Child Support Cases and News Items
July 1 to November 1, 2006
In re Fulton, No. 2005-591 (New Hampshire Supreme Court, October 31, 2006): As a matter of statutory interpretation, gifts are not income for purposes of child support. The court may, however, consider gifts as a deviation factor when setting support as part of the overall financial status of the parties.
Lozner v. Lozner (New Jersey Superior Court, Appellate Division, October 30, 2006): When determining if ex-husband’s substantial student loan debt warranted alteration of a guidelines-based child support award, trial court should consider whether ex-husband‘s goals could have been achieved without incurring such overwhelming debt, whether there was a reason ex-husband worked toward his undergraduate and graduate degrees for eleven consecutive years without obtaining a job in between, and whether ex-husband could have gone part time to law school or attended a less expensive school.If a credit card is used to purchase books or pay tuition, this constitutes an educational expense and can be substantially similar to debt incurred through student loans, and substantial student loan debt can constitute a factor to be considered in determining whether alteration of a guidelines-based child support award is warranted; however, credit card debt acquired by a parent to maintain a comfortable life style while attending school is not the substantial equivalent of student loan debt.
Arnal v. Arnal, No. 26215 (South Carolina Supreme Court, October 23, 2006): A showing of “bad faith” is not necessary in order to impute income for purposes of calculating child support. The motive behind any purported reduction in income or earning capacity should be considered in determining whether an obligor parent is voluntarily underemployed, as justification for imputing income for the purposes of calculating child support, but the law does not preclude a finding of voluntary underemployment in instances where a spouse reduces his earning capacity without doing so in bad faith.
Williams v. Williams, No. COA06-284 (North Carolina Court of Appeals, October 17, 2006): Payments made by mother’s father to mother via a friend for mother’s vehicle and housing constituted “income:”to mother for purposes of calculating child support, and, thus, trial court was obligated to include this income in arriving at mother’s child support obligation.
Meredith v. Meredith, 854 N.E.2d 942 (Indiana Court of Appeals, October 6, 2006): Evidence in post-divorce child support modification action was sufficient to support finding that father was voluntarily unemployed; father testified that he voluntarily took early retirement, testified that he was not seeking employment, and testified that he had the ability to work, but chose not to.
Oliekan v. Oliekan, 2006 UT App 405 (Utah Court of Appeals, October 5, 2006): Husband’s premarital interests in basic retirement plan, deferred compensation plan, and 401k plan did not lose their identity as husband’s separate property and become commingled when they were converted, cashed out, and rolled over into Individual Retirement Accounts (IRAs), and thus husband’s premarital interest in plans would not be classified as marital property in divorce action, although marital and premarital funds were deposited together; it was possible to trace and separately identify marital and premarital funds.
Smith v. Smith, No. ED 86913 (Missouri Court of Appeals, Eastern District, October 3, 2006): Father was entitled to credit against his child support obligation for social security benefits received by adult disabled child due to father’s disability.
In re Baker, No. 2005-380 (New Hampshire Supreme Court, September 27, 2006): Father was not entitled under child support guidelines to deduct from his gross income for purposes of calculating his support obligation for younger child the monthly payment he was making for his older child to attend college.
Gibbons v. Kugle, 2006 PA Super 264 (Pennsylvania Superior Court, September 22, 2006): Evidence supported trial court’s decision requiring ex-husband to contribute to the parochial school tuition of child in proportion to his net income; parochial school tuition of $6,230.00 per year was consistent with the parties’ standard of living and station in life prior to separation and, thus, was a reasonable need for child, child’s parochial school tuition was consistent with ex-husband’s income of $133,000, and consistent with child support guidelines, the tuition had to be allocated between the parties in proportion to their net incomes. Trial court’s requiring ex-husband to contribute to a portion of his daughter’s parochial school tuition did not amount to a requirement that he support a place of worship in violation of state constitutional article providing that no man can of right be compelled to attend, erect or support any place of worship.
de Leon v. Jenkins, 143 Cal. App.4th 118, 49 Cal. Rptr.3d 145 (California Court of Appeal, 4th District, September 21, 2006): Under Uniform Interstate Family Support Act (UIFSA), obligee spouse was not precluded, by failing to object to New Mexico child support order within 25 days of its registration by county department of child support services, from challenging understatement of arrears; only nonregistering party who failed to object within requisite time to “any matter that could have been asserted at time of registration” was precluding from further contesting order, and understatement of arrears was not included in statutory grounds that could have been asserted for objecting to order.
