Divorce at Altitude: A Podcast on Colorado Family Law

Enforcing Court Orders without Filing for Contempt with Halleh Omidi, Esq. | Episode 120

August 25, 2022 Ryan Kalamaya & Amy Goscha
Divorce at Altitude: A Podcast on Colorado Family Law
Enforcing Court Orders without Filing for Contempt with Halleh Omidi, Esq. | Episode 120
Show Notes Transcript

The most frequent types of complaints we receive from clients are issues of non-compliance. Filing for contempt of court is a common approach when dealing with non-compliance; however, this leads to rising tensions that make dealing with future issues and co-parenting difficult.

In today’s episode, Halleh Omidi, a family lawyer from Denver, discusses options to enforce court orders without filing for contempt of court. Halleh is a highly experienced family law attorney at Hogan Omidi, PC  whose deals with divorce and child custody. We learn about options such as a motion to enforce parenting time, asking the court to enter a judgment for child support, the Rule 70 motion to enforce a judgment, and more. 

We also discuss finance-related issues such as enforcing child support and maintenance, including recuperating expenses incurred for the aggrieved party. She also unpacks the complexity of the various processes and provides practical examples. Tune in now to hear how to resolve issues of non-compliance effectively with expert Halleh Omidi!

Key Points From This Episode:

  • An explanation of the motion to enforce parenting time and what is required.
  • Outline of the process involved with a motion to enforce parenting. 
  • Other various remedies that can be used by the court.
  • Why the wording and specifications within parenting plans are essential.
  • Halleh’s opinion on the strategic value of modifying the parenting plan.
  • Alternative approaches to enforce child support and maintenance.
  • What happens with the interest rate of outstanding child support and maintenance. 
  • How to leverage property to enforce child support and maintenance. 
  • Motion to enforce parenting time versus contempt of court. 
  • The importance of having a clean record when dealing legally with family issues.
  • The nuance when determining the financial implications of non-compliance.
  • Advice that Halleh shares with her clients before court proceedings.
  • Motion to enforce separation agreement versus filing for contempt of court.
  • Common issues regarding payment of child support and maintenance. 
  • What Rule 70 is, and the reasons why a broad enforcement motion exists. 
  • She walks us through the process of requesting a status conference.


What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Ryan Kalamaya (4s):
I'm Ryan Kalamaya.

Amy Goscha (6s):
And I'm Amy Goscha

Ryan Kalamaya (8s):
Welcome to the divorce at altitude, a podcast on Colorado family law.

Amy Goscha (13s):
Divorce is not easy. It really sucks. Trust me. I know besides being an experienced divorce attorney, I'm also a divorce client,

Ryan Kalamaya (21s):
Whether you are someone considering divorce or a fellow family law attorney listening for weekly tips and insight into topics related to divorce co-parenting and separation in Colorado. Welcome back to another episode of divorce at altitude. This is Ryan kalimajo. One of the things that we frequently get called on our clients are people that have gone through a divorce and they're frustrated because the other party is seemingly just not complying. And we've recorded an episode about contempt that's episode 48 with one of my partners, Georgina Melby. But today we're going to talk with an experienced family law lawyer in Denver, Holly, Amidi about different options.

Ryan Kalamaya (1m 9s):
And we're going to talk about enforcing court orders without filing for contempt and the ground. Just to give listeners a preview of what we're going to talk about. We're going to talk about a motion to enforce parenting time, asking the court to enter a judgment for child support or maintenance, a rule 70 motion, which is essentially having the court sign, a tax return or some other document on behalf of a party. That's not agreeing to sign anything and then a motion to enforce separation agreement and then emotion for SAS conference. So Holly and I are gonna kind of go through those and really talk to there's going to be a combination of parenting as well as financial. But before I go on Holly, welcome to the show.

Halleh Omidi (1m 52s):
Thanks for having me.

Ryan Kalamaya (1m 53s):
So for listeners, you and I haven't worked together too much. I've worked with your partner, Kathy. Your firm has written a book on family law. So tell us for people that don't know who you are. Can you tell us a little bit about yourself?

Halleh Omidi (2m 7s):
Sure. So Holly media been practicing since 2011, my, from Pocono meaty, we're in Denver and really our primary area of expertise with family law. So whether it is, you know, a divorce from start to finish post-degree modifications, prenuptial agreements, postnuptial agreements really do it all under the umbrella of family law. We do a lot of representation for folks and high asset complicated cases. And so we take on any challenge and we like it. I think it's good work. Good challenging work. So, yeah.

