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Am Jur 2d - Divorce and Separation § 940

IV. Child Custody and Support; Visitation Rights, B. Child Support, 3. Amount of Allowance, b. Matters Affecting Determination, § 940 - Use of child-support guidelines-Deviations from guidelines

In establishing support pursuant to the guidelines, the trial court has discretion to deviate from the guidelines.[1] Where the facts demonstrate the inappropriateness of a child-support award, the trier of fact may deviate from the guidelines.[2] Thus, in a case in which employee benefits artificially inflate a parent's income, the court may consider a deviation from the child-support guidelines.[3]

A trial court is not authorized to order a deviation from the guideline amount of child support without hearing evidence on the issue,[4] and a deviation is authorized only if the court specifically finds that such deviation is warranted based on the evidence.[5] Indeed, if a court finds that a deviation from the presumptive amount of child support is proper, it must set forth detailed findings of fact and conclusions of law.[6] A trial court cannot depart from the child-support guidelines without making adequate written findings to support the departure.[7] Absent a clearly articulated justification, any deviation from the child-support guidelines is an abuse of discretion.[8] Accordingly, findings of fact must show a justification for the deviation and a basis for the amount ordered,[9] and must include enough detail and exactness to allow for effective appellate review of those findings.[10] Specifically, the findings must identify the factors justifying the deviation from the guidelines and explain why and to what extent the factors justify an adjustment.[11] Where the amount of child support awarded constitutes a downward deviation of more than 5% from the guidelines amount, the trial court must make a written finding explaining why the guideline amount is unjust or inappropriate.[12] A trial court's failure to explain a downward deviation from child-support guidelines in determining a child-support obligation warrants a reversal.[13] "Rounding off" a child-support obligation amounts to an improper deviation from child-support guidelines without oral or written reasons.[14] A deviation from statutory child-support guidelines may be based on evidence, taken upon the request of a party, relating to the reasonable needs of the child for support and the relative ability of each parent to provide support.[15] Indeed, in determining whether to vary the amount of child support from the statutory guideline formula, all relevant factors are to be considered, including the needs of the child, and each parent's age, station of life, standard of living, and financial status and ability.[16] A trial court may order a parent to pay child support beyond the amount the parent's income would ordinarily indicate under the guidelines if the parent could potentially earn more money but has intentionally chosen not to.[17]

A variance from child-support guidelines may be supported by a special need of the child,[18] or by showing that application of the guidelines would be unjust or inappropriate,[19] or would not be in the best interest of the child,[20] or would be inequitable to the parties.[21] Thus, a trial court does not abuse its discretion in awarding child support above the applicable guidelines, where the court expressly finds that special circumstances exist, namely a shared custody of the minor children and the disparate income of the parties.[22] On the other hand, the mere possibility of future unemployment[23] and conclusory allegations are insufficient to warrant a departure from the child-support guidelines under the "unjust or inappropriate" exception.[24] Moreover, the existence of children in the household of the parent paying child support, standing alone, cannot justify a departure from the child-support guideline amount.[25]


Circumstances of husband and wife were not extraordinary and did not support finding that manifest injustice would result if child support guidelines were followed in divorce action, and thus husband and wife could not use children's fund in lieu of child support; it was not unusual for one spouse to have greater income than the other, that husband and wife each had independent assets was not extraordinary, separate and marital assets were not unusually large, and wife's child support arrearage of approximately $12,000 was not unusual. Rules Civ.Proc., Rule 90.3(c). Laughlin v. Laughlin, 229 P.3d 1002 (Alaska 2010) .

While a trial court must reference the child support chart, and presume that the amount specified in the chart is reasonable, that presumption is rebuttable; the presumption that the chart is correct may be overcome if the trial court provides specific written findings that the chart amount is unjust or inappropriate. Arkansas Office of Child Support Enforcement v. Hearst, 2009 Ark. 599, 357 S.W.3d 450 (2009) .

