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.
NEW FACTORS FOR UPWARD OR DOWNWARD DEVIATION IN CALCULATING CHILD SUPPORT
August 29, 2012 § Leave a comment
Significant amendments to the child support guidelines went into effect May 22, 2012, and I don’t think most attorneys are aware, because I don’t hear any proof addressing them in cases I try.
The amendments were to MCA 43-19-103, which sets out the bases that the court may use to deviate from the statutory child support calculation guidelines.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
So if you represent a payee, you need to highlight those daycare expenses necessary for employment, have your client talk about its impact on her budget, and have her ask specifically for the court to take it into account in calculating child support. And disability of the payee is now a factor.
Also look at subsection j. It can be used by either payer or payee. Many families have significant debt incurred for the household, and the party who will have to pay it can look for some relief under this provision.
While you’re at it, check out all of the deviation factors. I hear a lot of cases where I never even hear any of them mentioned.
The Better Chancery Practice Blog 