Ryan Kalamaya (2m 40s):
And you are a fellow buff from CU Boulder, and you grew up word natives, Holly, we're kind of a rare breed you grew up in Westminster.

Halleh Omidi (2m 50s):
Yeah. So I went to see you for undergrad. I went to see you for law school too. So I, you know, branched out and moved all of like 20 minutes from home. So

Ryan Kalamaya (2m 58s):
One of the things that on your bio you talk about is parenting and how you got into family law. I mean, some of the experience in the juvenile system. And so that's a segue into motions to enforce parenting time. So one of the things that we see are people that get, you know, sideways, or they have disputes on parenting. So, you know, there's contempt, but what's an alternative to contempt for people that aren't familiar with motion to enforce parenting time.

Halleh Omidi (3m 27s):
Yeah. So motion to enforce parenting time. It's probably the easiest approach when you're dealing with, with post decree enforcement problems rather than a contempt. And I think, you know, the knee-jerk reaction often is from a lot of clients just because they don't know as to, Hey, you know, my ex isn't following the court orders. I want to file a contempt because they just know that that's the buzz word. If someone's not filing a fall in the court orders. But I think really it's our job as council to educate clients about, you know, really the beauty of motion to enforce under 14, 10, 1 29 0.5, because it really gives parties, a whole host of remedies that really are not available to them under a contempt.

Halleh Omidi (4m 7s):
And that's really the beauty of it. So essentially it's a motion where you alleged that the other parent is a compliant with the parenting time orders. So for example, it was, let's say, it's my client's winter break, parenting time. And dad didn't turn over the children. And so, you know, client doesn't get to exercise winter, right. Parenting time. So that's a perfect example of when a motion to enforce parenting time probably would be the next best step. So it's nice because you can get into the courtroom a lot quicker, a lot easier than a contempt. So you file the motion. It's gotta be a verified motion. So the court has to be able to make sure that it's verified in order to have a basis to rule on it. And from there, our statute really sets forth what the parameters are.

Halleh Omidi (4m 50s):
The court has 35 days to rule on it, which is a nice tight timeframe. Then from there, the court can deny it on its face. If the court finds it to be inadequate, which doesn't happen all the time, they can set it for hearing, which is typically what happens or require the parties to attend mediation within 63 days. That also is an option that happens. Usually it's kind of a first order preliminary order from the judge is okay, you guys go to mediation, try to figure this out. And then if not setting it for hearing.

Ryan Kalamaya (5m 20s):
Yeah, I know that that's what would largely happen in the mountain districts that I primarily practice in, but Holly, to your point, I could see a judge. If, if someone is five minutes late to a parenting exchange, you know, don't file for contempt, don't file a motion to enforce parenting time because the judge is likely going to say, roll their eyes and not look on that kindly if it is one aspect of, you know, that they're habitually late and it's just this really offensive pattern, that might be a different story. But people I think really need to, you know, hear what you're saying in terms of the verification.

Ryan Kalamaya (5m 60s):
That means that they're saying on penalty of perjury, that these allegations are true and they probably need to be fairly detailed to give a full picture to the judge. But can you talk Holly a little bit about some of the remedies, because I think that that for listeners, they may not be aware and they're actually a fair amount. If they look at the statute, if listeners that, you know, aren't lawyers, they can look at this statute, there's a whole range of different remedies instead of the go to jail or pay a fine is available under contempt. So talk to me a little bit about the remedies.

Halleh Omidi (6m 35s):
Yeah, sure. As you said, there's a laundry list of them under the statute, and sometimes it's a nice best practice when you're filing the motion to essentially lead them all. And then you can, you can pick and choose what you really want as it gets closer to hearing, but you might not want to pigeonhole yourself into one or two because there is a long list. But you know, I think one of the important ones is that the court can order additional terms and conditions that are consistent with the best interest of the child. So you can essentially modifying the prior order in a contempt. You're not, you're truly looking at an enforcement action. You are not modifying anything. And so, you know, if there is this pattern of noncompliance, then perhaps, you know, there should be some changes made to the parenting time schedule on the best interest of the child or the children.

Halleh Omidi (7m 22s):
So that's something that I think is often overlooked with the motion to enforce parenting time, but something that really can be helpful to a party that is essentially the aggrieved party in these cases, the court can impose additional terms and conditions. So for example, you know, I I've had motion to enforce parenting time file before where I had a client who, you know, had his child and ex lives in Colorado. And so he would come out here to exercise parenting time on a long distance schedule for certain holidays. So it was Thanksgiving break several years ago, he was to exercise parenting time. You know, he bought plane tickets out here. He had a rental car, he had a hotel and he took time off of work and he shows up and mom won't exchange the child with him.