Deviation from father's presumptive child support obligation to younger child in split custody arrangement by ordering that father pay zero support for younger child who lived with mother, other than requiring father to pay one-half of child's private school tuition, was not in best interest of child; mother was paying for one-half of older child's support, including one-half of older child's boarding school tuition, mother's share of combined income was 42% versus father's 58%, which left mother with fewer resources to support younger child, and child support worksheets for each child contained factually inaccurate data in order to reach intended result to "zero-out" child support award for each parent. West's Ga.Code Ann. § 19-6-15(c)(2)(E), (i)(1)(B) . Parker v. Parker, 745 S.E.2d 605 (Ga. 2013) .

Order modifying child support provisions of divorce decree, directing father to pay the presumptive child support amount under child support guidelines and making no deviation for miscellaneous expenses, discontinued father's obligation under decree to reimburse mother for one-half of miscellaneous expenses incurred on behalf of children; trial court was required to find a deviation from the presumptive child support amount and specifically address the miscellaneous expense provision in order to continue father's obligation to pay miscellaneous expenses. West's Ga.Code Ann. § 19-6-15(i)(2)(J)(ii) . East v. Stephens, 740 S.E.2d 156 (Ga. 2013) .

Express findings in the trial court's order, necessary to support deviation from child support guidelines, are mandatory to ensure that the best interests of the children are protected, and when any of the required findings are omitted, the Supreme Court has no choice but to reverse the trial court's judgment and remand the case to the trial court for further proceedings. West's Ga.Code Ann. § 19-6-15(c)(2)(E), (I)(1)(B) . Walls v. Walls, 732 S.E.2d 407 (Ga. 2012) .

Trial court did not abuse its discretion in declining to deviate from the presumptive amount of child support owed by father based on parenting time, though parties shared equally in physical custody of child, as trial court found that the presumptive amount of child support was not excessive or inadequate, it was not unjust or inappropriate under the circumstances, and that a deviation from presumptive amount of child support would not serve child's best interests. West's Ga.Code Ann. § 19-6-15(b), (c)(2)(E)(iii), (i)(2)(K)(i) . Willis v. Willis, 288 Ga. 577, 707 S.E.2d 344 (2011) .

Trial court acted within its discretion in declining to deviate from statutory child support guidelines in making award of child support of 40 percent of husband's income, for four children, despite husband's argument that he spent significant amount of time with children per joint parenting agreement; husband had relatively higher income and earning potential than wife, and there was no evidence of how time spent with children affected wife's financial resources or how downward deviation from guidelines was in best interests of children. S.H.A. 750 ILCS 5/505(a), 5/508(a)(1) . In re Marriage of Sobieski, 2013 IL App (2d) 111146, 984 N.E.2d 163 (Ill. App. Ct. 2d Dist. 2013) .

Where a noncustodial parent's income level exceeds the children's basic needs, the minimum amount provided in the statutory child support guidelines is presumptively correct, and the court may deviate upwards in the amount warranted by the circumstances. Adams v. Adams, 459 Mass. 361, 945 N.E.2d 844 (2011) .

The trial court's deviation from the child support guidelines on the basis for father's non-income-producing real estate was not an abuse of discretion, in post-divorce modification proceeding in which father sought to modify his child support obligation after his income substantially decreased; father owned two houses, one in which he lived and another in state, the house in which father lived was not subject to any debt, the house in state was assessed for tax purposes at $525,000 and was not encumbered by a mortgage, even though father through the property was only worth $400,000, and thus father had $400,000 in equity in real estate other than his personal home. Stekr v. Beecham, 291 Neb. 883, 869 N.W.2d 347 (2015) .

Settlement agreement and the order effectuating it, which purported to opt out of the basic child support obligations set forth in the Child Support Standards Act (CSSA), was invalid; agreement failed to recite that the parties were aware of the CSSA guidelines, failed to set forth the basic child support obligation, and failed to set forth the reasons for deviating from the guidelines. McKinney's Family Court Act § 413(1)(h) ; McKinney's DRL § 240(1-b)(h) . David v. Cruz, 103 A.D.3d 494, 960 N.Y.S.2d 29 (1st Dep't 2013) .

Trial court's award of child support in amount that was upward deviation of only $900 per month from presumed level of $2,102 per month was not clearly erroneous in divorce action, although husband's income exceeded highest enumerated monthly income of $12,500 per month under child-support guidelines; wife did not present any specific evidence of child's appropriate needs, and wife did not propose specific amount for upward deviation in child support. NDCC 14-09-09.7(4) ; NDAC 75-02-04.1-09(2)(b) . Hoverson v. Hoverson, 2013 ND 48, 828 N.W.2d 510 (N.D. 2013) .

