Family Law Prof Blog

Case Law Development: Foster Care Funding Need Not Provide Auto Liability for Teenagers

It's official law now -- teenagers do not NEED to have a car.  The case, in addition to presenting a catchy policy issue to discuss, provides an excellent demonstration of statutory interpretation. 

A young woman in foster care sued the county to compel payments for automobile liability insurance so that she could lawfully drive a car.  The juvenile court denied her motion and the California Court of Appeals affirmed.  The petitioner argued that federal and state statutes required the payments to her foster parents for auto insurance and provided a set of arguments regarding statutory interpretation that would make a fine example of the skill for new law students.  She argued that federal and state statutes regarding payments to foster parents were designed to “secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.” Moreover, those statutes included requirements that payments be made for “liability insurance with respect to a child” which she argued included auto liablity insurance. (42 U.S.C. § 675(4)(a); § 11460)

The court disagreed, interpreting the statutes to exclude auto liability insurance and concluding that "The care of a minor does not require payment for car insurance (as opposed to necessities such as food, clothing, and shelter)."

In re Corrine W., (Cal. App. August 22, 2007)
Opinion online (last visited August 24, 2007 bgf)

Case Law Development: Child Support for Ward of a Divorced Couple Is Not Terminated When Ex-husband Withdraws as Guardian

The Indiana Supreme Court reversed a trial court's modification of child support in a case involving a couple who had become guardians of Wife's grandson from a prior marriage. Ten years after the guardianship was established, the couple divorced.  The trial court incorporated into its decree the parties' settlement agreement, in which the couple agreed to share custody of the grandson and Husband agreed to pay Wife for some of the expenses of raising the grandson. 

After the dissolution, Husband remarried, withdrew as guardian, and sought modification of the decree's section about payments for the benefit of the grandson. The trial court granted modification, and the Court of Appeals affirmed. The Indiana Supreme Court concluded that termination of guardianship was not grounds for modifying the dissolution decree.

The court rejected Wife's argument that Husband was in loco parentis to the grandson, and thus obligated to obigated to pay child support as if he were the father, reasoning:

...it makes little sense to require child support from a person in loco parentis when that status is temporary in nature and essentially voluntary. The stand-in parent would effectively be able to choose whether or not he or she should be required to pay child support simply by choosing to continue or discontinue the relationship. It also seems unwise to create a layer of financial risk for adults who voluntarily provide financial and emotional support to children not their own. Lastly, it is difficult to imagine imposing parallel obligations on the institutions (like juvenile courts or universities) to which in loco parentis is commonly deployed.

The court did, however, find that there were no grounds for modifying the decree.  The court considered whether the agreed payments were best characterized as maintenance, child support, or disposition of property, but concluded that, regardless of the characterization, "the termination of guardianship has little practical effect" as there were no grounds for modifying the dissolution decree under any one of these theories.

In re Marriage of Snow, Indiana Supreme Court (March 13, 2007)
Opinion on web (Last visited March 20, 2007 bgf)

Legislative Update: Bills to Allow Disestablishment of Paternity

Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs.  The text of the bill.   See the CBS4Denver website for a news video on the bill. 

According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.

See this Time magazine article on the national movement to pass similar legislation.

(all links last visited February 15, 2007 bgf)

Case Law Development: Michigan Court Lets Stand Parental Agreement that Future Child Support Shall Be Satisfied From Alimony

I regularly have students ask about parental agreements that waive child support and assure the students that parents may not bargain away their duty to support their children.  But then I see cases like this one, in which the Supreme Court of Michigan over a strongly worded dissent denied appeal of a case in which the parents agreed that if the father was ordered to pay any child support in the future, the obligation must be satisfied entirely from the mother's alimony.  The dissenting judge noted that "The 'deal' that the parents agreed on is unusual in the annals of divorce law in this state [and] may well be in violation of public policy." 

Laffin v. Laffin, 2006 Mich. LEXIS 2788  (November 29, 2006)bgf

Man Jailed for Planning to Kill Ex-wife Seeks Relief from Child Support Payments

"A Toronto-area man, already serving a four-year sentence for plotting to kill his ex-wife to get out of paying child and spousal support, is now using his incarceration as an excuse to avoid the payments. Ronald Schulz pleaded guilty earlier this year to conspiracy to commit murder, admitting he hired a hitman to break his ex-wife's neck. The "hitman" was in fact an undercover police officer, and Schulz ended up in prison. In court this week, however, Schulz argued he still can't pay for support due to his incarceration, an argument that his ex-wife's lawyer called the ultimate in audacity." Reuters, Yahoo News Link to Article (last visited 11-8-06 NVS)

Case Law Developmetn: Statute of Limitations in Child Support Actions

The Supreme Court of Montana held that the statute of limitations barred an action for premarital child support in a case in which the parties had two children in 1981 before they were married in 1986 and then sought divorce after 17 years of marriage.  The trial court granted the ex-wife retroactive premarital child support, as well as a portion of the ex-husband's retirement benefits. On appeal, the court reversed and remanded. The 10-year statute of limitations in Mont. Code Ann. § 27-2-201 barred the ex-wife's claim for premarital child support. At no time between the birth of the child in 1981 and the parties' marriage in 1985 was an order of child support issued, and while the ex-husband might have had a moral obligation to support the child, under the laws in effect at the time, he did not have a legally-imposed obligation. The child for whom support was sought was 23 years old at the time of the parties' dissolution trial and was no longer residing with the ex-wife. The court also reversed the trial court's division of the ex-husband's retirement benefits. The trial court erred in using the "self-only annuity" benefit amount and the trial court was to recalculate the ex-wife's marital portion based on the ex-husband's net annuity.

