Q. A child support order was entered against me without my knowledge, approximately
8 months ago, when my ex-girlfriend filed a motion but never served me
with it? It is more than I should have been ordered to pay, since she
claimed I make $10,000/month, which isn't close. I learned about it
three months after she got it when she garnished my wages. I didn't
have the money to hire a lawyer. What do you recommend?
A. A party has six months to move to set aside an order that was entered
against through them their mistake, inadvertence, surprise or excusable
neglect pursuant to
C.C.P. section 473. Here you blew the time for this type of relief, since the order was issued
8 months ago. Had you filed a 473 motion at once, you probably could have
succeeded on that basis.
Family Code section 3690(a) now governs your situation. Subsection (b) states: "(b) In all proceedings
under this division, before granting relief, the court shall find that
the facts alleged as the grounds for relief materially affected the original
order and that the moving party would materially benefit from the granting
of the relief."
You must establish that there was an actual fraud, perjury, or lack of notice.
Family Code section 3691. Your request for relief must be brought within six months of the date
on which you discovered or reasonably should have discovered the ground(s)
for relief. That clock began to run three months ago.
As a condition to granting relief (which may include a retroactive modification
to what should have been ordered), the family court must find that your
grounds for relief materially affected the outcome, i.e., that the support
number would have been substantially lower and would not have been issued
but for her fraud. The court cannot set aside a support order simply because
it finds that it was inequitable when made, or because subsequent circumstances
caused the support amount to be excessive, without more.
Family Code section 3692. By the way, fraud is always the hardest thing to prove and should never
be your first choice - argue lack of notice, and remember the harder ormeaner
you attack her the more a court might unconsciously work to protect her.
The Court is restricted to setting aside only the parts of the support
award that are materially affected by the circumstances leading to the
court's decision to grant you relief, but the court can set aside
the entire order based upon equitable considerations.
Family Code section 3693.
Here you have the ground of never having been served. Your other ground
would be her false statement that your earnings were $10,000/month, which
should be easy to establish if this amount is far in excess of your historical
earnings. You will want to clearly establish that fact, using tax returns
or employer wage statements - never make this type of motion based upon
your word or an Income and Expense Declaration alone.
This situation is more problematic for self-employed persons since often
they claim personal expenses as business write-offs - even if that flies
with the I.R.S. they may be added back as 'cash flow available for
support' purposes. If after questionable expenses are added back your
numbers and her's don't seem so far apart, your likelihood of
This is the procedure parties, including support recipients, who attended
a contested hearing would use if they later discover the other party lied
about their income. Be careful though, if your evidence isn't substantial then the Court
will review your attempt to set aside the earlier order as a
"disguised motion for reconsideration" and you will surely lose.
Family Code section 3652 provides that the court may award attorney fees in favor of the party
who prevails in a set aside motion - which cuts both ways, of course.
FC section 3654, either party is entitled to a
statement of decision from the Court, upon request.