Child Support Payments - the Judge Decides (Part 10)
In late May 2015, we returned for the Judge's ruling on our child support payments.
He had not yet finished reviewing everything and formalizing his decision; and so he scheduled our return three weeks later.
Three weeks later, he handed us the following document. "Go outside and read this with your attorney," he said.
The only person who showed up from Mr. Ex's camp was Marty.
What can be said about this document except WOW! We won!!!
IN THE CIRCUIT COURT OF XXXXX XXXXX XXXXX XXXXX DEPARTMENT – DOMESTIC RELATIONS DIVISION
MEMORANDUM OPINION ORDER
This matter coming to be heard on the Amended Petition for Modification of Child Support filed on May 30, 2014 by the Respondent, hereinafter referred to as XXXXX XXXXX, against the Petitioner, hereinafter referred to as XXXXX XXXXX; initially XXXXX XXXXX filed her Petition Pro Se on October 9, 2013, accordingly any relief granted to XXXXX XXXXX herein shall be retroactive to that date; prior to the trial and during the trial XXXXX XXXXX was represented by XXXXX XXXXX Law LLC; XXXXX XXXXX was represented by XXXXX XXXXX; the trial in this matter took place over a period of months, to wit: January 29, March 23, March 31, and Saturday, April 25, 2015; the Court heard the sworn testimony of both parties and from XXXXX XXXX; the Court having reviewed the exhibits introduced into evidence by the parties; the Court having reviewed the relevant provisions of the XXXXX XXXX Marriage and Dissolution of Marriage Act, as well as the relevant case law;
THIS COURT FINDS AS FOLLOWS:
XXXXX XXXX's Amended Petition for Modification of Child Support is a four count petition; Count One seeks educational expenses from XXXXX XXXX for the parties minor son who is in grammar school; Count Two seeks a contribution from XXXXX XXXX for the minor son's extracurricular activities; Count Three seeks additional support from XXXXX XXXX for the special dietary needs of the child and for maintenance of health insurance; Count Four seeks to have this Court impute income from a business, XXXXX XXXX because XXXXX XXXX believes that XXXXX XXXX is concealing income from this business through XXXXX XXXX, his girlfriend.
Pursuant to the parties' Judgment of March 3, 2009, their Marital Settlement Agreement, dated January 8, 2009, was attached and made a part of thereof. At the time of the parties' dissolution of marriage their son was only three years old. The parties agreed to have joint custody of their son, with XXXXX XXXX being designated as the primary physical custodian. The parties also entered into a Joint Custody Agreement.
XXXXX XXXX agreed to pay $500.00 per month for child support. XXXXX XXXX agreed to provide his Federal and State Income Tax returns every year by May 15th or within two weeks of filing the tax returns.
At the time of the dissolution of marriage there was no private health insurance available for the parties' son, and he was covered by XXXXX XXXX insurance. In the event XXXXX XXXX secured employment that provided health insurance coverage for his son, he was obligated to provide the insurance coverage at the earliest possible date. Whatever medical, dental, and optical expenses not paid for by insurance the parties would pay equally.
Pursuant to the parties' Joint Parenting Agreement, they were to jointly determine major decisions concerning the child's educations, choice of and attendance at after-school activities, extracurricular activities, religious services, medical care and choice of physicians, dentists and all other significant questions relating to the health, welfare, and educations of the child, except in case of emergency.
At the time of the dissolution of marriage the parties acknowledged that their son suffered from severe life threatening food allergies, and that they would follow the directives and recommendations of their son's medical allergist at XXXXX XXXX as to what the child could eat and be exposed to. Further, each party was to insure that the other parent was notified about any reactions the child may have to a food or other aspect of his environment. Each parent was to insure that the other parent received specific instructions on how to address the reactions.
At the time of the hearing in the matter, XXXXX XXXX were each 44 years of age.
XXXXX XXXX alleges that since the entry of the Judgment for Dissolution of Marriage there has been substantial change in circumstances and that the child's expenses have increased: the child is now nine years old, whereas at the time of the Judgment he was three years old; the child is attending a private school; at the time of the Judgment the child was being enrolled in XXXXX XXXX School pre-Kindergarten at a cost of between $3,000-$4,000 annually. Although XXXXX XXXX agreed to the enrollment of the child at this school, he never contributed to the cost and expense of the child's attendance at XXXXX XXXX except for the first monthly payment.
During the winter of 2012-13, XXXXX XXXX sought to enroll the parties’ child at XXXXX XXXX School because she thought that XXXXX XXXX was going to close. The cost, or tuition at XXXXX XXXX School was $20,000.00 per school year.
