DEVIATION FOR COST OF LIVING DIFFERENTIAL
Laura W. Morgan
In interstate child support cases, UIFSA requires that the forum state use its own guidelines. A state devises its own child support guidelines based on the cost of living in that state. Consequently, there can be cost of living differences between the obligor and the obligee.
Some states have placed special cost-of-living provisions in the guidelines to deal with the situation where a parent lives in another state. For example, in Kansas, Appendix IV to the Child Support Guideline provides that a cost-of-living differential shall be applied when a parent lives in another state. In Georgia, Montana, and Washington, the fact that a parent lives in another state is a deviation factor. Ga. Code Ann. 19-6-15(13) (cost of living of community of each parent is deviation factor); Admin. R. Mont. 46-30-1543 (cost-of-living differential is deviation factor); Wash. Code Ann. 26.19.075(1)(c)(ii) (significant disparity in the living costs of the parents due to conditions beyond their control is deviation factor). See also Utah Code Ann. 78-45- (3)(a) (the standard of living and situation of the parties are a deviation factors). On the other hand, the Alaska Child Support Guidelines state that the relocation of the custodial parent to a state with a lower cost of living will generally not justify a reduction in support. Alaska Civ. R. 90.3(IV)(B)(4).
Where the data used by the state in determining its guideline support level are state specific, and thus the essential economic underpinnings of the guideline amounts are state specific, it is clear that the Kansas approach is better: a mandatory adjustment for cost of living where one parent lives outside of the forum state. Moreover, even where the data used by the state in determining its guideline support level are based on a national average, then deviation for a different location with a cost of living that significantly differs from the average cost of living as reflected in the guidelines is appropriate as well.
Many states have been willing to apply a cost-of-living adjustment for locality. For example, in Fronk v. Wilson, 250 Mont. 291, 819 P.2d 1275 (1991), the Montana trial court allowed the noncustodial father an adjustment for the cost of living in Alaska. The appellate court conceded that the Montana Child Support Guidelines do not address a cost-of-living adjustment. Nevertheless, citing a preguideline case, the court held that where there is evidence that shows a substantial disparity between the value of the dollar in different locales, the court may in equity make appropriate adjustments. The father presented the American Chamber of Commerce Researchers Association (ACCRA) Cost of Living Index, obtained from the State of Montanas Economic Information Center. The father further gave several examples of how he was personally affected by the high cost of living in Alaska. This constituted sufficient evidence upon which the trial court could make a determination to deviate from the guidelines. Accord Dortch v. Straka, 59 Wash. App. 773, 801 P.2d 279 (1990) (court may deviate if there is a significant disparity in living costs of parents; remand required to allow father to present evidence concerning the cost of living in Alaska); cf. Glinski v. Glinski, 26 Conn. App. 617, 602 A.2d 1070 (1992) (evidence of difference in cost of living between Connecticut, where father resided, and Poland, where mother and child resided, was not useful to trial court where there was no evidence as to mother and childs actual costs); Platt v. Platt, 267 Mont. 38, 881 P.2d 634 (1994) (no concrete evidence presented concerning fathers claim that cost of living in Pennsylvania was higher); In re Marriage of Nash, 254 Mont. 231, 836 P.2d 598 (1992) (fathers unsubstantiated estimate that the cost of living in Alaska was 70% higher than Montana was properly disregarded); Johnson v. Johnson, 468 N.W.2d 648 (S.D. 1991) (although father claimed cost of living was higher in California than South Dakota, these were mere conclusory assertions without evidentiary support; even if true, father earned higher wages to offset those higher costs); see also Hurdelbrink v. Hurdelbrink, 45 Ohio App. 3d 5, 544 N.E.2d 700 (1989) (fact that father moved to California from Ohio, remarried, and purchased home supported deviation from guidelines). But see Horner v. Horner, 549 N.W.2d 669 (N.D. 1996) (deviation would not be allowed to offset fathers increased cost of living in California where guidelines plainly state that day-to-day expenses may not be used to rebut presumptive amount).
A cost-of-living adjustment for location may be made in another manner. In Booth v. Booth, 44 Ohio St. 3d 142, 541 N.E.2d 1028 (1989), the mother and children lived in Ohio, but the father lived in Teaneck, New Jersey. To account for the fact that the cost of living in the New York City metropolitan area was higher than the cost of living in Ohio, the court calculated the fathers child support based on his net income rather than gross income as set forth in the guidelines. This adjustment, the Supreme Court of Ohio stated, was a reasonable exercise of the trial courts discretion, and adequately recognized the substantial difference between the cost of living in the domiciles of the mother and father.