Consent Order Entered Without Consent

My question involves court procedures for the state of: Michigan

The situation is long and complicated involving what should have been a simple child support recalculation, which normally takes 3-6 months, if there are objections. My ex has managed to drag this out for 20+ months at this point. We had a de novo hearing in July 2017 and the judge verbally stated he intended to implement the FOC recommendation, as written, in the interim between the other party insisting on an evidentiary hearing. I will skip all of the details for brevity, however, my attorney at the time informed me via e-mail on 7/6/17, the week before the videntiary hearing, that she and the other attorney had decided to "put everything on hold for now" and that the hearing the following week was cancelled. I immediately called her to let her know I was not in agreement with that plan. I had also have other e-mails showing I did not want another delay at all. I discovered 20 days later, while viewing the court website, that a consent order had been entered on 7/13. I was not aware of that fact and had never seen a copy of the order before it was filed. The first time I saw it was on 7/27 when I drove to court to get a copy myself.

Is an attorney able to enter into a consent order on my behalf, against my expressly stated wishes and without my knowledge? What steps can be taken to vacate that order? Where can I find legal precendence and/ or case law to support vacating the (non) consent order?

What did your attorney say when you asked the question?

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Quoting Kds1368

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Is an attorney able to enter into a consent order on my behalf, against my expressly stated wishes and without my knowledge?

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Your attorney shouldn't do that; but is it possible that your attorney misrepresented to opposing counsel and the court that you consented to the order? It's possible.

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Quoting Kds1368

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What steps can be taken to vacate that order?

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First you need to find out exactly what happened. Then you need to figure out if there is a reason to try to overturn the order -- if you're going to end up in exactly the same situation following additional hearings, you could end up expending a lot of time and money just to get back to your starting point, and you would risk having the court assess sanctions against you for the other parent's legal fees.

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Quoting Kds1368

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Where can I find legal precendence and/ or case law to support vacating the (non) consent order?

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Google Scholar for one; but as a starting point for any case law research, you need the facts.

Thanks for your help. I will attempt to fill in the blanks with a timeline.
8/30..During an e-mail, I was very clear that I could not have yet another delay. (Plaintiff has delayed multiple times)

9/6.. Email from my attorney stating that she an opposing attorney have decided to adjourn the hearing for now and that there is no court scheduled for the week or month

9/6... I immediately call her after receiving the e-mail to reiterate that I was not in agreement with that course of action and explained how delaying is detrimental to me and the children. She said she would get back to me and hung up.

9/13... This is the date that the consent order was signed and entered without my knowledge or consent

9/26...I checked the Register of Actions online to see if there had been any updates and discovered the mysterious consent order. I had neither seen it nor consented.

9/27...I was required to go to a hearing at the FOC office and was able to obtain a copy of the order at the courthouse.

10/2...I emailed my attorney asking why she had signed the consent order without me evenbeing aware of that and explained that under the circumstances, I would no longer require her services.

10/2... She replied that she "believed" she had mentioned the order in our phone call and finally attached a copy of the order, 19 days after is was signed and filed.

I do have evidence of all of our correspondence clearing stating that I would not agree to further delays.

The reason for the delays is because my ex had filed to increase child support on 4/06/2016. It finally went to the FOC in November 2016, the day after I lost my job due to inability to work for health reasons. (Incredibly well documented; everything provided to them in a timely fashion; SSDI approval pending). The FOC did a very thorough job of calculating in two parts. First was based on my working income from April 2016-December 2016, which decreased from the previous amount by about 40% due to one child being an adult and no need for childcare.Second was based on zero income due to inability to work (can't impute in that case), which has my ex paying a very small amount to me for the kids. The problem is, my arrearages keep growing based on the original order since there is no new order in place. If the FOC recommendation is accepted as the new order, I will not only not be in arrears, I will have significantly overpaid. The plaintiffs plan was to keep everything as it is, arrearages still accumulating, until SSDI approval; calculate the new amount using my SSDI; then make that retroactive to when I couldn't work. The problem is that once I get SSDI and I am in arrears, the FOC can seize my backpay, even though I should not even be in arrears. It is a mess.

For the record, this has been a very high conflict case, not by my choice. There is a hearing tomorrow for a motion I filed to try to fix this. I have plenty of documentation and am keeping my fingers crossed.

I have an email from her saying she "believed" she mentioned the order during the phone call. (See below for the timeline). Trust me, I would have absolutely noticed had she said the words "Consent Order" during a conversation about how I do not agree to delay any longer.

The said in an email that they "believed" they mentioned the Consent Order when I had called her after her previous email, with the purpose of stressing that I was not in agreement with delaying further. She signed the consent order one week after that call. I did not consent.

I need to explain to you how SSDI and child support works.

If you are approved for SSDI (NOT SSI) then all of your children combined, will divide separate benefits between them that will total approximately 1/2 of the benefits that you receive. These benefits will be completely separate from yours. Your children will also each receive backpay, which will be equivalent again to approximately 1/2 of the backpay that you will receive.

If you handle it properly with the court, then the amount that your children receive in monthly benefits, will totally replace child support, and the amount of backpay that they will receive, will replace arrearages. (total between them)

Therefore, it would be normal, logical and standard to adjourn a child support hearing until its determined whether or not you are actually going to receive SSDI. You may have messed up by firing your attorney.

Here is an example:

If your SSDI benefits are 2000.00 a month, and you have 2 children from your ex, and another two children from your current spouse or significant other, then your ex will receive 250.00 per child on a monthly basis as the rep payee for those 2 children, and your current spouse or significant other would receive 250.00 per month per child as well. If you get backpay of 20,000 then each of your children will receive backpay of 2500.00.

