Can You Challenge Support Arrears Based on Non-Service of a Child Support Action

My question involves a child custody case from the State of: California

I recently had a set-aside motion that I filed denied and I am unsure what to do next. Here is a little background:

My son was born in 1996 and lived with me and his mother (never married) until 1999, when I moved out. I was working odd jobs and ended up moving to Argentina for work in August 2000. I returned to the US on July 4, 2001. While I was out of the country my ex applied for some form of assistance so the state opened a child support case against me. After I returned my ex took my son and moved out of state (to Iowa). They returned to live with me, but she moved out of my apartment and took my son in 2003 and I didn't have contact with either of them until 2008 because I had no idea where they had gone.

I finally got a lead as to where they might be and tracked them down to an apartment and confronted her saying I wanted to be a part of my sons life. I was in the army and about to be deployed to Afghanistan and when she found this out she served me with court paperwork for child support. It was for the middle of December 2009, but I deployed on 12/3/09 so I was unable to attend and sent back my response. While I was overseas the order came in that I was to pay $390 per month and my wife sent a check in for the first few months, but then it started coming out of my pay so we stopped. Because of the overlap of paying by check and it being garnished, we were two months ahead in payments. When I got home in January 2011 I immediately deployed to Afghanistan again in March 2011. This time I was injured and was sent to a hospital in Ft. Lewis, WA (2012). While I was there I applied for Social Security Disability.

I was approved for disability in 2013 and was to receive back pay from the time I was injured to present. Instead of receiving the $11k I was owed, I received exactly half. After contacting Social Security to find out where the other half went, they said that California ordered the money be taken out because I owed child support arrears! Up until then I had never been late on a payment and had actually been ahead 2 months. I contacted Child Services in CA and they said that my ex filed a motion to audit my account. They found that I should have been paying child support since 2001 when an order was issued while I was out of the country. Something I was unaware of. They "reinstated" child support from 2001 to 2013 with interest which was approximately $80k.

I filed a motion to set aside based on the fact I was never served anything and never knew I had an open child support case until 2009. Before I filed the motion I contacted the US State Dept for a copy of my movements in and out of the country in 2000 and 2001 so I could prove I was never served as they were saying. The email from the State Dept stated they would have everything to me by September of 2014 so I scheduled my hearing for October 2014. It never came so when I went to court I asked for an extension and was granted one. A few months later at my next court date my ex asked for an extension and was granted one as well. That was good because I STILL didn't have anything back from the State Dept. My last court date came and I still didn't have proof that I was out of the country. I took witnesses (including my mother who the state claimed to have served in my absence) but the judge ruled against me staring that serving my mother was good enough (even though we were estranged at the time and hadn't spoken in 9 years).

Well, last month I FINALLY received all the documentation from the US State Dept proving that I was out of the country at the time of service. I don't know what to do next. My son is now 20 years old and I owe his mother $100k in arrears. I have a wife and a 7 year old daughter and Child Services is taking $300 per month from me even though I'm permanently and totally disabled. Any advice would be greatly appreciated. Thank you.

There are several ways of serving you which don't actually involve personal service.

Do you actually have a copy of just what was served, when and how?

(Being out of the country does not necessarily mean you weren't legally served)

It was served at a house that I hadn't lived at in many years to a person who I hadn't spoken to in 9 years (my estranged mother). I understand that a substituted service allows for certain things, but the judge's contention that just because my mother and I weren't on speaking terms and hadn't spoken in such a long time doesn't mean that I couldn't be served at her residence. I obviously disagree. That opinion, coupled with the fact that I didn't have proof of my whereabouts at the time of service, led to him ruling against me. (Although my mother testified agreeinh to what I was saying). I said that had they served my father or my uncle or my cousin or anyone on my father's side, then they could have gotten word to me. Even if they had posted an ad in the paper, I would have had a better chance of being notified. Because I wasn't notified, I was denied my right to go to court and dispute the amount that they entered in my absence. I find it hard to believe that they can come back 13 years later (2 months before my son turns 18) and change my child support balance from plus $780 to negative $80k and I have no recourse.