XXXXX XXXX, in 2012 contacted XXXXX XXXX about the new enrollment at XXXXX XXXX School; initially he agreed to the enrollment but later failed to contributed to the cost and expense of attending the school. This Court finds based upon the testimony of XXXXX XXXX that XXXXX XXXX did in fact agree to his son's enrollment and attendance at XXXXX XXXX School. When XXXXX XXXX failed to contribute to the school tuition, XXXXX XXXX sought help for the payment of tuition from XXXXX XXXX's parents, who contributed for the 2013-2014 school year. During his adverse testimony, XXXXX XXXX claimed that he contributed $450.00 per month toward his son's tuition. He included this in his financial disclosure. When XXXXX XXXX's attorney pressured XXXXX XXXXXXXXX XXXX on his contribution, he stated that this was "based upon the money she [XXXXX XXXX] swindled from his parents". XXXXX XXXX was impeached on this testimony. Furthermore, he "does not believe that his son should be in a school she [XXXXX XXXX] couldn't afford.
During cross-examination by XXXXX XXXX 's attorney, he attempted to solicit testimony that XXXXX XXXX had not followed the joint parenting agreement to the extent that she did consult with XXXXX XXXX . XXXXX XXXX's testimony clearly shoed that XXXXX XXXX did not participate in joint parenting and decision making because he is an absent parent who rarely sees his son. XXXXX XXXX cannot complain about the lack of his ability to have input with decision making of this son if he is absent and not exercising visitation and parenting time with his son. At the time of the hearing here, XXXXX XXXX had not seen his son since April of 2014.
Contribution to extracurricular activities
The parties' minor child is enrolled in Kung Fu at a cost of $150 monthly; the child is also enrolled in classical guitar lessons at the cost of $900.00 per year; the child is also enrolled in swimming classes at a cost of $900.00 per year; the child is also enrolled din Kung Fu camp and music camp for a total of $300 per week; finally his is enrolled in math tutoring at a cost of $285.00 per month. XXXXX XXXX has not and does not contribute to the expense or cost of any of the foregoing extracurricular activities.
The parties' judgment is silent on the issue of contribution toward extracurricular activities. Through the passage of time, as the parties' child has grown from age three at the time of the dissolution, this Court finds that there has been a substantial change in circumstances.
Additional support for dietary needs and health insurance
The child, because of food allergies, is required to drink came milk for protein and weight gain. Camel milk costs as much as $600.00 per month. The child also suffers from asthma, which results in additional cost for treatment and management. XXXXX XXXX has not contributed for these additional costs and expenses.
XXXXX XXXX has shown through her competent and credible testimony that the parties' son is in need of more support from XXXXX XXXX. There has been substantial change in circumstances in the cost of education, extracurricular activities and due to his special dietary and medical needs.
Imputed income from XXXXX XXXX
During the marriage XXXXX XXXX owned and operated a film equipment rental company; in actuality the company was a sole proprietorship and XXXXX XXXX did business as XXXXX XXXX. After the dissolution of the marriage XXXXXX dissolved and allegedly sold his equipment. Moreover, XXXXX XXXX had a trucking business that went bankrupt or ceased to do business. During the marriage XXXXX XXXX was earning income in excess of $100,000.00 per year from his film work, film gear rental, and trucking business.
XXXXX XXXX's girlfriend, XXXXX XXX, started a film equipment rental business; the film equipment rental business is a sole proprietorship doing business as XXXXX XXXX. XXXXX XXXX alleges that XXXXX XXXX is in reality XXXXX XXXX because Ms. XXXXX XXXX knows nothing about the business of film equipment or film equipment itself. XXXXX XXXX notes that XXXXX XXXX's cell telephone number is listed on all of XXXXX XXXX's invoices and call sheets; and that he is the contact person on all the XXXXX XXXX invoices; XXXXX XXXX claimed that XXXXX XXXX is underemployed and concealing his income through XXXXX XXXX and Ms. XXXXX XXXX and therefore, underpaying child support for his minor son.
XXXXX XXXX testified that he needs the film equipment to do his job. He has been renting equipment from XXXXX XXXX [the G'friend's company] for the last two years. Prior to that time he was renting equipment from XXXXX XXXX during the marriage he owned his own equipment business known as XXXXX XXXX Company. XXXXX XXXX was a "DBA" (doing business as"). He would bill the rental equipment and his services separately. Ten years ago, he was making $80,000 per year with the equipment rental and film services. Since the dissolution of marriage he claims that his income has been reduced by 50 percent. Initially, he claimed that he closed XXXXX XXXX between 2005 and 2006, yet he issued payments to XXXXX XXXX from the company as late as May 25, 2007. XXXXX XXXX was impeached on this testimony. In his response to the request to admit, he stated that he closed the production company in May 2006.