Momsen v. Momsen, 2006 MT 233, 2006 Mont. LEXIS 445 (September 19, 2006)
Opinion on the web (last visited September 21, 2006 bgf)

Case Law Development: Child Support Obligation for Medical Expenses Includes Costs of Child's Therapist

The New Jersey Court of Appeals addressed the financial responsibility incurred by a couple's divorce settlement in which the father was to pay most of the children's uninsured medical expenses.  The child's therapist was a licensed, certified social worker.  Father argued that he should not have to pay for the therapist's services because she was not a psychologist or a physician and because the children had not been diagnosed with a mental illness.  The cour rejected this argument, reasoning that:

Viewing the protracted and acrimonious nature of the ongoing litigation between these parties, as focused on the children and their relationship with their parents, it would be myopic to conclude that these children have not been subjected to significant stress, trauma, and turmoil that warranted professional intervention. Moreover, paragraph 10 of the parties' property settlement agreement specifically provides that the terminology "uninsured medical expenses" is to be "interpreted broadly" to include not only psychological or psychiatric treatment, but "any other healthy related care." Certainly, the services of Ms. Roll, as found by the judge, fall within this broad definition of unreimbursed expenses of the children.

Tafaro v. Tafaro, New Jersey (August 25, 2006)
Opinion on the web  (last visited August 27, 2006 bgf)

Post amended August 31, 2006: Thanks to Pieter Droppert of the New Jersey Family Law Blog, for pointing out my confusion in a prior version of this post.   His point there -- that readers (and fellow bloggers) -- should never consider blog commentary on cases to be a substitute for reading the cases themselves is one with which I wholeheartedly agree!

Case Law Development: Calculation of Child Support in Joint Custody Arrangements

The Iowa Court of Appeals upheld a trial court's award of child support in a case in which the parties had stipulated to "joint physical placement" and a "joint parenting plan" for their child.  Father argued that the child support award treated him as though he were not the custodial parent, when he was a joint custodian according to the agreement.  Under Iowa law, the child support obligation of parents who provide "joint physical care" of a child is calculated using the "offset method." "In the offset method each parent should be deemed the noncustodial parent on the guidelines chart for purposes of calculating the support each would owe the other. One child support obligation is offset against the other parent's child support obligation, rather than requiring a monthly exchange of child support payments."

However, the trial court had calculated support as though Mother had custody and Father had visitation.  The appellate court that, even though the parties had termed their arrangement "joint custody", they did not in fact have joint physical care as actual overnight time with father was "approximately one-third of nights and an average of approximately one-third of the hours of a year." Thus it was proper to calculate child support as though mother were primary custodian.

In re Marriage of Reeves, 2006 Iowa App. LEXIS 997 (August 23, 2006)
Opinion on web (last visited August 25, 2006 bgf)

Case Law Development: Child Support May be Shared by Psychological and Biological Fathers

The New Jersey Court of Appeals reviewed a trial court's decision to order child support for a 15-year-old girl from both "her biological father, who was unknown to her until these proceedings, and the man she called Dad for almost ten years." In reviewing the appeal by the biological father, the court held that the biological father was properly ordered to submit to genetic testing, as daughter's relationship with her psychological father had already deteriorated and she sought to determine her biological father. The court further held that equitable estoppel did not make the psychological father solely responsible for the daughter's support, since biological parents have the primary support obligation absent exceptional circumstances. Here, the court found that while biological father had the primary support obligation, it was proper for him to share the obligation with the psychological father because the biological father could not pay the entire amount of support.

J.R. v. L.R., 2006 N.J. Super. LEXIS 198 (July 17, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

Case Law Development: Laches Defense Unavailable in Child Support Actions

California Family Code section 4502(c) applies retroactively and bars a parent from relying on laches to defend an action to enforce a child support order.   The California Supreme Court holds that the terms of the Family Code itself dictate retroactive application. Moreover, an exception to retroactive application of laws that create new duties does not apply to the laches defense as "Assertion of a laches defense seeks an equitable act of grace to relieve the burden of an existing obligation. Elimination of the defense does not create a new duty."

Moreover, the court rejected the due process challenge to retroactive application, holding that this application advances a compelling state interest.  "Unquestionably, the availability of laches impaired the ability of a parent to collect child support. Eliminating the defense necessarily advances the state’s interest in securing payment of all child support obligations. Moreover, to the extent obligor parents benefit from their efforts to evade support obligations through the use of the defense, section 4502(c) cures this “ rank injustice of the former law.”

