December 18, 2005
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."
December 11, 2005
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).
December 09, 2005
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)
December 07, 2005
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).
November 26, 2005
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).
November 22, 2005
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)
November 18, 2005
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 equal resources, the court found this award was justified by the significant disparity in income between the parents. (Father earned an average of $330,000 annually; the court had imputed an income of $20,800 to Mother).
A dissent took issue with the order to pay "an unfettered amount of the children's college expenses" noting "putting three children through four years of education at Harvard would cost Husband $ 561,000" and that "it is entirely possible that he ... could be plunged into poverty." The majority found the dissent's fears unreasonable, noting that even in the remote event that all three children went ot Harvard, most students there receive financial aid and that state college tuition is far less. Moreover, the court noted, Father could move to modify the award should it become unreasonable.
Eppler v. Eppler, 2005 Ind. App. LEXIS 2132 (November 14, 2005)
Opinion on the web at http://www.in.gov/judiciary/opinions/pdf/11140503pdm.pdf (last visited November 16, 2005 bgf)
November 16, 2005
Daughter, 40, To Receive Child Support
A Lexington County, South Carolina man must continue paying child support for his 40-year-old mentally disabled daughter, the State Supreme Court has ruled. The court heard arguments last month from a man who said a family court judge should have dismissed the case against him because the legal deadline to bring a paternity action had expired. He also said he shouldn’t have to pay $91 per week in child support, as ordered by the family court, because his daughter earns enough money under court guidelines with her part-time job and federal disability payments. The daughter receives $275 in Social Security benefits a month. She also receives between $250 and $350 a week from her job. The woman’s mother filed a lawsuit in 1999 seeking child support for the first time for her then-34-year-old daughter, who lives with her in Lexington County. Source. TheState.com. For the complete story, please click here (last visited November 16, 2005, reo).
Smith v. Doe, 2005 S.C. LEXIS 335 (November 14, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26063 (last visited November 17, 2005 bgf)
October 25, 2005
Case Law Development: Child Support Orders Against Incarcerated Parents Appropriate
The Family Court of New York determined that a parent who is incarcerated at the time child support proceedings are commenced and who is likely to remain in prison until the child has reached the age of majority may nonetheless be assessed child support. The court found that setting child support at zero would reward the parent for his wrongdoing and deprive the child of possible support should the parent come into some money or become eligible for employment. Also, the court noted that, although New York statutes provide that the accrual of child support for parents with incomes below the poverty line should be capped at $500, that cap need not apply when the parent’s poverty is due to their incarceration for crime. Finally, the court rejected parent’s argument that the child support order should be set aside “because of the unrealized expectations and emotional distress it will cause the Mother and child.”(!)
Janet E. v. Antonio B., 2005 NY Slip Op 25434; 2005 N.Y. Misc. LEXIS 2265 (October 18, 2005) bgf
October 18, 2005
Case Law Development: Statutory Amendment Limiting Back Child Support Applies Prospectively Only
In 2004, the Michigan legislature amended its child support statute to provide that child support obligations may be retroactive only to the date of the filing of the paternity action, rather than to the date of the child's birth. Exceptions are provided in certain instances in which the defendant has caused a delay in the filing. The Michigan Court of Appeals has held that the statute should apply prospectively only because "the amended statutory scheme significantly impacts both children's substantive right to support by altering the extent of any potential award, and ... there is no express indication in the statutory language that the 2004 amendment should apply retroactively." Thus, Mother's actions for paternity and child support, filed before the effective date of the act, would be determined without reference to the limitations imposed by the amended statute.
McLaren v. Miller, 2005 Mich. App. LEXIS 2528 (October 14, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051013_C260868_26_260868.OPN.PDF
(last visited October 17, 2005 bgf)
Case Law Development: Child Support Calculations - Extra Income, Past Support and the Application of Equitable Defenses
The Supreme Court of Iowa clarified a number of issues relating to setting the amount of current and past due child support.
First, the court confirmed that extra income (such as income from bonuses, overtime, or second jobs) may be included in determining child support if it is reasonably expected to be received in the future. If extra income is uncertain or speculative, or if it is an anomaly, it is excluded. In this case, Mother presented evidence that in the year prior to the action, Father had earned income from a second job. The court held that this evidence was sufficient to then shift the burden of proof to Father to establish that it should be excluded from gross income as uncertain and speculative. “The recipient of extra income is in the best position to present the underlying circumstances to the court, which makes it fair to place the burden on the recipient to show the extra income should be excluded or considered in some other manner.”
