THE CONSTITUTIONALITY OF CHILD SUPPORT GUIDELINES, Part II
An Analysis of Georgia’s Sweat v. Sweat

Laura W. Morgan
Family Law Consulting

Last month, we surveyed the current state of the law concerning the constitutionality of child support guidelines. The courts have overwhelmingly upheld child support guidelines against a variety of constitutional attacks, including equal protection, due process, and First Amendment.

This month, in Part II, we will analyze the decision of the Honorable Dane Perkins of the Superior Court of Atkinson County, Georgia in the case of Georgia Department of Human Resources ex rel. Reddick o/b/o Sweat v. Sweat.

As a preliminary matter, it must be stressed that the Georgia decision declared that Georgia’s particular model, the flat percentage of income model whereby a single range percentage is applied to the obligor’s after-tax income, was unconstitutional primarily because this model, according to the reasoning of the court, fails to consider the custodial parent’s income and numerous other factors that apply to the custodial parent.

By its very reasoning, therefore, this decision cannot apply to any state that uses the Income Shares Model (Alabama, Arizona, California, Colorado, Connecticut, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming), or the Melson Formula Model (Delaware, Hawaii, Montana), or the Hybrid Model (District of Columbia, Massachusetts), or the Varying Percentage of Income Model (Arkansas, Minnesota, North Dakota, Texas). The only flat percentage of income states are Alaska, Georgia, Illinois, Mississippi, Nevada, Tennessee, and Wisconsin.

It should also be stressed that this author is not a fan of the percentage of income model. There are other models of child support guidelines that are superior, and I would welcome Georgia abandoning its current child support guidelines in favor of another model. I would also urge Illinois, Mississippi, and Nevada to take the same path. This does not mean, however, that I must necessarily conclude that the Georgia guidelines are unconstitutional.

Part II

I. “Adverse Impact”

The decision starts out by declaring that because women are more often the custodial parent than men, the child support guidelines therefore “adversely impact” men more than women. Having found this “adverse impact,” the court proceeds to apply an intermediate constitutional level of scrutiny: are the guidelines substantially related to an important government interest?

This is the decision’s first mistake: to declare that simply because more men than women are the subject of a support order does not necessarily mean that men are “adversely“ impacted more than women. In other words, greater impact does not mean greater “adverse” impact. Indeed, it could just as easily be argued that because men are more often the noncustodial parent, then women suffer a greater adverse impact from the application of the guidelines, because the inadequacy of the guidelines force the custodial parent to spend a greater percentage of income on the cost or raising a child than the noncustodial parent is forced to spend. Thus, declaring that the guidelines have an “adverse impact” in men is begging the question: it declares in the premise the very conclusion it seeks to prove: that the guidelines violate equal protection.

Further, treating different classes of people differently does not violate equal protection. So long as there is a rational reason for treating different classes differently, the distinction will be upheld. It’s only the arbitrary classification of people that cannot stand. Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124 (1921). Treating custodial parents different from noncustodial parents is not unconstitutional. Hur v. Virginia Department of Social Services, Division of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454 (1991).

II. The Economic Studies

The court declared that the economic underpinnings of the guidelines are unsound. The court based this finding on the economic exhibit of R. Mark Rogers, finding that there was no other “credible” evidence that the guidelines were based on sound economic data. See R. Mark Rogers, Wisconsin-Style and Income Shares Child Support Guidelines: Excessive Burdens and Flawed Economic Foundation, 33 Fam. L.Q. 135 (1999).

First, the court declared that the guidelines were intended to apply only to welfare situations. This is patently false. Georgia’s guidelines were initially adopted for use by IV-D agencies only. However, IV-D agencies are not restricted to determining support only in welfare cases. Any person can use IV-D services. Further, the federal statute, 42 U.S.C. § 666, and the implementing regulations, 45 C.F.R. 302.55 and 302.56, make it clear that guidelines must apply to all child support cases, and Georgia’s guidelines were reenacted with the federal requirements in mind. After the federal statute made law, a broad commission was convened, and the guidelines were enacted to apply to all cases in all courts, with the addition of the eighteen specific deviation factors.