Halleh Omidi (8m 9s):
And so, you know, he's stuck here on a holiday without his child after all of this expense. And so, you know, he can ask the court to impose additional terms and conditions. And so maybe that is that the child is going to come visit him now in the state that he lives in. So yet he doesn't have to infer those classes. I mean, you can get creative with it to fit the issues that you have going on in your case. A couple other things the court can do we're can require the person that's the wrongdoer, essentially to attend a parental education class, they can be ordered to participate in family counseling. The non-compliant party can be ordered to post a bond or security to ensure future compliance.

Halleh Omidi (8m 54s):
In that case, I was just talking about what Thanksgiving mom was ordered to do that so that she did not cause issues for him again with future instances of holiday parenting time. So if you have to post a bond, that means that's posted with the court so that, you know, she's really got some skin in the game so that these types of issues aren't happening in the future make-up parenting time can be ordered. And that's usually the most common one that folks are seeking. You know, if you're missing your Thanksgiving, then you want to make up parenting time for Thanksgiving. Our statute says that parenting time can be made up of the same type duration of which was denied.

Halleh Omidi (9m 34s):
So if it was a weekend, a holiday summer, and it's supposed to be made up within six months, but obviously if you miss Thanksgiving, you can't get the same Thanksgiving again in six months. So you're looking at getting, you know, Thanksgiving next year to make up for it. So there's, again, just a quite the laundry list. A couple other things just to touch on the court can impose a civil fine, not to exceed a hundred dollars per instance of denied parenting time. But doesn't go to the complying parent. It goes to the state treasurer when it goes to like this dispute resolution fund that we have, the court can essentially make any orders that promote the best interest of the child.

Halleh Omidi (10m 14s):
So that is just this giant catch. All of the court can do whatever is necessary to make sure that the best interests of the child are promoted. The court can essentially order the non-compliant parent to be held in contempt of court and impose a jail sentence. So that's where this really intersects with rule 1 0 7 with contempt. There's a little bit of a debate about if you want that, if you should file a separate contempt leading to so that there aren't due process concerns. And I've seen parties argue that two different ways, but that's essentially the laundry list of the remedies that are available to one under the section statute.

Ryan Kalamaya (10m 52s):
And at least for me, a couple of things that at least come into mind for me is, you know, Holly, I know where you stand on this. My firm, we have a fairly comprehensive parenting plan. I've negotiated with Cathy, for sure. And there'll be different provisions on communication and other aspects. And so some of those, like the holiday, the vacation, like the relocation, I can certainly see where there's a non-compliance and you can get the counseling and other aspects addressed in there that relocation that certainly you can see that really being addressed in this statute and 1 29 0.5, as opposed to contempt.

Ryan Kalamaya (11m 35s):
But if the language of the parenting plan, I think even though that that may raise the contempt issue, because it's a violation of an order, I do think that if that's lacking, so the communication or the specificity on holiday, that, that then allows a parent to say, you know what, we miss this. And like, I mean, Holly, you and I try no parenting plan is perfect. It's not going to, I mean, COVID who could have predicted COVID we didn't have COVID provisions in our parenting plan before it all happened. But the other main thing that I really think of is apparent mostly, you know, stereotypically, it's going to be the dad that says, Hey, I want equal parenting time.

Ryan Kalamaya (12m 18s):
He just loves the principle of equal parenting time. But then he just actually doesn't even follow up on that parenting plan in Colorado. You can actually force that dad to exercise his equal parenting time and hold them accountable. But it's also kind of a method for the mom to say, he's not actually exercising his equal parenting time. And I want to modify that. And I'm curious what your thoughts are on the strategic value of doing that. Vis-a-vis this motion to enforce parenting time, which allows modification versus just as a normal garden variety motion to modify parenting time.

Halleh Omidi (12m 56s):
I mean, it's certainly as a, you know, a creative way to go about it. I think you're going to get into the courtroom a lot faster on a motion to enforce than you are on a motion to modify at least all the courtrooms in the Metro area, because you know, under 14, 10, 1 29 5, you've got these set parameters on when the court needs to act, right? The court has 35 days to rule on it. You have to attend mediation within 63 days. Now, sometimes on a post decree motion to modify parenting time. We have some parameters in a post-degree case management order that say you have to mediate by X date or things like that. But I think the beauty of this section of the statute is, is that you've got these tight parameters. And so strategically if your end goal is that you want to modify because you know, the other parent isn't exercising his or her parenting time, this may be a quicker way into the courtroom.