Sufficient evidence supported trial court's conclusion that an upward deviation from the presumptive amount of child support in determining father's monthly support obligation was in children's best interests; trial court found that a deviation would be in the best interests of the children based on their more expansive needs, absent an upward deviation, parties' two younger children would miss out on trips, camps, and other comforts of life they used to enjoy, and there was a large disparity between parties' household budgets, specifically with regard to the difference between the two budgets for entertainment, with mother's lower than it should be. NDAC 75-02-04.1-09(2)(b) . Nuveen v. Nuveen, 2012 ND 260, 825 N.W.2d 863 (N.D. 2012) .

While a deviation from the child support guideline worksheet amount is allowed under certain circumstances, the party who seeks to rebut the presumption that the calculation pursuant to the worksheet is correct, and asks the court to deviate, has the burden of proof. R.C. §§ 3119.03, 3119.04(B), 3119.22. Batcher v. Pierce, 2015-Ohio-2130, 35 N.E.3d 904 (Ohio Ct. App. 9th Dist. Summit County 2015).

Trial court acted within its discretion in downwardly deviating from presumptive monthly child support obligation of $817 per month and ordering mother to pay father $200 per month for two children; mother claimed that she could not afford the presumptive support amount and, for various reasons, including her health and the responsibilities associated with caring for her special needs child, she was not in a position to earn additional money at that time. West's Wyo.Stat.Ann. §§ 20-2-304 , 20-2-307(b) . Egan v. Egan, 2010 WY 164, 244 P.3d 1045 (Wyo. 2010) .

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1   Brothers v. Kern, 154 Cal. App. 4th 126, 64 Cal. Rptr. 3d 239 (5th Dist. 2007) ; Banciu v. Banciu, 282 Ga. 616, 652 S.E.2d 552 (2007) ; Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007) ; Kammerer v. Kammerer, 38 A.D.3d 846, 835 N.Y.S.2d 206 (2d Dep't 2007) ; Row v. Row, 650 S.E.2d 1 (N.C. Ct. App. 2007) , review denied, 362 N.C. 238, 659 S.E.2d 741 (2008) and petition for cert. filed, 76 U.S.L.W. 3655, 77 U.S.L.W. 3022 (U.S. June 9, 2008) ; LaFrance v. LaFrance, 370 S.C. 622, 636 S.E.2d 3 (Ct. App. 2006) (overruled on other grounds by, Arnal v. Arnal, 371 S.C. 10, 636 S.E.2d 864 (2006) ); Gisi v. Gisi, 2007 SD 39, 731 N.W.2d 223 (S.D. 2007) ; Keck v. Jordan, 2008 WY 38, 180 P.3d 889 (Wyo. 2008) .

2   Perala v. Carlson, 520 N.W.2d 839 (N.D. 1994) ; Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192 (1994) .

3   Hetherington v. Hetherington, 2008 WL 2469307 (Ariz. Ct. App. Div. 1 2008) .

4   Sapinsley v. Sapinsley, 171 Ohio App. 3d 74, 2007-Ohio-1320, 869 N.E.2d 702 (1st Dist. Hamilton County 2007) .

5   Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007) .

6   Keck v. Jordan, 2008 WY 38, 180 P.3d 889 (Wyo. 2008) .

7   Bimonte v. Martin-Bimonte, 679 So. 2d 18 (Fla. Dist. Ct. App. 4th Dist. 1996) ; Hamlin v. Ramey, 291 Ga. App. 222, 661 S.E.2d 593 (2008) ; In re Marriage of Wright, 212 Ill. App. 3d 392, 156 Ill. Dec. 610, 571 N.E.2d 197 (5th Dist. 1991) ; Liddy v. Liddy, 881 N.E.2d 62 (Ind. Ct. App. 2008) , transfer denied, 891 N.E.2d 48 (Ind. 2008) ; Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996) ; Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001) ; Wolf v. Wolf, 557 N.W.2d 742 (N.D. 1996) ; Mayers v. Mayers, 15 Va. App. 587, 425 S.E.2d 808 (1993) ; Henderson v. Henderson, 183 W. Va. 627, 397 S.E.2d 916 (1990) .
 Any deviation from the amount of child support determined by the use of the child-support guidelines must be justified by written findings in the journal entry; failure to justify deviations by written findings is reversible error, and deviations must serve the best interests of the children. In re Marriage of Vandervoort, 185 P.3d 289 (Kan. Ct. App. 2008) .