Second, the court states that Georgia’s presumptive awards rise as a share of obligor after-tax income, and that all child cost studies show child costs declining as a share of after-tax income. This is also false. The Georgia child support guidelines apply a single range of percentages across all income levels, depending on the number of children. The percentages do not rise as income rises. Indeed, Mr. Rogers never claimed this. It is also false that all economic studies show that child costs decline as a percentage of after-tax income as incomes rise. There are a number of respectable studies that show the percentage remains flat. It is based on these studies that states such as Illinois and Wisconsin chose the flat percentage of income method. See Andrea H. Beller and John W. Graham, Small Change: The Economics of Child Support (Yale University Press, 1993); Irwin Garfinkel and Margo Melli, The Use of Normative Standards in Family Law Decisions: Developing Mathematical Standards for Child Support, 24 Fam. L.Q. 157 (1990). See also Eklund v. Eklund, 538 N.W.2d 182, 187 (N.D. 1995) (explaining advantages of flat percentage of income model).

Based on these erroneous statements, the court concludes that the guidelines are arbitrary and not rational since there is no economic foundation for the presumptive awards that rise as a share of household net income; thus, the child support award results in a windfall to the custodial parent. Again, this is patently false. Study after study has shown that child support awards consistently do not equal the costs of raising a child in an intact family. (See below.)

The court continues to declare that custodial parents’ standards of living go up while noncustodial parents’ standards of living go down, due to the windfall of child support. Were that it were so. Study after study has shown that custodial parents suffer a decline in their standard of living while noncustodial parents have an increase in their standard of living. See, e.g., J. McLindon, Separate but Unequal: The Economic Disaster of Divorce for Women and Children, 21 Fam. L.Q. 351 (1987); Heather Wishik, The Economics of Divorce, 20 Fam. L.Q. 79 (1986). Indeed, the Georgia Supreme Court made this very point in Blanchard v. Blanchard, 261 Ga. 11, 401 S.E.2d 714 (1991).

The court principally finds fault with the fact that the guidelines do not take into account the custodial parent’s income and tax offsets. Again, the guidelines do. Courts can and do deviate for such cost savings. But more importantly, the court fails to recognize that the custodial parent is supporting his or her child with his or her income in the same proportion that the noncustodial parent is; it’s just not stated in an award. In all percentage of income model states, the guidelines presume that the custodial parent is contributing to the support of the child consistent with the ability of that parent to pay, in the same ratio as the noncustodial parent. The very same argument, that the percentage of income model is unconstitutional because it considers only the obligor’s income, was rejected in Coghill v. Coghill, 836 P.2d 921 (Alaska 1992); In re Marriage of Cook, 147 Ill. App. 3d 132, 497 N.E.2d 1029 (1986); and Eklund v. Eklund, 538 N.W.2d 182 (N.D. 1995).

The court tries to back up its statement that the guidelines provide a “windfall” to the custodial parent by stating, “Presumptive Awards have been shown to typically exceed total actual costs according to the U.S. Department of Agriculture.” This statement is false. The only study that compared presumptive awards with the costs of raising children as determined by the USDA found that in the lower third income range, no presumptive award met the USDA estimate of expenditures on children; in the middle third income range, only Nebraska met the USDA estimate; in the highest third income range, only nine states met the USDA estimate: District of Columbia, Georgia, Massachusetts, Minnesota, Nebraska, Nevada, New York, Tennessee, and Wisconsin. The USDA estimate for annual family support at the $75,000 level is $20,380, while the Georgia child support guidelines yield annual family support at the $75,000 level at $20,383, a three dollar difference. Laura W. Morgan and Mark C. Lino, A Comparison of Child Support Awards Calculated Under States’ Child Support Guidelines with Expenditures on Children Calculated by the U.S. Department of Agriculture, 33 Fam. L.Q. 191 (1999). See also Diane Dodson and Joan Entmacher, Report Card on State Child Support Guidelines (Women’s Legal Defense Fund 1994).