In re the Marriage of Fellows, 2006 Cal. LEXIS 8764 (July 20, 2006)
Opinion on the web (last visited July 23, 2006 bgf)

Case Law Development: Child Support Obligations Do Not Violate Constitutional Rights

The US District Court for the Eastern District of Michigan firmly rejected a petition to enjoin a paternity prosecution on the grounds that requiring fathers to accept responsibility for children violates equal protection.  Clearly, the petitioner's request did not sit well with the court:

"According to the pleadings, Dubay commenced a personal relationship with defendant Lauren Wells, dated her, engaged in intimate sexual relations, impregnated her, terminated his relationship, and sued her for bearing his child. If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case. But chivalry is not the issue here, nor does it provide a basis upon which to decide the legal and policy issues that Dubay seeks to advance through this litigation. Rather, the plaintiff contends that Michigan's paternity statutes are repugnant to the United States Constitution's Due Process and Equal Protection Clauses because he has no say, he argues, in the decision whether to beget and bear a child. Therefore, he insists, he ought not to be saddled with the financial responsibility of the child's support, and he should receive damages from the private and public defendants who are attempting to exact that toll from him. The plaintiff's claims have been rejected by every court that has considered similar matters, and with good reason."

Plaintiff had framed his case as a 1983 civil rights action and, as the court observed, "The fundamental flaw in Dubay's claim is that he fails to see that the State played no role in the conception or birth of the child in this case, or in the decisions that resulted in the birth of the child."

Dubay v. Wells, U.S. Dist. Ct. E.D. Mich. (July 17, 2006)
Opinion on the web (last visited July 19, 2006) bgf

Missouri Killing Spree Triggers Review of Child Support Files for Errors

Missouri child support workers are beginning a review of about 400 files in St. Louis to determine if an error in the amount owed by Herbert L. Chalmers,  who murdered four women last week before taking his own life, is more widespread. Missouri officials acknowledged that a data entry error led to a mistake in calculating Chambers’ child support obligation, however, they said, he had many opportunities to correct the error.  Source.  Robert Patrick, St. Louis Post-Dispatch, stltoday.com. To read the complete story, please click here (last visited April 30, 2006, reo).

Voluntary Support of Adult Children Becoming Routine?

"At 23, Jason McGuinness lives a postcollege life in Manhattan that is very nearly typical. He works as a media research analyst, making about $30,000 a year. Sharing a two-bedroom apartment on the fourth floor of a walk-up building with a roommate on the Upper East Side, his portion of the rent is $1,100 monthly. . . . And like many of his peers — educated, employed, urban-dwelling young adults — he receives monthly assistance from his parents, in the form of a $300 check and the payment of his cellphone bill.

This is not the largesse of wealthy families doled out through trust funds. Nor is the money a couple of $20 bills tucked into a card at the holidays. Mr. McGuinness and others like him are the beneficiaries of an increasingly common subsidy arriving regularly from Mom and Dad, something like a family fellowship. It helps to pay for housing, bills and travel expenses, and the support has been increasing for the past two decades as education is extended, marriage is delayed and young people take the scenic route from adolescence to adulthood." By Anna Bahney,New York Times Link to Article (last visited 4-23-06 NVS)

Federal Judge Warns New York Legislators about the Necessity of Additional Child Welfare Agency Funding

The federal judge overseeing a class-action lawsuit against New York's child welfare agency warned Tuesday that failing to support increased funding for the state's child welfare  system would undermine a court-ordered overhaul.  It is believed that his comments were directed at state legislators, who are considering a proposal to increase funds $52 million, from about $200 million. Source. Richard G. Jones, Tina Kelley, The New York Times, civilrights.org. For the complete story, please click here (last visited April 19, 2006, reo).

Illinois Former Boyfriend and Sperm Donor Sued for Child Support

An Illinois sperm donor whose sperm was used to artificially impregnate his former girlfriend is being sued for child support.  The in-vitro fertilization of the woman led to the birth of twin daughters. Both 45, the couple met on a dating web site and had a relationship for about 15 months. He claims he had no intention of doing anything more than provide his girlfriend with semen she needed to conceive, although he allowed his name to be put on the birth certificates. Her attorney claims he has “concocted” a story to extricate himself from having to pay child support. His lawyer claims it is a case of “involuntary parentage.”  Source:  Steve Patterson, Chicago Sun Times, suntimes.com. For the complete story, please click here (last visited April 12, 2006, reo).

