Child Support Guidelines and the Shared Custody Arrangement
January 27, 2014 § 4 Comments
Shared parenting arrangements are more and more common in chancery court. The forms they take can vary considerably. In some cases there is a true joint custody provision whereby the children spend significant periods with each parent. In other cases, the time allocated between the parents is in the form of one parent having custody, and the other parent having extended visitation.
A question that arises from those cases is what impact the division of time has on a child support order. MCA 43-19-101(2) says that the statutory child support guidelines apply unless the court makes a finding ” … that application of the guidelines would be unjust or inappropriate under the criteria specified …” in MCA 43-119-103. One of those deviation criteria is set out in MCA 43-19-103(g), which reads:
The particular shared parenting arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, giving due consideration to the custodial parent’s homemaking services.
I interpret this to mean that, in order to invoke this exception, it would require both a showing that there is a custody arrangement involving “a great deal of time” spent with the child by the paying (“noncustodial”) parent, either: (a) resulting in reduced financial expenditures by the other (“custodial”) parent; or (b) refusal of the paying parent to be involved in the child’s activities, inferentially resulting in increased expenses for the other parent. In either case, the court would be required to take into account the homemaking services of the non-paying parent.
A case illustrating application of Section 103(g) is Marin v. Stewart, decided by the COA on September 24, 2013. In that case, Marin argued on appeal that the chancellor had erred in not reducing his child support obligation due to a shared-custody arrangement. Judge Irving addressed the issue for the court:
¶10. Marin contends that section 43-19-103(g) is a criterion that the chancellor failed to consider. He argues that his voluntary extended-visitation arrangement with Stewart satisfies section 43-19-103(g) and would justify a downward deviation from the child-support guidelines. Marin did not raise this issue before the chancellor, and he is procedurally barred from asserting it for the first time on appeal. See Wilburn v. Wilburn, 991 So. 2d 1185, 1191 (¶14) (Miss. 2008).
¶11. Procedural bar notwithstanding, while section 43-19-101(2) requires that the chancellor make specific findings under the criteria in section 43-19-103 in order to deviate from the guidelines, it does not require that all criteria be considered in order for the findings to be sufficient. See Hensarling v. Hensarling, 824 So. 2d 583, 588 (¶¶13-15) (Miss. 2002) (affirming the chancellor’s reasoning that the guidelines were inappropriate when the chancellor’s findings only addressed two of the criteria under section 43-19-103); Smith v. Smith, 25 So. 3d 369, 374 (¶¶14-15) (Miss. Ct. App. 2009) (affirming the chancellor’s on-the-record findings when his findings only applied to two of the criteria listed under section 43-19-103).
¶12. Here, the chancellor stated on the record his reasons for deviating from the guidelines. Although his reasoning did not include an analysis of Marin’s visitation arrangement—which was not enough to warrant a deviation from the guidelines since there is no indication in the record that the visitation reduced Stewart’s financial expenditures—the chancellor’s findings on the record indicate that he deemed the guidelines inappropriate because fourteen percent of Marin’s adjusted gross income would have been less than what it costs to keep the child in daycare. The chancellor’s reasoning properly falls under section 43-19-103(i), as the child must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient evidence to justify the chancellor’s determination that the application of the guidelines were inappropriate. This issue is without merit.
A few points:
- Notice Judge Irving’s statement that “there is no indication in the record that the visitation reduced Stewart’s financial expenditures.” Again, if you want a downward reduction via subsection (g), you’d better muster up proof that your client’s actions reduced the other party’s expenditures.
- It is important to realize that Section 103 does not mandate a reduction in child support because one of the factors is present. It only authorizes the court to deviate from the guidelines if one of them applies. The statute specifically states that the presumption of applicability of the Section 101 guidelines “may” be overcome; not “shall” be overcome.
- Judge Irving also makes the obvious point that not all of the criteria spelled out in Section 103 need be considered by the court in order for findings to be sufficient.
- Section 103(g) is both a sword and a shield. Note that its language would justify either a downward adjustment in one set of facts, or an upward adjustment in another set of facts.
Don’t assume that child support will be 14, or 20, or 22, or 24, or 26%. If you represent the paying party, study Section 103 to see whether there is a basis for a downward justification. If you represent the non-paying party, you just might find something in Section 103 that will justify an upward adjustment. That’s what happened in Marin v. Stewart, and it held up on appeal.