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  § 101 & 102
  § 103
  § 104 & 105
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§1.04 Constitutional Challenges to Guidelines
     [a] Federal Mandate as Unconstitutional

In Childrens and Parents Rights Association of Ohio, Inc. v. Sullivan,84 the court considered an argument that the federal statutes and regulations governing child support, i.e., the requirement that all states enact child support guidelines, are unconstitutional. The plaintiffs first asserted that the federal mandate allowed the states too great a role in determining child support. Since the federal government has taken the role of enforcing child support through AFDC, the federal government could not delegate that same authority to the states. In the alternative, the plaintiffs asserted that the federal government is overly involved in child support determinations, a matter that should be left to the states. The court easily disposed of all arguments. First, valid federal policies may be executed with state cooperation. The Constitution does not require that all welfare programs be either completely federally administered, or completely left to the states. Rather, the Supreme Court has recognized that the AFDC program is based on a scheme of cooperative federalism.85 Second, relevant authority teaches us that the federal government may, in the exercise of its spending power, require that states adhere to certain rules as a condition to receiving federal funds. The spending power is limited only by the requirement the requirement that it be in pursuit of the general welfare. The child support regulations enacted by the Department of Health and Human Services passed constitutional muster on all points, because the adequate support of children was clearly in pursuit of the general welfare.

     [b] Method of Enactment by State as Unconstitutional (Violation of Separation of Powers)
          [1] Enactment by Court Order

Where guidelines were enacted by court order or decision, the guidelines were challenged as a violation of separation of powers. These challenges posit the argument that judges are improperly making substantive rules of law, a function of the legislative branch.

Some constitutional challenges have come from the very judiciary enacting the child support guideline. For example, in 1989, the Maine Supreme Court issued its guidelines by a four to seven vote after being directed by the state legislature to enact child support guidelines. The statement of nonconcurrence stated,

At the legislature's direction, the Court has set out upon a path it has never previously taken. Today the Court writes law in a context divorced from the decision of any particular case and in an area not involving the customary work day rules of court like procedure, evidence, and lawyer/judge discipline. The Child Support Guidelines involve difficult and abstract questions of policy that the people's elected representatives, not this Court, should decide. At the very least, an executive agency should promulgate such rules according to standards set by the legislature.86

Maine subsequently enacted its child support guidelines by legislative act.87

Similarly, Alaska adopted its guidelines by court rule. One justice dissented, stating that the new court rule purported to establish substantive rules of law governing support awards. Citing the Alaska Constitution,88 the dissent claimed the court was empowered to make rules of law only in actual cases, in the administration of the courts, and in matters of practice and procedure.89 The same constitutional argument was raised when Arkansas adopted its child support guidelines by order of the Supreme Court, when one justice declared that the legislature had unconstitutionally delegated the authority to legislate to the court.90 In both Alaska and Arkansas, however, the majority of the court declared that the legislation authorizing the court to promulgate child support guidelines must be presumed to be constitutional; any challenge must come from party litigants.

The same arguments were raised by private litigants in Arizona.91 In that case, the court disposed of the constitutional argument by declaring, "The guidelines are merely that, guidelines. They are to assist the trial courts of Arizona in applying the factors set forth in the statute."92 Because the guidelines operate as a presumption, they are merely "procedural" in nature, and not a substantive rule of law. Thus, promulgation of the guidelines were within the court's rule-making ability. The courts of Alaska,93 Delaware,94 the District of Columbia,95 and Ohio,96 also agreed that promulgation of child support guidelines were within the court's rule-making powers.97 The courts must, however, adhere to proper procedure in exercising their rule-making powers.98

          [2] Enactment by Legislature

Where the guidelines were enacted by the legislature, some litigants have argued that such action encroached on judicial discretion.

In Boris v. Blaisdell,99 the father argued that the Illinois child support guidelines violate the separation of powers requirement of the Illinois Constitution. The court disposed of this argument by characterizing the child support guidelines as involving the application of substantive law. Thus, the enactment of child support guidelines could no more be an incursion into the power of the judiciary than the prior law establishing child support awards pursuant to certain enumerated factors.100

          [3] Enactment by Administrative Regulation

Finally, where the guidelines were adopted by administrative regulation, the constitutional challenge was based on the argument that the administrative agency enacting the child support guidelines must do so in accordance with the state's version of the Uniform Administrative Procedures Act. Failure to do so will render the guidelines infirm. This argument was successful in Illies v. Illies.101 In that case, the court held that the North Dakota Department of Human Services is an administrative agency subject to the strictures of the state's Administrative Agencies Practice Act. The regulations were subsequently re-promulgated in accordance with the act.

