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Ostler/Smith using inclusive earnings


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#1 DonewithSMC

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Posted 29 September 2009 - 11:30 AM

Today in court, the judge took my year to date pay on from my 8/23/09 paycheck to calculate CS.

There are two problems here, first, I received a paycheck on January 2, 2009 that was for 12 days of pay for 2008 (this was on my 2008 W-2) and Year to date overtime.

He got a monthly amount based on that total and THEN APPLIED Ostler/Smith! He calculated over $700 a month in income I do not received and may not receive and then included a percentage of overtime.

How is this correct? First, I did not earn 2008 dollars in 2009, he has me running at $130,000 per year. My base is only $121,000 per year!!! and I will now have to pay overtime on top of this!!
I have to pay child support on a salary I will not receive!

Can I file an appeal? Clearly is is NOT Ostler/Smith as it pertains to fluctuating income and he used incorrect Year to date earnings to make this calculation.

It is outside of Guideline. Once I receive the final judgment and FULL transcript, I will be appealing.

I stated that he is calculating using inclusive income and he just said "well, I'm not gonna run new numbers"...

I am sure we can have this overturned..

Thoughts?

#2 cincsu

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Posted 29 September 2009 - 11:57 AM

i don't know about the other questions but as far as including the 2008 income earned in 2009 you will earn income in 2009 that you will receive in 2010. so, that washes out in the end.

when my husband goes to court they calculate CS based on his annual salary. so they input the paycheck amount as every other week.

what is your annual salary? not just what you earned or received pay for in 2009...that is what they look at.

regarding ostler/smith i don't know how that works at all.

it does seem like they made an error in including your overtime in your salary if that was the case.

#3 Jim Reape

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Posted 29 September 2009 - 12:02 PM

That is one of the problems in doing a year to date calculation. Imagine you make $1,000 per week so that is $52,000 per year...easy enough. But if on January2 of any given year you appear with the pay stub from the day before (which also happened to be your weekly pay day) the year to date function (unless you adjust for the compensation paid for work performed last year and paid this year) on the computer will compute the wages at $365,000 per year.
The later the the year the less of an impact it has on the calculation.
I am not sure you need to do anything on the Ostler Smith...if the court order says pay "X"% on income in excess of what the court found as your monthly average you wont get there without an increase in overtime. If however the order has you paying support on any earrings over your base pay then there will be a resulting overpayment.
Where was your case heard? Who was the bench officer? If you have a discernable base why the fuss about calculating year to date income?

#4 DonewithSMC

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Posted 29 September 2009 - 12:31 PM

We were heard At Stanly Mosk, Los Angeles..The Honorable Hank Goldberg.

We even stated in court that he is running the Child Support on total earnings to date which included overtime.

My base pay for the first six months (or 1040 hours) was $58.30. The remainder of the year my base pay is $59.47. This comes out to a base salary of $122480 (or $10,206 per month). He failed to include the health premiums I pay to cover the children ($455/month) and based my monthly income on total earnings year to date with a monthly of $10869. This now assumes that I will make at least $600 a month in overtime. I have only made $2,600 in overtime so far and that comes out to (Year to date) $218 per month (if you include September - no overtime).

So now I have to pay based on income of $400 I do not get and a percentage of income over the $10869 that I do get, how is that fair?

I used my per paycheck amounts, multiplied by 26 and divided by 12. I came up with (before my raise that just took effect) at just over $10100. Not sure why he used YTD when I am paid bi-weekly. It make no sense to me.

I am paying for money I have not earned


#5 Jim Reape

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Posted 29 September 2009 - 12:44 PM

This judge is relatively new to Family Law. I still do not see at what point you pay an Ostler Smith percentage...if it only kicks in when you make over $10,869 a month then you won't pay anything as you do not make that much.
It seems that the much easier approach is to take your current pay of $59.47 per hour and come up with a monthly base of $10,308 and apply a percentage to earnings over that amount (or actual overtime)
The failure to consider out of pocket health insurance cost was a clear error. How did that get missed?

#6 DonewithSMC

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Posted 29 September 2009 - 12:57 PM

When we took a break to check the calculation, I was so blown away by the monthly figure he came up with! I had not come up with more than $10300 inclusive.

Here is how I get hurt. I will have to make (going forward) at least $8000 a year in overtime to break even! if I make more, she gets a percentage of that as well.

She gets a percentage of anything I make over the $10869 per month. The economy being what it is, I rarely make overtime. But if I get a project where I am making overtime for three months, and it is over $8000, she gets anywhere from 12%-14% of this and this is above and beyond guideline. If I do not make 10869 per month the rest of the year or in any months following, I am paying over guidline.

Wouldn't this be grounds for appeal? Ostler/Smith is calculated on BASE earnings. He took inclusive...


#7 DonewithSMC

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Posted 29 September 2009 - 01:00 PM

Also..The annual he calculated comes out to $130000 a year. I may only make $125000...

I cannot go back into court and ask for a reduction at year end, that would get me thrown out of court!

#8 DonewithSMC

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Posted 29 September 2009 - 01:10 PM

QUOTE(DonewithSMC @ Sep 29 2009, 02:00 PM)
Also..The annual he calculated comes out to $130000 a year.  I may only make $125000...

I cannot go back into court and ask for a reduction at year end, that would get me thrown out of court!

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Sorry, one more question/point to make. Does excluding Spousal support from the calculation change the CS numbers?

#9 cincsu

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Posted 29 September 2009 - 01:17 PM

QUOTE(DonewithSMC @ Sep 29 2009, 09:10 PM)
Sorry, one more question/point to make.  Does excluding Spousal support from the calculation change the CS numbers?