South Dakota Court is Unsympathetic to Obligor Claiming Perjury and Refusing to Produce Work Records

The South Dakota Supreme Court had little sympathy for a child support obligor who claimed that his ex-wife and a lawyer appointed as a referee in a child-support hearing should be jailed for perjury. In a unanimous opinion, the court ruled that the obligor failed to prove that his ex-wife and a lawyer appointed as a referee in a child-support hearing had perjured themselves. It also ruled that the obligor must pay $562 a month in child support.  This figure was arrived at when the obligor refused to turn over employment records to the appointed referee and the referee then went to the state Labor Department records, which indicated that the obligor’s wages averaged about $2,700 a month. It is reported that since the obligor’s 1999 divorce, there have been 52 motions filed in the case, most by the obligor. Source.  AP, Joe Kafka, AberdeenNews.com. For the complete story, please click here (last visited April 2, 2006, reo). Please_click_here_for_South_Dakota_perjury_slip_opinion.pdf

Daughter May Not Sue Dad For Child Support Mom Didn’t Seek

In a case of first impression in that state, the Pennsylvania Supreme Court ruled last week that the adult daughter of a failed marriage as a third party cannot sue her father to enforce a child support provision from her parents' property settlement agreement that would benefit her directly. However, the justices split over the issue of whether the result should be based on contract law or public policy gounds.  Asher Hawkins of the The Legal Intelligencer has provided an initial analysis of the decision on the Law.com website.  Source:  Asher Hawkins, Legal Inteligencer, Law.com.  Asher Hawkins analysis of this case may be found here (last visited March 26, 2006, reo). 

Wheamei Jenq Chen v. Chen, 2006 Pa. LEXIS 253 (March 20, 2006)

You may download a PDF copy of the slip opinion of the Pennsylvania child_support_ruling here.pdf

Case Law Development: Ohio Surrogate Mom Must Repay Her Fee to Biological Father Because She Won Custody of Children

In an ongoing battle between the courts of Ohio and Pennsylvania, the latest ruling comes from Ohio where the surrogate mother, who was awarded custody of triplets she delivered, must repay the biological father her $20,000 surrogate's fee and the child support he was required to pay for the three boys. Although a Pennsylvania court had ruled that the contract between the parties was void, in a unanimous ruling Wednesday, the 9th Ohio District Court of Appeals said the surrogate mother had violated her surrogate's agreement when she claimed the triplets as her own after their birth and took them home to Pennsylvania.  The contract contained language that required the surrogate and her spouse to surrender custody of the children following their birth.  It also contained language stating that if the agreement was breached, the surrogate and her spouse would reimburse the biological father, a 64 year old professor at Cleveland State University.

The court ruled that “upon undisputed evidence that the surrogate and her spouse breached the contract and the conclusion that the contract is enforceable,” the surrogate and her spouse are liable for restitution of the monies paid by the biological father, “as well as attorney fees as may be determined by the common pleas court on remand.”  Moreover, they are liable “for all monies the biological father has been required to pay to them by court order, such as child support.”  J.F. v. D.B., filed March 15, 2006. Ohio Ninth Circuit Court of Appeals. You may download the Ohio_Court_of_Appeals_surrogate_slip opinion here.pdf (reo)

Case Law Development: Child Support Adjustments Based on Percentage of Residential Time Applies only to Parents Actively Exercising Overnight Visitation

The Florida Court of Appeals affirmed a trial court's award of child support based on the actual time the non-custodial parent exercised visitation rather than the time agreed to in the parenting plan.  Florida statutes provides an adjustment to child support in situations in which children spend more than forty percent of their time with one parent.   Here, Father had the right to alternate weekend visitation beginning on Thursdays (which, combined with other visitation would have amounted to more than 40 percent), but in fact only took the children beginning on Fridays.  The court held that the trial court acted properly in calculating Father's child support without applying the 40 percent adjustment because that rule only applies to parents actively exercising overnight visitation for forty percent of the nights of the year, rather than parents simply having that entitlement.

Font v. Mastrapa-Font, 2006 Fla. App. LEXIS 3553 (March 15, 2006)
Opinion on the web  (last visited March 17, 2006 bgf)

Men's Rights Advocacy Group Challenges Michigan’s Child-Support Law in Federal Court

A men's rights advocacy group, The National Center for Men, filed a lawsuit on Thursday in the United States Federal District Court in Detroit alleging that Michigan’s child-support law is unconstitutional because it violates reproductive rights established in Roe v. Wade. The suit claims that a lack of reproductive rights for men violates the equal protection clause of the Constitution.  Source:  Kaisernetwork.org. Please click here for the complete story (last visited March 12, 2006, reo).

Case Law Development: New Jersey Supreme Court Requires Appointed Counsel for Indigent Parents Facing Coercive Incarceration for Non-payment of Child Support

The New Jersey Supreme Court has joined a number of other states in concluding that, even when a court is pursuing civil child support enforcement proceedings, if an indigent litigant faces a risk of incarceration, he or she has a right to assigned counsel.  The Court rejected the contention that a judge can adequately protect an indigent parent by conducting a "thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters."  The court concluded that from now on in enforcement hearings, "parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders." 

In considering the practical implications of its ruling the court commented: "We realize that unless there is a funding source for the provision of counsel to indigent parents in [child support enforcement] proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well."