Ryan Kalamaya (13m 45s):
Well, and the other thing too, Holly, is what about service? Do you have to serve a motion to enforce parenting time? Like you do for a motion for contempt?

Halleh Omidi (13m 54s):
Nope. So you don't have to do that. So that's one last week to jump through. It's cheaper, it's quicker, you know, and on the contempt, you've got two appearances. You've got essentially, you know, a show cause hearing or sorry, an advisement hearing first, and then you're going to come back and have the evidentiary hearing. You're not going to have two separate hearings here on a motion to enforce

Ryan Kalamaya (14m 14s):
Well, overall, they kind of tie up this one issue. I a hundred percent agree with you, you know, in terms of, I don't think that parties or attorneys for that matter judges too. I don't think that we see as many motions to enforce parenting time as one would expect, given how kind of flexible and the remedies and the frequency of these issues that could be addressed through a motion to enforce parenting time.

Halleh Omidi (14m 39s):
Yeah, no, I mean, the other thing that's nice about it is when someone is wanting us to file these types of motions, a lot of times they've incurred some type of financial consequence too, like that Thanksgiving issue. And so the nice thing about this is not only can the court award attorney's fees and costs, but they can also award expenses to be repaid to the parent that was complying. So, you know, loss of the cost for the airline tickets, things like that. So you just have this whole, you know, the statute that gives you room for creativity. I think when you filed these motions,

Ryan Kalamaya (15m 11s):
Right? Well, talk to me about finance. Let's move on to missed child support and maintenance or alimony. Talk to me Holly, about things that you can do other than filing for contempt and trying to chase the quote unquote deadbeat dad.

Halleh Omidi (15m 28s):
Yeah, well, so our statute, and this is in 14, 10, 1 22 essentially provides that when maintenance or child support is ordered, a payment becomes a final money judgment when it's due and not paid. So we already have that embedded into our statutes. So if your client is missing a maintenance child support payment or payments, you know, it's already become the spinal mind money judgment pursuant to the statute. So the next step can be to file a verified entry of support judgment. And so that will encompass all the Ms support payments that have arisen during the period of time specified in the Manchuria support judgment that haven't been satisfied. And so what you can do there is you can file that with the court.

Halleh Omidi (16m 10s):
Now, the other side can certainly request that therapy, a hearing on that, if there's a different perspective in terms of what the amount is that was owed, if there's a mathematical error, if there's a difference in opinion on interests in terms of the calculations, but beyond that, it's kind of a straightforward mechanism. And so, you know, essentially you have to have a court order for the underlying support obligation. And from there you file your motion for entry, your support judgment. And you know, after if there's no objection, then it's going to be ordered. If there is a evidentiary hearing and you get over that hurdle after that, the court's going to enter that as a court order and then your job is to collect it.

Halleh Omidi (16m 52s):
And so that's where it gets a little bit harder. Does it, what are you going to do to collect it? So if you're dealing with someone on the other side, that's a standard W2 employee. You could just do a writ of continuing garnishment where you are, you know, essentially it's a wage garnishment where you are garnishing the other person's wages. And so directly from the employer is going to come the check or the, you know, the transfer to your client. So that's a really nice, easy approach when the person, for example is not self-employed. So that's, that's one mechanism. The other one is to levy the other person's bank account. That's actually kind of a fun one. I think for counsel, you can, you can serve this on the bank.

Halleh Omidi (17m 34s):
And then, you know, essentially they're going to have this writ of garnishment on the bank account and essentially zap the funds from the bank account. I think the issue with that one is as a couple though, is that you're going to want to make sure you're hitting this bank account when you think it's got a decent amount of funds in it, because usually it's a one-time thing after you've served on us bank account. The other party's probably going to close that bank account are not going to deposit any more funds into that bank account. So it's not going to be like a rid of continuing garnishment where you're continuously going to be able to tap into that resource. It's usually a one-time thing. And you need to think about it a little bit. You know, if you know, this person gets paid on the 15th and the last day of the month, then you probably want to time it up so that you are serving this on the bank account when that person's paid, so that hopefully you can get as much as possible.

Halleh Omidi (18m 27s):
You can serve multiple banks on the same day. I've done that before, too, just to see what you can get. So that's another option, but you know, it's really just going to be kind of a narrow thing, one or two time thing.

