Am Jur 2d - Divorce and Separation § 916

IV. Child Custody and Support; Visitation Rights, B. Child Support, 1. In General, § 916 - Generally

In the context of child care and maintenance orders, regular child support refers to the sums of money which the obligor parent is ordered to pay for a child's basic, necessary living expenses, which are food, clothing, and shelter.[1] Child support differs from spousal maintenance in that the parties to a maintenance agreement are both grown-ups, who are free to bargain with their own legal rights.[2] An award of spousal maintenance in dissolution of marriage proceedings and an award of child support are two distinctly separate concepts.[3]

Child support obligations, while now generally prescribed or addressed by statutes,[4] continue to be addressed through the common law.[5] Indeed, the parent of a minor child has a statutory duty to support the child, as well as a common law duty to support and care for the child.[6] These two-child-support remedies, statutory and common law, are coterminous and not concurrent, one beginning where the other ends, and the use of the appropriate remedy is determined by the facts.[7] There is also authority holding that while the duty to pay child support may arise from common law or statute, a contract or a confusion of both statutory law and contract law are separate and distinct sources for the obligation.[8]

The duty to support is absolute,[9] and the purpose of child support is to promote the child's best interests.[10] The best interest of the child or children is the paramount and guiding principle in setting child support, whether it be adopting the presumptive amount, calculating an alternate sum after the presumptive amount has been rebutted, ordering the amount agreed upon between the parents, or approving, ratifying, and incorporating in whole or in part the child support provisions of a contract.[11] Child support is not intended to punish the father or mother for an alleged wrongdoing,[12] and it should not be denied to punish a parent for his or her misconduct.[13]

The duty to support one's child is not dependent upon a parent's having custody of a child,[14] and such duty to support a minor child exists regardless of whether the parent is the custodian.[15] Both custodial and noncustodial parents are obligated to provide financially for their children.[16] Child support is not imposed for the benefit of the custodial parent,[17] but rather to provide for or satisfy the needs of the child,[18] which are not limited to direct needs for food, clothing, school, and entertainment; and child support is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to the day to day care and well being of the child.[19]

The focal point under a dissolution of marriage statute is to make provision for the support of children and a needy spouse.[20] Providing adequately for the children should be the foremost concern in a marriage dissolution case.[21] Both parents have an abiding or paramount duty to support their children,[22] and they have a continuing duty to support their children after the dissolution of a marriage.[23] The law imposes a duty on parents to support, provide for and protect the children they bring forth.[24] Parental support is a fundamental right of all minor children,[25] and the right of support cannot be waived,[26] even by agreement.[27] A court errs as a matter of law when it fails to comply with child-support requirements.[28]

Child-support statutes, which are generally recognized as remedial rather than substantive,[29] should be construed liberally to secure the welfare of children,[30] but the courts should not rewrite them.[31] The primary goals of child-support statutes are to promote the best interests of the child and avoid financial hardship for children of divorced parents.[32] Child-support statutes govern situations in which there is an obligation to support, there is no court-ordered child support, and no support has been paid by the obligated parent.[33] Some statutes expressly assign to the state any right to child support that a recipient of state aid has under statute.[34]

The right to support from the parents belongs to the minor children and it may not be bartered away, extinguished, estopped or in any way defeated by the agreement or conduct of the parents.[35] In other words, child support is a right belonging to the child and cannot be reduced or terminated by agreement between the parents.[36] Child support is for the benefit of the child and may not be modified or forgiven once vested.[37] Although child-support payments are made to the custodial parent, the payments are for the benefit of the child.[38] Custodial parents who receive child-support funds are regarded as trustees who hold the funds for the use and benefit of the child.[39] Custodial parents are under a fiduciary duty to hold and use child-support payments for the benefit of the child.[40]

The legal obligation to support children, absent an estoppel, arises out of parenthood, natural or adoptive.[41] A person has no legal duty to provide support for a minor child who is neither a natural or adopted child and for whose care and support the person has not contracted.[42] Indeed, without a legal parent-child relationship, there can be no duty to support under a child-support statute.[43]

Observation:

There is authority holding that a husband's failure to give written consent to his wife's conception of a child by artificial insemination by donor (AID) during the marriage, as required to give rise to a statutory presumption that he is the legal father of the child, does not preclude a finding that the husband is the child's legal father and has a child-support obligation as to that child.[44]

Cases:

Child support is the right of the child and not of its custodian; conduct of the custodian cannot deprive the child of the right to support any more than the custodian can waive it for the child or contract it away. West's Ga.Code Ann. § 19-9-24(b) . Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011) .