Pasqua v. Council, 2006 N.J. LEXIS 171  (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)

Case Law Developments: Acceptance of Child Support Requires Dismissal of Appeal Contesting Parentage

The Supreme Court of Delaware held that Mother's action to establish child support and acceptance of support payments from her partner required dismissal of the appeal from the trial court's award of joint custody.  The disputing parents in this case are two women who, during the course of their nine-year relationship bore four children by artificial insemination from the same anonymous donor.  One mother gave birth to triplets and several years later, the other mother had a daughter.  The couple and the four children lived together until 2003, when the couple decided they could no longer live together.  They agreed that the triplet's biological Mother would be the residential parent of the four minor children, with generous visitation for the biological Mother of the youngest daughter. After a few months, Mother of the youngest indicated that she would not abide by the agreement and took custody of the triplets. 

In resolving the dispute, the trial court awarded both mothers joint custody, finding that the mother of the youngest daughter was a de facto parent to the triplets.  The triplet's biological mother filed for child support and also appealed the trial court's action.  The court of appeals determined that it need not reach the issue of whether Delaware recognized de facto parent status because the acceptance of benefits doctrine required dismissal of the appeal. "The "acceptance of the benefits" doctrine provides that an appeal from a judgment is prohibited when the appellant has voluntarily accepted benefits from that judgment."

Smith v. Smith, 2006 Del. LEXIS 113 (March 7, 2006)
Opinion on the web (last visited March 8, 2006 bgf)

Case Law Developments: Dealing with Depreciation Deductions in Calculating Child Support

The Nebraska and Iowa courts have addressed the proper method to address depreciation deductions in calculating income from self-employment for child support purposes.  In both cases, the court had dissallowed the entirety of depreciation deductions in calculating the income of the self-employed farmer fathers.

In Nebraska, the supreme court concluded that, so long as deductions do not represent artificial treatment of assets for the purpose of avoiding child support obligations, the court should include depreciation deductions in calculating income, using the straight-line depreciation method.  Only after arriving at a child support amount based on this income may the court consider whether a deviation from the presumed child support amount is necesssary.  In this case, the trial court had determined that Husband - a self-employed farmer - was entitled to a depreciation deduction, but it did not then use the straight-line method for calculating the deduction.  Rather, the court used Husband's depreciation figures from his taxes, which used a declining-balance method, and then added back one-half of the depreciated amounts in order to arrive at Husband's income for child support purposes.  The Nebraska Supreme Court reversed because the trial court had manipulated the amount of income in order to vary the support amount under the guidelines.  Instead, the court required trial courts to follow a strict two-step process: "Deviations from the guidelines must take into consideration the best interests of the child, and in the event of a deviation, the trial court must state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of the decree or order ..."

Gress v. Gress, 271 Neb. 122; 2006 Neb. LEXIS 33 (March 3, 2006)
Opinion on the web (last visited March 6, 2006 bgf)

The Iowa Court of Appeals addressed the same issues, affirming the trial court's decision to disregard husband's depreciation deductions in order to provide adequate child support.

In re Marriage of Ruth, 2006 Iowa App. LEXIS 178 (March 1, 2006)
Opinion on the web (last visited March 6, 2006 bgf)

Case Law Development: Payor Spouse May not Adjust Agreed Child Support Downward Simply Because In Excess of Guidelines

Husband and Wife had agreed in their divorce that Husband would pay child support, including an annual 5% increase, and that Husband would share all medical expenses with Wife.  When Wife brought an action to enforce that agreement, Husband countered with a petition to reduce supprot.  The trial court granted Husband's motion, basing the downward modification on the fact that the support was in excess of child support guidelines.  The Florida Court of Appeals reversed, reaffirming its position that payor spouses may not rely solely on the guidelines for modification of an agreed-to, judicially adopted child support order without a showing of independent changed circumstances.

Simmons v. Simmons, 2006 Fla. App. LEXIS 2771 March 1, 2006
Opinion on the web (last visited March 3, 2006 bgf)

Case Law Development: Lump Sum Personal Injury Award not Income for Purposes of Calculating Child Support

In an action to modify child support, the trial court denied mother's request that the court allocate to Father's income a portion of the $2,364,500 lump sum settlement of the personal injury lawsuit he had filed after having become disabled from dentistry after an accident in a store. The California Court of Appeal affirmed the trial court's order. The court held that the entirety of an unallocated, lump sum personal injury settlement or award is not income for purposes of calculating child support.  Recognizing that that portion of a personal injury award that is intended to be compensation for loss of income and loss of earning capacity may be considered as income.  However, the court recognized the fact-driven nature of the trial court's findings as to the purpose of the award and the allocation between that designed to compensate for earnings and that portion designed to compensate for pain and suffering.  Thus, the decision is "best left to the discretion of the trial court, considering all the evidence before it."  Here, the court noted that "any attempt to allocate the father's recovery among all the elements of his damages would have been pure speculation.... The mother offered to the trial court from the personal injury proceedings only the father's expert testimony on loss of profits and loss of net income. This presented such an incomplete picture of the father's total damages, that anything other than an arbitrary apportionment would have been impossible."

