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Child Support Cases and News Items

July 1, 2005

Metropolitan Life Ins. Co. v. Zaldivar, No. 04-2469 (United States Court of Appeals, First Circuit, June 27, 2005): Children’s claim against insured’s second wife, alleging breach of decree and unjust enrichment and seeking imposition of constructive trust against policy proceeds, was preempted by Federal Employees Group Life Insurance Act (FEGLIA) which took precedence over state-court divorce decree which ordered insured to maintain life insurance policy for benefit of his children from his first marriage, since amendment to FEGLIA allowing divorce decree to govern beneficiary designation of FEGLIA policy only where copy of decree was received by employing agency before death had not occurred.

McCarthy v. Popwell, No. 2030804 (Alabama Court of Appeals, June 1, 2005): Father was not entitled to have a hypothetical amount of Social Security Disability benefits mother might receive if she applied for such benefits imputed to her, where he presented no evidence she was entitled to such benefits. Further, Social Security Survivor Benefits child received was not income to wife.

Veselsky v. Veselsky, No. S-11560 (Alaska Supreme Court, June 3, 2005): Trial court properly ordered father to be responsible for 75% of the costs of child visitation and uncovered medical expenses while wife was pursuing her master’s degree, since mother's financial resources were limited while she was enrolled as a student.

Farish v. Farish, No. S05F1180 (Georgia Supreme Court, June 30, 2005): Where the father earned $10,374 per month, a high-income case, award of child support to mother of $3,000 per month for three children was appropriate.

Decker v. Decker, 829 N.E.2d 77 (Indiana Court of Appeals, June 7, 2005): The father’s action providing child care for the mother, but not paying child support, did not warrant giving the father credit for non-conforming payments.

Cohen v. Cohen, No. 1993 (Maryland Court of Special Appeals, June 7, 2005): The father’s voluntary contribution to his retirement plan did not have to be deducted from his gross income when establishing his child support obligation, since contribution was not a necessary business expense, he earned more than eight times more than the mother, and his contribution was more than the mother’s entire yearly salary.

Burns v. Ross, 796 N.Y.S.2d 450 (New York Appellate Division, Third Department, June 9, 2005): Father’s retirement benefits, consisting of a monthly payment from a lump-sum retirement payout, a supplemental income protection plan payout, and a supplemental Social Security benefit payout, were all includable as “income” in calculation of child support payments, as such payments were all reportable as taxable income on father’s federal income tax return.

Brandner v. Brandner, No. 20040236 (North Dakota Supreme Court, June 22, 2005): Trial court did not err by finding that father was underemployed, for purposes of computing his child support obligation, and income should be imputed, when he had been earning $38,000 before he left his job, he testified he was living with his parents, was “helping [his] folks,” and he was receiving $400 per month compensation from them, and, at time of trial, he had no plans for changing his employment situation.

Gonzalez v. Tippit, No. 03-03-00517-CV (Texas Court of Appeals, Austin, June 10, 2005): When a non-custodial parent claims as a defense to child support enforcement that the child is living with him/her, and thus support was paid directly on behalf of the child, the non-custodial parent must show that the custodial parent voluntarily relinquished actual possession and control of the child to the noncustodial parent, and the voluntary relinquishment must have been in excess of court-ordered possession and access periods, and the non-custodial parent must have provided actual support.

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