Judicial approval of a parent's voluntary agreement for the termination of his parental rights is authorized when agreed termination is in the best interest of the child; under those limited circumstances, the agreement is enforceable and does not violate the principle that one parent cannot contract away the right of the child to be supported by the other parent. Amerson v. Vandiver, 285 Ga. 49, 673 S.E.2d 850 (2009) .

A person who executes a written agreement promising to provide support for a child is bound by the terms of the agreement. Garcia v. Garcia, 284 Ga. 152, 663 S.E.2d 709 (2008) .

Establishing the criteria governing child support obligations following dissolution of marriage is a matter for the legislature. In re Marriage of Turk, 2014 IL 116730, 382 Ill. Dec. 40, 12 N.E.3d 40 (Ill. 2014) .

Husband knowingly and voluntarily consented to artificial insemination of wife that resulted in conception of children, and thus, children born from artificial insemination with sperm donated by third party were "children of marriage," under Dissolution of Marriage Act, for purposes of child support, where husband helped wife conduct research to determine paraphernalia that would be used to facilitate first artificial insemination, he and wife agreed on third party who donated sperm for both inseminations, husband kept paraphernalia used to facilitate first insemination in order for use in second insemination because he did not want first child to be only child, he supported both children during marriage, and he held both children out as his own. West's A.I.C. 31-9-2-13(a)(2) . Engelking v. Engelking, 982 N.E.2d 326 (Ind. Ct. App. 2013) .

Upon a showing of good cause, a trial court may order a final child support award retroactive to the date of judicial demand even though there has been an interim award in effect; overruling Moran v. Moran, 858 So.2d 581 , Martin v. Martin, 716 So.2d 46 , Pellerin v. Pellerin, 715 So.2d 617 , Bergeron v. Bergeron, 6 So.3d 948 , Garcia v. Rodriguez, 839 So.2d 368 . LSA-R.S. 9:315.21(B)(1) . Vaccari v. Vaccari, 50 So. 3d 139 (La. 2010) .

Children have the right to receive financial support from their parents, and trial courts may enforce that right by ordering parents to pay child support; that right cannot be bargained away by the parents, and, absent adoption, the legal obligation to support a child remains with his natural parents. In re Beck, 287 Mich. App. 400, 788 N.W.2d 697 (2010) , appeal granted, 486 Mich. 936, 782 N.W.2d 199 (2010) .

Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, and that support belongs to the child, not the custodial parent. Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014) .

Physical custody arrangement governs the child support award. Bluestein v. Bluestein, 345 P.3d 1044, 131 Nev. Adv. Op. No. 14 (Nev. 2015) .

Father's obligation to pay child support did not end with father's death, where unambiguous language of the marital dissolution agreement (MDA) bound executor of father's estate to continue to pay child support until the children reached the age of 18. In re Estate of Johnson, 2009 PA Super 54, 970 A.2d 433 (2009) , appeal denied, 980 A.2d 608 (Pa. 2009) .

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1   Nichols v. Tedder, 547 So. 2d 766, 77 A.L.R.4th 757 (Miss. 1989) .

2   Tietjens v. Tietjens, 744 N.E.2d 1064 (Ind. Ct. App. 2001) .

3   In re Marriage of Neu, 167 S.W.3d 791 (Mo. Ct. App. E.D. 2005) .

4   McKinney v. McKinney, 257 S.W.3d 130 (Ky. Ct. App. 2008) ; Bouchard v. Frost, 2004 ME 9, 840 A.2d 109 (Me. 2004) ; Eccleston v. Bankosky, 438 Mass. 428, 780 N.E.2d 1266 (2003) ; Smith v. Smith, 17 S.W.3d 592 (Mo. Ct. App. W.D. 2000) ; Wesley v. Foster, 119 Nev. 110, 65 P.3d 251 (2003) ; Muzechuk v. Muzechuk, 2002-Ohio-2527, 2002 WL 999300 (Ohio Ct. App. 5th Dist. Tuscarawas County 2002); In re Parentage of L.B., 155 Wash. 2d 679, 122 P.3d 161 (2005) , cert. denied, 547 U.S. 1143, 126 S. Ct. 2021, 164 L. Ed. 2d 806 (2006) ; Opitz v. Opitz, 2007 WY 207, 173 P.3d 405 (Wyo. 2007) .