The court also considered arguments regarding past child support. Since Mother had waited six years to bring the paternity action, Father argued that she was barred by doctrines of estoppel, waiver, and laches. The court denied all these defenses. As to estoppel and waiver, the court found that Mother’s failure to pursue the paternity action alone was insufficient to establish these defenses. The court held that, to establish estoppel or waiver, the obligor parent must provide “some kind of affirmative act, inconsistent with the intention to collect child support.” As to the laches claim, the court found that Father was unable to establish by clear and convincing evidence that Mother had unreasonably delayed asserting her right to collect back child support and that he was prejudiced by the delay. In considering the reason for Mother’s delay in bringing the action, the court found that Mother, as a single mother of three children making about $18,000 a year, she simply could not afford an attorney. While she did contact the state Child Support Recovery Unit, they did not assist her, nor did they inform her that the county attorney might be able to pursue an action on her behalf. She was finally able to bring the action when she had the opportunity to purchase prepaid legal insurance through her employment. Delay in bringing an action may be reasonable when "lack of funds precludes a party from retaining a lawyer to pursue a claim.” Nor was the court convinced that Father’s claim that he spent the money he would have paid in child support constituted prejudice caused by Mother’s delay.
Finally, the court analyzed the method by which courts determine the amount of back child support. The Iowa statutes allow courts to determine past support based on whatever "the court deems appropriate for the past support and maintenance of the child" rather than relying on the uniform child support guidelines. Nonetheless, the court suggested that one should begin with the amount of support that would have been paid under the guidelines if no delay had occurred. The court may then consider the financial burden on the obligor parent of the amount thus determined, and the circumstances of whether the Father was aware of his alleged paternity at an earlier date.
Markey v. Carney, 2005 Iowa Sup. LEXIS 139 (October 14, 2005) Opinion on the web at http://www.judicial.state.ia.us/supreme/opinions/20051014/04-0519.asp (last visited October 17, 2005 bgf)
October 14, 2005
Case Law Development: Divorcing Couples Bound by Characterizations of Property for Tax Purposes even if Sham Transactions
If families characterize transactions as gifts to one spouse for gift tax purposes, may the court characterize the nature or intended recipient of that transaction differently for purposes of determining the marital estate? In this case, Husband’s parents, in order to avoid federal gift tax liability, twice wrote $10,000 checks to their son and separate $10,000 checks to their daughter in law in order to help with remodeling the couple’s home. When Husband and Wife divorced, Husband claims that the $20,000 given to Wife was actually intended as a gift solely to Husband and so should not be included in the marital estate. The trial court agreed, but the Georgia Supreme Court held that “Although it is permissible to legitimately arrange one's affairs so as to minimize or avoid taxes, it is impermissible to engage in sham transactions designed to camouflage the actual situation. Equity will not relieve the parties from such sham agreements." (internal quotations and footnotes omitted)
Wife also argued that the trial court erred by failing to consider the value of Husband’s in-kind economic benefits as income for purposes of calculating child support. Wife argued that the value of Husband’s employer’s contributions to health insurance and pension benefits, for example, should have been included in the income calculation. The supreme court disagreed, noting that Georgia statutes allow but do not require consideration of fringe benefits in calculating the gross income for purposes of setting child support. Since the benefits in this case were not considered a part of Monson's gross income for income tax purposes, and were not for daily personal living expenses, such as automobile or housing expenses, the court held that the trial court need not have included these benefits in the income calculation. The court also noted that an amendment to the child support statute that would be taking effect in January 2006 specifically provided that fringe benefits "shall be counted as income if they significantly reduce personal living expenses. "
Hayes v. Hayes, 2005 Ga. LEXIS 659 (October 11, 2005)
Opinion on the web at http://www.gasupreme.us/pdf/s05f0738.pdf (last visited October 12, 2005 bgf)
As a side note, this case came to the supreme court as part of its pilot project to grant all non-frivolous discretionary appeals in domestic relations cases.
October 12, 2005
New York Daughter Sues Parents for Child Support
Maria Guevara, age 18, who no longer lives with either parent but has her own apartment, has sued her parents for child support. She says that she had a strained relationship with her father, who she said physically abused her when she was younger -- a charge he denies -- and she said her mother was too strict, setting an early curfew and denying her money for restaurants and fashionable clothes. Following her move from her mother’s home, she sued her parents for child support in Nassau Family Court. Under New York law, young people between the ages of 18 and 21 fall into a special category: They are old enough to move out of their parents' house, but young enough to be supported by them in most cases, according to some legal experts. Cases in New York of this kind have reportedly been decided for and against persons in Ms. Guevara’s situation. Source: Ann Givens, Newday, newsday.com. For the complete story, click here (last visited October 12, 2005, reo).
October 10, 2005
Pennsylvania Child Support Guidelines are Revised to Reflect Lower Costs of Raising Children
The Pennsylvania State Supreme Court recently adopted new child support guidelines that decrease the support obligation for the majority of parents, especially those in the upper income levels. The effect will be significant for some parents, with decreases of as much as 30 percent. The changes to the economic support calculations were based partly on a national study of the costs of raising children by David M. Betson, an economics professor at Notre Dame. The state also used Mr. Betson's research, developed for the U.S. Department of Health and Human Services and used by two-thirds of the states, for the previous review in 1999. When Mr. Betson updated his research four years ago, the cost of child-rearing expenses decreased …
by Mike Bucsko for the Pittsburgh Post-Gazette
http://www.post-gazette.com/pg/05283/585835.stm (last visited October 10, 2005 bgf)
October 08, 2005
Biological dad challenges child support order for 40-year-old daughter
The South Carolina Supreme Court was asked Friday to overrule a lower court order requiring a biological father to pay child support for a 40-year-old mentally disabled daughter. The father was ordered in 2001 to pay $91 weekly to support his daughter. The mother had filed a lawsuit in 1999 seeking child support for her then-34-year-old daughter, who lives with her in Lexington County. The couple never married and did not have a long-term relationship. The father argued that a family court judge should have dismissed the lawsuit against him because the deadline to bring a paternity action had expired. He also claimed that the amount ordered was excessive because his daughter already receives about $775 a month through her part-time job and federal disability payments. The South Carolina Court ruled unanimously in 2003 that a divorced father must pay child support for his then-27-year-old daughter, who had a genetic disease that causes mental retardation and severe muscular weakness. Source: Associated Press, MyrtleBeachOnline.com.For the complete story, click here (last visited October 8, 2005, REO).