Ryan Kalamaya (18m 39s):
And these options, it used to be, this is one of my favorite filings because it used to be that you could file ex parte. So you could file it with Al the other party, knowing, and back when I first started doing family law, I remember my mentor, Bob Kendig giving me an assignment and it was both maintenance and child support. There had been payments sporadically. So then it became, well, did that go against interested to go for child support? Did he go for maintenance and Holly, you know, but there's a difference in the interest rate on child support versus maintenance. And so can you talk to listeners a little bit about what happens in that circumstance?

Halleh Omidi (19m 20s):
You're going to get interest first on, it's gonna be applied first to child support, and then after that to maintenance and the interest is different in terms of what it is for child support versus maintenance. So child support is going to be compounded monthly and then maintenance is going to be compounded on an annual basis. So you have to, you have the, essentially that difference there between child support and maintenance.

Ryan Kalamaya (19m 46s):
This episode is brought to you by our law firm. Kalamega Gosha Amy. And I describe our law firm as an innovative and ambitious trial team that pushes the boundaries to discover a new frontier is in family law, personal injuries in criminal defense in Colorado. We currently have offices in Aspen, Glenwood Springs, Edwards, Denver, and Boulder. If you want to find out more, visit our website, calamansi.law. Now back to the show. Yeah. And people need to be careful. I used to be my confess to advise my clients, Hey, if you can think of an investment that compounds monthly 12%, which, you know, child support, let me know about that investment.

Ryan Kalamaya (20m 31s):
Cause I'd like that. I mean, it is for the benefit of this, you know, but people can't wait too long. I think it's in your marriage to Johnson, you know, with, you know, a legal concept of latches. You can't wait and we'll get into leaning. A property is one of the other mechanisms I, with the, a lien of it was in excess of $150,000 on a house. And it was for child support that had been accumulating over, you know, 10 years. And, you know, people need to be really careful on leaning property. It ended up being that that was kind of an erroneous filing, but there are these other mechanisms, but frequently people will go after someone after a certain amount of time.

Ryan Kalamaya (21m 13s):
And you know, it's not worth the transaction costs of one or two months, but you can't just sit on your hands and wait for 10 years. And especially if you're telling the other party, Hey, don't worry about paying. So it's threading that needle on these because they are, you know, disputed issues and they can, they're, there's some pretty powerful mechanisms that people have for collection.

Halleh Omidi (21m 36s):
Yeah. I mean, so just to kind of segue off of that, putting a lien on property. So if you know, the other party has real property, then you can, we do, as you obtain a transcript of judgment from the court clerk, and then you deliver that transcript of judgment to the county clerk and recorder where the noncompliant party owns real estate that then gets recorded. And then if as, and when the property is sold, then your client is going to be repaid at that time. And then at that point, and once that's done, you can go ahead and release the judgment lien. So one thing to keep in mind though, you know, you may, may need to have some more information about where's the other party bank, where do they own property?

Halleh Omidi (22m 18s):
Some of those things you may not know post decree, especially if it's been several years and things have changed. So the rule actually authorizes service of, of interrogatories so that you can learn more about where the person banks, where they have real estate. So that's, that's another option too. So you're not flying into this totally blind,

Ryan Kalamaya (22m 35s):
Right? Yeah. There's, it's kind of standard people don't have to reinvent the wheel. There's standard debtor in our auditory is asking all sorts of questions, I guess, a couple of kind of points or things ask you about Holly on this particular issue is you mentioned a hearing on the motion to enforce parenting time and versus contempt. So do you even need to have a hearing on emotion to enter a support judgment?

Halleh Omidi (22m 59s):
No, it's not required. So the only time you're going to have a hearing is if the noncompliant party is raising an objection that, you know, like the calculations off or something like that, but yet hearing isn't required.

Ryan Kalamaya (23m 10s):
And that puts an exclamation point on the fact that people really need to have clean records and it can get very, you know, we frequently will attach a spreadsheet, you know, family law software we'll have a calculation and we'll put in when the, the various payments are made, but family law, you know, the support registry in Colorado, one of the benefits is it's a clearing house and it effectively keeps track for you. And I know the statute contemplates, you know, attaching that it gets really sticky. And I'm sure you've dealt with this Holly where people are offsetting, you know, they pay for a doctor and then they offset that from the child support or they don't pay the doctor.

Ryan Kalamaya (23m 53s):
They don't pay child support. Do you include their percentage of share for the doctor in terms of child support? Those are some of the kind of complicating issues. And there can be a hearing on that, but given the positioning, I mean, judges are going to be sympathetic to people that haven't been paid and they don't like the quote unquote deadbeat dads, but given that people really need to be careful in making sure that their records, because I think a judge is going to get really upset if they feel like a party's overreaching, where they're asking for, you know, a hundred thousand dollars in support and it ends up, but they're really only owed 50,000.