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Quoting Bluecord

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It was served at a house that I hadn't lived at in many years to a person who I hadn't spoken to in 9 years (my estranged mother). I understand that a substituted service allows for certain things, but the judge's contention that just because my mother and I weren't on speaking terms and hadn't spoken in such a long time doesn't mean that I couldn't be served at her residence. I obviously disagree. That opinion, coupled with the fact that I didn't have proof of my whereabouts at the time of service, led to him ruling against me. (Although my mother testified agreeinh to what I was saying). I said that had they served my father or my uncle or my cousin or anyone on my father's side, then they could have gotten word to me. Even if they had posted an ad in the paper, I would have had a better chance of being notified. Because I wasn't notified, I was denied my right to go to court and dispute the amount that they entered in my absence. I find it hard to believe that they can come back 13 years later (2 months before my son turns 18) and change my child support balance from plus $780 to negative $80k and I have no recourse.

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If you are to stand any chance of success, you'll need an attorney.

I think you're going to be disappointed with the result of any appeal, but given the amounts involved it's certainly worth at least an initial consultation with an attorney.

I've already resigned myself to the fact that I'm probably not going to like the results, but on what grounds could I base an appeal? Can I just file a new motion to set aside because I now have proof from the State Dept that I was not living here in the US at the time of the service?

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Quoting Bluecord

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I on what grounds could I base an appeal?

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When you appeal you have to show that the judge made an error either in interpreting the facts or applying the law.

Trouble is, you usually have a limited amount of time to file an appeal, or notice of appeal, often less than 30 days from the entry of the judgment.

That ship has likely sailed.

"the judge's contention that just because my mother and I weren't on speaking terms and hadn't spoken in such a long time doesn't mean that I couldn't be served at her residence."

I can't guarantee it but if you can show that that is judicial error in applying the law. Still, there is the deadline issue.

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Quoting Bluecord

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Can I just file a new motion to set aside because I now have proof from the State Dept that I was not living here in the US at the time of the service?

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You can file it but it's likely to be denied because new evidence is not grounds to set aside a judgment (unless somehow fraudulently prevented from entry by your opponent). Nor is it grounds for an appeal.

You also need to resign yourself to the fact you will need to pay an attorney if you want even the remotest chance of success.

The main problem I was having was that I had to file a Freedom of Information Act (FOIA) request to get the documents needed from the State Dept and they took almost 2 years to get me the information. The original judge (they're not actual judges but commissioners, I think) in the case was sympathetic to my problems with the FOIA request which is why he postponed the hearing. When I returned, however, another commissioner was in his place and refused to postpone it any longer and refused to really listen to anything I said. He never really knew the case like the original judge did. Is there any way to get around the 30 day timeline for filing an appeal? It's obviously been a lot longer than that because, again, I've had to wait on the FOIA request to come through, which it finally has. I plan on talking to an attorney later this week, I'm just curious as to what everyone here thinks so that I'm better informed when I speak to an attorney.

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Quoting Bluecord

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The main problem I was having was that I had to file a Freedom of Information Act (FOIA) request to get the documents needed from the State Dept and they took almost 2 years to get me the information. The original judge (they're not actual judges but commissioners, I think) in the case was sympathetic to my problems with the FOIA request which is why he postponed the hearing. When I returned, however, another commissioner was in his place and refused to postpone it any longer and refused to really listen to anything I said. He never really knew the case like the original judge did. Is there any way to get around the 30 day timeline for filing an appeal? It's obviously been a lot longer than that because, again, I've had to wait on the FOIA request to come through, which it finally has. I plan on talking to an attorney later this week, I'm just curious as to what everyone here thinks so that I'm better informed when I speak to an attorney.

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Exactly how far beyond 30 days are you?

Almost a year and a half

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Quoting Bluecord

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Almost a year and a half

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I hadn't realized it was so long ago.

I don't think you have a snowball in Hades' chance of successfully appealing; in fact I don't think you have a chance of an appeal even being heard.