>Gathering information here and trying to decide on an
>attorney so any information is greatly appreciated.
>
>CA contols the support order, although BM and children live in
>OR and BF lives in NV.
>Stipulation was agreed on in January 2005 by BF to continue
>paying CA support amount, along with arrears and payments to
>CA for arrears for welfare received. Signed by judge in
>April.
>
>In June, BM files in NV to have interest added on to arrears.
>10% compounded annually for the past 10 years. Current support
>order ends June, 2006 as the children turn 18 in March and
>graduate in June.
>She got a computer printout from the state of OR and took it
>to an accountant to figure out the compounded interest and
>that was filed with her request.
>This printout does NOT show the amounts paid via the state of
>CA, however, NV CSE does have the complete audit with all
>payments shown.
>(example--OR shows NO payments for the entire year of 2003,
>but CA has those payments documented).
>
>Questions:
>1) Would Doctrine of Laches apply here? She is asking for the
>interest, not the state. Current order is almost ending so an
>attorney mentioned this doctrine.
Laches is the combination of unreasonable delay in prosecuting one's legal rights and a resulting unfair prejudice caused to the defending party. It certainly is arguable that not seeking to add interest to the judgment arrears for the past 10 years is a rather long time, however, that doesn't necessarily make it unreasonable. The question of unfair prejudice is the more important question -- have you done things for the children or the other parent during the past 10 years that, but for the interest not being collected, you would not have done? Have you made any substantial gifts, or paid the other parent extra money, or done any substantial labor on the other parent's or children's behalf? Have you purchased a more expensive home, or otherwise taken on substantially greater debts, as a consequence of your not being assessed the interest charges, and would an assessment now, cause you to be unable to satisfy these debts?
Also, if there is something in the January 2005 stipulated judgment that you would not have agreed to had the other parent attempted to obtain the interest payments at that time, and if there was a reasonable likelihood that you would have prevailed in getting a court to resolve that something in your favor if you had allowed a judge to decide the matter, rather than settling, then that would be a perfect Laches defense.
If you can answer these questions yes, especially as regards the other parent, then you have a Laches defense. If not, then you don't.
Of particular importance is making certain that the NV court knows that Laches has been used in CA before to excuse child support under such circumstances, and also, examining the circumstances under NV law upon which Laches has been used in the past. In reality, ony CA law applies, however, the judge will be familiar with NV rules and may confuse the two, possibly to your advantange if you can find more favorable NV case law.
>2) CA controls the order, so CA laws apply, yes? Several
>attorneys here in NV were unsure if interest could be
>compounded to begin with.
Yes. Interest accrues at 10% per annum on the unpaid arrears principal balance still outstanding on Dec 31 of each year and is NOT compounded.
>3) Is there any legal responsibility/accountability on BM's
>part for knowingly filing a printout that was not accurate?
Well, the question is, can you prove with "clear and convincing" evidence that BM knowingly misrepresented your arrears balance to the court? If you can, then you can ask the court to dismiss the entire action under the "clean hands doctrine," because the other parent's actions would be fraudulent.
This is not that simple to do, but if there's a lot of money at stake, then I would want to depose the other parent and get her to answer questions regarding how she calculated the arrears, in an attempt to trip her up. I would not advance a fraud defense in writing before deposing the mother, because she will have a chance to massage her story to show that her misrepresentation was innocent. Example:
Q: Why do you believe you are entitled to 10% interest per year for the past 10 years?
A: (you don't really care).
Q: Why do you believe that you are entitled to have the interest compounded annually?
A: My attorney told me. (evidence of fraud, because no competent attorney would so advise without checking in advance).
But, if she says, "The accountant told me," or "I looked up the law myself," then you're sunk on the fraud argument, because it's just an ignorant mistake, and the court won't hold her to her calculations.
If you can't prove a fraud, then you won't get anywhere on this issue, because it's your job to defend yourself and uncover mistakes in the other party's pleading -- exactly as you have done.
Topic: "Doctrine of Laches" (Read 1559 times)