. Ex for coming in and out of our son's life at whim; something that he's done since our son can remember.
It's largely irrelevant anyway.
To the best of my recollection, Mr. Ex only saw our son once in 2012. I arranged for our son to see Mr. Ex's parents for Christmas. I didn't see Mr. Ex, but our son reported that he did. At Christmas, apparently Mr. Ex had promised to see our son within the next couple of weeks. I took the opportunity to try and engage Mr. Ex, which you see in the early emails. Mr. X visited mid-January. Of course, my son was so happy. He wanted to see his dad more frequently. But this was around the time where our opinions diverged about my son's school. My son called Mr. Ex but he didn't respond.
By March, my son was extremely sad and confused. He was crying about Mr. Ex. I read online studies about fatherless children, got really angry, and sent the nasty email. Though I meant every angry word, on its own the email is out of context. The email was really a response to Mr. Ex's coming back into my son's life for a day or two and then dropping out again without any reason.
It's still an issue. We'll most likely return to counseling. My son's teacher (about a month ago) told me that the kids were discussing their parents in class. One kid said, "My parents are married." Another, "My parents are divorced but I see my dad every day." My son chimed up (direct quote), "My dad doesn't want to see me." This pains me deeply. I've tried to reassure my son that his dad's absence is not about him. But he's only a kid. At any rate, can I include the lead up and emails prior to the one they've taken out of context in my RTA?
No. You can only admit or deny.
Also, note that Mr. Ex did not see our son in 2014, except for that time in April. Mr. Ex had not seen him or called him since July of 2013. Seeing Mr. Ex in April was a replay of the same appearance/disappearance act. Now my son doesn't even want to call Mr. Ex anymore.
Also, regarding the attached medical records that they are asking me to admit or deny, I don't see how this has anything to do with child support. I have emails I have sent Mr. Ex over the years that he never responded to. Mr. Ex has NEVER been to the allergist with us. He's NEVER been to a food challenge. He doesn't respond and doesn't show up. He stonewalls. So quite frankly, I've given up.
I'll put that in the draft.
I was so focused on exposing their lies that I forgot to prepare for their attacks - the RTA revealed, in my mind, what their strategy would be in court: throw me off emotionally by taking things out of context AND draw attention away from the child support case and onto the image of me as a vindictive volatile vendetta pursuer.
Even though their attacks had nothing to do with the meat of our petition, they did manage to rile me up.
Let the technicalities begin.
Mid-December of 2014, Karl suggested that we mutually agree to enter the documents included in the dueling RTA's into evidence (also known as, evidentiary stipulation).
Evidentiary stipulation is when both sides agree that certain documents will be officially entered in as evidence.
We believed evidentiary stipulation would help cut out Marty's famous time wasting technique of dragging us in and out of court on petty and irrelevant motions AND not cooperating with document exchanges.
Entering all the documents also enabled us to get the call sheets and subpoena results into evidence.
On the flip side, their documents also got entered (the negative emails I had sent).
But Karl felt they could be mitigated during my testimony in court.
One important note is that evidentiary stipulation only covered documents.
Mr. Ex and I were both still required to answer all of the RTAs that were not document based.
Officially Mr. Ex's responses to the RTAs came in mid-December.
He denied working the Keystone Job (yes the one he submitted the call sheet for). Oy! Bad witness, super bad attorney.
This is very important.
By agreeing to evidentiary stipulation, he allowed the call sheet that showed he had worked the Keystone Job to get entered as valid.
And if you read Finding the Divorce Lawyer to Win My Child Support Case (Part 6), you know that when asked about this job in the interrogatories, Mr. Ex finally admitted that he worked this job and used the call sheet as his response, "Mr. X's Answer 3: " See attached call sheet."
But then in the question section of the RTA, he denied that he worked that same job.
So here he was, on paper, impeaching himself - lying.
That's why I say - bad witness, super bad attorney.
Mr. Ex's attorney should have advised him that he was signing all these documents "under oath," so lying on them is perjury.
Even beyond the lying part, Marty should have caught the inconsistencies and pointed that out to Mr. Ex.
