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Laura W. Morgan
Family Law Consulting

Once the states began enacting their child support guidelines in accordance with the federal mandate under the Family Support Act of 1988, 42 U.S.C. §§ 666, 667, the first question regarding modification that states confronted was whether the enactment of child support guidelines, in and of itself and without more, constituted a substantial change in circumstances warranting modification of the extant award. Since the guidelines provide a presumptively correct amount of child support, it was possible to argue that any order not based on the guidelines should be modified so as to bring it in conformity with the guidelines.

A number of states, including California, Hawaii, Idaho, Pennsylvania, and South Dakota, answered the question in the affirmative in the guidelines themselves, stating that the enactment of the guidelines, in and of itself, constitutes a change in circumstances warranting modification. At least six other states — Alaska, Colorado, Nebraska, Nevada, Ohio, and Virginia — have similarly answered by case law that the enactment of the child support guidelines constitutes, in and of itself, a change in circumstances. Charlesworth v. State, Child Support Enforcement Div. ex rel. Charlesworth, 779 P.2d 792 (Alaska 1989) (child support awards made before enactment of guidelines are entitled to redetermination under guidelines without further showing of change in circumstances); In re Marriage of Stone, 749 P.2d 467 (Colo. Ct. App. 1987) (guidelines applied in determining whether to modify order entered prior to guidelines’ enactment); Schmitt v. Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991) (enactment of new guidelines entitles obligee to recalculation of support); Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229 (1990) (parent need not show a change in circumstances in order to have child support modified in accordance with formula); Rohrbach v. Rohrbach, 40 Ohio App. 3d 92, 531 N.E.2d 773 (1988) (where child support order was issued before guidelines were established, an obligee may petition the court for a one-time modification to increase child support amount to guideline level); Milligan v. Milligan, 12 Va. App. 982 (1991) (adoption of guidelines is change of circumstances allowing court to reexamine support order); Head v. Head, 24 Va. App. 166, 480 S.E.2d 780 (1997) (revision of guidelines by legislature that changed support chart for high- income obligors is change of circumstances).

On the other hand, some states, including Arkansas, Louisiana, and New York, and the District of Columbia have taken the view in the guidelines themselves that enactment of the guidelines or changes in the guidelines does not, without more, constitute a change in circumstances sufficient for modification.

Cases from at twelve more states, including Alabama, Georgia, Indiana, Iowa, Minnesota, Mississippi, Montana, New Hampshire, New Mexico, North Dakota, Utah, and Wisconsin agree with this proposition. Davis v. Davis, 535 So. 2d 183 (Ala. Civ. App. 1988); Willingham v. Willingham, 261 Ga. 674, 410 S.E.2d 98 (1991); Vore v. Vore, 563 N.E.2d 154, aff’d, 573 N.E.2d 397 (Ind. Ct. App. 1990); In re Marriage of Bergfeld, 465 N.W.2d 865 (Iowa 1991) (child support guidelines alone, do not constitute change in circumstances); State ex rel. Johnson v. Howell, 359 N.W.2d 629 (Minn. Ct. App. 1984); Thurman v. Thurman, 559 So. 2d 1014 (Miss. 1991); In re Marriage of Kukes, 258 Mont. 324, 852 P.2d 655 (1993); Eldridge v. Eldridge, 136 N.H. 611, 620 A.2d 1031 (1993); Perkins v. Rowson, 110 N.M. 671, 798 P.2d 1057 (Ct. App.), cert. denied, 110 N.M. 641, 798 P.2d 591 (1990) (enactment of statute did not change common-law requirement of change in circumstances); State ex rel. Younger v. Bryant, 465 N.W.2d 155 (N.D. 1991); Bailey v. Adams, 798 P.2d 1142 (Utah Ct. App. 1990); Beaupre v. Airriess, 560 N.W.2d 285, 208 Wis. 2d 238 (Ct. App. 1997) (alteration of administrative code is not change in circumstances).

It is worth noting that in most of the cases where the court determined that enactment of the guidelines constituted a change in circumstances, the petitioning party was the custodial parent seeking an upward modification; in most of the cases where the court determined enactment of the guidelines did not constitute a change in circumstances, the petitioning party was the noncustodial parent seeking a downward modification.

Rather than holding that the enactment of the guidelines or a change in the guidelines will, in and of itself, constitute a change in circumstances warranting modification, most states have taken the intermediate position that a material or substantial variance between an outstanding pre-guidelines or pre-amended-guidelines order and an order resulting from the application of the guidelines as enacted or amended will constitute a change in circumstances warranting modification. E.g., Milligan v. Milligan, 12 Va. App. 982, 407 S.E.2d 702 (1991) (party is entitled to modification where party can show “significant” variance between preguidelines order and order as calculated under guidelines). This position achieves the public policy goal of ensuring similar amounts of support for similarly situated children, as well as the public policy goal of administrative efficiency.

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