Kansas Child Support Forum
General Kansas Child Support Discussions => General Discussions => Topic started by: flynlow43 on November 15, 2011, 09:26:40 AM
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Hello, my first post. I have a question regarding contempt, or a contempt proceeding. I live in KS obviously, JOCO. My order is from another state, KS is just playing collection agent (interstate). This is an arrears only case, the child was emancipated 4 years ago. It is kind of complicated so I will try and be as clear as possible. The original order was 15 years old before the other state even sent it to KS. That was 2005. I received notice in the mail and probably by a sheriff that it was registered in KS, that they were doing income withholding. At the time, the support was $620 per month. Fast forward to 2009, I lost my job of 15 years. Then the support payments come from unemployment benefits, deducted directly from, like income withholding. April 2010, I go to court and get a modification (originating state). This cuts my monthly support to $310 per month, half what it was. This is where it gets somewhat complicated.
The court order states that it is to take effect May 1st, 2010. I talk to the court trustee, they say if I can get them a copy of the order they will put it in immediately. I drive it up there and hand deliver it that very day. It took three months for them to register the order anyway. (July, 27th). The amount coming from my unemployment stays the same. I call the trustee and ask, they inform me it is done by percentage, not what you owe. So as it turns out, they are taking $489 per month against a $310 order. I ask the worker and am told that any overage carries to the next month. So In July, the $310 is paid and $179 is credited toward August,etc. I am given a website for the JOCO court trustee, my case number and a pin number so that I can access my records, see due dates etc.
Fast forward again to May 2011. My unemployment ran out (still no job). I look on the website, it shows that my next due date is October 2011. I think, cool. Gves me more time to get in order. In September I look again, my taxes were intercepted and a payment posted of $400 in August, new due date shows as November 2011. Okay, so I get the $310 together for Novembers payment, mail to to KPC. I look, it posts on the 8th. The 9th a sheriff knocks at my door, handing me an order to appear on a contempt charge. The paper says. "the duty of support is $620 per month" next line it says, "the order has not been set aside, modified or changed". Mind you, it was modified 18 months ago and is no longer $620. Then lists the amount of my total arrears.
My question is, how can this be contempt? To my knowledge, the over payments covered those 4 mos that I didn't send anything. According to their web site it was covered anyway, the due date was Oct/Nov. I never received notice of delinquency from them. Reading their website and the JOCO court website, it states, that anyone 7 days past due on support payments must be notified of any delinquency, this is "local rule 28". I was never notified and it shows on their web site that no notices sent. (I did receive a couple when I first lost my job waiting for UE to start). It shows on their site the date they mail a late notice. Haven't had one sent for two years.
So I am wondering, since this is the first and only glitch with Kansas, is this a true collection effort, or do they just like to drag people through the system just to flex their muscle? Frankly, it seems like the latter to me. I don't think they have a case. I can show (by screen caps) that no notices were ever sent to me. The paper they sent alleging the contempt shows the wrong amount of support and says the order was never modified, which it was. Just seeking opinions from those of you more familiar with this system than am I. It's odd to me too, I called the people in the originating state, they think KS is stupid (their word, not mine). They said in their state, they don't jump on contempt for a couple missed payments on an arrears acct. They use it more for someone that is obviously avoiding them and they have tried every other possible remedy. They said they use the balance forward method too, so they understood what I meant and agreed that those months were covered. Not that they have any say here.
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No replies? I see it's only been viewed 10 times in over 24 hours, one of those was me proof reading. Anyway, to simplify it since it probably comes off as complicated, I'm not the best writer I know. I really want to know what the feeling is I should do? Should I call them and point out their factual errors and the fact that they didn't follow their own rule and send me any notice of delinquency, thus proving my point that I wasn't delinquent? Should I get an attorney to contact them? Should I get an attorney and just go to the hearing (which is still two months away), or should I just go to the hearing myself and explain it? It would make my life much easier if they were able to cancel the hearing, as it is, I have a trip planned for the three weeks, that just so happens the hearing falls right in the middle of. The trip is out of state talking to people about a job. There is a decent chance I won't even be a resident of Kansas on that date if things went right.
In the meanwhile, I plan on continuing my payments as I had always planned. I know they are going to say I missed those 4 mos. However, like I said, no notice that I wasn't current, which I fully believe I was and am. I look at it this way. I paid my November payment. It states on their website "Next due.. December 2011" "still due $0".. If I were to send the next payment in today, it would be applied to December would it not? Making my next due January 2012. It's the same thing that happened all along. They were taking 490 a month on a 310 a month order. Where else would the extra 180 go? It had to be put on the following month, correct? The order didn't say "pay 310 per month plus extra if you can, want to or if it can be extracted from you".
Modification order says, and I quote as I am copying verbatim from it, "The motion to modify child support arrears payments is GRANTED. Beginning May 1, 2010 and continuing each month thereafter. The respondent shall pay $310 per month toward support arrears and judgments until paid in full. The county shall not obtain any additional amounts by income withholding". Notice it does say several times "PER MONTH" which would indicate that they expect a payment every month. However, It also states that they shall "NOT OBTAIN ANY ADDITIONAL AMOUNTS BY INCOME WITHHOLDING" which is exactly what they did by taking an extra 180 per month.