At this time we put out the feelers for a settlement. No response.
Even though we had been in this process for a long time, going to trial would only blow up the legal fees.
At this point, I owed approximately $5,000.
By the time we had wrapped the trial and the post-trial hearings and filings, Karl's fees had quin-drupled to over $25,000.
Mid-month, Karl filed his petition for fees.
Karl was only charging me $195/hour, so you can imagine how much that would be if he were priced in $300-$500/hour range - a pretty average divorce lawyer hourly rate.
At our mid-December status date to close discovery, we set the actual hearing date. January 26, 2015 from 2:30 - 4:30 we would finally go to trial.
I was surprised we were only allotted two hours.
Little did I know that our trial would extend five days interspursed over a couple months, including my testimony day which was a seven-hour Saturday. Yikes!
Early January 2015 was spent prepping for the trial.
Karl issued a subpoena to G'friend calling her to testify at the trial about her personal and professional relationship with Mr. Ex, as well as her business operations involving ABC Gear.
On January 22, 2015 Karl and I spent two hours walking through my Petition for Modification, the evidence and our strategy.
He coached me on taking the stand and gave me pointers on common pitfalls.
The prep was geared to help me maintain my best self for the Judge. The most valuable tips were these: (Divorce Checklist Lessons)
Divorce Checklist Lessons:
- There are very important distinctions between "I don't know" and "I don't recall." Things that I couldn't remember in the moment (but could eventually) fell under the "I don't recall" phraseology. This gave me the opportunity to remember and bring it to the court's attention at a later time. "I don't know," meant I didn't know at that time and would never know. So anything that I claimed "I didn't know" I couldn't reverse my opinion without eroding my credibility. Therefore, Karl would help me with documents, giving me further opportunity to refresh my memory.
- I was to review my and Mr. X's 13.3s (financial disclosures) so that all the details would be fresh my mind. So much goes on in the courtroom, that being concise and having your facts straight makes you a more compelling and credible witness on the stand.
- I could take a page of notes with me on the stand. However, Marty would be allowed to look at my notes if he wanted and use any of the notes against me. Karl recommended that if I wanted a sheet of notes, he would need to review them ahead of time so that he could delete anything that could be used against me.
- Details, details, details. If "location, location, location" is the mantra of real estate, details are the mantra of law. "What are the details of the conversation?" "What was said?" "Who said what?" "Where did it happen?" "When did it happen?" Exact dates and times are best. Since so much of our case was "he said, she said," when it came down to conversations that were had, I needed to recall exact details as much as possible in order to boost my credibility.
- When Marty questioned me, I was to answer the question completely without volunteering additional information. Marty would be looking for things to use against me so short answers were best, optimally ten words or less. For Karl, on the other hand, I could fill in more of the story. Example – If Marty asked me, "Do you have the time?" The best way to answer would be "Yes" or "No" as opposed to "3:00 pm" or whatever time it was. The goal was to make Marty dig for the answer while giving him exactly what he asked for. Karl coached me to think about what was being asked and answer it accordingly.
- Before answering Marty, I was to pause and take a breath, thus giving Karl time to object and myself time to compose my answer in a clear and concise manner. Attorneys will ask a two-part question that has truth mixed with lies. They do this to get the witness to just say 'yes,' then back peddle once the awareness has settled in. This sort of thing makes a witness look bad in front of the Judge. Attorneys know this. They do it to discredit the opposing side's witness. When there are a series of questions linked together, don't get caught up in giving a series of answers. Answer each part calmly and separately.
- Karl assured me that the negative emails I'd sent to Mr. Ex were not pertinent to the case. However, if Marty asked me about them, I was to answer any question honestly and fill in the details through the lens of focusing on my son and his wellbeing. He told me to take responsibility for my actions, then shut up.
- I would be the expert in the film business and so my credibility was key.
- I would be the expert on our son and expenses; again my credibility was key.