Corapcioglu v. Roosevelt, No. 1313 (Maryland Court of Special Appeals, September 20, 2006): $252,930 judgment mother obtained against father for counsel fees and costs she incurred in seeking child’s return to Maryland after father had abducted child and taken him to Turkey were non-dischargeable as child support, or in the nature of child support, in context of father’s bankruptcy proceeding.
Walker v. Grow, No. 2613 (Maryland Court of Special Appeals, September 12, 2006): Joining the majority of jurisdictions that have considered the issue, the court holds that retained earnings of a sub-chapter S corporation can be income for purposes of child support if the retained income are not used to fund “ordinary and necessary business-related investments.” The court further held the burden is on the parent seeking to exclude pass-through income that the pass-through income is not available for child support purposes.
In re Marriage of Eilers, No. 10-05-00290-CV (Texas Court of Appeals, Waco, August 30, 2006): Trial court did not abuse its discretion by finding existence of child support contract for child who was not former husband’s biological child, but of whom he took custody, and by ordering former husband to pay amount of support required by child support guidelines to fulfill his obligations under contract; power of attorney jointly executed by child’s biological mother and former husband and former wife was evidence that husband and wife agreed to provide for child’s financial support, husband agreed that he had signed document indicating that he was to be financially responsible for child, and wife established her right to enforce contractual obligation.
Grant v. Hager, 853 N.E.2d 167 (Indiana Court of Appeals, August 29, 2006): Under the child support guidelines, parenting time credit based on evidence that non-custodial father had children for 152 overnights, or 43% of time, could be credited towards father’s weekly child support obligation and reduce obligation to zero. The Parenting Time Credit may only be applied to reduce the noncustodial parent’s child support obligation to $0.00; it may not be applied to require payment of child support running from the custodial to the noncustodial parent.
In re Marriage of Anglin, No. 06-0028 (Iowa Court of Appeals, August 23, 2006): Variations in former husband’s overtime compensation justified use of three-year average rather than annualized income for current year when deciding whether to modify former husband’s child-support obligation; shift changes that former husband’s employer had planned would reduce amount of required or available overtime. Expenses for children’s dance lessons and parochial school education were not extraordinary expenses that would justify award of additional child support beyond child-support guidelines; expenses fell within contemplation of guidelines.
McKyer v. McKyer, No. COA05-810 (North Carolina Court of Appeals, August 15, 2006): Mother’s receipt of $249,179.77 from the sale of the parties’ marital residence did not constitute non-recurring income that had to be considered by the trial court in calculating the temporary and permanent child support, where mother was principally distributed marital the residence in the equitable distribution proceedings and was ordered to sell the residence, and the change of the asset to cash did not transform the asset to income.
Dedek v. Dedek, 851 N.E.2d 1048 (Ind. Ct. App. August 3, 2006): Father was entitled to have lump sum payment of retroactive Social Security disability benefits that children received because of his disability credited against his child support arrearage, but only for the arrearage accumulated after he filed his petition to modify his child support based on his disability.
Kimbrough v. Com., Child Support Div. ex rel. Belmar, No. 2005-CA-001532-MR (Kentucky Court of Appeals, July 21, 2006): Child support statute that provided a deduction from a parent’s gross income for an “imputed child support obligation”" for child support of prior-born children who resided with the parent had a rational basis, and thus did not violate equal protection.
In re State ex rel. Taylor, No. 2005-273 (New Hampshire Supreme Court, July 19, 2006): A lump sum personal injury settlements constitute “gross income” for purposes of child support guidelines, but the court can rolex replica watches pro-rate the settlement over each month of remaining expected lifetime to calculate monthly support obligation.
Nelson v. Nelson, No. WD 65405 (Missouri Court of Appeals, Western District, July 11, 2006): Cost of private school expenses could be included as “other extraordinary child-rearing costs” on wife’s child support worksheet and be considered by the trial court in awarding support, where wife testified that the parties’ older child had an attention deficit issue and that in private school he received the attention he needed to improve his performance, and child therapist who counseled both children testified that it was in the children’s best interests to remain in private schooling.
Department of Social Services v. L.T., No. 2005-CJ-1965 (Louisiana Supreme Court, July 6, 2006): Naval officer’s basic allowances for housing and subsistence (BAH and BAS) were to be included in his gross income for purposes of calculating child support, although child support statute defining gross income did not specifically list BAH and BAS.
Item: A gynecologist was ordered to pay child support for a child that was conceived as a result of the doctor’s faulty installation of a contraceptive patch.
Item: A man serving a four year sentence for trying to kill his wife is claiming that his incarceration excuses his payment of child support. Getting out of child support was the reason he tried to kill his wife in the first place.
Item: The doctor decided when he divorced to pursue a scorched earth policy. That decision put him $2.2 million behind in child support payments.
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