SEASONAL VARIATIONS IN INCOME
April 18, 2011 § 1 Comment
One of the vexing questions in child support cases is how to treat seasonal variations in income.
Let’s say your client is a salesman who brings home only $2,000 per month eleven months out of the year. Every December, however, he receives a bonus that has averaged $10,000 a year over the past ten years. What can you tell him to expect about child support for his two children?
What you have here is a seasonal variation in income. For ten months guideline child support would be $400 per month, and for one month it would be $2,000.
How should you ask the court to address it?
I have heard attorneys argue that the bonus should not be counted because the client is never automatically entitled to a bonus, and he might not get it. That argument usually does not fly because of the all-encompasing language of MCA § 43-19-101 (3)(a), which defines income for child support purposes. Consider the following case:
In Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 466 (Miss. App. 1999), the chancellor had based his adjudication of modified child support on total yearly income, including the bonus, divided by twelve. Using the figures above, the total yearly income, then, would be $34,000, which produces adjusted gross income of $2,833. The resulting child support would be $566. In effect, the chancellor’s decision spread the bonus over the entire year. On appeal, the court of appeals rejected the father’s argument that it was improper for the trial court to base child support on anticipated income. The court noted that it was proper in that case for the chancellor to assume the bonus based on a one-year history of a bonus.
In the alternative, you could ask the court to find that the seasonal variation in income rebuts the presumption that the guidelines are applicable, and that the court should not apply the guidelines to all twelve months equally. Your authority is MCA § 43-19-103(d), which specifies “seasonal variations in one or both parents’ income or expenses” as authority for the ccourt to find that it would be unjust or inappropriate to apply the guidelines. Applying that statute to our scenario, you could propose that the court order $400 for eleven months and $2,000 in December.
What if the bonus that you are asking to except from the guidelines varies? Say your client receives $10,000 in most years, but has gotten as little as $5,000, and has averaged $8,000. Logic would dictate that you could suggest a 20% figure of whatever the amount of the bonus might be, but the appellate courts have frowned on percentage child support. Why not propose a hybrid amount for the bonus month that would be 20% of the actual bonus, but not less than 20% of the average. In other words, you would be asking the court to rule that child support would be “Twenty percent of the actual adjusted gross income received from the bonus, or $1,600, whichever is greater.” That gives the court an actual, minimum figure to enforce, and allows the parties some leeway to bring the matter to the court if there is a dispute as to the amount.
FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY
November 22, 2010 § 3 Comments
MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute. It reads in part:
“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.”
A preponderance of the evidence is required to overcome the presumption. In making a determination whether the presumption is rebutted, the court is required to consider all of the following:
- Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
- Whether the perpetrator has successfully completed a “batterer’s treatment program;”
- Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
- Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
- Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
- Whether the perpetrator has committed any further acts of domestic violence.
If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”
The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.
In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.
In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence. The court directed the chancellor to apply and comply with the statute.
In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.
Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.” Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement? I don’t find any case law on the point.
As a practice matter, you need to know up front whether your client will be vulnerable to the presumption. Has he had a conviction for domestic violence? Has he been put under a County Court TRO? Has he been convicted of assault on a family member? Has there been Youth Court or DHS involvement? Has he gotten carried away in his discipline of the children or in an argument with his wife?
If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.
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