Child Support Plus
April 29, 2019 § 3 Comments
Henry and Elizabeth Gunter consented to a divorce on the sole ground of irreconcilable differences, agreeing that they would share joint legal custody, and that Elizabeth would have physical custody of their three children. They submitted the issues of child support, private-school costs, extracurricular expenses, and uninsured medical expenses to the court for adjudication.
The chancellor ordered Henry to pay monthly child support in the sum of $918, which was 22% of his AGI. She also ordered the parties to pay one-half each of private-school tuition, daycare expense, extra-curricular activities, and non-covered medical expenses. Henry appealed, complaining that guideline support plus the additional payments amount to 43.2% of his monthly AGI, and, therefore, are excessive and erroneous.
In Gunter v. Gunter, handed down April 9, 2019, the COA affirmed in part and reversed and remanded in part. Judge Greenlee wrote for the unanimous court:
¶8. A chancery court has discretion in determining an award of child support. Harden v. Scarborough, 240 So. 3d 1246, 1255 (¶26) (Miss. Ct. App. 2018). And this Court will not find an abuse of discretion when “the required support [is] equal to the amount that is presumptively correct under the child-support guidelines.” Mosher v. Mosher, 192 So. 3d 1118, 1126 (¶38) (Miss. Ct. App. 2016).
¶9. Henry indicated in an affidavit that his adjusted gross income was $4,173.84 per month. The chancery court awarded Elizabeth 22% of this amount, or $918 per month. This is the percentage detailed by our code for the support of three children. Miss. Code Ann. § 43-19-101(1) (Rev. 2015). But the chancery court continued with additional monetary awards that included private-school tuition, daycare, extracurricular expenses, and uninsured medical expenses. Although the chancery court does not explicitly state so in the judgment, these additional inclusions depart from the statutory guidelines. Under the chancery court’s judgment, Henry would make all of the following monthly payments to Elizabeth: $918 for child support, $550.42 for private-school tuition, [Fn omitted] $260 for daycare, [Fn omitted] and $75 for uninsured medical expenses. This amounts to monthly payments of $1,803.42, or 43.2% of Henry’s adjusted gross income. [Fn omitted]
¶10. The guidelines are, however, merely guidelines, and they “do not control per se the amount of an award of child support.” Clausel v. Clausel, 714 So. 2d 265, 267 (¶8) (Miss. 1998). Because the chancery court “has special knowledge of the actual circumstances,” McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992), a departure is permissible when the chancery court “mak[es] a written finding on the record that the application of the guidelines would be unjust or inappropriate . . . .” Dunn v. Dunn, 695 So. 2d 1152, 1155 (Miss. 1997).
I. Private-School Tuition
¶11. Our caselaw indicates that private-school tuition costs should be treated as a part of child support and should not be “calculated separately from and in addition to the support award.” Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002). Our own court has held that “[r]equiring [an ex-spouse] to pay half of the tuition over and above the statutory [amount] without a written or specific finding by the chancellor as to why the deviation is needed renders the award inappropriate.” Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). And we have followed this precedent. E.g., Davis v. Davis, 983 So. 2d 358, 363 (¶22) (Miss. Ct. App. 2008) (“Thus, the private school tuition normally must be considered as child support.”). The judgment from the chancery court does not include the pertinent information as to why the deviation is needed.
¶12. The transcript, however, reveals the chancery court’s reasoning was that the children had attended private school nearly all their lives and Elizabeth wanted to continue to send them to private school. Although such a ruling may be permissible, see In re C.T., 228 So. 3d 311, 316 (¶10) (Miss. Ct. App. 2017) (holding that the chancery court did not abuse its discretion in “allocating to [parent with primary physical custody] the decision-making authority in regard to where the child attends school”), reh’g denied (Oct. 17, 2017), the chancery court must make “a written or specific finding” as to why that deviation is required. Therefore, this Court reverses and remands the specific issue of private-school tuition to the chancery court for further proceedings for findings consistent with this opinion.
¶13. Henry also disputes the inclusion of daycare costs beyond his monthly child support payments. The chancery court found “it . . . only fair that [Henry] pay one half of the day care expenses so that the mother can go to work.” This is a justifiable deviation from the guidelines. E.g., Marin v. Stewart, 122 So. 3d 153, 157 (¶12) (Miss. Ct. App. 2013) (“The chancellor’s reasoning properly falls under section 43-19-103(i) [Supp. 2012], 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.”). Henry’s contention is meritless, and therefore we affirm the chancery court’s judgment on this issue.
III. Medical Expenses
¶14. Finally, Henry disputes the inclusion of uninsured medical costs, but he still recognizes that “the Court may consider and order him to pay one-half of the medical expenses of the minor children without running afoul of the guidelines.” He is correct; the chancery court’s judgment is in accordance with our caselaw. E.g.,Kilgore v. Fuller, 741 So. 2d 351, 356 (¶16) (Miss. Ct. App. 1999) (holding that health expenses are not included in the statutory guidelines). Again, his contention is meritless, and we affirm the chancery court’s judgment on this issue.
That’s some helpful authority for what it takes to support deviation from the child support guidelines.
Nowadays, it is absurd to believe that a child can be provided food, shelter, clothing, other necessities, education, transportation, physical activities, and entertainment for 14% of the payor’s AGI. For two children, that percentage becomes 10% each, and for three it’s a paltry 7 1/3% apiece. The children’s best interest demands deviation. Undivorced parents devote much more than 40% of their income to maintaining a household for the children. It’s not uncommon for parents to spend all they make and then load up credit cards for family vacations and amenities.
If you are representing the parent who will be receiving child support, you must make a record that will justify the court’s findings of fact that call for deviation. If you don’t, your client may have to settle for the statutory minimums.
Judge I hesitated to respond to this post but I feel I must. You mention in your comments that the child cannot be raised on a certain percentage from a non-custodial parent. As the father of four I can attest to that! What should be borne out though is that it is not the sole responsibility of the non-custodial parent to support a child. It is the responsibility of both parents. Many times I see parents, male and female, who have custody who want more support from the non-custodial parent, but who have failed to consider that just because they have custody does not mean the other parent has to pay for everything. Just a thought. Probably a stupid one, but …
I totally agree with the idea that both parents should support the child(ren). I think that most of that burden has fallen on the custodial parent. It’s only in the past several years that our appellate courts have eased up and approved more deviation from the guidelines. That’s my take. BTW, don’t ever hesitate to comment.
Judge, I find your blog to be most helpful, and I appreciate the time and effort to put in the publish this on a regular basis. Thanks.