- All of my decisions were to be guided by the "experts" and my process simple and linear so that the Judge could easily follow. So, when Marty would be hammering me on the decisions I have made about my son's school or the food allergies, I was to always remind him that I acted in concert with doctors or teachers' recommendations. I was not the rogue tiger mom they wanted to paint me out to be.
- If I missed something, or wanted to reframe something, I would do it when Karl was questioning me.
- In our prep sessions Karl asked me "hot-button questions" that set me off emotionally and then coached me on keeping my emotions in check.
I was reminded not to react to any of the testimony given by Mr. Ex and G'friend.
- Karl instructed me to not guess where Marty would be going with a line of questioning, but just simply answer "yes" or "no." The Judge would be paying attention to my words, delivery and body language. Karl told me to not hesitate on how I say things, just be matter of fact
Karl and I briefly discussed the possibility of losing.
At this point, my stance was that if the evidence and testimony did not convince the Judge of my case, I would let it go.
I told myself that I would accept the decision.
It had been a long enough battle. (Of course after the trial, I felt differently. I didn't want to let go.)
Note: If your case is complex or has high-stakes, you need to think about losing and lay a foundation for an appeal. In our state, new evidence cannot be presented at an appeal. Speak with an appellate attorney to inform yourself and your attorney on what evidence you will need to present and/or illicit at the trial and what record needs to be established.
Since Mr. Ex's strategy was to paint me as a "tiger rogue mom who had a personal vendetta against him and G'friend" in an effort to distract from the facts, I needed to be able to clearly and logically lay out my process from beginning to end.
"How and what led me to issue subpoenas?"
"What did that evidence prompt me to do next?"
And so on.
Karl and I went over the narrative of my decisions.
For example, the decision to enroll our son in his school was made jointly, but the decision to pay was not; therefore Mr. Ex would need the Judge to compel him to do the right thing.
Text messages were part of my evidence.
Karl told me to bring my cellphone, which was not the one I currently used, with me to court.
Of course I forgot that phone on my testimony day, which was nearly four months after our prep. YIKES.
The majority of my case hinged on my CREDIBILITY.
And so therefore, I had to be consistent and on top off all details of everything I'd submitted.
Inconsistency would erode my credibility in a MAJOR WAY.
I wrote my narrative out as a timeline to help me see it all in a linear way.
A Piece of My Timeline:
MAY 2012: Mr. Ex and G'friend moved to a new rental home, signing a lease for $2200/month.
AUGUST 2012: Mr. Ex acquired and registered a 21' speedboat with the state Department of Natural Resources. No large withdrawal from his bank accounts, no loan agreement or credit card balance was associated with this purchase.
SEPTEMBER 2012: On September 25, 2012, I emailed Mr. Ex requesting money for our son's school tuition.
OCTOBER 2012: G'friend filed for an EIN for ABC Gear. October of 2012 was a financial document void. We never received any financial records this month. October 2012 was the month Mr. Ex supposedly settled a debt of an unknown amount using his 21' speedboat. The documents Mr. Ex presented put the boat's value between $7,605 and $10,535. He also claimed that he sold this very same 21' speedboat for $4000 in this month. I found similar boats online listed at prices ranging from $18,000-$24,000.
DECEMBER 2012: Mr. Ex and I discussed our attending a new school.
JANUARY 2013: In one conversation (Saturday January 26, 2013) and via text message, Mr. Ex agreed to the new school. He said he was "on board with the school." Wednesday January 30, 2013 our son attended a shadow day at the new school. I sent a text to Mr. Ex, "Our son loved the school. He wants to go there. He asked to go there now." Mr. Ex responded, "Great."
FEBRUARY 2013: On February 6, 2013, I sent Mr. Ex a text message about the contract for the new school. He responded via text, "I didn't say I agreed with you, as in I will participate in giving additional money I don't have to give. I meant if you can financially afford to send him to that school, wonderful." This is where our opinions on the new school began to diverge.
MARCH through MAY 2013: For the first time, ABC Gear showed up on call sheets as an equipment vendor. G'friend opened a bank account for ABC Gear. The $5,000-7,000/month cash flow began.
JUNE - JULY 2013: Mr. Ex 's credit card statements showed several charges to the boat marina and boat shops.
