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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 09-25-2018, 11:40 AM
StillPaying StillPaying is offline
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Default Res Judicata - No Material Change

We had our case conference and now I'm working on my factum to bring a motion and was looking for some help.

We had a trial 3 years ago where everything was discussed and ruled on, on a final basis. We were giving a 3 year review date to update our imputted incomes, child support, and determine my ex's efforts to maximize her income for spousal support.

My ex is claiming material changes and hoping to retry all the same issues again. I'm saying there have been no material change and I'm simply trying to follow our final orders.

Although I'm the applicant/moving party, I would like to address this in my factum up front.

Is there any test or something I have to prove to show res judicata, that all this has already been ruled on?

Would proving no material change be a separate issue I have to show?
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Old 09-26-2018, 11:20 PM
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I was hoping someone had experience claiming no material change or res judicata, but this is what I've found.

At motion, I can first ask that the court dispose of part or all of my ex's case, to shorten trial and save costs, under FLA 16 (12) (a).
This is due to res judicata and issue estoppel, with a 3 part test of showing it's the same issue, same parties, and decision was final.

After that I can discuss no material change, to show that even if res judicata doesn't apply, my ex's claims should still be dismissed.

Then I would ask for my claims (income, cs and ss) as per our review in our final order.

Is this the right strategy? Otherwise, as the moving party, should I simply file my motion with less material asking for only my claims as per our review in our final order. Wait for the response, then file my reply regarding res judicata and material changes?

Also could this be done at a regular motion, under an hour, or would I need a long motion to address our issues? I'm hoping my mtc can be dealt with at motion instead of trial.
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Old 09-26-2018, 11:39 PM
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What is ex claiming?

If your final order had a review date, why does she have to show a material change of circumstances? The entire point of a review date is to remove the burden of having to show a material change...
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Old 09-27-2018, 09:57 AM
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It's my position that our review date has a very specific purpose. What has my ex done to maximize her income, to see whether her imputed income should remain at min wage or be increased to an appropriate amount. This also relates to whether spousal support should terminate.

At trial, my ex argued my income should be more and her health means her income should be zero. Judge ordered what's included in my income and that my ex should be imputed min wage.

I filed my motion to change and she responded with the same arguments as before. My income should be more and she should have no imputed income.

Our trial was all related to what's included in my income and my ex's health and ability to work. I believe she would need a material change to address these issues again, as they have already been decided on.

She says she has done nothing since trial, still on social assistance, while hiding a cash business.
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Old 09-27-2018, 10:19 AM
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I may be wrong, but to me our review should include:

1. Final order says what my income is. Therefore it should be updated accordingly.

~ ex should not be able to go after my income sources that have already been denied on final order.

2. Final order says ex should have full time min wage imputed. I could go for more based on her business and lifestyle, but for now the min wage should just be increased to the new min wage amount.

~ ex should not be able to try and remove her imputed income again without a material change.

3. Update offset child support based on new amounts.

~ ex should not be able to claim no income and full table child support when offset has already been decided without a material change.

4. Terminate spousal support based on ex's lack of efforts, etc.

~ at review, ex should have to prove eligibility on why spousal should continue.
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Old 09-27-2018, 02:33 PM
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Your interpretation of the agreement may be correct or not, and is certainly a reason to go to court. However, this is not Res Judicata, not by a longshot. This is a review. You feel the review should go one way, she feels it should go another. Time for a trial!

It feels to me that your interpretation of the review is "things that help me are ok, things that help her are not ok".

You may find that it could be challenging to find a judge who will be selective like that.

Quote:
Originally Posted by StillPaying View Post
1. Final order says what my income is. Therefore it should be updated accordingly.

~ ex should not be able to go after my income sources that have already been denied on final order.
I moderately agree with you there. If an income stream was explicitly ruled as not being an income source, then it is not an income source. However, it is certainly open to your ex to contend that there has been a change... for example perhaps you are making a lot more from a given income stream, and have neglected income from the different stream from which she derives her support.

Quote:
2. Final order says ex should have full time min wage imputed. I could go for more based on her business and lifestyle, but for now the min wage should just be increased to the new min wage amount.

~ ex should not be able to try and remove her imputed income again without a material change.
A review is a review. If there was no review date, then she would need to prove a material change. Since there is a review date she does not have to prove a material change.

I think it is unlikely she will prevail without a material change, but she can try.

Quote:
3. Update offset child support based on new amounts.

