THE CONSTITUTIONALITY OF CHILD SUPPORT GUIDELINES, Part II
An Analysis of Georgias 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 Georgias particular model, the flat percentage of
income model whereby a single range percentage is applied to
the obligors after-tax income, was unconstitutional primarily because
this model, according to the reasoning of the court, fails to consider
the custodial parents 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.
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
This is the decisions 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
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. Its 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).
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
First, the court declared that the guidelines were intended to apply
only to welfare situations. This is patently false. Georgias 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 Georgias 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 Georgias 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 parents 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; its 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 obligors
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 (Womens 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.
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 Tennessees 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.
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 childs 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 Georgias 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 states arbitrariness.
The court, of course, failed to cite in the same issue the article by
Rebecca A. Hoelting, Supporting Georgias 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 obligors 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).
As noted in the introduction, the Georgia Child Support Guidelines could
certainly be improved. The trial courts 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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