I get what you are saying, but the first half of the calculation in the FOC recommendation dropped the CS amount by 40%. The "arrearages" are based on what accumulated after I was unable to work, based on the higher CS amount in the current order. If the recommendation is put into place, I will have an overage, not an arrearage, and my ex will have an arrearage, which includes my overpayment. For example, let's say the current amount, which includes my adult daughter still, is $1500/mo for four kids. (No kids with new spouse.) The recommended amount would be $850/mo for three kids...adult daughter removed. So from April 2016-November 2016 I would have overpaid by $5200, plus I made a $1000 payment in December (because I was trying to help them), for a total of $6200 in overpayment. Ex would be ordered to pay $350/mo from December 2016-now, about $3850 in total. Their argument is that my income should be imputed from November 2016-now, which the law says is not the case as I have not been released to work by my multitude of healthcare providers. Choosing to be unemployed or underemployed...sure, impute income. Not a problem. The law does not say that a person who is medically unable to work must first be approved for disability.

Once I am approved, my benefit amount should be $2500/ month for me and the kids will receive their amount in dependant benefits, which would be even more than the current child support order. Which is great! It helps provide for them. I don't remember the exact amount, but somewhere over $1500/mo. for the three remaining kids. The kids would receive over $28,000 in back benefits if ai were approved tomorrow. If the recommendation is adopted as the order, yes, my ex would technically be in arrears by about $10,000 for a very brief time. But she would receive over $28,000 in back benefits for the kids very soon. If it does not change, it appears that I am almost $16,000 in arrears and that can be taken from my back benefits immediately, even before the recalculation is completed using my SSDI income. My ex has been very clear during our hearings that she really wants to send me to prison for felony nonsupport. Any arrearage, or appearance of arrearage, leaves me vulnerable to that. I am not looking to go after her for any arrearages because I know that will be settled soon enough, plus they rarely do that to mothers. She is not in as much risk for that by any means. It makes no sense to put me in a position of being in arrears, even after calculating SSDI as income. That would mean she would be entitled to garnishing my benefits for that amount (around $8000), plus receiving back benefits in the amount of about $1500/mo for that time.

I have two other thoughts.

1. In the event that I did not receive SSDI (my case looks very good at this point), it would still not change the fact that I am physically unable to work and my income could not be imputed. Leaving it as would leave me not only without income, but also with a huge arrearage and prison on the horizon.

2. I still have the children for my parenting time during all of this. I have to rely on my current wife for support. The kids do have needs, such as food, when they are in my care. It makes no sense that they would not be provided for, based on a fair, legal child support calculation. The amount she would be paying would assist with covering some of their basic expenses.

I do not follow your logic, but again, any arrearages that you would owe to mom as a result of the situation, would be considered as paid in full by the children's backpay. They would NOT come out of YOUR backpay.

You are not going to get the children's backpay. That is going to be going to mom as their rep payee. Same with their regular benefits. Your benefit and backpay are completely separate from the children's benefits and backpay.

I am not trying to be difficult. I am very well aware that the children's benefits and back pay go to their mother as a representative payee. Not an issue, because it is to support the kids. They need that.

My basic issue is this. The kids have a need for food, which I am struggling to provide due to have zero income. Putting the FOC recommendation in place as the new Order provides enough to cover a portion of that when they are in my care. It is my understanding that is the purpose of child support. Even if we take the arrearages out of it, child support is based on overnights and income. Simple numbers. Putting the recommendation in place, based on all of the extensive information provided, makes sure that the kids have those needs met. How is it in the children's best interest to not have those needs met when it is possible?

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Quoting Kds1368

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I am not trying to be difficult. I am very well aware that the children's benefits and back pay go to their mother as a representative payee. Not an issue, because it is to support the kids. They need that.

My basic issue is this. The kids have a need for food, which I am struggling to provide due to have zero income. Putting the FOC recommendation in place as the new Order provides enough to cover a portion of that when they are in my care. It is my understanding that is the purpose of child support. Even if we take the arrearages out of it, child support is based on overnights and income. Simple numbers. Putting the recommendation in place, based on all of the extensive information provided, makes sure that the kids have those needs met. How is it in the children's best interest to not have those needs met when it is possible?

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I am totally confused on what it is that you want? Are you wanting mom to pay child support to you right now? You have not been very clear. I thought that you were just worried about owing arrears to mom. If you are wanting child support from mom, then expect to have her argue that any support due to you, should be deducted from the arrears you owe mom until the arrears are paid off.

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Quoting llworking

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I am totally confused on what it is that you want? Are you wanting mom to pay child support to you right now? You have not been very clear. I thought that you were just worried about owing arrears to mom. If you are wanting child support from mom, then expect to have her argue that any support due to you, should be deducted from the arrears you owe mom until the arrears are paid off.

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I do need child support for our children right now. And I get what you mean by her arguing to have it deducted. However, if the recommendation becomes the new order, I no longer have an arrearage for the first half of the calculation, I have overpaid. She would have an arrearage for the second half of the calculation. The FOC recommendation spells all of that out. My overage of payment gets flipped over as an arrearage to her, plus what she owes. At that point, she would owe her normal small amount of child support for our kids plus whatever amount the enforcement division decides she needs to pay toward the arrearage. This is not about being punitive. It is about providing for our children.

For the record, I had worked one, sometimes two, jobs since I was about 13. I have never been behind in paying or asked to have it reduced.
The only reason this happened is disability related. Mom has also always worked and makes a very good income. I am not trying to make the woman destitute, just get some much needed help with caring for our kids.