5   Smith v. Smith, 17 S.W.3d 592 (Mo. Ct. App. W.D. 2000) ; Yost v. Yost, 2003-Ohio-3754, 2003 WL 21652172 (Ohio Ct. App. 4th Dist. Scioto County 2003); In re Parentage of L.B., 155 Wash. 2d 679, 122 P.3d 161 (2005) , cert. denied, 547 U.S. 1143, 126 S. Ct. 2021, 164 L. Ed. 2d 806 (2006) .

6   Kalinowski v. Kropelnicki, 92 Conn. App. 344, 885 A.2d 194 (2005) ; Dept. of Human Resources, Garrett County Dept. of Social Services, Bureau of Support Enforcement, ex rel. Duckworth v. Kamp, 180 Md. App. 166, 949 A.2d 43 (2008) .

7   Smith v. Smith, 17 S.W.3d 592 (Mo. Ct. App. W.D. 2000) .

8   Burkley v. Burkley, 911 So. 2d 262 (Fla. Dist. Ct. App. 5th Dist. 2005) ; R.M. v. Department of Children and Families, 877 So. 2d 797 (Fla. Dist. Ct. App. 5th Dist. 2004) (the duty to pay child support may arise from the common law, statute, or contract).

9   Krebs v. Krebs, 2008 PA Super 29, 944 A.2d 768 (2008) .

10   In re Marriage of Wilson, 181 S.W.3d 575 (Mo. Ct. App. S.D. 2005) ; Theisen v. Theisen, 14 Neb. App. 441, 708 N.W.2d 847 (2006) ; Lozner v. Lozner, 388 N.J. Super. 471, 909 A.2d 728 (App. Div. 2006) ; Krebs v. Krebs, 2008 PA Super 29, 944 A.2d 768 (2008) ; In re R.J.P., 179 S.W.3d 181 (Tex. App. Houston 14th Dist. 2005) .

11   Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001) .

12   Thompson v. Thompson, 811 N.E.2d 888 (Ind. Ct. App. 2004) ; L.M.E. v. A.R.S., 261 Mich. App. 273, 680 N.W.2d 902 (2004) .

13   Wilson v. Wilson, 58 S.W.3d 718 (Tenn. Ct. App. 2001) .

14   Kauffman v. Truett, 2001 PA Super 91, 771 A.2d 36 (2001) .

15   Ex parte R.S.C., 853 So. 2d 228 (Ala. Civ. App. 2002) , as modified on denial of reh'g, (Jan. 17, 2003); In re Estate of Trevino, 381 Ill. App. 3d 553, 319 Ill. Dec. 767, 886 N.E.2d 530 (2d Dist. 2008) (the mere fact that the mother was not a child-support obligor did not mean that she had no duty to support her children).

16   In re Estate of Trevino, 381 Ill. App. 3d 553, 319 Ill. Dec. 767, 886 N.E.2d 530 (2d Dist. 2008) ; Forrest v. McCoy, 941 So. 2d 889 (Miss. Ct. App. 2006) .

17   T.L.H. v. R.A.R., 977 So. 2d 482 (Ala. Civ. App. 2007) , cert. denied, (July 13, 2007); L.M.E. v. A.R.S., 261 Mich. App. 273, 680 N.W.2d 902 (2004) ; Forrest v. McCoy, 941 So. 2d 889 (Miss. Ct. App. 2006) .

18   Skillett v. Sierra, 30 Kan. App. 2d 1041, 53 P.3d 1234 (2002) ; L.M.E. v. A.R.S., 261 Mich. App. 273, 680 N.W.2d 902 (2004) ; Sullivan v. Sullivan, 107 S.W.3d 507 (Tenn. Ct. App. 2002) .

19   Skillett v. Sierra, 30 Kan. App. 2d 1041, 53 P.3d 1234 (2002) .

20   Coltea v. Coltea, 856 So. 2d 1047 (Fla. Dist. Ct. App. 4th Dist. 2003) .

21   In re Marriage of Parker, 187 Or. App. 565, 69 P.3d 811 (2003) .

22   Kestner v. Clark, 182 P.3d 1117 (Alaska 2008) ; Clark v. Clark, 887 N.E.2d 1021 (Ind. Ct. App. 2008) ; Adkins v. Adkins, 221 W. Va. 602, 656 S.E.2d 47 (2007) .