          [c] Application of State Guidelines as Violation of Due Process

Some litigants have argued that the application of child support guidelines in their particular case constitutes a violation of due process. In Schenek v. Schenek,102 the father argued that the child support guidelines violated due process because the state guidelines contain provisions not required by the federal legislation. The court held that the guidelines passed constitutional muster, because the court has the authority to deviate in the appropriate circumstances. Thus, as long as the guidelines are equitably applied and provide for discretion to suit the particular circumstances of each case, they are not constitutionally infirm.

The court in Boris v. Blaisdell,103 reached the same conclusion. Because no irrebuttable presumption operates, but rather the guidelines create a fully rebuttable presumption of applicability, the guidelines are constitutional in their operation.104

          [d] Application of State Guidelines as Violation of Equal Protection

The various states' child support guidelines have come under a variety of equal protection attacks. For example, in In re Marriage of Dade,105 the father challenged the child support guidelines on the grounds that the guidelines allowed consideration of income of the spouse of the noncustodial parent, but not the income of the spouse of the custodial parent. The court held that this was a misreading of the statute; both spouses' incomes could be considered in the appropriate circumstances. Thus, the guidelines were not a denial of equal protection.106

In Coghill v. Coghill,107 the court also rejected an equal protection claim. In that case, the father argued that Alaska's child support guidelines, which consider only the income of the noncustodial parent, violated equal protection. The father was essentially arguing that the Percentage of Income Model was unconstitutional.108 The court responded to this argument by declaring that equal protection has never required that differently situated persons be treated the same way. Because the custodial and noncustodial parents are not similarly situated, they may be treated differently. Moreover, the interest a parent is seeking to protect is an economic interest. The government needs only a rational basis to enact legislation touching on these interests. The equal protection argument must therefore fail.109

In P.O.P.S. v. Gardner,110 a group called "Parents Opposed to Punitive Support" challenged the Washington guidelines as violative of the equal protection rights of children living in the noncustodial parent's household. The group claimed that children living with the noncustodial parent were denied equal protection, because their support was determined after, and thus necessarily on a smaller basis than, the support of prior child. The court disagreed, and held that because the schedule explicitly permitted the court to consider children from the noncustodial household, the children's equal protection rights were not violated. Moreover, the 14th amendment does not mandate the rigid policy prescriptions urged by P.O.P.S.111

          [e] Other Constitutional Challenges to State Guidelines

In what has to be the most novel challenge to a state's child support guidelines, the father in Hunt v. Hunt112 contended that the court's order requiring him to pay child support under the state's guidelines violated his first amendment rights of free exercise of religion. In particular, the father claimed that he could not, consistent with his faith, work outside the community and earn money to meet his support obligation as determined by the court. The court disposed of this argument, holding that the parental obligation of support is a compelling state interest for purposes of determining whether a parent can be forced to pay child support even though it burdens his religious beliefs.

In another novel constitutional challenge, in Shrivastava v. Mates113 the father challenged the application of the child support guidelines in his particular case because he and the wife had entered into a contract regarding the support of the children prior to the enactment of the guidelines. Specifically, he argued that application of the guidelines in his case would impair the obligation of the contract in violation of the Contract Clause of the United States Constitution. The court disposed of the argument, holding that while the application of the guidelines might operate as an impairment of the contractual relationship between the mother and father, the guidelines further a significant and legitimate public purpose. Moreover, even before the guidelines were enacted, the parties could not by contract bind a court to a particular amount of child support, so there really was no contract impaired.114

Other novel constitutional attacks, e.g., unconstitutionally vague,115 unconstitutional interference with property rights,116 and unconstitutional enactment of ex post facto law,117 have also failed.

