Supreme Court Oral Arguments in Hubin v. Hubin
Chief Justice
Mr. Dougherty
Attorney Dougherty
Thank you Mr. Chief Justice. I would like to acknowledge sitting at counsel table with me today are my client Don Hubin and Counsel James Hanneman counsel for several of the amici. And, with the court's permission I would like to reserve 2 minutes of time for rebuttal
Chief Justice
Watch your time then.
Attorney Dougherty
Thank you.
Members of the court, this case concerns how child support should be determined in shared parenting cases when each parent has been designated as a residential parent and legal custodian. As the court knows, in every child support case, a worksheet must be completed. The worksheet contains the formula that requires the court to consider certain variables. The formula allocates the cost of raising a child between the parents. The costs are allocated proportionately based on each parent's income.
After all computations are completed on the worksheet, each parent's proportionate share is stated on line 24 of the worksheet. On line 24, each parents proportionate share is referred to as a parents' actual annual obligation. One obligation is stated for the father and one obligation is stated for the mother. Thus, we have two obligations stated on line 24. And this is where the problem arises.
One fundamental question is presented in this case. In a shared parenting case in which each parent has been designated as the residential parent and legal custodian, may a court completely eliminate one parents line 24 obligation without first complying with deviation standards . . .
Justice Stratton
Why should we not leave this to the legislature? They clearly said in the co-parenting situation that you do set-off when you have that. But they have not said it here, which, we have often said from this bench in our opinions, the legislature knows how to write when they write in one statute we want x and they don't put it in y it sends a clear message of their intent. Why should we as a court do that? Especially in light of our previous decision, why should we not leave that to the legislature because that is clearly a social policy issue as to what parent pays what obligation and why should we up here without the benefit of any input from any groups and any hearings and any legislation up here make that policy decision?
Attorney Dougherty
Justice L. Stratton, I think that the policy decision has already been made by the legislature. The provision you referred to regarding split custody situations, only requires the court to do an interim offset regarding the preliminary obligations in every single situation . . .
Justice Stratton
And they don't require any preliminary offset in this statute, do they?
Attorney Dougherty
I agree with you, I absolutely agree with you.
Justice Stratton
So therefore, I go back to my statement, if they wanted us to do it, they could have said it, right?
Attorney Dougherty
Yes your honor, and I think it has because if you look at the split custody worksheet at the end, it's exactly like the worksheet that we use for sole custody and shared parenting. In both of those worksheets, you get down to a certain point and it says father's obligation deviated if appropriate, mother's obligation, deviated if appropriate. And then the next line on both worksheets goes from two obligations to one. So I think the legislature has clearly said to us, in all types of child support cases, you determine poppa's obligation, momma's obligation, but then it would be silly to have one pay to the other and simultaneously have a second order, so each of the two worksheets go from two obligations to one obligation in the end. I agree with you, the legislature has spoken, I think it has spoken and it has said we should go from two to one, in all child support cases including shared parenting cases.
Justice Stratton
Hasn't this court also spoken on counsel in the Pauly case, doesn't Pauly resolve your issue?
Attorney Dougherty
Not at all, your honor. In the Pauly case, what this court specifically said was when a father came before the court and argued that he wanted a time based deviation, this court rejected that argument. This court said, "No, we're not going to read anything into the statute that says one must count up hours." The issue presented in this case is very different. The issue . . .
Justice Stratton
I think the court said no automatic set-off, nothing automatic set-off. . .
Attorney Dougherty
Yes, your honor. It specifically said "no right to an automatic set-off based on time computations." That was the issue raised in the court of appeals on Pauly, that was the way the decision was phrased by the court.
Your honor, the first sentence in the Pauly decision, written by Justice Sweeney, says the issue before this court is whether a parent paying child support under a shared parenting plan is entitled to an automatic credit for the time his children reside with him." And careful reading of that decision shows that what this court was doing, as I understand it, was rejecting a time-based analysis. We're not arguing for a time-based analysis. . .
Chief Justice
What's the rationale of the opinion applied to this case? We didn't just say, there's no deviation, what's the rationale for it? Isn't the rationale consistent in this case, wouldn't it be consistent to apply it here?
Attorney Dougherty
Chief Justice Moyer, I don't think it does. In the Pauly case, I don't think this court reached the question of do we begin with the presumption that each parent should pay his or her line 24 obligation, that issue simply was not reached in Pauly. Instead, what the court did, it began with what it was given. In the Pauly case, the status of the case when it came to you was that the trial court had ignored one of the parent's obligation, they had recognized the other parent's obligation, and they said "OK, do we give a deviation regarding that remaining obligation." They never addressed the more preliminary question of was it appropriate to recognize both of those obligation. So I don't think that Pauly addressed the critical first question in this case.