In re Marriage of Heiner, 2006 Cal. App. LEXIS 263 (February 27, 2006)

Australia Reforms Child Support System

"More than 300,000 divorced dads will have their maintenance bills slashed under the biggest reform of the child support system in almost 20 years. The $850 million overhaul will take more than two years to complete and will affect 1.1 million separated mothers and fathers.
At its heart is a new formula to calculate child support, which will give equal weight to the incomes of both parents for the first time. There are about 680,000 non-custodial parents in Australia – mostly fathers. About 55 per cent can expect to pay less support." By Jason Frenkel and Michael Harvey, Herald Sun Link to Article (last visited 3-1-06 NVS)

Case Law Development: Court May Assert Jurisdiction to Award Child Support for Disabled Child Over 18 Years Old

The Ohio Court of Appeals resolved a jurisdictional challenge to a trial court's child support order in a case in which Mother sued for divorce and child support for the couple's child who, although over 18 years of age, had Downs Syndrome and was unable to be self-supporting. Father argued that because the court had not asserted jurisdiction over the child while still under age 18, the court lacked jurisdiction to award child support. 

The appellate court upheld the trial court's child support order, holding that the child, "as one undisputedly unable to support himself due to his mental retardation, was properly found by the trial court as never having reached the "age of majority" as defined in Ohio statutes.  The court interprets that statute in light of common law precedent going back to Kent Commentaries on American Law as establishing "the notion that mentally or physically disabled children should be excepted from a strictly age-based emancipation rule."

Wiczynski v. Wiczynski, 2006 Ohio 867; 2006 Ohio App. LEXIS 773 (February 24, 2006)

Case Law Development: Interpreting Requirements for Post-Majority Educational Child Support

Missouri’s child support statute provides that, to qualify for post-majority educational support, the child must submit to the parents a school transcript at the beginning of each semester. In this case, the judges of the Missouri Court of Appeals exchanged lengthy dissertations on the meaning of the phrase “at the beginning” – with the dissent arguing that the phrase must meet before or on the first day of classes, while the majority contemplates a more flexible case-by-case determination of whether the requirement is met. With a subtextual debate over Proust and Churchill’s value as sources for interpreting legislative meaning, the case is a lively reminder that much of family law advocacy requires highly refined skills of statutory construction.

Owsley v. Brittain, 2006 Mo. App. LEXIS 148 (February 7, 2006)
Opinion on the web (last visited February 14, 2006 bgf)

Case Law Development: Court may Strike Answer and Estop Father From Denying Income Amount as Sanction for Refusing to Comply with Discovery

The Texas Court of Appeals has dealt another blow against hard-ball litigation tactics. In a paternity case, Father stonewalled repeated orders to provide financial information in discovery for nearly a year when the court finally ordered that he comply with discovery or have his answer stricken.  Father continued to refuse to provide the information and the court struck his answer and estopped him from denying that his income was less than $6,000 a month (the amount mother was claiming as his income).  The court ordered that Father pay $1221 monthly child support and father appealed, arguing that the “death penalty” sanction of striking his answer and basing child support on an income he was estopped from denying constituted a denial of his due process. The court of appeals agreed with the trial court that the refusals to comply with discovery were Father’s fault and did not implicate his attorney.  The court found that the sanction had a direct nexus to the misconduct and was not unjust or excessive.

In the interests of J.D.N., 2006 Tex. App. LEXIS 742 (January 27, 2006)
Opinion available on the web (last visited February 2, 2006 bgf)

Canadian Woman Sues Chicago Priest for Child Support

A Canadian woman, Sandra Ring, has sued Jason Martin, a Roman Catholic priest, in a Canadian court seeking child support for a child born in 2004. According to the Chicago Tribune, the two were former childhood sweethearts and were reunited in Canada when in 2003 Ring, who was married to another man, sought counseling to deal with the loss of a daughter who died in childbirth. Their meeting rekindled their former relationship and subsequently Ms. Ring became pregnant. Martin later had a change of heart and was transferred from Canada to Chicago. Source:  Manya A. Brachear, Chicago Tribune, chicagotribune.com. For the details regarding this story, please click here (last visited January 11, 2006, reo).

Case Law Development: Parent Receives Child Support Credit for Social Security Retirement Benefits Paid to Child

The Tennessee Court of Appeals recognized a child support credit for Father for the amount of social security payments made to child upon Father's retirement, even though the effect of those payments was to displace the child's own social security disability payments, thus lowering the child's overall resources.  The court noted that settled law provided that when a parent retires, the amount of social security paid to that parent's child should be credited against the parent's child support obligation.  However, in this case, the child had been receiving social security disability payments of only $69 less than the amount of the social security payments.  Since the retirement dependency payment would replace rather than supplement the disability payment, mother argued that Father should not be given a credit for the entire amount of the social security payment. 