Ryan Kalamaya (24m 33s):
They kind of lose that white hat. You know, the innocence of I haven't been paid if they've overreached and they, they haven't kept proper records.

Halleh Omidi (24m 44s):
And I always advise my clients that, you know, before I'm even going to draft this pleading for them, I need to see the backup. I need to see the verification to understand what the basis that this is. It needs to be clear, and then I'm not going to mix in, you know, the, okay, what do we owed for mandatory school fees or this, that, and the other. It's just so much easier just to keep this, you know, if this is about child support, let's just keep it strictly at the monthly child support obligation and do, you know, get, get a judgment on that and keep it clean and tidy. And I think that's just going to be the easiest approach.

Ryan Kalamaya (25m 14s):
Well, and oftentimes those, the payment of the school fees or the extracurricular, the share of extracurriculars or private school or whatever that oftentimes is in a separation agreement, it can be in a parenting plan, but let's kind of switch gears and talk about motion to enforce separation agreement. And then we'll come back to the rule 70. So if someone is, oh, you know, school fees or other things, you know, could they file a party file, a motion to enforce separation agreement and why do that versus a contempt? And what's the process like?

Halleh Omidi (25m 46s):
Yeah. So you definitely can. That's under 14, 10, 1 12 5. And to be quite honest with you, I think most practitioners aren't even aware that this is a section in, in our statute. It's very commonly overlooked, not something that a lot of birdies user or plead post decree, but essentially the statute says that the terms of the agreement set forth and the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as a contract term. So you've got this broad authority and forcing ten one twelve, subsection five. So essentially if, if the court has adopted the separation agreement corporated into the decree, and someone's not complying with the terms, you can file this post decree motion to have the court enforce the terms of the separation agreement.

Halleh Omidi (26m 35s):
Now, you know, if again, in terms of why would you do this and then not, you know, jump to a contempt similar to some of the other areas. You're not going to have two different appearances. You're not going to have an advisement hearing an evidentiary hearing. So it's going to be a little more consolidated you can ask for practical remedies. You know, so one thing I've seen a couple of times is that there are a lot of our agreements have a, post-degree just be resolution clause, right? So there's any disputes with the parenting plan or separation agreement that the parties engage in mediation before taking up any, any motions with the court. But a lot of times, you know, we reach out at counsel to either a pro se opposing party or even to opposing counsel, and they're not willing to, to mediate despite that term.

Halleh Omidi (27m 20s):
And so you could file a motion to enforce the separation agreement and enforce that term to order the other party to go to mediation. Now, I guess you still need to weigh out if, if they didn't want to go to mediation with you at all, how productive is that mediation going to be when you force them to get there? But, you know, it's an avenue to get someone to do that. It's, it's a strategic motion that you can file when your underlying separation agreement has an enforcement provision in it. And that what I mean by that is a term that says, you know, if there was, you know, if the parties fail to comply with any of the terms, and there could be an award of attorney's fees paid to the prevailing party. So that's another reason why you may want to file under 14, 10, 1 12.

Halleh Omidi (28m 1s):
And, you know, sometimes they're supposed to CRE personal property issues and a separation agreement. So it can be nice too, to file this motion as opposed to a rule 17, which we'll talk about in a second, but where you need an actual title document or something for the clerk to sign. So again, you know, it's, it's, it's a bit of a cost benefit approach of what you do. But I think this section of statute is so broad that if it's in the separation agreement, you know, you can proceed and you can seek broad enforcement of it.

Ryan Kalamaya (28m 30s):
Yeah. I've seen a two different categories, mainly in my experience. And they w I mean, who knows, we're about to enter in a recession. It's certainly kind of a buzzword today, but I cut my teeth really in 2010, 2011, when, you know, people were defaulting on separation agreements and they weren't paying for example, credit cards back because they had lost their job or they, you know, didn't contemplate selling my house. And one of the things is that oftentimes people in kind of the good times, they just assume that they can, you know, sell a house or do pay an equalization payment, which is kind of the other category. And then when they failed to do that and they lose their job or their, there might be some explanation, or they just, you know, refuse to, as you kind of alluded to earlier, but, you know, the court can read in a reasonable amount of time if there is no time provision, and you could ask the court to enforce, you know, the agreement, but the benefit is kind of relating to that in forcing a support judgment is you get a judgment and then you could lean in a property if there's an equalization payment, for example, that has not been paid, you could get the equalization payment plus interest.

