In an interesting (in a lawyerly kind of way) decision, the Eleventh Circuit Court of Appeals overturned the federal conviction of a father who failed to pay child support. The Court found that the federal statute in question, the "Child Support Recovery Act," 18
U.S.C. § 228(a)(1) (2000), requires that the "government must prove that the defendant knew his child resided in another state." In this particulate case, it was alleged that the custodial parent moved the child from state to state and that the defendant/payor did not know where his child lived. Although the government argued that the the statute's requirement that the child reside in a different state than the payor was merely jurisdictional, the Court found otherwise and held that knowledge of the out-of-state residency requirement was a substantive element of the statute required for conviction.
How the Court arrived at this conclusion is itself very interesting, particularly the concurring opinion's use of an exchange between two Senators discussing the legislative history of an unrelated statute.
Decision: U.S. v. Fields.
An April 30, 2007, decision by a Pennsylvania appellate court establishes three (3) adults as liable for child support. A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling that a legal expert believes might be the first of its kind in the U.S. The appellate court ordered the trial court establish how much Carl L. Frampton Jr. would have to pay to the birth mother of the 8-year-old boy and 7-year-old girl.
"I'm unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation," said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.
In another twist to the case, the donor died during the litigation. Jodilynn Jacob, 33, and Jennifer Lee Shultz-Jacob, 48, moved in together as a couple in 1996, and were granted a civil-union license in Vermont in 2002. In addition to conceiving the two children with the help of Frampton — a longtime friend of Shultz-Jacob's — Jacob also adopted her brother's two older children, now 12 and 13. But the women's relationship fell apart, and Jacob and the children moved out of their Dillsburg, Pennsylvania, home in February 2006.
Shortly afterward, a court awarded her about $1,000 a month in support from Shultz-Jacob. Shultz-Jacob later lost an effort to have the court force Frampton to contribute support — a decision that the Superior Court overturned April 30.
Jacob, who now lives in Harrisburg, said Frampton provided some financial support over the years and gradually took a greater interest in the children. "Part of the decision came down because he was so involved with them," Jacob said Wednesday. "It wasn't that he went to the (sperm) bank and that was it. They called him Papa." The process was very informal — Jacob was inseminated at home.
In his written opinion requiring Frampton to help pay for the child's support, Superior Court Judge John T.J. Kelly Jr. noted that Frampton spent thousands of dollars on the children, including purchases of toys and clothing. The children knew he was their biological father, but Frampton opposed the effort to compel support from him.
"We made the argument that, according to Pennsylvania law as it stands, there can really only be two adult individuals that can be held liable for support in a child-custody case," said Frampton's lawyer, Matthew Aaron Smith.
Shultz-Jacob's lawyer, Heather Z. Reynosa, wants Frampton's support obligation to be made retroactive to when Jacob first filed for support. Frampton's Social Security survivor benefits may also help reduce Shultz-Jacob's monthly obligation.
It is unclear how the child-support guidelines, which assume two parents, will be adapted to account for three parents. "That's what's going to be interesting, because there's not a whole lot of guidance out there," Reynosa said. The state Supreme Court is currently considering a similar case, in which a sperm donor wants to enforce a promise made by the mother that he would not have to be involved in the child's life. That biological father was ordered to pay $1,520 in monthly support. About two-thirds of states have adopted versions of the Uniform Parentage Act that can shield sperm donors from being forced to assume parenting responsibilities. Pennsylvania has no such law.
Note: The above was compiled from various news articles. The full decision can be found here.
The Iowa Supreme Court's opinion in the case of In re Marriage of McKenzie addresses the issue of determining child support when the payor's reduction is voluntary but not for the purpose of avoiding or reducing child support. In this case, the non-custodial parent relocated from Iowa to another state and was unable to find employment at a level comparable to that paid by his Iowa employer of 22 years. Finding that the relocating parent "was not free to plan his future without regard to his obligation to his former wife and chid," the court concluded that "substantial injustice" would result if the payor's actual earnings were used and thus established support based upon his higher earning capacity as evidenced by his prior income. As the court summarized, the non-custodial parent's "desire for self-fulfillment is outweighed by the pre-existing duty he had to his former spouse to provide adequate support for his minor child." The court also noted that if actual incomes were used instead of earning capacity, "we would be requiring [the custodial parent] to increase her contribution for the support of the child. [The custodial parent] should not be forced to make up [the non-custodial parent's] reduced child support so that [he] can start a new life with his new wife."
For another case addressing the "self-inflicted/voluntary" income reduction issue, see In re Marriage of Duggan, 659 N.W.2d 556, 562 (Iowa 2003).
Iowa Ct. R. 9.5 lists the allowable items that may be deducted in determining net monthly income for child support purposes. The decision in In re Marriage of Allebach illustrates application of these items in a situation where the payor is self-employed. In Allebach, the payor presented evidence of his cash flow, which included two deductions for principal and interest payments related to the purchase of corporate stock. The appellate court addressed the issue as follows:
While we find the record generally supports Richard’s position, we find the CPA’s assertion of cash flow to be artificially low. This is because two of the deductions relied on by the CPA firm were a $41,685.00 annual principal payment and a $6,315.00 annual interest payment on an installment contract to Daba for the purchase of stock. Although Richard may be obligated under this contract, we do not consider it as a deduction in arriving at net income. See generally Iowa Ct. R. 9.5 (providing a list of allowable deductions for determining net monthly income in calculating child support). With these amounts added back to income, we find Richard’s annual net income to be $161,913.00 or net monthly income of just under $13,500.00.
