More Factors for the Court to Address for Child Support
April 22, 2014 § 6 Comments
I think it’s fair to say that in most districts up to now, chancellors have customarily looked at the paying party’s income and set child support at the statutory percentage, unless there is proof to support a deviation.
In most of the case law between the 1989 adoption of the guidelines, it has been held sufficient for the chancellor to address the steps in MCA 43-19-101, followed by an analysis of any deviation criteria, and a conclusion of the amount of child support.
The MSSC decision in Huseth v. Huseth, an imputed income case handed down April 10, 2014, re-emphasizes some criteria that the trial court must address. The court ruled that, although the chancellor did apply the guidelines, she failed to take into account Mike Huseth’s lack of available funds and other pertinent factors bearing on his ability to pay. Here is how Justice Kitchens explained it in his opinion:
¶30. The chancellor granted child support in the amount of $988, as that is fourteen percent of the income of $7,058 the chancellor imputed to Mike … Additionally, the chancellor’s computation of child support based upon a percentage of Mike’s imputed income, using only the statutory guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child support, the chancellor should consider
1. The health of the husband and his earning capacity.
2. The health of the wife and her earning capacity;
3. The entire sources of income for both parties;
4. The reasonable needs of the wife;
5. The reasonable needs of the child;
6. The necessary living expenses of the husband;
7. The estimated amount of income taxes the respective parties must pay on their incomes;
8. The fact that the wife has the free use of the home, furnishings, and automobile, and
9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.
Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992) (emphasis added) (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955)).
¶31. “When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents.” Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983) (second emphasis added). Here, the chancellor imputed the living expenses of Mike as income, without offsetting those same expenses in her determination of the money Mike had available to pay child support. She did not consider the necessary living expenses of the husband in computing the amount of child support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed income was based upon his earning potential, and upon what his earning potential was based. Therefore, we reverse the chancellor’s child support award and remand for a determination of child support in which all of the facts and circumstances, including what Mike actually can pay, are taken into account. [Bold added in text]
[Note: the phrase ” … imputed the living expenses as income” refers to the fact that Mike’s parents were giving him money to live on, which funds he applied to his expenses.]
Gillespie is the case that first set out the concept that the child support guidelines are merely guidelines, and it is still up to the judge to determine the need and support required. Many cases in the 25 years since the guideline statutes took effect, however, have treated the guidelines as mandates requiring accurate arithmentic and rigid adherence to the letter of the statutes.
Does Huseth signal a return to a more Gillespie-like approach? Huseth is, after all, a MSSC decision. The Gillespie court said that the award of child support is a matter within discretion of chancellor, and it will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.
It will be interesting to see how this plays out in the appellate courts.
In the meantime, you’d better look at those Gillespie factors and make sure your record includes adequate proof to support your client’s side of the issue.