Ryan Kalamaya (29m 42s):
I mean, most separation agreements would have a default rate if payments aren't being made. And then you've got the kind of collection mechanisms that you went through with the support judgment. So that is at least what I've seen, where people just refuse to abide by, you know, payments for debt, or they just don't pay what they're supposed to pay. But I do think it's an under utilized mechanism. And then I do think that it's probably going to become more popular because if you know, people signed up for agreements two, three years ago when they were flushed with, you know, a bunch of money and those things become difficult. I know one of the cases on point is in your marriage of shell at which was payment for college expenses.

Ryan Kalamaya (30m 26s):
So it, it can kind of run the gamut in terms of the issues, but really is a powerful mechanism that I don't think attorneys really use that much.

Halleh Omidi (30m 36s):
Yeah, no, you're right. I think we might be seeing more of these coming up and, you know, future moms, future years, so good to have it in your toolbox, so to speak.

Ryan Kalamaya (30m 45s):
Absolutely. I think it's helpful for people to know and talk with their attorneys, you know, hear an episode like this, where they have these range of, you know, of options and, and attorneys know, Hey, I've got different arrows in my quiver. And just as a reminder, you know, Holly, you and I were talking about one of the benefits of these, this podcast, or kind of looking at, you know, an outline on a presentation that you've done in the past is that you get to kind of sharpen that saw and, and really remind yourself. And there's so many different things. So to finish up, let's talk about rule 70. So what is rule 70 and why do we call them rule 70 motions?

Halleh Omidi (31m 25s):
So rule 70 is just, you know, part of our current rules of civil procedure 70, and it essentially provides that if a party fails to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act within a time specified, the court can direct you at the cost of the disobedient party, essentially the clerk of the court to execute on that person's behalf. So it's, you know, rule 70 again, I think as is often underutilized, we all, probably in our separation agreements have a standard rule, 70 clause, and we've, we've got this language from the statute and it's, it's, you know, usually in our boilerplate sections, but how often we actually see rule 70 motions post to create, I don't think is that, you know, that common, but again, it's, it's a really nice handy thing.

Halleh Omidi (32m 12s):
If, for example, someone is supposed to sign over the car title within 30 days from entry of the decree. If the other side is failing to sign over the quick claim deed or not executing the qualified domestic relations order. I mean, there's a whole, whole bunch of stuff that we put in our separation agreements about, you know, this needs to be done by X date post to career, you know, Y date, but what happens when they don't do it? Well, get the clerk of the court to do it on our behalf, if they're not, if they're not willing to do it. And so I guess that it stock language, we all usually have it in our separation agreements. If not, you should include it in your separation agreement and make sure that you've got language in there that gives the disobedient party or the disobedient party has to pay attorney's fees for their non-compliance, but pretty straightforward process.

Halleh Omidi (33m 2s):
There's even some JDF forms that make it really clear if this is the person that's pursuing a rule 70 without the help of counsel. And it's really just that straightforward.

Ryan Kalamaya (33m 12s):
And one of the reasons that we have that standard boilerplate provisions in our separation agreements all is, I mean, there was a case that said, you know, if it's not directly ordered, then it, you know, it's, cause I think it was a case where there was a mortgage in the party wasn't signing off on the refinance and the Corp entered, you know, a rural 70 and then that was appealed. And the court of appeals said, you know, listen, you actually can't do that unless it's specifically ordered. And so we have that catch all that kind of gives a little bit more breadth to the various kind of obligations, but yeah, I've seen it where someone refuses to sign a tax return. I mean, some listeners may say really that happens.

Ryan Kalamaya (33m 54s):
Why would you dispute about filing taxes or signing, you know, over the car, but Holly, you and I, we see it all the time and people can say this, you know, a husband can say the sky is blue and the wife could disagree and that continues. Sometimes it can get even worse after a divorce. And so sometimes we have these remedies and I spoke a little bit prematurely and saying that this is the last topic. It's kind of a, not a real utilize. I mean, but to file a motion for a status conference that I guess is certainly an option. I think it really depends on the jurisdiction. So tell me a little bit about, you know, asking for a status conference.

Halleh Omidi (34m 33s):
Well, I personally like to do this, but I only will do it if I know that this particular judicial officer is going to going to allow it, but rule 16.2, which is really, you know, our bread and butter and family law and subsection a, B and C, there's a couple of subsections early on that contemplate this management and facilitation of cases and the idea that we want to reduce the negative impact of litigation. And so under 16.2 C status conferences with the court are essentially a means by which parties can address, you know, things that need to be taken care of and a timeline for completion. And then that's actually a statute also allows for emergency matters, can be brought to the attention of a clerk or the family court facilitator for presentation to the court.

