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Child Support Cases and News Items

May 1, 2005

Lawson v. Lawson, 108 P.3d 883 (Alaska Supreme Court, March 11, 2005): Alaska’s percentage of income model child support guideline, which treats custodial and non-custodial parents differently, did not violate equal protection principles. Custodial and non-custodial parents were not similarly situated for purposes of child support. Guidelines do not violate state separation of powers doctrine by unconstitutionally requiring Supreme Court to exercise essentially legislative powers, as the Supreme Court had inherent judicial power to make rules of interpretation that governed how courts interpret constitutional, statutory, or common law requirements.

Lucas v. Lucas, 88 Conn. App. 246, 869 A.2d 239 (Connecticut Court of Appeals, March 29, 2005): Social Security Administration’s finding that ex-husband was disabled from work for purposes of receiving Social Security benefits was not binding on the trial court in its factual determination that ex-husband was not working to his earning capacity for child support modification purposes.

Weinstein v. Weinstein, 87 Conn. App. 699, 867 A.2d 111 (Connecticut Court of Appeals, March1, 2005): In light of the absence of findings challenging the accuracy of ex-husband’s investment income or the reasonableness of his investments, trial court abused its discretion by substituting its investment preferences for those of ex-husband, thereby imputing a higher return to ex-husband’s investments for support purposes.

Keeley v. Keeley, 30 Fla. L. Weekly D839 (Florida District Court of Appeals, Second District, March 30, 2005): Former husband was entitled to downward adjustment in future child support payments, where agreed visitation schedule gave him sufficient overnight visits to satisfy statutory requirements, should he exercise such rights, and where former wife retained right to seek retroactive modification of child support should he fail to do so.

Konsoulas v. Konsoulas, 30 Fla. L. Weekly D668 (Florida Court of Appeals, Fourth District, March 9, 2005): Trial court abused its discretion by imputing $110,000 in annual income to husband, where husband was taking excessive draws from his family’s gas station business at the time he was making this amount, it was undisputed that the majority shareholder, the husband’s father, would no longer permit the excessive draws to take place, and there was no evidence husband could earn more than $48,000 yearly as a gas station manager.

Freilich v. Freilich, 30 Fla. L. Weekly D633 (Florida Court of Appeals, 5 District, March 4, 2005): Imputing income to husband for purposes of determining husband’s child support and alimony obligations was warranted in divorce action; husband had elected not to resume practice of medicine following license suspension and had entered law school as part of new career path.

In re Marriage of Lindman, 824 N.E.2d 1219 (Illinois Court of Appeals, Second District, March 7, 2005): Disbursements from an Individual Retirement Account (IRA) constituted “income” for the purpose of calculating net income, and the nonrecurring nature of the father’s IRA disbursements did not prevent the disbursements from being considered as part of father’s net income.

Brodt v. Lewis, 824 N.E.2d 1288 (Indiana Court of Appeals, April 8, 2005): While a trial court may not first make an order for educational needs when the petition seeking such relief is filed after the child’s emancipation or attaining twenty-one, it is authorized to complete consideration of petitions filed before emancipation or attaining 21.

Hale v. Hale, 108 P.3d 1012 (Kansas Court of Appeals, April 1, 2005): Choice of law provision in UIFSA relating to statute of limitations, which provides that in a proceeding to enforce child support arrearages the statute of limitation under laws of Kansas or of the state that issued the child support order, whichever is longer, applies, mandated using the statute of limitations of Oklahoma, and thus action to enforce was not untimely.

Wyatt v. Wyatt, No. 39,518-CA (Louisiana Court of Appeals, 2 Circuit, April 6, 2005): Father was not entitled to child support modification based on his retirement, where although the record showed the father was placed on Family and Medical Leave on August 20, 2002, this does not establish that he retired over a year later for medical reasons. Nor does the physician’s letter to the VA written in July 2004 establish that he retired for medical reasons in December 2003. The physician’s letter merely states that low back pain has limited some of the father’s function with daily activities and work; it does not state that he cannot work or that he had to retire because of medical problems.

Williams v. Williams, No. 2004-CA-1624 (Louisiana Court of Appeals, 4 Circuit, March 16, 2005): Child support obligation properly included private school tuition expenses, where child attended private schools for her entire life, both parents worked two jobs to support their child, which included enrolling their child in private school, father customarily paid for child’s tuition, and maintained second job to make ends meet, financing child’s education was priority for both parents, and up until divorce was filed, both parents were steadfast in their commitment in having child benefit from private school education.

Doll v. Barnell, 693 N.W.2d 455 (Minnesota Court of Appeals, March 22, 2005): In another constitutional challenge to the percentage of income model, the noncustodial father claimed gender bias in the guidelines because mothers more often than fathers are the primary custodial parent. The court held that Minnesota’s statutory child support guidelines were supported by rational basis and therefore did not violate equal protection. The guidelines permitted attention to the unique circumstances of each case, and the legislature was well within its constitutional authority in determining to maximize recovery of child support, in respecting custodial care without placing dollar value on it, and in assessing presumptive level of need for children. Further, the guidelines did not violate substantive due process. Whether the guidelines required payment of more than amount required for children’s basic needs was debatable, and the legislature factored in many variables involved in the debate and allowed deviations from guidelines and allowed agreements of parties, with paramount consideration of best interests of child. Finally, Minnesota’s guidelines did not conflict with, and therefore were not preempted by, federal regulations for state plans for child support enforcement. Minnesota’s guidelines had received federal approval, and Minnesota’s guidelines satisfied all federal child support requirements, including consideration of costs of raising children.

