One of the many problems with the family court is not only the exhorbitant levels of child support ordered by the application of a "formula," but there is also the "added" prorated payments for normal activities of the children. If those "extra" charges are not part of the statutes, such as are medical expenses, then you are already paying for those "activities" through your current child support payments.
The following is an example of defending against adding those expenses to your child support payment. This is from a real Colorado case, but the arguments apply universally.
The Respondent (mother collecting child support) filed the following using a form supplied by the court:
MOTION FOR PAYMENT OF EXTRAORDINARY EXPENSESI am the Respondent in this action. I am requesting that extraordinary expenses such as soccer, swimming lessons, band, and dance be paid by Petitioner and Respondent based on percentage income.
My reasons are that the children need to be involved in extracurricular activities and the permanent orders filed in September of 1998 do not address the extracurricular activities of the children.
The Petitioner (father paying child support) responds:
COMES NOW the Petitioner, John Doe, Pro Se, and responds to Respondent's Motion For Extraordinary Expenses dated August 8, 2001 as follows:1. Extracurricular activities are not considered extra ordinary expenses as defined under Section 14-10-115, C.R.S. subsection (13) and therefore not subject to division by percentage income.
2. In a related case (In re Ansay, 839 P.2d 527 Colo. App. 1992) the court ruled that the cost of high school extracurricular activities such as cheerleading, driver's education, sports, and debate do not qualify as higher educational expenses under subsection (13) of Section 14-10-115, C.R.S. This ruling supports that extracurricular activities are not extraordinary expenses.
There were also statments indicating the particulars of the case.
The court scheduled this matter for hearing.
The Petitioner-father, believing that this matter should not be heard, filed a MOTION TO VACATE ORDERS TO SET FOR HEARING.
COMES NOW the Petitioner, John Doe, Pro Se, and requests this court to Vacate the Orders to Set for Hearing pursuant to C.R.C.P. Rule 121 Section 1-15 3., C.R.C.P. Rule 12 (b) (5), C.R.C.P. Rule 8 (a)(2) and the Colorado Bill of Rights Article II, Section 25. In support thereof, the Petitioner states:1. The Respondent's motion is not supported by a recitation of legal authority incorporated into the motion pursuant to C.R.C.P. Rule 121, Section 1-15 3.
2. The Respondent's motion fails to state a claim upon which relief can be granted pursuant to C.R.C.P. Rule 12 (b) (5). She asks for pro rata payment of recreation costs. The closest statute is C.R.S. 14-10-122 (13) - Extraordinary adjustments to schedule. In fact, the Respondent refers to extraordinary expenses in her motion. However, pursuant to 14-10-122 (13) extraordinary expenses do not include recreation or activity costs.
3. The Respondent's motion does not contain a "short and plain statement of the claim showing that the pleader is entitled to relief" pursuant to C.R.C.P. Rule 8 (a) (2).
4. Compliance with C.R.C.P. Rule 8 is critical if this court respects the concepts of justice, Rule of Law, and the constitutional rights of due process. [This rule contemplates notice to the opposing party concerning that which he is expected to defend. Bryant v. Hand, 158 Colo. 56, 404 P.2d 521 (1965). The theory of pleading is to give an adversary notice of what is to be expected at trial. Lyons v. Hoffman, 31 Colo. App. 306, 502 P.2d 980 (1972).]
5. Without proper notice concerning that which the Petitioner is expected to defend there are two separate violations of the Colorado Bill of Rights Article II, Section 25 (Due process of law. No person shall be deprived of life, liberty or property, without due process of law.)
a. It is a violation of procedural due process (due process of law) if this court fails to follow Rule 121 Section 1-15 3, C.R.C.P. Rule 12 (b) (5), and C.R.C.P. Rule 8 (a) (2) and require that the Respondent's motion contain a valid litigable controversy or claim showing that the Respondent is entitled to relief.
b. Without a valid litigable controversy or claim, any action by this court to restrict property rights would be a violation of due process of property. [The term "property" within the meaning of the due process clause includes the right to make full use of the property which one has the inalienable right to acquire. People v. Nothaus, 147 Colo. 210, 363 P.2d 180 (1961)]
6. An award under Respondent's motion would be an abomination against the sense of order in the disposition of the parties' dissolution.
7. This court was notified by the Petitioner's previous Motion to Dismiss Respondent's Motion For Payment of Extraordinary Expenses that there were "no valid litigable controversy under law to be determined" and requested that the Petitioner's motion be dismissed. However, the court in this instance failed to uphold the Petitioner's rights to be free of groundless and frivolous litigation.
WHEREFORE, the Petitioner respectfully requests that the court Vacate the Order to Set for Hearing and Dismiss Respondent's Motion for Extraordinary Expenses forthwith and for any other and further relief that the court deems just and proper in the premises.
The court denied the Petitioner's MOTION TO VACATE ORDERS TO SET FOR HEARING.
The parties go to hearing and the court administrator calls them aside and states that there is nothing to litigate. The Respondent-mother goes "berserk" and shows the paperwork that the court set the matter for hearing. The judge told the administrator that the matter was settled and that he was not going to hear it. We do not know why this case was not heard. It could be that the judge made a mistake about allowing this to be set for hearing or after reviewing the MOTION TO VACATE ORDERS TO SET FOR HEARING on the day of the hearing, he decided it was in his best interests not to hear the case.
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