Halleh Omidi (35m 19s):
And then if it's an issue regarding children, it can be given priority. But the issue becomes, you know, a lot of these enforcement issues that we have are post decree. And so it could be three years, five years post decree. And, you know, the case can just be, you know, sitting essentially closed during that time period. And so if it's something like that, I, I don't usually have a lot of faith that we're going to get a status conference. If a case has just been sitting there quietly for a couple of years, I usually see this as a, as a better resource when it's, it's pretty close to, you know, the divorce decree being entered or a case, that's got a ton of post-degree problems, right?

Halleh Omidi (35m 60s):
Where you keep coming back in the same judges courtroom, and they're like, yep, here we are, again, same parties. And what can we do to get this case on track? So if it's one of those where there's like a repeat offender and you keep coming back, sometimes the status conference is nice so that the judicial officer can get everyone together and talk through it. And a lot of times they'll tell the parties, Hey, look, this is what I'm thinking about doing. So if, if so-and-so files, you know, a motion to enforce parenting time, this is what I'm going to do. So, you know, sort of let's get our act together before we go down that path.

Ryan Kalamaya (36m 33s):
Yeah. And you, you know, Holly, you're down in the front range with Amy and it's a little bit more formal as it has to be. But up here in the mountains, oftentimes we can shoot an email to the clerk and say, Hey, does this judge have 15 minutes? And the purpose is, you know, there's multiple purposes to it, but it can be really quick and all you need is the other party. What you're intending is the other party to hear the judge say, if what they're saying, this is not an evidentiary hearing, but if what they're saying is true, I'm not going to be happy and you better comply because oh really you want is compliance or, or something done. And it's less time intensive because oftentimes, you know, filing a motion, doing a motion for enforcement parenting time when you're going through all the different allegations and making sure due process is file.

Ryan Kalamaya (37m 24s):
That can be expensive and just shooting an email to the clerk or filing a, you know, a standard template, you know, motion asking for a status conference. So it's just one of those degrees of how much, you know, w what's your goal and how much time do you have and money to devote to it. So I think it's helpful for everyone to see, cause you know, the contempt, if it's someone that is 15 minutes late for parenting, that might be a status conference, Hey judge, we're having some problems. We don't want to file for contempt, but you know, just want to let you know that we are having some problems. And all the judge might say is if this is true, it needs to stop. And then it stops. And that's really what you want.

Halleh Omidi (38m 3s):
Yeah. And I think if you have counsel that knows the judicial officer's preferences and knows the clerks and can reach out to them and have that rapport, I think you're more likely to get what you want out of this. Right? So if you know, you know, judge so-and-so is only going to allow for a status conference. If you call his or her clerk first and set out the issues and copy or email and copy opposing counsel, or file a motion, you need to know the procedures in that particular courtroom for that judge. And I think a lot of times, if you do, and it's a fairly active case, then, then you can probably get, you know, 15, 20 minutes on the record. So,

Ryan Kalamaya (38m 39s):
Right. Well, Holly, thank you so much for giving me listeners an idea of all the different things you can do outside of contempt for listeners that want to find out more about your firm and you where's the best place to reach you out.

Halleh Omidi (38m 55s):
So our website is just <inaudible> dot com. That's probably the best place to reach out to us and you can contact her from that way and talk to her, any of our staff. And we can schedule initial consultations. If anyone has further questions about this topic for me, they're free to email me. My email's hto@hoganamidi.com. So someone's got any up questions about any of the different topics. We talked about, happy to happy to chat about those a little bit more to,

Ryan Kalamaya (39m 22s):
Well, as the time that we're recording this, we're about to enter into conference seasoned family law Institute. And so we're going to be hearing a lot of experienced attorneys talk, but Holly, this was really informative for me. So thank you again. And we'll have for listeners that have listened to it and they will have links to the show notes and you can find Holly's bio. And thanks again, Holly. Really appreciate the time.

Halleh Omidi (39m 49s):
Thank you

Ryan Kalamaya (39m 50s):
Everyone. This is Ryan again. Thank you for joining us on divorce at altitude. If you found our tips, insight or discussion, helpful, please tell a friend about this podcast for show notes, additional resources or links mentioned on today's episode. Visit divorce@altitude.com. Follow us on apple podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me@calamansi.law or 9, 7 0 3 1 5 2 3 6 5 that's K a L a M a Y a.law.