~ ex should not be able to claim no income and full table child support when offset has already been decided without a material change.
A review is a review. If there was no review date, then she would need to prove a material change. Since there is a review date she does not have to prove a material change.

I think it is unlikely she will prevail without a material change, but she can try.

Quote:
4. Terminate spousal support based on ex's lack of efforts, etc.

~ at review, ex should have to prove eligibility on why spousal should continue.
Did your agreement have a clause that said "ex must prove eligibility to continue SS past the review date, said eligibility to be based upon effort or lack thereof."?

Probably not...

That said, a review is a review, which means you don't have to prove a material change to stop SS. That said, without a material change, I think it is unlikely that you will prevail.
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Old 09-27-2018, 04:57 PM
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Our review order says:

- I would impute the respondents income at $22,800, which is effectively minimum wage employment. This takes her health issues and need for upgrading into account. It is appropriate that the child and spousal support amount be reviewed after 3 years to determine what progress the respondent has made to return to the workforce. It must be made very clear to the respondent that she has an obligation to return to the workforce and maximize her earning potential.

- the spousal support amount may be reviewed after 3 years to determine what efforts the respondent has made to self-sufficiency, or at an earlier date in the event of a material change.


Regarding my income, our final order says my income is x y,z and not a,b,c. Ex is asking for a,b,c again.

Regarding ex's imputed income, our review should not be about whether she should have one. Our review is more spousal related. What is her current employment income, otherwise should it remain at min wage or a more appropriate amount. Her same health issues should not be argued again.

Child support will follow any income changes, then spousal support should be on my ex to prove why it should continue and I'd argue why it should stop.

What's the line that separates a review with a new material change issue? Surely a review isn't an open door to retry all issues.
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Old 09-28-2018, 11:28 AM
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Quote:
Originally Posted by StillPaying View Post
Our review order says: (lots of things)

Seems like you are going to win. The order appears to be fairly clear cut that she needs to start earning income.


Quote:
Regarding my income, our final order says my income is x y,z and not a,b,c. Ex is asking for a,b,c again.
It seems like she is unlikely to win, but as I said if she could show that income from x,y,z has not been as high as expected, and a,b,c is much higher than expected, maybe she could argue it?

Quote:
Her same health issues should not be argued again.
To me this is exactly what a review should be about...


Quote:
Child support will follow any income changes, then spousal support should be on my ex to prove why it should continue and I'd argue why it should stop.
I'm not sure why the onus lies on her to show entitlement. She already demonstrated entitlement and that is why she is getting SS. Offhand, I think the onus is on you to show why it should stop.

Quote:
What's the line that separates a review with a new material change issue? Surely a review isn't an open door to retry all issues.
That's a good question. I just know that your reasoning of "review means must show a material change" is likely incorrect because if that were true there would be no point to reviews . I don't have any reviews in my order, so I've never really looked that closely into the issue.
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Old 09-28-2018, 01:59 PM
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Quote:
It seems like she is unlikely to win, but as I said if she could show that income from x,y,z has not been as high as expected, and a,b,c is much higher than expected, maybe she could argue it?
Without giving all the details, our order says income is abc, not xyz. It also mentions that axyz amounts will change, but my income will still be new a and bc.

Quote:
To me this is exactly what a review should be about...


I'm not sure why the onus lies on her to show entitlement. She already demonstrated entitlement and that is why she is getting SS. Offhand, I think the onus is on you to show why it should stop.
I go cross-eyed trying to read everything, but spousal support reviews seem to be de novo, or starting from scratch, unless the order is clear on what should happen with termination, amounts, etc.

Our orders are clear that my ex should work, but not on what happens now besides ex having to show efforts of self-sufficiency. Ss was ordered "providing reasonably equivalent incomes in each home".

I will certainly address why ss should stop.


Quote:
That's a good question. I just know that your reasoning of "review means must show a material change" is likely incorrect because if that were true there would be no point to reviews . I don't have any reviews in my order, so I've never really looked that closely into the issue.
I'm trying to get the best of both worlds. A review does not need a material change, but it should have a specific purpose. I'm asking for those specific items based on the review. I'm also saying that what my ex is claiming is outside the specific scope of the review and would need a material change.
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Old 10-01-2018, 09:32 AM
StillPaying StillPaying is offline
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Does anyone have experience with a spousal support review?
Or arguing review issues vs variation issues?
Res judicata with issue estopple?

I brought a motion to change to reduce support as per our final order. My ex responded with a whole bunch of issues, hoping for a better result than our final order. I want to make sure I present my motion properly.
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