Chief Justice
Even in the full appeal process Pauly decided (inaudible)
Attorney Dougherty
Your honor . . .
Chief Justice
. . . they read it to include this type of situation.
Attorney Dougherty
Yes, your honor, the Tenth District Court of Appeals did reason in that manner. However, as you know your honor, this is a diversity case. This is a case where two other courts of appeals who had looked at the issue in much greater depth said that the Tenth District's approach is incorrect. The First District and the Eleventh District, have both said in a shared parenting case, where both parents are designated as residential parent and legal custodian you must recognize both parent's obligations, and after that starting point, after you rec both parent's obligations, you can then move on to the next step which is to determine if a deviation is appropriate regarding either obligation.
So, yeah, we lost to the Tenth District, I guess if we had been in the First District or the Eleventh, we would have won. But clearly we have a split among the courts and we need this court to help us clarify what the proper approach is.
Your honor, I think that the beginning of our analysis must be the language of the statute itself, and I think the statute is clear. What the statute says is that in every child support case the court must initially presume that the proper amount of child support to be paid is the line 24 obligation. The child support statute specifically states that the amount of child support calculated through line 24 and I now quote "is rebuttably presumed to be the correct amount of child support due." The statute then goes on and explains how that presumption should be applied. The statute says that a court shall order the amount computed through line 24 to be paid as child support unless a deviation is appropriate. It then goes on to say that a court shall not order any amount that differs from the line 24 amount unless a deviation is appropriate.
Now, how does the legislature say that that presumption can be rebutted? Well, the legislature says that the presumption can be rebutted if the party seeking to rebut the presumption meets the deviation standards. The statute states that a deviation can only be granted if the court determines that the line 24 obligation is unjust or inappropriate and is not in the best interest of the child. If the deviation standards are met, the presumption is rebutted and the court can view the facts of the case and determine what child support should be ordered. However, if the deviation standard is not met, the presumption is not rebutted and the court must conclude that the obligations stated on line 24 are the proper amounts due from each parent.
Chief Justice
If you take 3113.213(C) and from the Pauly case, what does this sentence mean? ". . .if the parents have split parental rights and responsibilities. . .", that's what we have in this case isn't it?
Attorney Dougherty
No. That is not what we have in this case.
Chief Justice
How does it differ from that, cuz that's, that would be the answer to your question to Justice Sweeney, that . . . (inaudible)
Attorney Dougherty
Then I apologize if I didn't understand your question.
Justice Sweeney
Inaudible
Attorney Dougherty
Justice Douglas, regarding your question, this is not a split custody case, this is a shared parenting case. With split custody, you have more than one child, and one parent is designated as the residential parent of one child and the other parent is designated as the residential parent of the other child.
Chief Justice
So 215(C), that sentence has no application in this case.
Attorney Dougherty
That is correct, your honor. In Pauly, what this court said was (C) does not apply to shared parenting, this court stated that expressly. Rather, what we said in Pauly was that (B)(6)(a) applies in shared parenting cases. Indeed, it must, it expressly addresses shared parenting cases.
Justice Stratton
But shared parenting could be you see 'em two days a week, one day a week, one hour a week, and yet you would have a set up a formula that absolutely sets off those financial obligations no matter how often . . . I mean, in the split arrangement you can understand, one child with one - one child with the other, there's a certainty there, but here you have a whole range of visitation but you want a fixed financial formula that will deal with it whether the father or the mother sees the kid 20 hrs a week or sees the kid 2 hrs a week.
Attorney Dougherty
I don't think that is the proper characterization of what we think the statute says, your honor. What we're saying is that when the court gets down to line 24, it must presume that those are the proper amounts. After that initial presumption, either side has the opportunity to rebut the presumption and say the father's amount is too high or too low, or the mother's amount is too high to too low, it's a starting point. The court still retains discretion to look at the time split, as you point out
Justice Stratton
But doesn't the court . . . if you do it the way that the Tenth District does it, doesn't the court still retain that discretion to say "Well, we're going to change this a little bit because of circumstances." Even under the Tenth district holding they still have that discretion, don't they? So they can still get to where you want.
Attorney Dougherty
Your honor, with the Tenth district, yes I suppose they have retained the power to grant that deviation but that's not the problem. The problem is the Tenth district says without using the deviation standards contained in the statute we can simply eliminate that obligation. We can treat every shared parenting case as if it was sole custody, and that's where the problem comes. As you point out, we can have a case that is labeled shared parenting but one parent may only spend 20 percent of the time with the child. In that case, the starting point that we're recognizing would not be appropriate. That's where the court would use its discretion, but that discretion should not be unbridled. A court should not be allowed to say, for whatever reason, we're just going to eliminate one obligation. The discretion should be exercised judiciously in accordance with established rules. And the only rules in the statute are the deviation standards. They are very specific. What the Tenth district did here is they gave a court carte blanche to simply eliminate an obligation, without stating determinations, without stating findings, and without putting anything in writing.