The court concluded that, while mother's equitable argument "strikes a responsive chord, it cannot carry the day based on the law applicable to this case. As the law existed at the time of the hearing, an obligor parent's child support obligation was a function of the parent's income, the number of children to be supported, and several well defined grounds for deviation. .... The courts are not permitted to take the other financial resources that might be available to the child into consideration. "

Martella v. Martella, 2006 Tenn. App. LEXIS 11 (January 5, 2006)
Opinion on the web at http://www.tsc.state.tn.us/opinions/tca/PDF/061/MartellaESFopn.pdf (last visited January 8, 2006 bgf)

Virginia Panel Issues Comprehensive Review of that State’s Child Support Guidelines

The Commonwealth of Virginia Child Support Guideline Review Panel issued a comprehensive report on October 31 of this year.  Both the Executive Summary and full report are now available on the web.  The report contains a number of suggested changes to existing Virginia Child Support law. (Tip provided by WSC.)   The comprehensive report may be found at this web site (last visited January 8, 2006, reo).

U.S. Senate Approves Measures to Assist Low-Income Families Receiving Child Support

The United States Senate on Wednesday adopted measures giving states greater flexibility and more financial incentives to pay current and former welfare recipients the full child support owed them. For low-income families, who must forfeit their child support checks to receive welfare, this was good news.  Traditionally, the federal government has required states to return at least a portion of the child support check as payback for cash benefits received by families on public assistance. The measures still must be approved by the House of Representatives. Under the bill, states would be allowed to return all the child support monies owed to families formerly on assistance. States could also return all child support payments to families currently on public assistance, but would have to themselves reimburse the federal government in part for federal benefits paid these families. Source:  Judith Davidoff, Capital Times, Madison.com. For more information, please click here (last visited December 24, 2005, reo).

Case Law Development: Effect of Parent's Incarceration on Initial Child Support Determination

The Indiana Court of Appeals held that in making an initial child support calculation in cases in which a parent is incarcerated, the court should impute income to the parent consistent with the earning before the criminal activity resulting in their incarceration.  The issue was one of first impression in the state and the court surveyed opinions of other jurisdictions on the matter, but ultimately arrived at its ruling on public policy considerations.  A dissent viewed the majority's approach as "additional punishment." 

Lambert v. Lambert, 2005 Ind. App. LEXIS 2336 (December 15, 2005)
Opinion on the web at http://www.in.gov/judiciary/opinions/pdf/12150501mgr.pdf (last visited December 17, 2005 bgf)

The majority opinion reasons that "Unemployment by incarceration does not fall squarely into our standard child support rubric. Although it is not an act undertaken for the purpose of avoiding child support, it is clearly not an act undertaken for a legitimate purpose. We are guided, as in all child custody, support, and visitation matters, by the best interests of the child.... When a parent has voluntarily taken a reduction in income for a legitimate purpose, such as being closer to his or her children or caring for his or her aging and ill parents, we are weighing one positive public policy -- adequate support for children -- against another positive public policy -- quality of life for all family members. When a parent has no such legitimate reason for the reduction in income, we are weighing the positive public policy of support for children against the negative public policy of "rewarding" bad behavior. We find no reason to treat an incarcerated parent any differently than a non-custodial parent who has a higher income imputed because of a voluntary decision causing an unnecessary decline in income. Not only is incarceration a foreseeable result of voluntary criminal conduct, but conviction of a crime necessarily imputes some fault to the perpetrator, fault for which he should not be rewarded with a lower child support obligation than he would have otherwise."

The dissent's position was that the state child support guidelines "do not envision the assignment of blame when setting the support amount. Rather, it is generally a straightforward mathematical calculation utilizing a prescribed formula and plugging in the parents' respective incomes. Thus, with the limited exception of voluntary underemployment or unemployment motivated by an intention to escape paying support, the child support obligation is based upon the parents' income, and not fault. No one has suggested here that Father's crimes were committed in order to become incarcerated so that Father's child support obligation would be lessened. If such were the case, I would agree that income should be imputed. Absent that, imputing pre-incarceration income to Father is nothing more than an extra punishment. Punishment is not the point of a child support order."

Football Star Jerry Rice Embroiled in Arizona Paternity Action

Retired San Francisco 49er wide receiver Jerry Rice was in an Arizona courtroom this past week as the plaintiff in a paternity trial to determine child support for a child he fathered out of wedlock in 2002. Rice apparently agrees that he fathered the chid and the disagreement is about child support and fees.  Source: Michael Kiefer, The Arizona Republic.  For more information, please click here (last visited December 11, 2005, reo).

Case Law Development: Personal Jursidiction under UIFSA Based on "Acts and Directives" of Non-resident Parent

The Ohio Court of Appeals interpreted its Uniform Interstate Family Support Act ("UIFSA") which allows a court to exercise personal jurisdiction over a non-resident parent when the children are present in the state as a result of the "acts and directives" of the non residential parent.

The court reviewed a number of cases from other jurisdictions intepreting this provision and concluded that "where there is a pattern of abuse or harassment, the resident parent will be considered to have fled as a result of the 'acts and directives' of the non residential parent and, as such, personal jurisdiction is appropriate under the UIFSA statute."  However, in this case, the trial court had not only ordered custody and support under the authority of that act, but also had granted a divorce and split the marital property.  The appellate court thus reversed and remanded, holding that UIFSA grants a trial court jurisdiction limited to the exact language of the act.  Thus “the trial court had no authority to grant a decree of divorce or to make a division of property.”