This Court did not find XXXXX XXXX to be truthful or credible in his testimony, pleadings or discovery. For example, XXXXX XXXX testified that he had sold his equipment and his boat. He sold a boat to his friend, XXXXX XXXX yet then he claimed that his friend gave it back. The title to the boat was never in anyone's name other than himself. Moreover, when pressured by XXXXX XXXX's attorney he claimed that his friend forged his name on the title and bill of sale. This testimony and explanation lacked any credibility. In addition, he denied working on job #1402 for XXXXX XXXX yet his name and contact information was all over the job order and invoice. His convenient explanation for "that error," was that it was a production assistant mistake. Coincidentally, this is the only job order that was in error. XXXXX XXXX was also impeached on this testimony. His telephone number is all over the job orders and call sheets. XXXXX XXXX went as far as to try to convince this Court that his girlfriend owned his telephone number because she paid the bill. This is ridiculous and incredible. XXXXX XXXX lacked any credible explanation between any of his documentary and testimonial inconsistencies. Moreover, during his direct adviser testimony he developed amnesia and testified on a number of questions with, "I don't know", "I don't recall", "I'm not sure", "I don't know if the document is accurate", "I don't recall seeing that document". Yet he produced the documents during discovery. Miraculously, during his rehabilitation testimony he regained his memory. In addition, XXXXX XXXX was vague and unwilling to be forthcoming with his testimony. At times, XXXXX XXXX's testimony made no sense. At a certain point, during this advisers direct examination, when pressured and confronted with evidence that he was the contact person for XXXXX XXXX he lost his temper and tried to have this Court believe that the invoices and calls sheets that he produced were incorrect. Not only is he the contact person XXXXX XXXX, but he also delivers and picks up the equipment. This Court is hard pressed to understand what XXXXX XXXX (G'friend) does for the thousands of dollars that XXXXX XXXX has earned since 2013.
During his rehabilitation testimony, XXXXX XXXX claimed that XXXXX XXXX was in collusion with XXXXX XXXX who works for XXX Films. The basis for this belief is that because both XXXXX XXXX and XXXXX XXXX are single moms that they have something against "the male species." XXXXX XXXX even claimed that XXXXX XXXX put his name on documents and purchase orders. This is ridiculous and no credible evidence was introduced by XXXXX XXXX on this issue.
The level of deceit by XXXXX XXXX, and his girlfriend, is evident and clear by the opposition to discovery and subpoena compliance throughout the proceeding in this case. Discovery was opposed and not forthcoming from XXXXX XXXX or XXXXX XXXX; she fought compliance with the subpoena and failed to comply with the subpoena completely even though XXXXX XXXX entered into a Protective Order.
It is clear that XXXXX XXXX is XXXXX XXXX and that XXXXX XXXX is a front for the equipment portion of his film business. XXXXX XXXX (G'friend) knows nothing about the film business or film equipment business. She is a front for XXXXX XXXX. Her testimony showed that she knew nothing about the equipment, that she did not work the business and that her sole rental client was XXXXX XXXX since the onset of the business in 2013. XXXXX XXXX uses XXXXX XXXX exclusively. When XXXXX XXXX and XXXXX XXXX testified that XXXXX XXXX has no business relationship with XXXXX XXXX they lied to the Court. Not only do they have a business relationship, but they also have a personal relationship as boyfriend and girlfriend. In fact, they live together.
XXXXX XXXX's testimony was no more credible and believable than XXXXX XXXX's testimony. She claimed that XXXXX XXXX is owned by her. She testified that she worked at XXXXX XXXX 40 hours a week earning $20.00 per hour. She claimed to work 8 to 10 hours per week doing invoices, marketing and equipment rental. The extent of her marketing for XXXXX XXXX is sending out cards and XXXXX XXXX gift cards. By her own admission "she has not done a lot" for XXXXX XXXX.
In 2013, XXXXX XXXX had a gross income of $40,0000; in 2014 she estimated XXXXX XXXX's gross income to be between $55,000.00 and $65,000.00. Later in her testimony she testified that XXXXX XXXX was making between $75,000.00 and $80,000.00. She also testified that she sublets the equipment from XXXXX XXXX. There was no credible evidence of this sublet arrangement. All business with XXXXX XXXX is done by verbal agreement with no written contracts. XXXXX XXXX failed to provide tax returns or spread sheets for XXXXX XXXX income. She claimed that her accountant had the financial information and not her. This Court notes XXXXX XXXX failed to fully comply with the subpoena served upon her.
