Saturday, December 6, 2008

Calculating Child Support

Time to discuss case law. Here we have a case that involves overtime and bonuses and a question about parenting time. Teresa Heath v. Timothy Heath (PDF format) is also a Not-For Publication case.

Lately, there has not been much in the way of cases for publication. For an explanation of Not-For-Publication cases, see Indiana Appellate Opinions - For Publication and Not For Publication.

Here are the important facts:

In October 2007, Father filed a petition to modify custody and child support. Father requested custody of B.H. and a modification of child support as a result. At the February 2008 hearing, Mother and Father agreed that Father would have custody of B.H. (Transcript at 3, 39) Father suggested that his child support obligation be $70.00 per week based upon his base salary, with a quarterly review of his income to determine his overtime and a supplemental payment of 12.7% of his overtime. Father also based his calculation on Mother having 52 days of parenting time with B.H. Mother suggested that Father’s child support obligation be $167.00 per week based upon his base salary with overtime and bonuses. Mother also based her calculation on 98 days of parenting time with B.H.

The trial court ordered Father to pay $70.00 per week in child support but did not order Father to conduct a quarterly review of his income to determine his overtime or order payment of 12.7% of his overtime. The trial court also ordered Mother to have parenting time with B.H., but gave a parenting time credit of 52 overnights.
Here are the important legal points:

Ind. Child Support Rule 2 provides: “In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” Further, Ind. Child Support Rule 3 provides: “If the court concludes from the evidence in a particular case that the amount of the award reached through application of the guidelines would be unjust, the court shall enter a written finding articulating the factual circumstances supporting that conclusion.” Thus, any deviations from the Child Support Guidelines must be explained by the trial court. See, e.g., Grant v. Hager, 868 N.E.2d 801, 804 (Ind. 2007) (noting the trial court could deviate from the child support guidelines if it made the required written findings).


“With the adoption of the Indiana Parenting Time Guidelines, the noncustodial parent’s share of parenting time, if exercised, is equivalent to approximately 27% of the annual overnights.” Ind. Child Support Guideline 6, Additional Commentary. “If the parents are using the Parenting Time Guidelines without extending the weeknight period into an overnight, the noncustodial parent will be exercising approximately 98 overnights.” Id.

The Court of Appeals quotes extensively from the commentary to Ind. Child Support Guideline 3(A)(1) at pages 4 -5. Bonuses and overtime ought to have been included and their exclusion needs an explanation by the judge. Judge failing to explain the exclusion has the case returned to him:
Therefore, we reverse the trial court’s exclusion of the overtime and bonus income, and we remand with instructions to either calculate Father’s income as outlined in the Child Support Guidelines or, if the trial court excludes the overtime and bonuses, to issue written findings explaining the deviation.

Regarding the parenting time, the Indiana Court of Appeals wrote:
Based upon the Parenting Time Guidelines, Mother was entitled to credit for 98 overnights. Consequently, the trial court’s use of 52 overnights in calculating Mother’s parenting time credit without an explanation of the deviation was clearly erroneous. On remand, we direct the trial court to recalculate Mother’s parenting time credit in accordance with the Ind. Child Support Guidelines or explain the deviation.
Summing up: look at the Child Support Guidelines to see what income is to be included in the child support calculations, start with 98 days for visitation, and any deviation needs a written explanation by the judge.

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