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Child Support Cases and News Items

September 1, 2005

Alaska Department of Revenue v. Wallace, No. S-11552 (Alaska Supreme Court, September 2, 2005): When the father entered prison, his child support order provided that it was for $50, that it would increase upon his release, and that the $50 was only until he was released. The supreme court held this order did not preclude retroactive increases covering the period following the father's his release; treating the order as providing for prospective termination did not violate federal policies underlying the ban on retroactive modifications.

In re Marriage of Calcaterra and Badakhsh, 33 Cal. Rptr.3d 246 (California Court of Appeals, 2 Dist., August 22, 2005): The trial court properly relied on a loan application executed by the father, rather than his tax returns, in determining his income for child support modification purposes, where the father owned his own business, there were huge discrepancies among his tax returns, his income and expense declaration, the loan application, and his testimony, and the trial court opined that the father had committed perjury.

Rodney P. v. Stacy B., No. 2003-SC-0882-DG (Kentucky Supreme Court, August 25, 2005): When one child of the parties' two children was transferred to the Department of Juvenile Justice, if the ex-husband was required to pay child support to the Department for the support of child, then his support obligation to the ex-wife for the child remaining in her custody should be calculated as if he had custody of child in Department's custody, i.e., split custody.

Gripshover v. Gripshover, Nos. 2004-CA-000578-MR, 2004-CA-000599-MR (Kentucky Court of Appeals, August 19, 2005): Applying the guidelines, the appellate court determined that the trial court erred in allowing the husband to use accelerated depreciation, rather than straight-line depreciation, in determining the husband's income.
(Ed. Note: See Bishop v. Freitas, 90 Conn. App. 517, 877 A.2d 922 (August 2, 2005), also dealing with depreciation expenses.)

Chesney v. Chesney, No. 2004-CA-01685-SCT (Mississippi Supreme Court, September 8, 2005): In this case, the court of appeals affirmed a number of upward deviations from the child support guidelines, including daughter's private school education, wife's reduced financial resources, daughter's expenses for clothing, grooming, and sports activities were sufficient to justify deviation from statutory guidelines; expenses associated with daughter's extracurricular activities and private schooling; and a car for daughter. The court also held that the court was entitled to consider that the former husband spent less time with his daughters and did not help in paying for his daughter's wedding in deciding to deviate from statutory guidelines.

Johanson v. Johanson, No. 26717 (Missouri Court of Appeals, Southern District, August 31, 2005): Good news for pro se litigants: representing yourself in court does not necessarily translate to organizational, managerial, and financial skills enabling you to work in an office environment, possibly in a managerial capacity, thus warranting an imputation of income at managerial salaries.

Buchholz v. Buchholz, 166 S.W.3d 146 (Missouri Court of Appeals, Southern District, July 7, 2005): The trial court's imputation of income to the husband in the amount of $145,000 was not supported by substantial evidence, despite evidence that the husband earned approximately $145,000 per year prior to failure of his business and his filing for bankruptcy, and despite the court's finding that the husband's testimony concerning his efforts to obtain employment was not credible, since the wife presented no evidence that the husband had made less than a good faith effort to obtain employment or that such employment was available, and nothing in the record indicated that the husband's diminished income was the result of a deliberate or voluntary attempt to avoid support obligations.

Lee v. Lee, 699 N.W.2d 842 (North Dakota Supreme Court, July 13, 2005): A stipulation by the parties incorporated into their divorce judgment which provided that the ex-husband would receive primary physical custody of the child and pay a reduced amount of spousal support to ex-wife in exchange for her not having a child support obligation was against public policy.

Novinger v. Smith, No. 1980 MDA 2004 (Pennsylvania Superior Court, August 2, 2005): The trial court abused its discretion in finding that the father had an earning capacity of $40,000 based on his job as a welder that he had held for one year, more than four years ago, for which he was unqualified and had no formal training. Rather, the father's support obligation was to be calculated based on his education, qualifications, training and what he could reasonably earn in today's market in similar positions in his field.

Nischal v. Nischal, 879 A.2d 813 (Pennsylvania Superior Court, July14, 2005): While living in India with his wife and child, the husband and his family enjoyed a middle class lifestyle. Upon relocation to the United States, the husband greatly enhanced his income. When the parties then divorced, the husband claimed a downward deviation from the guidelines, claiming he should only have to provide the same middle class lifestyle, not the lifestyle commensurate with his earnings. The court disagreed, and held that the husband's argument contravened the purpose of the child support system, namely, that the child of separated parents should receive the same proportional amount of income from his or her parents as he or she would have if the parents had remained together.

In re J.I.Z., No. 13-04-066-CV (Texas Court of Appeals, Corpus Christi-Edinburg, August 18, 2005): An adjudicated father filed a motion to modify or terminate child support after learning through DNA testing that he was not the child's biological father. The trial court granted the motion, and the state appealed. The Court of Appeals held that the father could not file a motion to modify child support as the means of overturning the parentage judgment that was no longer appealable, and the results of DNA testing did not by itself constitute sufficient evidence to establish a material and substantial change in circumstances warranting modification or termination of support.

Bruemmer v. Bruemmer, 46 Va. App. 205, 616 S.E.2d 740 (Virginia Court of Appeals, August 2, 2005): The father's gross income as a partner in law firm, for purposes of calculating child support, did not include money deducted from his salary for income taxes assessed to the firm and contributions to a 401K plan and to the firm's contribution plans that were mandatory deductions over which the husband had no discretion.

In re Marriage Holmes, 117 P.3d 370 (Washington Court of Appeals, Division 1, August 8, 2005): Yes, the rich are different from you and me. In this case, the father had custody of the child the majority of the time. The mother requested child support for the time the child was with her. This is not unusual. The court, however, determined that the mother was not entitled to such child support, because while the father had income of $620,000 per month, the mother had assets of $1 million dollars, income of $2,051 per month, imputed income of $4,000 per month, and she could pay for the immediate expenses of child when he was with her without any financial assistance from the father.

News Items
(Note: News items, unlike case descriptions, contain editorial content.)

Item: Hurricane Katrina evacuees living in Texas can call a toll-free number to get their Louisiana child support payments. Texas Attorney General Greg Abbott and Louisiana child support director Robbie Endris are urging parents to call 1-800-256-4650 to report their new addresses.

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