23   Verberne v. Verberne, 944 So. 2d 620 (La. Ct. App. 1st Cir. 2006) ; R.K. v. J.K., 946 So. 2d 764 (Miss. 2007) ; Hopkins v. Hopkins, 152 S.W.3d 447 (Tenn. 2004) .

24   L.M. v. R.L.R., 451 Mass. 682, 888 N.E.2d 934 (2008) .

25   Abel v. Abel, 824 So. 2d 767 (Ala. Civ. App. 2001) .

26   Miller v. Atkinson, 810 So. 2d 799 (Ala. Civ. App. 2001) ; Serio v. Serio, 830 So. 2d 278 (Fla. Dist. Ct. App. 2d Dist. 2002) ; Maschoff v. Leiding, 696 N.W.2d 834 (Minn. Ct. App. 2005) ; J.S. v. L.S., 389 N.J. Super. 200, 912 A.2d 180 (App. Div. 2006) , certification denied, 192 N.J. 295, 927 A.2d 1293 (2007) ; State ex rel. Shepard v. Holland, 219 W. Va. 310, 633 S.E.2d 255 (2006) ; Chen v. Warner, 2005 WI 55, 280 Wis. 2d 344, 695 N.W.2d 758 (2005) ; Kimble v. Ellis, 2004 WY 161, 101 P.3d 950 (Wyo. 2004) .

27   Abel v. Abel, 824 So. 2d 767 (Ala. Civ. App. 2001) ; Maschoff v. Leiding, 696 N.W.2d 834 (Minn. Ct. App. 2005) ; Kimble v. Ellis, 2004 WY 161, 101 P.3d 950 (Wyo. 2004) .

28   Walberg v. Walberg, 2008 ND 92, 748 N.W.2d 702 (N.D. 2008) .

29   Muzechuk v. Muzechuk, 2002-Ohio-2527, 2002 WL 999300 (Ohio Ct. App. 5th Dist. Tuscarawas County 2002).

30   Eccleston v. Bankosky, 438 Mass. 428, 780 N.E.2d 1266 (2003) .

31   State v. Huskie, 202 Ariz. 283, 44 P.3d 161 (Ct. App. Div. 2 2002) .

32   In re Marriage of Rottscheit, 2003 WI 62, 262 Wis. 2d 292, 664 N.W.2d 525 (2003) .

33   Hagel v. Hagel, 2006 ND 181, 721 N.W.2d 1 (N.D. 2006) .

34   In re Marriage of Luna, 183 Wis. 2d 20, 515 N.W.2d 480 (Ct. App. 1994) , review denied.

35   Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998) ; Anderson v. Thompson, 2008 UT App 3, 176 P.3d 464 (Utah Ct. App. 2008) .

36   In re Marriage of Vandervoort, 185 P.3d 289 (Kan. Ct. App. 2008) .

37   Keith v. Purvis, 982 So. 2d 1033 (Miss. Ct. App. 2008) .

38   Abel v. Abel, 824 So. 2d 767 (Ala. Civ. App. 2001) ; Howard v. Howard, 968 So. 2d 961 (Miss. Ct. App. 2007) .

39   Richards v. Richards, 281 Ga. 285, 637 S.E.2d 672 (2006) ; Vagenas v. Vagenas, 879 N.E.2d 1155 (Ind. Ct. App. 2008) , transfer denied, 891 N.E.2d 45 (Ind. 2008) ; Shipman v. City of New York Support Collection Unit, 183 Misc. 2d 478, 703 N.Y.S.2d 389 (Sup 2000) ; Wilson v. Wilson, 58 S.W.3d 718 (Tenn. Ct. App. 2001) .

40   Holmes v. Wooley, 792 A.2d 1018 (Del. Super. Ct. 2001) ; Forrest v. McCoy, 941 So. 2d 889 (Miss. Ct. App. 2006) .

41   Wright v. Newman, 266 Ga. 519, 467 S.E.2d 533 (1996) ; Burden v. Burden, 179 Md. App. 348, 945 A.2d 656 (2008) ; State v. Parker, 4 N.C. App. 674, 167 S.E.2d 533 (1969) .

42   Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997) .

43   In re Marriage of Bonifas, 879 P.2d 478 (Colo. Ct. App. 1994) .

44   Laura WW. v. Peter WW., 51 A.D.3d 211, 856 N.Y.S.2d 258 (3d Dep't 2008) .

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