§ 1.05 Types of Proceedings to Which Guidelines Apply

The federal mandate specifies that the guidelines must serve as a rebuttable presumption in "any judicial or administrative proceeding" involving the establishment of child support for a minor child. Simply stated, then, a state's child support guidelines apply to any and all court action or administrative proceeding in which a child support order for a minor child is initially determined. Such actions include the establishment of paternity,118 annulment, separation, divorce, abuse and neglect proceedings, Uniform Interstate Family Support Act proceedings, and modification proceedings. Pendente lite support awards in these actions are included as well.119

For example, the North Dakota Child Support Guideline120 provides:

The child support guideline schedule amount is rebuttably presumed to be the correct amount of child support in all child support determinations necessitated by actions for the support of children of married persons, actions seeking domestic violence protection orders, actions arriving out of divorce, actions arising out of paternity determinations, actions based upon a claim for necessaries, actions arising out of juvenile court proceedings, and actions seeking reciprocal enforcement of support.

The guidelines must also be used in any action for modification of support.121

The cases have generally held that the child support guidelines do not apply to awards of post-majority support such as college tuition, even if such support is permitted under controlling state law.122 The guidelines may apply, however, to the determination of a support obligation of an adult child who is under a disability and thus entitled to post-majority support.123


84 787 F. Supp. 724 (N.D. Ohio, 1991), and its companion case at 787 F. Supp. 738 (N.D. Ohio, 1992). (back)

85 King v. Smith, 392 U.S. 309 (1968). (back)

86 Admin. Order No. SJC-13, Maine Sup. Jud. Ct. (1989) (Roberts, J., Glassman, J., Hornby, J., noncurcurrence). (back)

87 Me. Rev. Stat. Ann. tit. 19, §§ 311 to 320. (back)

88 Alaska Constitution, art. IV, §§ 1, 15. (back)

89 Alaska Civ. R. 90.3 (1989) (Burke, J., dissenting). (back)

90 In re Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990) (Hickman, J., dissenting). (back)

91 Schenek v. Schenek, 161 Ariz. 580, 780 P.2d 413 (Ct. App. 1989). (back)

92 780 P.2d at 414. (back)

93 Coghill v. Coghill, 836 P.2d 921 (Alaska 1992). (back)

94 Dalton v. Clanton, 559 A.2d 1197 (Del. 1989). (back)

95 Fitzgerald v. Fitzgerald, 566 A.2d 719 (D.C. 1989). It should be noted that while the appellate court upheld the superior court's authority to promulgate child support guidelines under its rule-making authority, the appellate court held that in the present instance, the superior court could only adopt rules that did not conflict with existing substantive law. In the present case, the child support guidelines did conflict with substantive law, and were thus invalid. Subsequently, the D.C. Council enacted as permanent legislation a new child support guideline, specifically providing that a child support order shall not be deemed invalid on the sole basis that the order was issued pursuant to the Superior Court rule. See A.S. v. District of Columbia ex rel. B.R., 593 A.2d 646 (D.C. 1991) (upholding order issued under previous Superior Court rules). (back)

96Lynch v. Lynch, 1989 Westlaw 146613 (Ohio Ct. App. 1989); Surman v. Surman, 1989 Ohio App. Lexis 2558 (1989). (back)

97See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647 (1989) (federal sentencing guidelines do not violate constitutional separation of powers). (back)

98See Blackston v. State of Alabama, 30 F.3d 117 (11th Cir. 1995) (where Supreme Court Advisory Committee on Child Support Guidelines refused group of noncustodial fathers to tape-record the Committee's meetings, such actions violated the noncustodial fathers' first amendment rights). (back)

99 142 Ill. App. 1034, 492 N.E.2d 622 (1986). (back)

100 Accord A.S. v. District of Columbia ex rel. B.R., 593 A.2d 646 (D.C. 1991); In re Marriage of Cook, 147 Ill. App. 3d 134, 497 N.E.2d 1029 (1986); Pauling v. Pauling, 837 P.2d 1073 (Wyo. 1992). See also Sharp v. Sharp, 422 S.W.2d 443 (S.D. 1988). (back)

101 462 N.W.2d 878 (N.D. 1990). Accord Eklund v. Eklund, 538 N.W.2d 182 (N.D. 1995). Cf. Iowa ex rel. Allee v. Gocha, 555 N.W.2d 683 (Iowa 1996) (statute authorizing state agency to prepare child support orders and present them to district court for summary approval does not violate separation of powers doctrine, because it does not limit court's substantive inquiry into support orders); Chastain v. Chastain, 932 S.W.2d 396 (Mo. 1996) (state agency's power to modify judicial support order where collection is assigned to Title IV-D agency is not unconstitutional); Nelson v. Nelson, 547 N.W.2d 741 (N.D. 1996) (regulations concerning imputation of income were not beyond rule-making authoirty of agency); Surerus v. Matuska, 548 N.W.2d 384 (N.D. 1996) (adoption of child support guidelines by administrative regulation permitting imputation of income did not exceed rule-making authority of Department of Human Services). (back)

