{"id":26936,"date":"2022-09-05T03:28:18","date_gmt":"2022-09-05T03:28:18","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/amjur\/divorce-sect-936.html"},"modified":"2022-08-25T11:48:09","modified_gmt":"2022-08-25T11:48:09","slug":"divorce-sect-936","status":"publish","type":"amjur","link":"https:\/\/reference.findlaw.com\/amjur\/divorce-sect-936.html","title":{"rendered":"Am Jur 2d – Divorce and Separation \u00a7 936"},"content":{"rendered":"
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IV. Child Custody and Support; Visitation Rights, B. Child Support, 3. Amount of Allowance, a. In General, \u00a7 936 – Generally; decree or order as limiting parent’s liability<\/h2>\n

The amount of child support lies within the discretion of the court, and the court’s decision on such matter will not be disturbed on appeal absent a showing of an abuse of discretion.[1<\/a>] The overriding factor in determining the amount of support is the best interests of the children.[2<\/a>] Also, a trial court is expected to exercise its discretion in determining child support amounts so as to serve the best interests of justice in light of all the circumstances.[3<\/a>] A trial court’s discretion is not unbridled and the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.[4<\/a>] In other words, in determining the proper amount of child support, the trial court must balance the obligated parent’s ability to pay with the children’s needs.[5<\/a>] When it comes to setting the amount and conditions of child-support payments, the trial court’s primary obligation is to the children to insure that they have the support they need and to which they are entitled under the law.[6<\/a>] In determining the amount of a child-support award, a trial court must consider the status, character, and situation of the parties and attendant circumstances, including the financial condition of the parties and the estimated cost of support of the children.[7<\/a>] Also, in the absence of any mathematical formula, fact finders are given a wide latitude in fixing the amount of child support, and to this end they are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case.[8<\/a>] Moreover, child support should be in an amount consistent with the parents’ standard of living, and this concept cuts across all economic lines, whether the parents are poor or wealthy.[9<\/a>] The trial judge should examine the needs of the child in light of the parents’ resources and determine the amount of support necessary to ensure that the child’s standard of living does not suffer because of the parents’ separation.[10<\/a>]<\/p>\n

Consistent with the foregoing principles, it is not an abuse of discretion to order a parent to pay a percentage of his or her annual bonuses as additional child support, over and above a fixed amount of child support.[11<\/a>] However, it is an abuse of the trial court’s discretion to render a divorce judgment that is vague, indefinite and unenforceable by ordering monthly child support at 20% of the father’s “net resources” but failing to set a minimum or maximum fixed dollar amount, as well as by failing to consider both parents’ future ability to pay.[12<\/a>]<\/p>\n

One of the underlying purposes of the Uniform Marriage and Divorce Act is to make reasonable provision for minor children during and after litigation.[13<\/a>] Under the Act, in a proceeding for child support, the court may order either or both parents owing a duty of such support to pay an amount reasonable or necessary therefor, without regard to marital misconduct, after considering all relevant factors, including those specified in the statute.[14<\/a>]<\/p>\n

In at least one jurisdiction, absent a showing of unfairness, the court must determine the parent’s child-support obligation by using a percentage standard established by the Department of Health and Social Services, under which the support payer’s base is largely determined by the support payer’s level of gross income.[15<\/a>] A court’s failure to apply the percentage standard as mandated by statute constitutes an improper exercise of discretion by the court.[16<\/a>]<\/p>\n

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Practice Tip:<\/div>\n

Where a parent’s annual earnings show a clear pattern of consistently increasing income, the current earnings, not income averaging, should be used in calculating the child-support obligation.[17<\/a>] Where a parent’s income fluctuates significantly, a court may average such income for purposes of calculating child-support obligations under the applicable statutory guidelines.[18<\/a>] When a district court incorrectly calculates the amount of child support, the appellate court should remand for a correct calculation.[19<\/a>]<\/p>\n<\/div>\n

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Observation:<\/div>\n

The child-support obligation of an incarcerated person should be set in light of that person’s actual earnings while incarcerated and other assets of the incarcerated person practically available to provide such support.[20<\/a>]<\/p>\n<\/div>\n

The judicial decree or order obligating a parent to pay a certain sum for the support of a child limits the parent’s liability.[21<\/a>] Accordingly, the parent responsible for child support is not liable for extraordinary medical or surgical expenses where the order specifies a designated sum as child support.[22<\/a>]<\/p>\n

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Cases:<\/div>\n
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A trial court’s calculation of child support is presumptively valid. \tYoung v. Young, 891 N.E.2d 1045 (Ind. 2008)<\/a> <\/span>.<\/p>\n<\/p><\/div>\n

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The standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion, while interpretation and application of the Kansas Child Support Guidelines are subject to unlimited review. \tIn re Marriage of Matthews, 40 Kan. App. 2d 422, 193 P.3d 466 (2008)<\/a> <\/span>.<\/p>\n<\/p><\/div>\n

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Amount of child support that is required to be paid in a given case is dependent upon the parents’ incomes and is designed to provide the subject children with the same standard of living following the separation of their parents that they would have enjoyed had their parents continued to live together in one household. \tWest’s Ann.W.Va.Code, 48-13-102<\/a> <\/span>. \tRomano v. Greve, 2012 WL 602896 (W. Va. 2012)<\/a> <\/span>.<\/p>\n<\/p><\/div>\n<\/div>\n

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All case links go to Westlaw and require login.<\/h2>\n<\/div>\n

