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  • 1.  Material Mistake of Fact

    Posted 06-13-2016 06:32 PM
    Hello fellow list mates! 

    Obligor attended a child support hearing with the obligee and a hearing officer. The hearing officer imputed to the obligor an income far above what he is currently earning and above anything he has ever earned in the past. He is a seasonal worker and although he earns a high hourly rate, he does not work consistently throughout the year. His obligation was set to an amount that he cannot afford and now needs the obligation needs be recalculated using the correct income figures. 

    Because he entered into a consent order, it cannot be appealed. I am filing a motion for modification a little less than a week after he entered into the Order. 

    Does anyone have any case law for modification of child support based on a material mistake of fact? Any and all suggestions are welcome. 

    Thank you in advance! 

    --
    Tabitha Y. Clark
    Attorney at Law

    The Law Offices of Tabitha Y. Clark

    197 State Route 18, Suite 3000, South Wing
    East Brunswick, NJ 08816

    P: (908) 456-6487
    F: (908) 301-6623





  • 2.  RE: Material Mistake of Fact

    Posted 06-15-2016 09:19 PM
    Tabatha -
    <x-tab>        </x-tab>I hope counsel wasn't involved in that hearing.
    <x-tab>        </x-tab>If the CSG weren't both applied and attached and there was no knowing waiver of them, that might be your best shot at reopening (Google Ordukaya)
    <x-tab>        </x-tab>This was a consent order - not just waiving the right to see a judge, right? I litigated (a long time ago, but could find it) a case where a pro se litigant chose not to see a judge and counsel said that constituted a "consent order." The court didn't agree (very similar facts to yours). You say "consent", but also the a HO imputed the income to him - that doesn't sound like real consent. ("I find you earn $5000 per week, so will you consent to $500 per week CS?" -- not consent)
    <x-tab>        </x-tab>If possible, depending on the rest of your facts, I might approach it by arguing that he was pro se and didn't really realize that he could have a judge re-do the calculations and imputation decision. What evidence is there of his earnings? Bank statements? Collection notices? Rent? Indicia of lifestyle or lack thereof?
    <x-tab>        </x-tab>If you can't get a judge to let him retract his waiver of his right to appeal and get another day in court (your best shot), then I'd throw everything I can under 4:50-1, including the "catch all" provision to prevent injustice. ... just that you're going to have to show its injustice.
    <x-tab>        </x-tab>And keep your eye on the Appellate clock (45 days from the date of the order entry, but can extend by 30 for [low threshold] good cause - and I've gone further than that. A motion for leave to file out of time isn't a shot in the dark (had one granted 94 days after an FRO was issued; argued wording on them doesn't make appellate option clear, and two years when client was never served with DCPP final agency decision).
    <x-tab>        </x-tab>Good luck with it -- hoped this helped. It's tough where strategy is needed and a case (or cases) can't generally be thrown out to save you ... prove me wrong, Curt and Hanan!  :-)

    <x-tab>        </x-tab>Seriously, though, good luck with it.
    <x-tab>        </x-tab>The only upside is that if he can at some point prove his income solidly, it should be easier to get an adjustment by pointing to the imputed number -- it provides a much higher benchmark for a future modification motion.


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    - Dave

    David Perry Davis, Esq.
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