The decision of In re Marriage of Opat illustrates the rule that not every voluntary reduction in income is grounds for deviation from the child support guidelines. In this case, the Iowa Court of Appeals affirmed the trial court's finding that a reduction in income from $58,000 with full benefits, including family health insurance at nominal cost, to $45,000 with no health insurance, was not done with the intent of reducing the payor's child support obligation. The evidence indicated that the parent/employee, a high-voltage lineman, was suffering significant distress because of the dissolution and that this caused him and his supervisor to have safety concerns given the nature of his occupation.
Here are few excellent resources regarding the division, processing, and payment of military retirement benefits and compensation:
1. "The Simple Facts," a summary of the benefits and disadvantages of SBP, briefing slides with text and a trifold brochure, "SBP, Basic Questions Answered," at the SBP section of this Army retirement website.
2. The "Army Benefits ToolArmy Benefits Tool" webpage, applies to all branches of service. It contains explanations for military compensation, pay and entitlements, the Career Status Bonus (CSB), combat zone tax exclusions, SGLI, the Thrift Savings Plan, TRICARE, Combat-Related Special Compensation, USFSPA, Dependency and Indemnity Compensation Rate Tables, and VA benefits.
3. The website for the Army Human Resources Command, contains active duty pay and retirement calculators, TRICARE information, how to earn Reserve retirement points, the value of a point and how to calculate RC (Reserve Component) retired pay based on points. Click on "Links" to quickly navigate the site without the annoying flash-intro.
The Soliders and Sailors Civil Relief Act (SSCRA) is a protective device for U.S. soldiers and sailors during a time of conflict or training. See 50 U.S.C. App.500-548, 560-593 1990. The SSCRA is not intended to be used as a shelter from facing legal and family responsibilities. Because of the current extensive and often extended deployments of National Guard and regular military members, it is important to understand what the SSCRA does and does not apply to in the family law area. There are four key SSCRA provisions that are important to observe when enforcing child support:
First, the SSCRA permits stays of civil court proceedings whenever military service prevents a plaintiff or defendant in military service from asserting or protecting a right. Members' requests for a stay of proceedings under SSCRA must be granted unless the members' military service does not materially affect their ability to defend themselves. Note that the Department of Defense recently revised its regulations in this area. DOD Directive 1327.5 section 6.25 now specifically provides "When a service member requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave." Note also that some courts might not consider presence of service member necessary to the proceeding; thus, no stay will be granted. The facts of each case will determine whether the trial court abused discretion in refusing a stay request.
Second, the SSCRA provides that the maximum duration of a stay of proceedings is the member's period of military service plus three months after discharge. Following this period, the member must appear in court.
Third, the SSCRA affords service members relief against default judgment by providing potential means to have the judgment reopened. If there is default of any appearance by the defendant, before a party can obtain a default judgment, he/she must submit an affidavit stating whether the defendant is or is not in the military service or that the plaintiff does not know whether defendant is in the military service. A judgment obtained without the affidavit is voidable (not void) upon defendant's showing that presentation of the defense was prejudiced by defendant's military service. The court then must appoint an attorney if the defendant is in the service and does not have an attorney present in court or if the plaintiff does not know whether the defendant is in the service. The responsibility of the court appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf. Members may request to reopen a default judgment if there has been no appearance, the service member has a meritorious or legal defense, and military service adversely affected the member's ability to defend. The application to reopen must be to same court that rendered the judgement. The SSCRA does not empower a federal court to collaterally review, vacate, or impede decisions of a state court.
Fourth, the SSCRA provides that any judgment or garnishment may be stayed or vacated unless military service does not materially affect member's ability to comply. Service members can, for example, request modification of child support or alimony. Courts may grant prospective relief as well. Members can initiate a proceeding to determine extent of their support obligations because of changes in circumstances when they entered active duty.
These are some of the basic aspects of the SSCRA as they apply to the family law area and should only be used as a general guide. The facts and circumstances of any particular case vary, as will the result and the degree of protection, if any, afforded by the SSCRA.
The Iowa Supreme Court has issued amended Child Support Guidelines effective November 1, 2004. The amendments and the review committee's report are available on the Iowa Supreme Court's website.
The most significant changes are:
1. An increase in the upper income amounts encompassed by the Guidelines to $10,000/month for each parent, up from $6,000/month.
2. A 10% reduction to each of the Extraordinary Visitation credits, thereby reducing the reductions to 15%-20%-25% respectively.
3. Addition of express provisions requiring the use of the "offset" method when calculating child support for joint and split/divided physical care cases.
The changes are significant and would appear in many cases to translate into significant changes in the amount of child support that could be owed. Under Iowa law, a modification of support may be warranted when the amount of support owed under the new guidelines differs upwards or downwards by at least 10% from the amount currently ordered.
The amount of child support to be paid or received by an Iowa parent is calculated according to the Iowa Child Support Guidelines. The Guidelines apply to every case in which support is due. The starting point is determining each parent's gross monthly income. From this amount, a number of deductions and credits are factored in, resulting in each parent's net monthly income. It is important to remember that "net income" for child support purposes is not the same as "net income" for tax purposes. The non-custodial parent's net income is then compared with the custodial parent's net income and a resulting percentage determined. This percentage is then applied to the non-custodial parent's net monthly income to determine the dollar amount of support to be paid.
Calculation of the precise amount of child support in any given case should be made by an attorney who is familiar with the guidelines, interpretation of the Guidelines under Iowa case law, and, most importantly, the facts of your particular case.
For further online information:
Alft & Wilson - makers of Iowa Support Master software and an online support estimating calculator
Iowa Supreme Court - general information and support related forms for downloading
Iowa Child Support Enforcement Unit - online child support account access and information