1<\/a> \u00a0 Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007)<\/a> <\/span>; Murphy v. Murphy, 894 So. 2d 542 (La. Ct. App. 3d Cir. 2005)<\/a> <\/span>, writ denied, 916 So. 2d 144 (La. 2005)<\/a> <\/span>; Striebeck v. Striebeck, 911 So. 2d 628, 202 Ed. Law Rep. 449 (Miss. Ct. App. 2005)<\/a> <\/span>; Bearce v. Lewey, 182 S.W.3d 737 (Mo. Ct. App. W.D. 2006)<\/a> <\/span>; Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264 (2005)<\/a> <\/span>; Kotzbauer v. Kotzbauer, 2007 PA Super 357, 937 A.2d 487 (2007)<\/a> <\/span>, appeal denied, 952 A.2d 678 (Pa. 2008)<\/a> <\/span>; Goodson v. Castellanos, 214 S.W.3d 741 (Tex. App. Austin 2007)<\/a> <\/span>, reh’g overruled, (Mar. 1, 2007) and review denied, (Feb. 22, 2008).
<\/span><\/p>\n

2<\/a> \u00a0 Kirkpatrick v. Kirkpatrick, 948 So. 2d 390 (La. Ct. App. 2d Cir. 2007)<\/a> <\/span>.
<\/span><\/p>\n

3<\/a> \u00a0 Keck v. Jordan, 2008 WY 38, 180 P.3d 889 (Wyo. 2008)<\/a> <\/span>.
<\/span><\/p>\n

4<\/a> \u00a0 Arnold v. Arnold, 977 So. 2d 501 (Ala. Civ. App. 2007)<\/a> <\/span>.
<\/span> \u00a0Child support is to be set in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties. State v. McGuire, 174 N.C. App. 347, 620 S.E.2d 899 (2005)<\/a> <\/span>.
<\/span><\/p>\n

5<\/a> \u00a0 Department of Human Resources v. Prater, 278 Ga. App. 900, 630 S.E.2d 145 (2006)<\/a> <\/span>; In re Marriage of Bottorff, 221 S.W.3d 482 (Mo. Ct. App. S.D. 2007)<\/a> <\/span>.
<\/span><\/p>\n

6<\/a> \u00a0 Gerlach v. Adair, 211 S.W.3d 663 (Mo. Ct. App. W.D. 2007)<\/a> <\/span> (also stating that the nature of relationship between the noncustodial parent and the child is not a factor to be considered in determining the appropriate amount of child support).
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7<\/a> \u00a0 Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005)<\/a> <\/span>.
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8<\/a> \u00a0 Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008)<\/a> <\/span>.
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9<\/a> \u00a0 Walker v. Grow, 170 Md. App. 255, 907 A.2d 255 (2006)<\/a> <\/span>, cert. denied, 396 Md. 13, 912 A.2d 649 (2006)<\/a> <\/span>.
<\/span><\/p>\n

10<\/a> \u00a0 Walker v. Grow, 170 Md. App. 255, 907 A.2d 255 (2006)<\/a> <\/span>, cert. denied, 396 Md. 13, 912 A.2d 649 (2006)<\/a> <\/span>.
<\/span><\/p>\n

11<\/a> \u00a0 In re Marriage of Ostler & Smith, 223 Cal. App. 3d 33, 272 Cal. Rptr. 560 (1st Dist. 1990)<\/a> <\/span>.
<\/span><\/p>\n

12<\/a> \u00a0 Euston v. Euston, 759 S.W.2d 788 (Tex. App. El Paso 1988)<\/a> <\/span>.
<\/span><\/p>\n

13<\/a> \u00a0 Unif. Marriage and Divorce Act \u00a7 102(5)<\/a> <\/span>.
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14<\/a> \u00a0 Unif. Marriage and Divorce Act \u00a7 309<\/a> <\/span>.
<\/span> \u00a0As to the specific factors included under the provisions of the uniform statute, see \u00a7 947<\/a> <\/span>.
<\/span><\/p>\n

15<\/a> \u00a0 Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995)<\/a> <\/span>.
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16<\/a> \u00a0 In re Marriage of Luna, 183 Wis. 2d 20, 515 N.W.2d 480 (Ct. App. 1994)<\/a> <\/span>, review denied.
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17<\/a> \u00a0 Lucero v. Lucero, 16 Neb. App. 706, 750 N.W.2d 377 (2008)<\/a> <\/span>.
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18<\/a> \u00a0 Swaab v. Swaab, 2008 WL 1838023 (Tex. App. Houston 14th Dist. 2008)<\/a> <\/span>.
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19<\/a> \u00a0 In re Marriage of Vandervoort, 185 P.3d 289 (Kan. Ct. App. 2008)<\/a> <\/span>.
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20<\/a> \u00a0 Clark v. Clark, 887 N.E.2d 1021 (Ind. Ct. App. 2008)<\/a> <\/span>.
<\/span> \u00a0An initial child support determination which was based upon an adjudicated father’s earning capacity prior to his incarceration constituted an abuse of discretion, where the father was incarcerated at the time of the initial support determination, since as long as the father remained in prison, it was impossible for him to realize his previous income. State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000)<\/a> <\/span>.
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21<\/a> \u00a0 Calway v. Calway, 26 Conn. App. 737, 603 A.2d 434 (1992)<\/a> <\/span>; Rodgers v. Rodgers, 118 Ill. App. 3d 334, 73 Ill. Dec. 904, 454 N.E.2d 1153 (5th Dist. 1983)<\/a> <\/span>.
<\/span><\/p>\n

22<\/a> \u00a0 South Jefferson General Hospital, Inc. v. Connors, 341 So. 2d 637 (La. Ct. App. 4th Cir. 1977)<\/a> <\/span>.
<\/span> \u00a0As to an award for medical and dental care, generally, see \u00a7 948<\/a> <\/span>.
<\/span><\/p>\n

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