September 25, 2005
Lawyer sues Texas officials over payments to attorneys representing children
A lawsuit filed Thursday claims that officials in Denton County,Texas have violated the Texas Constitution by paying for attorneys appointed in divorce cases. The lawsuit seeks to bar the county from making any more payments to attorneys representing children in cases not involving Child Protective Services or the state. It is alleged that the lawsuit was brought after it was learned that District Court Judge Vicki Isaacks was billing the county for attorneys she appointed to represent children in divorce cases. . . . Texas family law specifies that counties are responsible for paying for attorney appointments in CPS and criminal cases, including nonpayment of child support. However, Professor Jack Sampson, who co-wrote Sampson & Tindall's Texas Family Code, said the county isn't obliged to pay attorney fees in private cases. By: Dave Moore / Denton Record-Chronicle, The Dallas Morning News, dallasnews.com.Click here for complete story. (Last visited September 25, 2005, REO).
September 18, 2005
Case Law Development: Private School Tuition as Separate Responsibility Beyond Child Support
The Mississippi courts have been working their way through the allocation of private school tuition in child support, and apparently have yet to find agreement. In 2002, the Mississippi Supreme Court held, in a 5-4 opinion, that private school tuition is, by itself, an inadequate basis for a child support award in excess of the statutory guidelines. Southerland v. Southerland, 816 So. 2d 1004, 2002 Miss. LEXIS 133 (Miss. 2002). Since then, lower courts have struggled with the scope of this holding. This past week, the courts of appeals issued two opinions on the same day that came to opposite results on whether private school tuition could be ordered separate from child support.
Striebeck V Striebeck, 2005 Miss. App. LEXIS 639 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
and Roberts V. Roberts, 2005 Miss. App. LEXIS 638 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
Neither case explains its decision very completely and it is difficult to reconcile the cases…
The difference can hardly be explained by any facts evident from the opinions, in both cases Father was the primary earner, with roughly similar but fluctuating income (Mr. Roberts was a pharmaceutical salesman while Mr. Striebeck was a trial attorney in solo practice). In both cases the parties had agreed to send the children to private school before the divorce. In Striebeck, however, the court concluded that “While it is true that our supreme court has previously stated that private school tuition should not be awarded in some factual circumstances, we cannot find that the chancellor erred in this instance.” In Roberts, the court concluded, “While a father's agreement prior to divorce to send a child to private school may be one legitimate factor to be considered, it is by itself an inadequate basis for an award of support in excess of that allowed by the statutory guidelines."
September 14, 2005
Child Support Payment Hotline Established For Hurricane Survivors In Texas
Survivors of Hurricane Katrina who sought shelter in Texas may call a toll-free number to arrange to get their Louisiana child support payments. Texas Attorney General Greg Abbott and Louisiana child support director Robbie Endris are urging parents to call 1-800-256-4650 to report their new addresses. . . . The toll-free number for the Louisiana Customer Service Center is available daily from 7 a.m. to 7 p.m. CDT.Parents also may access the child support payment inquiry screen at www.dss.state.la.us. But they must know their user ID and PIN to do so. By: KWTX.com.
http://www.kwtx.com/home/headlines/1842077.html (Last visited September 14, 2005, REO)
September 07, 2005
Woman says religion prevents her from paying child support
The Vermont Supreme Court will hear arguments on whether a former Vermont woman can avoid paying child support because of her religious beliefs. The Vermont Office of Child Support in 2003 received a court order allowing it to suspend the driver's license of Joyce Stanzione, a former Vermont resident who has not paid child support since she separated from her husband in 1991.Stanzione is a long-time member of the Twelve Tribes Messianic Community in Florida and is not allowed under church law to have an income, said Jean Swantko, her attorney. Suspending her license because she has no income violates the First Amendment of the U.S. Constitution, which protects religious freedom, said Swantko, who is also a member of the Twelve Tribes Community. Information from: The Times Argus, Boston.com news.
http://www.boston.com/news/local/vermont/articles/2005/09/05/woman_says_religion_prevents_her_from_paying_child_support/ (Last visited September 7, 2005, REO). Additional information: TimesArgus.com, http://www.timesargus.com/apps/pbcs.dll/article?AID=/20050905/NEWS/509050320/1003 (Last visited September 7, 2005, REO).