Justice Stratton
That's what they did but isn't your side the opposite side that is the automatic credit?
Attorney Dougherty
No, your honor, we are not arguing automatic credit. We are arguing that you must recognize both parents' line 24 obligation. And then, each parent can argue for a deviation if they think it is appropriate. What this case is about is what is the appropriate starting point for the exercise of the court's discretion, and what are the rules that should guide that discretion.
Chief Justice
Well Pauly even permits a deviation.
Attorney Dougherty
Absolutely, the question is starting point Justice Douglas.
Justice
Then when you do this starting point, don't you get to your starting point, ask for a credit.
Attorney Dougherty
You ask for a deviation . . .
Justice
That's after you get to the starting point, the deviation comes after the starting point.
Attorney Dougherty
Okay.
Justice
I'm troubled by this . . . automatic credit for the time he has cared for his children, isn't that what he's looking for?
Attorney Dougherty
No. Absolutely not. We're seeking to recognize that what the legislature has said is "We're giving you a formula, courts, we want you to use this formula." That formula tells you what the two numbers should be on line 24. If you want to order something other than what the formula says to order, then you must meet the deviation standards.
Justice
Let's be very specific, isn't your argument that $7,000.00 should have been entered on the column for wife and it was not? Is that it, am I mistaken?
Attorney Dougherty
Justice Moyer, our position is . . .
Justice
that's the beginning point?
Attorney Dougherty
yes, that the Mother's line 24 obligation is $7,000, and the court just said "Gone."
Justice
We're not putting it on there, we're not including that, it doesn't have to be on the line, I guess, it doesn't have to be considered, right?
Attorney Dougherty
We think the $7,000.00 should have been presumptively been the amount that was due from mother to the father and the mother should have been given the opportunity to say this amount would be inappropriate for the following reasons. And if the court found her argument to be persuasive then the court could find that it would be appropriate to give her a deviation
Justice
The court said we do not need to consider the $7,000.00, it is eliminated, from consideration, that is your argument, is it not?
Attorney Dougherty
Yes, your honor.
Justice
so the beginning point, then, is different than what it should have been.
Attorney Dougherty
Absolutely.
Justice
because, you're argument is that the $7,000.00 should have been included, the court says it doesn't have to be included, you're saying that's wrong because that then changes the point from which the deviation can be sought.
Attorney Dougherty
That's exactly right. We say that if you want a deviation you must meet the deviation standard; the judge can't arbitrarily just make her obligation disappear.
Justice
In Pauly, you spoke about going to line 24 in Pauly the court never found that both parties were ordered it didn't appear that we actually found what you call in terms of paying we get to line 24 in that you call it, you like to call it a presumption and you know in Pauly you call it automatic I think that's not a big difference, but we didn't allocate that the mother's side that.
Attorney Dougherty
That's correct. In Pauly the procedural step when it came to this court was that in the lower court had already ignored one parent's obligation. I think that was incorrect. But, that issue was simply not before this court. Thus, you didn't have the opportunity to consider it. Thus, I'm here. (pause) Anything else?
Justice
Thank you Mr. Dougherty. (calling to) Mr. Collins.
Attorney Collins
Mr. Chief Justice, if it please the court, at this time I would like to recognize the people at counsel table. My name is Mark Collins and I work at the law firm of Cloppert Portman Sauter Latanick & Foley. Seated at counsel table is associate Rory Callahan as well as Mr. Michael Smalz who filed the amicus brief.
We would ask you to reject appellant's argument in this case and to apply the Franklin county tried by the court of appeals for three basic reasons. First, the offset that the appellant seeks is not contained in the statute. Second, the legislature never intended for there to be an offset and specifically excluded it in the last days of Senate Bill 180
Justice
Tell me, why, and I really don't understand this, so tell me whatwhat's the problem with, andI'm looking at the form under 21.5 attached to one of the briefs, and there is a column for column 1 for father, column 2 for mother and under line 24 there is a line for a dollar amount for each one. Uh, the effect of what the appellant is arguing, it seems to me to be in column 2 for the mother there should have been an amount there, but there is not, there was not. Is that too simplified?if it is incorrect
Attorney Collins
No, your honor Mr. Chief Justice, I believe that is what they are trying to argue however, it is incorrect. The statute for shared parenting has the same worksheet is used in shared parenting and sole custody cases. It uses both parties obligation, that's the presumed amount. Then there's only one obligor and one obligee, in a shared parenting case, they list one obligor on the form and the legislature specifically put only one spot for the obligor. So what appellant argues, however, is asking for an offset, they are asking for an offset in the start. Shared parenting does not mean equal parenting.