8   Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007) .

9   In re Marriage of Payan, 890 P.2d 264 (Colo. Ct. App. 1995) ; Ferraro v. Ferraro, 45 Conn. App. 230, 695 A.2d 23 (1997) ; Martin v. Martin, 616 So. 2d 158 (Fla. Dist. Ct. App. 3d Dist. 1993) ; In re Marriage of Metz, 233 Ill. App. 3d 50, 174 Ill. Dec. 172, 598 N.E.2d 369 (2d Dist. 1992) ; Bliss v. Bliss, 493 N.W.2d 583 (Minn. Ct. App. 1992) ; Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911 (1993) .

10   Berthiaume v. Berthiaume, 368 N.W.2d 328 (Minn. Ct. App. 1985) ; Baumgartner v. Moore, 14 Va. App. 696, 419 S.E.2d 291 (1992) .

11   Knippelmier v. Knippelmier, 238 Neb. 428, 470 N.W.2d 798 (1991) ; Baumgartner v. Moore, 14 Va. App. 696, 419 S.E.2d 291 (1992) .

12   Burton v. Burton, 697 So. 2d 1295 (Fla. Dist. Ct. App. 1st Dist. 1997) .

13   In re Marriage of Charles, 284 Ill. App. 3d 339, 219 Ill. Dec. 742, 672 N.E.2d 57 (4th Dist. 1996) .

14   Henley v. Henley, 618 So. 2d 1 (La. Ct. App. 3d Cir. 1993) .

15   Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911 (1993) .

16   Finley v. Scott, 707 So. 2d 1112 (Fla. 1998) .

17   Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815 (Tex. App. Fort Worth 2007) .

18   Stock v. Stock, 693 So. 2d 1080 (Fla. Dist. Ct. App. 2d Dist. 1997) ; In re Marriage of Kern, 245 Ill. App. 3d 575, 185 Ill. Dec. 843, 615 N.E.2d 402 (4th Dist. 1993) .

19   Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000) ; Lusa v. Grunberg, 101 Conn. App. 739, 923 A.2d 795 (2007) ; Stewmon v. Stewmon, 654 So. 2d 259 (Fla. Dist. Ct. App. 2d Dist. 1995) ; Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996) ; Sieg v. Sieg, 255 S.W.3d 20 (Mo. Ct. App. W.D. 2008) ; State ex rel. A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007) ; In re Carr, 156 N.H. 498, 938 A.2d 89 (2007) ; Weymouth v. Mullin, 42 A.D.3d 681, 839 N.Y.S.2d 600 (3d Dep't 2007) ; Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192 (1994) ; Roosth v. Roosth, 889 S.W.2d 445 (Tex. App. Houston 14th Dist. 1994) , writ denied, (Mar. 9, 1995).

20   Steinebach v. Steinebach, 957 So. 2d 291 (La. Ct. App. 3d Cir. 2007) .

21   Lusa v. Grunberg, 101 Conn. App. 739, 923 A.2d 795 (2007) ; Steinebach v. Steinebach, 957 So. 2d 291 (La. Ct. App. 3d Cir. 2007) .
 The requirement that the former husband must pay child support according to the support guidelines was inequitable, where the parties were in wholly equalized financial position with respect to their children, with approximately equal incomes, joint legal custody, and alternative, continuous physical custody arrangement. Plattner v. Plattner, 228 S.W.3d 577 (Ky. Ct. App. 2007) .

22   Banciu v. Banciu, 282 Ga. 616, 652 S.E.2d 552 (2007) .

23   Gazipura v. Gazipura, 652 So. 2d 266 (Ala. Civ. App. 1994) .

24   Liebman v. Liebman, 229 A.D.2d 778, 645 N.Y.S.2d 581 (3d Dep't 1996) .

25   Beck v. Beck, 165 Md. App. 445, 885 A.2d 887 (2005) .

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