Further testimony showed XXXXX XXXX depositing checks for XXXXX XXXX at Bank and Trust. Her bank statements showed numerous checks made payable to cash for $3,200.00, $3,900.00, $5,000.00, $6,000.00 and the like. XXXXX XXXX was unable to explain adequately why these payments were made to cash. Further, the apartment rental payment that XXXXX XXXX supposedly made monthly in the amount of $1,200.00 appeared to come from her checking account in total. Accordingly, she impeached XXXXX XXXX's testimony and financial disclosure.
The extent of XXXXX XXXX's equipment inventory consists of "headsets and microphone". XXXXX XXXX could not even name the types of equipment that she rents, which is her business.
She claimed the she started XXXXX XXXX for her son, who is in the Marine Corps. But she admitted that neither she nor her son have any knowledge of the film business or film equipment rental business. Neither she nor her son has had any formal education or training in the film business. XXXXX XXXX tried to hide her lack of knowledge of the business by stating that her grandfather was in the film industry, yet she could not recall when he was in the business or what he did.
What is even more unbelievable is that she claimed that she did not tell XXXXX XXXX about the creation of XXXXX XXXX or have any conversations with him about this business venture. Coincidentally, she and XXXXX XXXX have been dating and living together since 2012.
Other than XXXXX XXXX, no other film crew rent her equipment. XXXXX XXXX testified that this is because of the litigation instituted by XXXXX XXXX.
When confronted with the invoices and call sheets where XXXXX XXXX was listed as the contact person with his contact information, XXXXX XXXX claimed that the invoices were only estimates. Conveniently, once XXXXX XXXX instituted the litigation to show that XXXXX XXXX is in fact XXXXX XXXX, XXXXX XXXX began to use her cell telephone number for contact. Even though she testified that she produced invoices for XXXXX XXXX, later in her testimony she claimed that she did not know who prepared the invoices.
XXXXX XXXX's testimony was evasive and untruthful. She, as well as XXXXX XXXX suffered from testimonial amnesia throughout the hearing.
XXXXX XXXX's testimony was truthful and credible. She testified that XXXXX XXXX earned, during the marriage, between $70,000.00 and $75,000.00 annually as a film crew person, and between $70,000.00 and $90,000.00 annually from film equipment rental doing business as XXXXX XXXX. XXXXX XXXX also earned about $78,000.00 annually from his trucking business, and he made another $27,000.00 annually from illegal activities.
This Court finds that XXXXX XXXX is really XXXXX XXXX [ABC Gear is really Mr. X's] and that he and XXXXX XXXX [G'friend] conspired to hide and conceal the film equipment rental income under the name of XXXXX XXXX. Based on this finding, the Court finds that the income from XXXXX XXXX should be imputed to XXXXX XXXX. Further XXXXX XXXX should pay child support on his film crew income and on the film equipment rental income of XXXXX XXXX.
IT IS, THEREFORE, ORDERED AND ADJUDGED:
A. XXXXX XXXX's Amended Petition for Modification of Child Support is GRANTED IN TOTAL.
B. With regard to Count I: Educational Expenses: XXXXX XXXX shall contribute 50% of the tuition at XXXXX XXXX School which XXXXX XXXX paid and pays retroactive to October 9, 2013.
C. With regard to Count II: Extracurricular Activities: XXXXX XXXX shall contribute, above and beyond his pure child support obligation, 50% of all activity fees and expenses for Kung Fu, classical guitar, swimming classes, music camps, Kung Fu camps, and math tutoring.
D. With regard to Count III: Dietary and Health Needs: XXXXX XXXX shall contribute 50% for all the out-of-pocket medical expenses of his son; he shall immediately obtain medical insurance coverage for his son through his employer; if medical insurance is not available through his employer he shall provide and pay for a private medical insurance policy that is approved by XXXXX XXXX.
E. With regard to Count IV: Concealed Income: XXXXX XXXX shall provide an accounting of all film equipment rental income generated under the guise of XXXXX XXXX and XXXXX XXXX. Should XXXXX XXXX fail to provide the income information from 2013 to date from XXXXX XXXX, this Court shall impute $75,000.00 per year as income to him for 2013, 2014, and thereafter.
F. Child support, retroactive to October 9, 2013, shall be computed on XXXXX XXXX net income from W2 employment and his imputed income of $75,000.00.
G. The parties' attorneys shall submit the appropriate uniform support order for child support, and include the educational and extracurricular amounts, on a monthly basis.
Our entire petition was granted!
A status date was set for July 2015.
At this point, compliance and the exact amount of child support payments were pending income review at the next court date.