102 161 Ariz. 580, 780 P.2d 413 (Ct. App. 1989). (back)

103 142 Ill. App. 1034, 492 N.E.2d 622 (1986). (back)

104 Accord P.O.P.S. v. Gardner, 998 F.2d 764 (9th Cir. 1993) (discussing Washington state guidelines, court held that guidelines do not violate procedural due process rights of divorcing parents, even if schedule does not enable parents to show that individualized costs of care for their children differed from assumptions underlying table); Coghill v. Coghill, 836 P.2d 921 (Alaska 1992); Elliott v. Williams, 631 So. 2d 1020 (Ala. Civ. App. 1993) (enactment of child support guidelines does not remove court's discretion, and thus Supreme Court's enactment of guidelines does not violate Alabama Constitution); A.S. v. District of Columbia ex rel. B.R., 593 A.2d 646 (D.C. App. 1991); In re Marriage of Cook, 147 Ill. App. 134, 497 N.E.2d 1029 (1986); In re Marriage of Soden, 251 Kan. 225, 834 P.2d 358 (1992); Esber v. Esber, 63 Ohio App. 3d 394, 519 N.E.2d 222 (1989) (guidelines do not violate due process rights of noncustodial father's new wife by considering her income in determining income available to father); Hur v. Virginia Department of Social Services, Division of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454 (1991). (back)

105 230 Cal. App. 3d 621, 281 Cal. Rptr. 609 (1991). (back)

106 Accord Wheaton-Dunberger v. Dunberger, 137 N.H. 504, 629 A.2d 812 (1993) (father claimed that the guidelines violated the equal protection clause because the court designated him as the "obligor" parent, even though both the mother and father had joint physical custody; court disposed of this argument, holding that the father was designated the obligor because he had vastly superior financial resources; if the mother had greater resources, she'd be the obligor); Hur v. Virginia Department of Social Services, Division of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454 (1991). (back)

107836 P.2d 921 (Alaska 1992). (back)

108See § 1.03[b][3] regarding the percentage of income model. (back)

109Accord In re Marriage of Cook, 147 Ill. App. 134, 497 N.E.2d 1029 (1986); Reeves v. Reeves, 584 N.E.2d 589 (Ind. Ct. App. 1992); In re Marriage of Rudish, 472 N.W.2d 277 (Iowa 1991); Eklund v. Eklund, 538 N.W.2d 182 (N.D. 1995); see also Cole v. Cole, 70 Ohio App. 3d 188, 590 N.E.2d 862 (1990) (child support guidelines do not violate equal protection of incarcerated parent by not suspending payment of child support while parent is in jail). (back)

110998 F.2d 764 (9th Cir. 1993). (back)

111See also Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1991) (child support guidelines do not violate equal protection of other children of parents by according preference for prior born children, as guidelines consider other children as deviation factor); Martinez v. Martinez, 282 N.J. Super. 332, 660 A.2d 13 (Ch. Div. 1995) (child of first marriage was not denied equal protection by consideration of father's children of second marriage under guidelines); Feltman v. Feltman, 434 N.W.2d 590 (S.D. 1989) (child support guideline statute does not violate equal protection rights of children of second marriage by giving child support priority to children of first marriage). See § 3.04 concerning support of prior children and subsequent children as a deviation factor. (back)

112 ___ Vt. ___, 648 A.2d 843 (1994). (back)

113 93 Md. App. 320, 612 A.2d 313 (1992). (back)

114 Accord Childrens and Parents Rights Association, Inc. v. Sullivan, 787 F. Supp. 724, 736 (N.D. Ohio, 1991) (noncustodial parents' claim that child support laws violated contract clause of constitution and the prohibition against ex post facto laws border on the frivolous); Pauling v. Pauling, 837 P.2d 1073 (Wyo. 1992) (child support guidelines do not violate contract clause of Wyoming constitution). See § 4.09 concerning an agreement of the parties as a deviation factor in setting support. (back)

115 Garrod v. Garrod, 590 N.E.2d 163 (Ind. Ct. App. 1992). (back)

116 In re Marriage of Armstrong, 831 P.2d 501 (Colo. Ct. App. 1992). See also Stewart v. Stewart, 866 S.W.2d 154 (Mo. Ct. App. 1993) (in concurring/dissenting opinion, court raised "spectre of 13th Amendment" in forcing one's spouse to accept whatever employment is available). (back)

117 Childrens and Parents Rights Association, Inc. v. Sullivan, 787 F. Supp. 724 (N.D. Ohio, 1991). (back)

118 Indeed, in Quaderer v. Forrest, 387 N.W.2d 453 (Minn. Ct. App. 1986), the court held that a differentiation in support based on the ground that the obligation arises from a judgment of paternity rather than a dissolution would impermissibly violate the equal protection clause.