Sneed v. Sneed, 2005 Ohio 6413, 2005 Ohio App. LEXIS 5776 (December 5, 2005) Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/3/2005/2005-ohio-6413.pdf (last visited December 9, 2005 bgf)

Indiana To Use PrePaid Credit Cards For Child Support

The state of Indiana will soon pay child support payments to recipients through the use of prepaid MasterCard or Visa branded cards, officials announced Monday. A Request for Proposal (RFP) informational meeting was scheduled for Monday  with potential vendors of the new plan. The Indiana Department of Workforce Development (IDWD) is soliciting proposals from vendors on behalf of its unemployment insurance program, and on behalf of the Department of Child Services for child support payments and other programs. Under the new system, the vendor chosen by the state will issue the cards directly to the recipients. The timetable for the new plan calls for implementation in the Spring of 2006. The winning vendor will also be required to develop an extensive education and awareness plan to help make recipients aware of the changes. The State of Indiana will also promote the new plan through its public information and marketing programs. Source: InsideIndianaBusiness.com Report. For more information, please click here (last visited December 7, 2005, reo).

Canada Rules that More Time With Child Does Not Reduce Support Obligation

The Supreme Court of Canada, in an 8-1 majority decision, decided earlier this month that a divorced parent who spends more time with his or her children should not necessarily be able to automatically pay less child support. The dispute centered on a separation agreement providing that the parents shared joint custody of their son. Initially, the child lived primarily with his mother while the boy's father had access to him on alternate weekends and Thursday nights. In 2000, when his father’s access was increased by more nights per month to accommodate his former wife's studies, an Ontario Family Court judge ruled the father’s child care payments should be reduced. On appeal, the Canadian Supreme Court disagreed with the lower court.  It ruled that the family's entire financial context should be taken into account to ensure an adequate standard of living for both parental homes. Source: CTV.ca. For more information, please click here (last visited November 26, 2005, reo).

Case Law Development: Paternity and Child Support Actions Commenced After Mother's Death

In this case before the Arkansas Supreme Court, Mother died when her daughter was sixteen years old and the girl was then cared for by her Aunt.  At Aunt's request, the state child support enforcement agency then brought a paternity and child support action against Father.  After genetic testing, the trial court entered a paternity finding and ordered the payment of child support retroactive to Mother's death.  The Arkansas Supreme Court affirmed, holding that Aunt's testimony in corroboration of the genetic testing evidence was appropriate.  If a mother is alive, she is required to give corroborating testimony regarding access during the probable period of conception to make a prima facie case of paternity.  However, the court noted, when the mother is deceased the statute requires only "corroborating testimony concerning the conception, birth, and history of the child" in order to state a prima facie case of paternity.  Moreover, the court held that Father's laches defense had no merit because Aunt had taken steps as soon as she had custody of daughter to obtain support on her behalf and the trial court had ordered support retroactive only to Mother's death.

Watt v. Office of Child Support Enforcement, 2005 Ark. LEXIS 718 (November 17, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051117/05-131.html (last visited November 21, 2005 bgf)

Case Law Development: Credits Against Child Support for Disability Benefits Paid to Children on Behalf of Disabled Obligor Parent

Father was ordered to pay child support.  He applied for disability and, eventually, the social security administration processed his claim and determined that he had become disabled and that he and his dependents were entitled to disability benefits.  Both daughters received sizable lump sum payments (to account for the delay in processing the claim from the time the disability began to the time the service actually began to make payments). 

Father argued that he was entitled to a credit or offset for the benefits paid to his children as a result of his disability. The Texas Court of Appeals agreed that section 154.132 of the Texas Family Code provides that, when establishing or modifying child support, the court should credit benefits paid to children on account of the parent's disability.  However, the court rejected Father's argument for credits against past due child support. Regarding father's argument that he be given a credit against a past judgment of arrearages, the court held that the doctrine of res judicata bars any retroactive credit.  As to those arrearages that had not yet been reduced to a judgment, the court also concluded that no credit should be given.  The court found no language in the statutory provision allowing for a retroactive credit and concluded the issue was better left to the legislature.  "The policy issues implicated in applying a lump-sum disability payment to unpaid, unconfirmed child support are more complicated than a credit for future benefits to be paid. Given the competing policies and equities, ... whether an obligor is entitled to an offset against past unconfirmed child support arrearages is an issue for the Legislature to decide."

In the Interest of G.L.S., 2005 Tex. App. LEXIS 9547 (November 16, 2005)
Opinion on the web at http://www.4thcoa.courts.state.tx.us/opinions/case.asp?FilingID=19007 (last visited November 17, 2005)

Case Law Development: Allocating Responsibility for College Expenses

In a case involving the dissolution of a 13-year marriage between a physician and a stay-at-home mom, the Indiana Court of Appeals affirmed an order requiring Father to pay all of the college expenses for the couple's three children's (ages 13, 10 and 9) once their college investment funds were exhausted.  Distinguishing cases in which the court had reversed orders for one parent to pay all college tuition as situations in which the parents had roughly