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Posts Tagged ‘child support’

A new decision from the state court of appeals, Division III, found that it was appropriate to use the child support schedule to determine post-secondary support.
In Goude v. Lieser, # 27753-4-III, the custodial parent filed a petition to modify child support and require the non-custodial parent to pay child support for an additional four years while the child was in college.
In determining whether to order post-secondary support, the court is required, per statute, to determine whether the child is dependent. If the answer is yes, then some level of post-secondary support is due. The amount and duration of support is then calculated based on a list of discretionary factors.
Those factors are: 1) the child’s age, 2) the child’s needs, 3) the expectations of the parties when the parents were together, 4) the child’s prospects and desires, 5) the nature of the post-secondary education sought, 6) the parent’s education, standard of living, and current and future resources, and 7) the amount / type of support that child would have received had the parent’s stayed together.
In this case, the child had graduated from high school and intended to live at home for two years while attending community college. The child then intended to transfer to Eastern Washington University.
To determine the amount of post-secondary support, the lower courts added the estimated cost of attending the community college (not including room and board), plus the basic child support obligation from the child support worksheet, minus the child’s anticipated earnings.
The appellate court affirmed.

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A new case from Division three, Fairchild v. Davis, Docket # 26818-6, ruled on the type of evidence necessary to prove that a parent actually incurred daycare and medical care expenses.

The child support statute provides that, where the transfer payment includes daycare and medical care costs, and those costs were not actually incurred, the person making the transfer payment is entitled to reimbursement if he has overpaid by at least twenty percent in a given year. RCW 26.19.080(3).

The statute doesn’t address what level of proof is required to establish that the expenses were actually incurred. This case addresses that issue.

Here, the mother, who was receiving support, submitted a declaration from herself, a statement of health insurance premiums, and a statement for orthodontia.

The commissioner concluded that the declaration was self-serving, and that the other “proof” was insufficient to establish that she actually incurred the expenses.

On revision, the court concluded that this level of proof was sufficient, because the mother was not required to keep detailed records of expenses over the years, reversing the commissioner.

The court of appeals reversed in turn, holding that more proof was required. In terms of daycare, the court held that “cancelled checks, prior tax returns, or declarations from childcare providers would have been more helpful.” In terms of medical expenses, details on co-payments, other medical expenses, and expenses actually incurred would have been more helpful.

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A new case from the court of appeals, In Re Parentage of M.K.R., 61138, division I, held that DCS has standing to file a petition challenging paternity whether or not there is a presumed father.

The ruling is a victory for the common-sense proposition that the actual father, as determined by DNA testing, ought to be liable for child support, as opposed to the presumed father, as determined by the person who was married to the mother at the time of the child’s birth.

The Washington Uniform Parentage Act, RCW 26.26 et. seq., makes a man the presumptive father of any child born to his spouse during marriage. That presumption becomes irrebuttable after two years, meaning that the husband becomes the legal father, even if he isn’t the biological father, if he fails to challenge paternity within two years.

However, at least four other parties have an interest in a given child’s paternity: the child, the state, the mother, and any other potential father. The child’s interest and the parent’s interests are fairly obvious. The state’s primary interest is the collection of child support so the child won’t go on welfare.

By statute, all these parties have standing to adjudicate their interests. This case clarifies that the state (DCS) has standing whether or not there is a presumed father. In this case, the presumed father neglected to deny paternity within the two year deadline. However, DCS did file within the two-year deadline.

The biological father, who did not want to be stuck with child support, argued that the presumed father’s failure to timely file was fatal and the presumed father was stuck with paying child support for someone else’s child.

The presumed father, on the other hand, argued that DCS’ timely filing of the petition effectively kept the window open for him, allowing him to avoid child support and make the biological father pay. The trial court agreed with the biological father.

The appellate court reversed.

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A new case from Division I, Marriage of Krieger and Walker, docket 01-3-02588-4, held that a court may order child support above the advisory amount established by the child support table without a showing of extraordinary need. This holding is consistent with the statute, which provides that a court has discretion to award child support in excess of the advisory amount upon written findings. (“Upon written findings” is a lower standard than “extraordinary need.”)

However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.

The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.

Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.

Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.

Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.

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A recent opinion from Division II, Hulscher v. Hulscher, docket # 35157-9, 4/01/2008, holds that a provision for non-modifiable maintenance is valid if embedded in a decree of dissolution. If nothing else, the decision illustrates the perils of pro se representation. (The father was pro se. The mother was represented.)

BACKGROUND

The father agreed to pay what appears to be excessive maintenance. Maintenance was set at $1,100 per week, minus child support. Maintenance terminated at the death or remarriage of the mother. Otherwise, it was non-modifiable. In addition, the father paid for the older child’s college education at a private university and the younger child’s education at a private high school. He also paid health insurance for himself, the mother, and the children.

To make these payments, the father worked 100 hours per week as a longshoreman. The opinion does not indicate whether the mother, a home-maker whose children were no longer living with her, made any attempts to find employment or to become employable.

ANALYSIS

To me, the maintenance provision is unfair for at least two reasons. First, it is based on what the father can supposedly pay and bears no relationship to what the mother needs. Indeed, the total amount the father pays for maintenance and child support is constant, $1,100 per week or nearly $4,800 per month.

However, the portion that goes to the mother changes based on the amount that goes to the children. The original child support payment was nearly $2,600 per month. Thus, the mother got $2,200 per month when the children are living with her. After the children age-out and child support is no longer due, the mother gets $4,800. This is not sensible, the mother’s needs should not go up after the children leave, they should go down.

The maintenance provision also appears to be unfair because it does nothing to encourage the mother to join the work force. I mentioned that the maintenance award is supposed to be the product of the mother’s needs and the father’s ability to pay. It is also supposed to be related to the length of time it should take for the mother to gain employment and the length of the marriage. The mother should receive maintenance long enough to give her time to get a job and maybe the education that she forewent during her marriage.

At time the father filed his petition to modify or vacate the decree, the mother was a home maker with one child in college and the other child living with the father. Thus, she was in an ideal position to attend college or job training and find a job. Indeed, the commissioner who originally heard the petition to modify the maintenance provision of the decree phased out the maintenance over time as follows:

1st 4 years: 100%
next 2 yrs: 75%
next 2 yrs: 50%
next years: 0%

The commissioner reasoned as follows; 1) The mother should be able to obtain a college degree or equivalent within four years; 2) As the father got older, it was not reasonable to expect him to continue working 100 hours per week, especially given the physical requirements of his job.

The trial court affirmed, but the appellate court reversed, holding essentially that non-modifiable means non-modifiable and that non-modifiable maintenance provisions are specifically allowed for by statute. Legally, it was the correct ruling. However, based on the facts, the ruling seems harsh.

MORAL

You can’t fault the court for following the law. However, you can fault the father for not hiring an attorney. I doubt a competent attorney would have agreed to those maintenance provisions. A few thousand dollars in attorney’s fees at the front end of the divorce would probably have saved scores of thousands of dollars post divorce.

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