BREAKING LOCK STEP WITH THE CHILD SUPPORT GUIDELINES

September 5, 2012 § 4 Comments

Holly and Christopher were divorced in 2007, and Holly had custody. Holly remarried and moved with the children to Pennsylvania.

Holly filed for modification in the Chancery Court of Lowndes County alleging that she was a stay-at-home mom who needed more money from Christopher to be able to pay for the children’s various expenses. She said that the $1,000 Christopher was paying was simply not enough to cover the children’s expenses, and she wanted the judge to apply the child support guidelines at MCA 43-19-101 to increase Christopher’s child support to what it should be at his increased income. 

The chancellor reviewed the parties’ financial statements, along with the other evidence in the record, and found that the statutory amount of child support payable by Christopher should be $1,400. Nonetheless, she denied Holly’s petition to modify based on the fact that Christopher had to pay the expense of visitation between Mississippi and Pennsylvania, and used that fact as a basis to depart from the statutory guidelines, pursuant to MCA 43-19-103, which sets out the critera the court is to use to justify any departure from the guidelines.

Holly appealed, and in Quinones v. Garcia, decided August 28, 2012, the Coa affirmed.

The appellate court rejected several of Holly’s arguments, including that the chancellor had improperly considered her current spouse’s income and that Christopher had manipulated his mandatory deductions, and held that it was proper for the chancellor to deviate from the statutory child support guidelines where the judge ” … makes ‘an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.'” Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005) (citing McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992)). The court found substantial evidence to support the chancellor’s decision.

When you are trying a child support case, don’t get in lock-step with the idea that the statutory guidelines are inflexible. Look at the deviation criteria. If one of them applies — upward or downward — in your case, use it to your advantage. Offer evidence to support your argument. In this case, Christopher’s attorney saved his client $400 a month.

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§ 4 Responses to BREAKING LOCK STEP WITH THE CHILD SUPPORT GUIDELINES

  • randywallace says:

    I think they are substantive, but the “did not follow the legislative recipe” language from Justice Dickinson makes me wonder if he considers them procedural. Either way, it appears at least two Justices would strike them if given a proper opportunity.

    “The constitutional duty and authority to decide appropriate child support rests with the courts. n1 So the Legislature may not constitutionally dictate a judicial award of child support, n2 and may not interfere with a chancellor’s mental processes in deciding cases. n3 Today, the majority reverses a child support award — not because it is unreasonable — but because in reaching his conclusion the chancellor did not follow the legislative recipe n4 . Because I would affirm the chancellor in all respects, I therefore concur in part and dissent in part.” Wheat v. Wheat, 37 So. 3d 632, 645 (Miss. 2010).

    • Larry says:

      I get you now. I misunderstood what you were talking about originally. Yes, the final authority to determine child support rests with the court. The legislature may set out guidelines, but it can not dictate results. The MSSC said the same thing as to the emancipation statute; the law can set out parameters, but it can not limit the court’s authority to fashion an equitable remedy, nor can it dictate a result. Thanks for that comment.

  • randywallace says:

    Wonder how long it will be before someone makes a direct attack on the guidelines based on separation of powers. If I remember correctly, Justice Dickinson dropped a footnote in a dissent that caught my eye a while back on this issue.

    • Larry says:

      Do you see the guidelines as procedural? I see them as substantive. To my knowledge the SC has not questioned the authority of the legislature to make substantive law that does not impinge on the judiciary’s power to govern its own procedures or intrudes on the constitutional power of the courts. Your mileage may vary.

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