Scruggs v. Scruggs, No. WD 62773 (Missouri Court of Appeals, Western District, April 19, 2005): Although parties’ daughter was employed full time, was beyond parental control, and lived with her boyfriend, child’s guardian ad litem on whose testimony emancipation determination was made was not sworn as witness and was not subject to cross-examination, and as such, his report did not constitute evidence on which trial court could rely in declaring that child was emancipated.

In re Donovan, No. 2004-288 (New Hampshire Supreme Court, April 1, 2005): Finding that mother was voluntarily underemployed was not supported by evidence, where father’s claim that mother could obtain employment as a bookkeeper was speculation unsupported by any concrete evidence. Pursuant to the parties’ agreement, the mother had been home-schooling children for at least eight years, which prevented her from pursuing full-time employment, she had been required to seek part-time employment simply to make ends meet; she had been working to the extent of her ability around home schooling; there was no evidence concerning whether the mother could continue to home-school the children and earn the amount of income that trial court imputed to her.

Usack v. Usack, 2005 N.Y. Slip Op. 02712 (New York Appellate Division, Third Department, April 7, 2005): Father’s deliberate actions in alienating children from their mother, following her extramarital affair, warranted temporary suspension of her child support obligation, absent proof that children would become public charges as a result.

Brim v. Combs, 2005 N.Y. Slip Op. 02660 (New York Appellate Division, Second Department, April 4, 2005): A court may not based child support on the amount of support the father paid for his other child by different woman, particularly where no evidence was presented as to that child’s expenses, resources, and needs.

Denholm v. Kaplan, 2005 N.Y. Slip Op. 02479 (New York Appellate Division, Second Department, March 28, 2005): Support magistrate had insufficient information to determine father’s gross income, and thus was justified in calculating child support based on needs of child, in light of father’s contradictory testimony regarding his finances and his failure to submit several requested documents, including a properly completed and notarized financial disclosure affidavit.

Gaston County ex rel. Miller v. Miller, 608 S.E.2d 101 (North Carolina Court of Appeals, February 15, 2005): Monthly adoption assistance subsidies for special needs children was money received by children, not wife as custodial parent, for purposes of determining husband’s child support obligation, under regulations applicable to adoption assistance payments and parties’ adoption assistance agreement with county.

Hanson v. Hanson, No. 20040275 (North Dakota Supreme Court, April 26, 2005): Court was required to apply provision of guidelines that consider the obligor’s responsibility for children living in the same household; court was aware that father had two children living at home, but it failed to apply provisions of the guidelines that would have adjusted his presumptively correct obligation downward.

A.M.S. ex rel. Farthing v. Stoppleworth, 694 N.W.2d 8 (North Dakota Supreme Court, March 23, 2005): Father, whose child support payments were based on an imputed, federal-minimum-wage income, could not reduce payments by showing a lack of financial resources due to imprisonment.

Knowlton v. Knowlton, 2005 OK CIV APP 22 (Oklahoma Court of Appeals, March 4, 2005): Once the mother, the father, and the child left the state of Oklahoma, the state no longer had jurisdiction to modify the child support order issued in connection with the parties’ divorce.

In re Marriage of Thanhouser, 198 Or. App. 472, 108 P.3d 667 (March 23, 2005): Trial court child support order that attributed to the unemployed wife a full-time minimum wage income and an employment income of $25,000 a year thereafter was proper. There was a rebuttable presumption that an unemployed parent could be employed full time at minimum wage of greater, and the wife failed to establish that the children’s special needs required the wife to remain at home to assist the children.

Ricco v. Novitski, 2005 Pa. Super. 12 (Pennsylvania Superior Court, April 5, 2005): Child had a “Special needs trust,”a a trust established by a parent, grandparent, legal guardian, or a court for the benefit of a disabled person. The father argued that the court should deviate downward because the child had extra support from the trust. The court held that deviation was not warranted; assets in a child’s custodial account may be expended for the use and benefit of the minor in addition to, but not in substitution for, any parental support obligation.

Spahr v. Spahr, 869 A.2d 548 (Pennsylvania Superior Court, February 22, 2005): A $126,189.00 corporate distribution to the husband to reimburse him for his tax liability could be considered part of husband’s yearly income, for child support purposes.

News Items
(Note: News items, unlike case descriptions, contain editorial content.)

Item: Members of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and Enforcement voted on April 22, 2005, to table a hotly contested proposal that could increase child support payments for some parents and decrease them for others. The committee also voted to ask the high court to authorize a statewide study, which they believe would reflect more accurately Alabama child support issues.

Item: Georgia switched from its Percentage of Income model guideline to an Income Shares Model guideline.

The new guidelines are, frankly, a mess.

Item: Minnesota is considering the same switch.

Item: Meanwhile, in Tennessee, where the state made the switch from Percentage of Income to Income Shares in January 2005, the Judicial Counsel and Bar Association has called for the suspension of the new guidelines, deeming them flawed and overly complicated.

Item: Bad boy Bobby Brown is in the hot seat again, this time for failing to fund a college support trust for his children as required by court order.

Item: Everyone knows that the new bankruptcy bill will make it harder to erase credit card debt. It will also make it harder to collect child support, because child support obligees will now stand on the same footing as multinational banks in trying to collect their debts.

Item: Paul Bernard went on trial this month for allegedly murdering his ex-wife because he was angry over having to pay child support.

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