In essence, the premise that the percentage of income devoted to child support rises as income rises is false, and the conclusion that the guidelines provide a windfall is equally false.

III. The Right of Privacy

The court states that because the guidelines provide a windfall to the custodial parent, the guidelines violate the right of a noncustodial parent to raise his or her child as he or she sees fit, according to a standard of living he or she determines is appropriate.

The legislature, of course, has the duty and the right to determine the appropriate levels of support of its citizen children. The United States Supreme Court stated in Rose v. Rose, 481 U.S. 619 (1987), that states have “unparalleled familiarity with local economic factors affecting divorced parents and children, and their experience in applying state statutes such as Tennessee’s former 36-820 that contain detailed support guidelines and established procedures for allocating resources following divorce[.]” The state, therefore, in its role of parens patriae, can legislate support beyond that which a parent wants to provide.

This very point was made in Boris v. Blaisdell, 142 Ill. App. 3d 1034, 1046, 492 N.E.2d 622, 630 (1986): “This argument, if accepted, would impede the traditional authority of both the state legislature and the state courts to regulate the determination and enforcement of child support orders beyond basic necessities.”

IV. Supporting Authority

The court cites Parrett v. Parrett, 146 Wis. 2d 830, 432 N.W.2d 664 (Ct. App. 1988) for the proposition that the percentage of income model yields awards that are in excess of a child’s reasonable needs.

It is true that in percentage of income states, extremely high incomes can produce extremely high child support awards. That is why in every state, the court has the authority, and indeed the duty, to deviate in such a case. And that is exactly what the Wisconsin court does, according to principles for high income cases it has developed. Georgia can certainly develop case law dealing with high income obligors, as has every other state. See Laura W. Morgan, Child Support and the Anomalous Cases of the High-Income and Low-Income Parent: A Need to Reconsider What Constitutes “Support” in the American and Canadian Child Support Guideline Models, 13 Can. J. Fam. L. 261 (1996).

The court also cites William C. Akins, Why Georgia’s Child Support Guidelines are Unconstitutional, in the October 2000 issue of the Georgia Bar Journal for support of the proposition that Georgia can no longer ignore the unconstitutionality of the guidelines, and its failure to recognize this article is further proof if the state’s arbitrariness. The court, of course, failed to cite in the same issue the article by Rebecca A. Hoelting, Supporting Georgia’s Children: Constitutionally Sound Objectives and Means.

The court finally cites Gallaher v. Elam, 2002 WL 121610 (Tenn. Ct. App. Jan. 29, 2002), as further support. In this case, however, the court declared unconstitutional only that part of the Tennessee guidelines that favors first families first. The Tennessee guidelines provide that when figuring support for a second family, the support paid to a first family will be deducted from the obligor’s income, thereby ensuring their support. However, in figuring support for the first family, the support for the second family is not deducted from income. The Tennessee Court of Appeals found this a denial of equal protection to children based on their order of birth. Nowhere did the opinion declare the Tennessee guidelines as a whole unconstitutional, and nowhere did the opinion find a violation of equal protection to the parents. Moreover, the Tennessee opinion regarding the equal protection rights of children is in the minority. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1991) (child support guidelines do not violate equal protection of other children of parents by according preference for prior born children, as guidelines consider other children as deviation factor); Feltman v. Feltman, 434 N.W.2d 590 (S.D. 1989) (child support guideline statute does not violate equal protection rights of children of second marriage by giving child support priority to children of first marriage).

V. Conclusion

As noted in the introduction, the Georgia Child Support Guidelines could certainly be improved. The trial court’s decision, however, finding them unconstitutional is simply based on erroneous premises and faulty arguments. Most troubling, however, is its absolute failure to discuss any case law regarding the constitutionality of guidelines, and its reliance on distinguishable authority. In that regard, the decision is simply dishonest.

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