Anyway, that's it. Hope it's a bit more clear. I hope to get a few replies too. I really need some guidance on this. Thanks.
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Thank you for joining us and thank you for your post. I will absolutely reply with my thoughts on the subject, but I need to get through all of the information first. Just skimming your problem, I would say you have a child support mess on your hands which has landed you in possible contempt. Don't fret the contempt crap, just make sure you make your court date and explain your case. I would also advise you obtaining a copy of the KPC records from their website (if there's not a link on this site, I will add one).
I will reply to again to this post when I've had time to review your situation further and reflect. Maybe later tonight.
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Thank you for the welcome. I look forward to your thoughts on the matter.
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That’s quite the story. Took me a while to get through it all. I think you have a very valid case. I’m guessing you’re still unemployed so hiring an attorney may be cost prohibitive at this point. But I think you have enough of a case that you could argue it pro se and probably do fine (just my opinion).
Kansas has been tasked with increasing their interstate collections. I cannot remember where I saw that, but they keep statistics on interstate child support, and they need to show the Feds that they are collecting more interstate funds. I don’t know that this is necessarily “flexing,” but I do think the case is rather petty and wreckless – especially since the child was emancipated years ago. Usually if a payor is paying anything at all, they won’t hit them with contempt because of the legal system costs involved. I would call to schedule a meeting with the JOCO attorney for the trustee. Actually ask them to put it on their calendar and block a 1 hr meeting for you. If they refuse to do that, tell them you have no other choice but to file a responding motion requesting your attorney fees to demonstrate that you’ve paid everything.
Here’s your strong points:
- Your order for $310 was way back in 2010
- You hand delivered the order to their office at their request on (what date?)
- You called their office when you noticed too much was being withheld and asked why and where that money would go (need date). You were told it would credit to the following month
- Their own system told you there was not a payment due until October (need a picture of that). This made sense to you since you had been overpaying every month for a while.
- You called and offered to resolve the matter with the trustee but they refused and instead decided to drag the case into court senselessly.
- Child is emancipated and this is arrears only (no child in need here)
- You’ve been paying and intend to keep paying, but you motioned to reduce the obligation to $310 for a reason, not so you could over pay every month.
- Trustee never notified you of any contempt. Court records may have a certified mail receipt or something
I think the trustee is going to claim they’ve never seen your $310 order, so I think you should send a copy certified mail to them with return receipt so you have proof that they have it.
Hope that helps.
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Very helpful indeed. There are a couple issues however. I did not take screen caps (pics) of the web site when it showed my due date as October. I didn't think of it then. Since I was not receiving any notices regarding delinquency, I assumed we were all on the same page. Their online system shows my monthly amount due as $310. So it has been entered into the system. Why it says on the contempt summons $620, I don't know. I am only assuming here, that since the original order states that amount, that is what they are using as evidence. (the original order). I have yet to contact the trustees office to attempt a resolution. I didn't know if that would be wise. I would much prefer that, or at least hope that someone would look at it and see that maybe they have made a mistake and pull back. I am told many places will deal with you before a contempt hearing, in hopes of getting the matter resolved before having the hearing. I don't know if Kansas is such a place, or Johnson county.
By rights I suppose they have me if I look at it from their point of view. There are 4 months that show 0.00 as being paid. June, July, September and October. August was the month in which my taxes were intercepted and paid to them, moving my due date to November. If they are simply one track minded, black and white, where you did not make a payment, no matter what you thought, therefore you are guilty. Then yes, they have me. I am guessing that to them the issue isn't how much the monthly payment is, if the order was modified or not, that is all irrelevant to them. What matters are there are 4 months that show $0 in collections.
You are correct. I am still unemployed. However, if I absolutely must get an attorney, I can. My sister in law is an attorney in Johnson county that deals with this stuff daily. She's on the other side though and is usually the one suing for the support. We try not to involve her in our affairs if possible. If it's a matter of calling her and going to jail, I will call her. Another thing that may hurt me is, that I don't know the exact dates I called and asked about the payments, who I talked to either. Not sure what date I delivered the court order either. It came to me in the mail. It was dated April 27th and was to take effect May 1. So I can narrow it down to a few days. Exact date though, I can not.
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What I would do is use this little “balance forward” method to demonstrate that you are in the green. If you were supposed to pay $310/mo starting in May of 2010 and 17 months have elapsed, you should have paid $5270. However, if you can demonstrate that they collected $620 for 4 months, then collected $490 for the remaining 13 months, that total collection is $8850. If you then look at how much money 4 months of non-payment is, that is only $1240. So even if you didn’t pay for 4 months, you should still be $2340 ahead.
Lies occur every day in family court – trust me on that! As far as not having proof for everything – well, it looks good if you can actually support things you say, but it’s not necessary to have evidence for everything. Usually what I do is make the statement, then if someone calls me a liar, I pull out a document. That method has 3 effects (1) it shows I didn’t lie, and (2) it shows the other party is a liar and is out to get me and (3) it saves time by not having to dive into evidence every time I make a statement. An attorney will lie just as much or more than any party will. We can’t present evidence of what we had for breakfast. If you don’t have evidence, just state your recollection of the facts and show that you are “reasonable” and it will all work out.