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if you pay spousal support it does because that is directly taken off your income and added to hers. download a free copy of the dissomaster and run the scenarios.

i put in 2 kids at 38% timeshare with you and assumed she was making 3K per month. i get 1469 in support with you making $10,869 per year without the medical deduction. with the medical deduction of 455/month for insurance i get $1376.

when i plug in your salary at 10308 per month according to Mr. Reape i get CS at 1396 with no medical deduction.

so, you are looking at roughly 13.5% of your income in CS....based on my assumptions. if the ostler/smith would have you pay 14% in CS you may consider not going back to modify.
it has always seemed to me (watching my husband who pays support) that the judges always err on the side of "giving more money to the children"

#10 DonewithSMC

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Posted 29 September 2009 - 01:26 PM

She argued hours for custody and got it.

I get 1st, 3rd and 5th extended weekends and Wednesdays from 6:00PM to 8:00AM and the judge "gave me" two weeks during the summer.

I originally did not have the two weeks calculated in at the prior custody was 35%. How he can add two more weeks in and get less is beyond me.

He gave me calculation on 32%

I have used the State of California Child support calculator and get vastly different numbers.
Where can I find the Disso-Master to download for free?

Also, I have no problems basing CS on my BASE pay with the correct assumption and a percentage of overtime...Per Ostler/Smith but this is too much!

#11 cincsu

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Posted 29 September 2009 - 01:34 PM

that stinks on the hours!

google dissomaster free trial

and it is the first link that pops up. you have to download it. not sure if i can post the link here because some systems won't show them, but it is:

http://www.cflr.com/...load/dmdemo.php

#12 DonewithSMC

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Posted 29 September 2009 - 01:39 PM

I agree about the hours and believe that this should be overturned as well. Check out Ostler/Smith at the following. Download the entire article. It clearly states the judge was in error on the calculation.

http://www.hansonflg...cles/detail/132

I need to know if I can appeal on the following:

The inclusive income used for guideline and also incorporation Ostler/Smith

The exclusion of Health premiums

The change of the custody calculation

The exclusion of the spousal support

Please let me know. We were just heard today. Can I request another hearing based on these errors or does this have to be appealed.

Final judgment has not been written, agreed to or filed.

Thanks

#13 Jim Reape

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Posted 29 September 2009 - 01:59 PM

You have a right to appeal but appeals are tricky and are decided based on the record on appeal and the applicable appellate standard. Typically you want to tr and clear things up in the trial court first.
How did the health insurance get missed? Also what did the court find as your earnings per month? What is the exact language of the Ostler Smith provision in other words pay a percentage of earnings over what?

#14 DonewithSMC

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Posted 29 September 2009 - 02:26 PM

I have no idea why the judge missed the health insurance.

I am paid bi-weekly and was paid on January 2 for the pay period end date of 12/28/08. These earnings were reflected on my 2008 W2. They included these earnings in my total compensation for 2009. They also included over $2600 in overtime.

As of Pay Period end date 8/23/09, my total earnings (including overtime) were $86955.95.

He took that number and divided by 8. Exactly $10869. My per paycheck base is $4664.42 (except for the last two which where $4757.60). Let's say we take the first 6 months before the increase. That would make the base as follows:

4664.42 x 26 / 12 = $10105. Multiply this by 8 and the YTD true base earnings are $80840. Add the $2623 in overtime and you still only come up with $83463.

I cannot see how he does not see this!! I am being penalized because I have two weeks of 2008 earnings on my 2009 YTD. This will not correct itself at the end of the year as I will NOT be earning $130,000 base as he puts it.

My base is only $122,000. I would love to have a re-calc based on this and THEN award a percentage of future overtime.

Is this not the way Ostler/Smith works?

Can I request that this be recalculated? OP is writing the final order. What can I do to get this corrected?

and can Spousal Support I pay to her be added in?

Thank you




#15 DonewithSMC

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Posted 29 September 2009 - 02:43 PM

QUOTE(cincsu @ Sep 29 2009, 02:34 PM)
that stinks on the hours!

google dissomaster free trial

and it is the first link that pops up.  you have to download it.  not sure if i can post the link here because some systems won't show them, but it is:

http://www.cflr.com/...load/dmdemo.php

View Post



Okay, I did the calculation using this disso-master. I plugged in the same numbers the judge did and got his guideline. I then plugged in the health insurance and got CS at $100 let per month.

Also, they use DAYS...I put in 32% and it came up with 116 days. I have them MORE overnights then that. How can you enter a percentage that uses days when the percentage plugged in is based on hours?

How CAN THIS BE?

#16 Jim Reape

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Posted 30 September 2009 - 09:40 AM

The code mentions the "approximate" percentage of physical responsibility the non custodial parent has. The code does not require an exact calculation. See also DaSilva v DaSilva (2004) 119 CA4th 1030 and In re Marriage of Rosen (2002) 105 Cal.App.4th 808.

#17 DonewithSMC

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Posted 02 October 2009 - 08:10 PM

I am filing a Motion for Reconsideration. Is there an actual form for this? If so, what is the form number.

I have already created my declaration motion and Memorandum of Points and Authorities and am getting a letter from my HR department to show my actual earnings for 2009.
I know I have 10 days from the hearing to file this so if you could let me know asap, that would be great!

Thanks!!


#18 Jim Reape

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Posted 03 October 2009 - 06:12 AM

There is no special form. You use the regular notice of motion forms.




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