AUGUST 2013: I sent a message to Mr. Ex asking to see his tax returns to have the amount of child support re-evaluated. Mr. Ex sent additional money for support, but not his tax returns.
SEPTEMBER 2013: Our son started the new private school. I went down to the courthouse and got my first court date for October 2013. I sent Mr. Ex notification of this court date via text and email.
OCTOBER 2013: My very first court date. I let the Judge know that Mr. Ex notified me that he couldn't attend. We set a second date for November 2013.
NOVEMBER 2013: Mr. Ex didn't attend this second court date or notify me. The Judge entered a needs based order of $3202 and set a status date for January 2014.
DECEMBER 2013: Mr. Ex hired Marty and allegedly paid him a $2,500 retainer in cash. There wasn't any withdrawal from his bank accounts or a charge on his credit card statements from November 2013 through January 2014 for $2,500. Where did he get the "cash" from?
JANUARY 2014: Mr. Ex and I appeared together in court. I met Marty. Yikes! I knew I was in for a fight.
FEBRUARY 2014: Mr. Ex worked the Keystone Job (Job #1402 where he transferred the pay for his work to ABC Gear).
And so on from there.
I used my timeline as the backbone of my discussion and evidence assembly with Karl.
This became the structure upon which we hung the narrative of what Mr. Ex, G'friend and I did.
We then used this narrative to devise the flow of questions that Karl asked me and the witnesses.
Settlement? Or Trial?
Mid-January 2015, we received this email from Marty:
Please provide me with your demand for settlement so that I can confer with my client prior to the hearing.
We sent this back to Marty in response:
FOR SETTLEMENT PURPOSES ONLY
Further to your email of the other day concerning settlement, Ms. Beck proposes the following terms to avoid a costly trial:
Attorney's Fees: Mr. Ex is responsible for reimbursing Ms. Beck the total amount of attorney's fees expended in this matter, currently totaling $5,467.
Retroactive Child Support: On or about November 2013, a child support obligation of $3,202 per month began. This amount was later reduced to $764 per month. Ms. Beck, through her amended petition for child support, is seeking the difference retroactive to the fall of 2013, or $39,040.
However, Ms. Beck is willing to reduce this amount to $25,000 in order to achieve an amicable settlement.
Ongoing Child Support: Ms. Beck is of the opinion that guideline support for Mr. Ex is above $764 per month. Ms. Beck proposes adding the difference between the original support order ($3,202/month) and the current order ($764/month), for an ongoing support amount of $1,982 per month.
Additional Expenses: Ms. Beck's son has additional expenses for his education, health care and extracurricular activities. Your client's 1/2 contribution toward tuition, allowing for the payment made by his parents, stands at $7,500. This would continue for the 2015-2016 school year, which may be up to $10,000. Also, Ms. Beck's son enjoys a wide range of extracurricular activities including Kung Fu and Music, which total about $1,000, with your client being responsible for at least half. Further, there are additional expenses for insurance premiums and dietary supplements which cost up to $500 per month. These expenses are retroactive and ongoing with her son's insurance premiums totaling $194.60 per month with a $1,500.00 deductible.
Please take the time to review these terms with your client and I look forward to hearing your response.
No response. No surprise.
Regarding settlement talks, it is my understanding that whatever we presented in this discussion couldn't be used against us in court.
I was willing to take less in retroactive support and ongoing support, but they never counter-offered.
We went big anticipating some pushback, but instead there was radio silence.
We're going all the way to TRIAL.
Further Reading on how credibility and story effect Judges' decisions:
Child Support Modification Documents Mentioned in this Part
I also used this divorce lawyer to rewrite my Petition for Child Support Modification. He did an amazing job. If you read his Petition and compare it to mine. He did a great job of listing out the changes in circumstances and reasons to modify child support payments.
Interrogatories are part of the discovery process of divorce. They allow you and your soon-to-be/already ex spouse to ask questions that must be responded to in writing under oath. These answer are then used to determine facts in the case, as well as to question each side if/when the case goes to trial.