They can’t get any money from you if you’re not working, so it would make no sense to put you in jail. Further, it will look very good if you can show that you sent a certified letter to the trustee offering to discuss the issues and reconcile before the hearing. KS courts, in my experience, do not try to drag people in if they’ve been paying. But Johnson is actually one of the absolute worst counties in the state to have anything in. There are a lot of powerhouse attorneys and judges that like to throw their weight around.
You should be able to handle this issue pro se. Attorneys don’t understand math usually, so explaining this mess for an hour will cost you $250. Your first stop should be to the trustee to see what can be done. I don’t see how they can jail you if you’re not in arrears and in fact they are the ones who have been taking too much out of your check. Make sure you know your facts though and obtain information first before you open your mouth. Ask them to send you the payment records they have, ask them for the arrearage calculation for the $490 or whatever. See what their logic is first. Then you can formulate your response.
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You are a wise man. Hence the moniker "Guru" I suppose. I did the math with the actual numbers off the KPC site. I am $1,444 to the good as of today. I seriously doubt they will see it that way. I just have this feeling they are going to try and say that the balance doesn't forward on arrears, it only pays on the standing balance. They will have no explanation as to why their system moved the due dates up with every extra 310 they received and why the system generated delinquency notice wasn't generated. Speaking of the delinquency notice, this was copied directly from the JOCO court trustees site:
'DELINQUENT NOTICE: A notice generated by the Office of the District Court Trustee, as required by Local Rule 26, to notify an obligor that a payment has not been made within 7 days of its due date; notification to an obligor that a delinquency exists in the case.'
Now, I don't know what "Local Rule 26" is but I am betting it's something they are supposed to abide by. So if their system didn't see me as delinquent... I don't know why someone/something decided all the sudden to just now check the account but all they saw were zero's in those four months and they rushed it out as a contempt. No other notice, contact, nothing. Another point to make too. As I have been researching, these hearings are not in front of a judge but in front of 'hearing officers' that are appointed by the court and best I can tell, are paid by the court trustees office. That isn't comforting. I think I am going to get my facts all together and sit down and call the trustees office tomorrow. I was served a week ago and the hearing isn't until late January, so maybe I have some time to work it out or make them understand.
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Well, I've never dealt with a situation like yours personally or otherwise, but I have been around the block a bit. I also crunch numbers for a living, so if there is an error, I usually find it.
You need to request an arrearage calculation and a copy of your records from the trustee immediately. Tell them you can come in to personally pick it up when it is ready. Don't expect them to put a side order of hustle on it either. The idea is not to determine what your arrearage is, because you can calculate that based on your KPC payment info, but to have them provide you with a piece of paper on their letterhead that says you are not even in arrears. Then call a couple days later and ask them once again what happens if you overpay. This time get her name and her title, but don't sound like your prodding for information. When you get to court, offer to call this person on your cell phone and ask them what happens if you overpay. Dramatic, but will uncover a massive flaw in their knowledge base.
Reading:
7. Record of Support Payments. The trustee shall maintain a record of child support and maintenance payments.
9. Imminence of Delinquency Action. Whenever an obligor is 7 days delinquent in any payment, the trustee shall notify the obligor of the delinquency and that action (including income withholding) will be taken to enforce the support order unless the support payments are immediately paid.
12. Review of Contempt Findings. Any party placed in custody as punishment for the contempt shall be entitled, upon request, to a hearing before a District Court Judge within 48 hours thereafter. Notice shall be given to the District Court Trustee.
Keep in mind that in some KS court rooms and with some judges, the word "SHALL" means "MAY" which means you might do it or you might not. I found this one out the hard way one time, but I learn very quickly too. This is most likely why you didn't receive a notice. BUT, don't let that stop you from saying that they didn't even tell you and neither did their system. A "reasonable" person would send notice before filing. So a judge might then just ask the trustee if they sent a notice. If they are truthful, they will say "no." That doesn't look very good. This also doesn't say how the notice must be sent. I personally think this rule needs revision to say "MUST" send a notification by certified mail or by personal service to ensure the obligor knows the storm is coming.
If everything you said is true, I don't think they can legally throw you in jail. Even if something happens, you have 48 hours in JOCO to appeal the issue to a judge (and you should). If you are not comfortable running your mouth for 10 minutes straight arguing your case (don't even take a breath), and can spin it in such a way that the trustee has been unreasonable, you might want to hire an experienced female attorney.
If you'd like me to take a more in depth look at your situation, I'd be happy to review it for you. Just PM me on here. I don't like the idea of debtor's prisons, because it seems counterproductive, so I don't want to see you go down the wrong path.
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PM sent. In reply to your post, I can prove they didn't send a notice. They make a notation on their site when a notice is sent out, with the date. I have a screen cap that shows May 6th, 2011 to the date I was served. There is no notation of any delinquency, nor notation of any notice being sent.