A distinction in paternity actions must be made, however, between prospective support and retroactive support. All states agree that in paternity actions, the guidelines apply to prospective support. E.g., Rouland v. Thorson, 542 N.W.2d 681 (Minn. Ct. App. 1996); Division of Family Services ex rel. J.L.M. by C.A.M. v. Buttram, 924 S.W.2d 870 (Mo. Ct. App. 1996) (Form 14 requirements applies to paternity). The states are split, however, as to whether the guidelines apply to retroactive support. Compare White v. Allen, 667 A.2d 112 (Me. 1995) (Uniform Act on Paternity requires only that guidelines be used for prospective support, not past due support); DeCapo v. DeCapo, 915 S.W.2d 343 (Mo. Ct. App. 1996) (past due child support is reimbursement for funds expended, and is not to be determined according to the guidelines); State ex rel. West Virginina Department of Health and Human Resources, Child Advocate Office on Behalf of Jason Gavin S. by Diann E.S. v. Carl Lee H., 196 W. Va. 369, 472 S.E.2d 815 (1996) (mother is entitled to reimbursement support, i.e., reimbursement for support expended); with State ex rel. Taylor v. Dorsey, 81 Wash. App. 414, 914 P.2d 773 (1996) (back support may be awarded in paternity proceedings, which shall be determined according to guidelines); In re Paternity of Ashleigh N.H., 178 Wis. 2d 466, 504 N.W.2d 422 (Ct. App. 1993) (guidelines apply to both past support and future support in paternity cases). (back)

119 In re Marriage of Rogliano, 198 Ill. App. 3d 404, 555 N.E.2d 1114 (1990); Langone v. Langone, 16 Fam. L.Rep. (BNA) 1046 (N.Y. Sup. Ct. 1989). Contra Edgar v. Edgar, 668 So. 2d 1059 (Fla. Dist. Ct. App. 1996); Watson v. Shorty, 649 So. 2d 1074 (La. Ct. App. 1995); George v. George, 192 A.D.2d 693, 597 N.Y.S.2d 129 (1993). See also Giles v. Giles, 136 N.H. 540, 618 A.2d 286 (1992) (once issue of support is before the court, the parties need not request that the guidelines be applied). (back)

120 N.D. Admin. Code § 75-02-04.1-13. (back)

121 The guidelines must be used as a rebuttable presumption in award modification actions regardless of whether the original order was established pursuant to support guidelines. § 103(c) of Family Support Act of 1988, 42 U.S.C. § 666(a)(10). The impact of the guidelines on modification proceedings is discussed in Chapter 5. (back)

122 Finley v. Finley, 648 So. 2d 588 (Ala. Civ. App. 1994); In re Marriage of Hillebrand, 258 Ill. App. 3d 518, 630 N.E.2d 518 (1994); In re Marriage of Linberg, 462 N.W.2d 698 (Iowa Ct. App. 1990); Spitzer v. Tucker, 404 Pa. Super. 539, 591 A.2d 723 (1991). Contra Mack v. Mack, 7 Haw. App. 171, 749 P.2d 478 (1988). See § 4.05[d]. (back)

123 De Mo v. De Mo, 679 So. 2d 265 (Ala. Civ. App. 1996); Kimbrell v. Neldon, 47 Ark. App. 56, 884 S.W.2d 268 (1994); O'Connor v. O'Connor, 71 Ohio App. 3d 541, 594 N.E.2d 1081 (1991); Crawford v. Crawford, 429 Pa. Super. 540, 633 A.2d 155 (1993); Peterson v. Smith, 307 S.C. 418, 415 S.E.2d 431 (Ct. App. 1992). Contra In re Marriage of Hansen, 514 N.W.2d 109 (Iowa Ct. App. 1994). (back)

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