Experts Say Changes Allow Judicial Discretion
From – Missouri Lawyers Weekly
By: Stephanie Maniscalco
October 7, 2002
The wait is over for Missouri family law attorneys anxious to learn whether proposals to modify the Form 14 child support worksheet would be approved by the state Supreme Court.
“Most family law attorneys know the committee suggested changes to the Supreme Court some time ago and have been waiting to see whether they would be sanctioned or not,” said St. Louis attorney Richard Eisen.
“I’ve been telling people for a year and a half that these changes are coming, but it has been kind of like the boy crying wolf,” said Blue Springs attorney James H. Young. “I don’t think people know that it has now happened.”
The court has issued a new worksheet under an order dated Sept. 17. The new form will be effective Jan 1,2003, but experts say the order provides that it may be used immediately.
“If you’re in the middle of a situation that may end in a couple months, it may make sense to use the chart now -it’s a good idea to sit down and work through a few examples so that using it will become natural,” said Eisen.
“The changes to the form are as important as anything else that’s happened in family law this year, and it may take a while for people to learn to adjust to the new rules,” he said.
According to family law experts, the most significant changes are:
- the removal of the caveat in Line 11 that denied the visitation adjustment credit to those with a divorce decree dated before October 1998;
- a comment added to Line 6b that allows the work-related child care costs of the parent receiving support to be excluded from the calculation of the presumed child support amount;
- a clarification that if health insurance is provided by the spouse of a parent ordered to pay health insurance costs, the parent may still take the health insurance deduction; and
- an increase in the maximum amount of combined adjusted gross income from $15,000 to $20,000.
Experts also agreed that the new form does not address questions that many practitioners have when a couple agrees to a 50-50 share of custody.
“We’re seeing more and more joint legal and joint physical custody cases, and there has been no additional guidance,” said Young.
“But the reality is that this must be looked at on a case-by-case basis because it is probably too difficult to devise a chart to resolve all the issues that come up here.”
“This is a key issue in domestic law and every division, every judge has a different interpretation,” agreed Kansas City attorney Cheri Cole Simpkins.
A link to the new Form 14 is available in the Important Documents page of the Missouri Lawyers Weekly website at www.molawyersweekly.com .
Experts agreed that the change to the visitation adjustment under Line 11 was especially significant. When the adjustment was first allowed in 1998, a caveat was added limiting its application. That has now been removed.
Line 11 provides an adjustment “for a portion of amounts expended by the parent obligated to pay support during periods of overnight visitation or custody.”
Young said, “The caveat was intended to avoid a rush of motions to modify, there was a definite floodgate concern. There was an arbitrary line where some people could get it and some couldn’t.
“The change fixes a problem that existed out of fear of litigation,” he explained.
Young also noted that a caveat to Line 12 states that “where supported by the evidence, the presumed child support amount is not a maximum.
“Basically, this is telling judges they can deviate upward as well as downward,” he said.
Young said the committee went over Form 14 “line by line” to see what could be improved.
“Many of the changes are procedural to make the form more user friendly and to make it read more clearly ,” he said.
“I think the overall theme of the latest changes seems to be that judges do have discretion in some of these matters,” said St. Louis attorney Leigh Joy Carson. “It seems to be emphasized in the comments that there is no need for a cookie cutter approach.”
Carson said a welcome clarification is the comment added to Line 6b that child care costs may be excluded from the support calculations.
“This is something I have argued with judges about, and I have found a lot of fighting about,” she said.
“There were cases coming out that seemed to say that judges had to include the day care in Form 14,” agreed Young. “The comment that was added says it is permissible to set it up in a separate order.”
St. Louis Circuit Judge Thomas J. Frawley noted that many family law attorneys were concerned that judges felt obligated to “plug in” the child care costs.
“The lawyers felt like judges were reluctant to exclude the costs, and they can now argue that it is doable,” he said.
The comment states that “work related child care costs of the parent obligated to pay support my be excluded from calculation of the presumed child support amount if an event that will significantly affect the amount paid for work related child care by the parent obligated to pay support, such as a child’s increased age, will occur with predictability within a short period of time.”
Young gave the example that if a 4-year old child would enter kindergarten upon turning five, full-time day care costs would drop dramatically.
“In this situation, you could have each pay their share to the day care and take the amount out of the chart so that you do not have to re-do it the next year,” he explained. “Before some judges thought they could do that, and some judges thought they could not.”
Eisen said, “This change was made with an eye to cutting down on future litigation by eliminating some future motions to modify .” But he added that the “flip side” is that if the amount is excluded, enforcement is a more complicated procedure requiring garnishment or a motion of contempt.
Another section that was “cleaned up” now ensures that a parent ordered to pay health insurance costs will not lose that deduction by using his new spouse’s insurance coverage. New language now refers to “family income.”
“That was a ridiculous distinction that has now been clarified,” said Young, “If it is financially better for the stepmom to pay, it doesn’t make a lick of difference.”
The increase in the maximum combined adjusted gross income from $15,000 to $20,000 was “desperately needed.” According to Kansas City attorney Simpkins.
“A lot of people, including professional athletes, made more than the maximum and when the income was capped, it didn’t appropriately recognize that the child would be living in different circumstances,” she said.
“We were at a point where judges would simply stop at $15,000, which did not take into account that people are being paid more today, so it was very appropriate to go up,” agreed Eisen.