WILL OUR COURT ORDER PREVAIL OVER THE TRANSCRIPT?

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: Do the written court orders (or the transcripts) prevail if the judge made a statement that wasn't captured in the final orders? Our original child support orders stated that my ex could claim our daugher on her taxes every two years to my one. We never agreed to this arrangement, but I signed it (not noticing) and claim her for 2008 and 2009 she did. At a child support/modification hearing in the middle of last year, the judge stated that I could claim her in "alternating years" as long as I wasn't "in arrears on my child support payments". The language in the updated court order reflects this statement. The judge also stated that in years that I claimed her, the amt of my child support payments should be $20 more/mo. The new orders show 1 fixed monthy amt (don't reference a higher amt) & that's the amt my ex invoiced me for the rest of 2010. I'm not in arrears yet. my ex claimed her for 2010. I believe wrongly. I've already paid support for the first three months of 2011 in the amount indicated in the order, w/out an invoice from my ex. She just invoiced me, for 1/1/11 in the higher amount ($20 more/month). There's no mention of the higher amount anywhere in the orders that we and the judged signed. There is, however, two dissomasters attached (with the lower and higher amts). Does that imply what isn't formally written? What am I legally required to pay? And should I try and claim my daughter on my taxes?

ANSWER: Whereas the new order would currently prevail, it is evident that the drafter of the order made an error in the order, especially in view of the two DissoMasters attached to the order.

Your ex could file a Motion for a "nunc pro tunc" correction of the new order, to conform to the Judge's oral pronouncement that you pay $20 more per month in years that you claim your daughter.

Bear in mind the likelihood that the same Judge will likely be the same judicial officer that hears subsequent matters in your case.

Whereas under the existing order, you weren't and aren't technically in arrears, you didn't qualify under the order to claim your daughter for 2010, because you didn't pay the $20 more per month during 2010.

Furthermore, you aren't qualifying to claim your daughter in 2011, because you haven't been paying the $20 more per month in 2011.

The reason for the Judge's pronouncement that you pay $20 per month more in years that you claim your daughter was that the exemption that you would receive (at the end of the year) would free up additional funds for support (during the year).

A possible solution to the mess would be a Stipulation and Order signed by both parties and filed by the Court, modifying the new order to state what the Judge pronounced, but I would suggest adding another term to the Stipulation and Order requiring the parties to exchange completed and signed Form 8332, Release of Exemption by Custodial Parent, by December 31 on alternate years (odd for one of you, even for the other), and if a party has not provided the other that completed and signed form by the deadline, that party shall reimburse the other the additional tax obligation incurred by the other as a result, plus any attorney's fees and costs incurred by the other in seeking to enforce that reimbursement.

If your ex is not willing to enter such a stipulation, you might consider filing an Order to Show Cause seeking correction and clarification of the Court's order, and requesting that the Court include language of the sort addressed above in its corrected and clarified order.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Divorce Lawyer and Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. www.conviser.net.