Justice Pfeifer
Counsel, what your opponent has advanced might seem equitable in the abstract. Might even be fair in the abstract, if the next step followed and that is that judges felt free, or magistrates, or whoever is making these initial determinations, to then balance it out in a way, is this an example of shared parenting as Justice Stratton pointed out where it's just shared parenting mostly for the benefit of the cocktail hour where you can say you have shared parenting where in reality mom's taking care of the kids and father if he doesn't have a golf game he shows up and spends some time
Attorney Collins
Your honor
Justice
spends some time with his kids, because that isthere are those kinds of shared parenting as well.
Attorney Collins
As noted we
Justice
My question is, shared parenting is an option, and could you give us could you take off your advocate's hat for a moment and give us your take on what it would mean to the shared parenting option in terms of lawyers counseling women if the result that they seek obtains. Will they just saywill the lawyers say to women you really shouldn't consider this because it runs the risk of financial downside that you wouldn't otherwise have to face?
Attorney Collins
Yes, your honor. The dynamics are twofold. First, lawyers will advise client's whether male or female, to say you must litigate just to get the term shared parenting because with the opponents theory, if you get the term shared parenting, you immediately get a natural offset credit because you start from a lower point. In this specific case, the magistrate was able to analyze the unique facts of this case. The magistrate determined at the trial level that the shared parenting plan that was occurring here the parenting time was at 60% for the mother 40% for the father. The mother still has 50% more of the time. The magistrate, on a case-by-case basis, was allowed to analyze it and say we believe a deviation is appropriate. To go back to Justice Stratton's question, if you take an example of two shared parenting plans, Family A and Family B, both get shared parenting orders as you indicate. All four of the parties make the identical amount of income; however, Family A has a true 50/50 sharing of time. Family B the mother has 75% the father has 25%. Under appellant's version or method using offset the places start at much lower rate that would fundamentally undermined the adequacy of the child support payments that an individual is to receive. In this particular case, the presumed amount, where the court started at was $8,696.00 that's for the obligation for appellant. The deviation granted, based on the facts germane to this case, was a 40% deviation and knocked it down to $4,986.00. Under appellant's version, when you work the math, the initial starting point, which he made in his argument, would then be $1,686.00 and appellant's initial obligation to start from. So no two shared parenting plans are alike, no two are similar. And that's what Judge McGee-Brown determined at the trial level. You cannot pay for a fundamentally role or mechanism that's at the beginning point.
Justice
so that means, doesn't it, that the realities of this practice the issue that has come before this court cannot support a presumption.
Attorney Collins
That is correct.
Justice
because we really needthat in Pauly it seems that that if we are to be fair it seems that a presumption isn't workable.
Attorney Collins
It's not workable because it turns the system on its head. It starts at the end rather than the beginning. And it takes away the discretion of the trial court to adjudicate the facts of each case on a case-by-case basis because you're starting at a point much lower.
Justice
And on a case by case, with the guidelines and then after to standardize somewhat, so that, you know, to be fair you have to acknowledge that such a scheme seeks to void everything on a case by case
Attorney Collins
I agree, your honor. However, the statutory scheme here we believe is quite clear. Under Marker v. Grimm this court determined that all terms of 3113.215 were to be taken mandatory and followed literally and technically in all material respects. Appellant asks you to create new computation after line 24, which would result in offset. This new computation clearly flies in the face of Marker v. Grimm. Now, in Pauly, in a unanimous decision by this court, this court basically says subsection (C) does not apply in shared parenting cases for child support orders. However, subsection (B) in this case should apply. The First and Eleventh district courts misapplied the Pauly. Appellant seems to be before you today making the same argument they made in Pauly, they're simply window dressing. The misapplication by the First and Eleventh Districts was due to the fact that the appellant in Pauly said "Hey, I'm the residential parent. Subsection C says the residential parent's obligation should depend on the time that I spend with my child. Therefore, I am allowed an automatic credit." This court rejected that argument. They rejected it then; they should reject it now. The misapplication by the two other courts of appeal occurred because they got hung up on the term "residential parent," that's what appellant hangs their hat on, the term residential parent. It was created in child custody legislation, not child support legislation.
Justice
Counsel, would you go back and give me the legislative history, because my understanding is that it was considered, the offset was considered and was specifically rejected in legislative history, is that accurate?
Attorney Collins
That is correct, your honor. I refer you to the amici curiae brief filed by Mr. Smalz, since 1990 the legislature has grappled with the issue of an automatic offset in shared parenting cases. Most recently, Senate bill 180, an automatic offset for time formula was inserted into the original version of the bill, it was specifically excluded. That speaks volumes. The fact that we know the legislature knows how to use the mechanism because it does so with split custody cases. Subsection C in split custody cases says when one parent lives with one child and the other the other child, you qualify for Subsection C therefore you get the automatic offset. They specifically included it in Subsection C and specifically exclude it in Subsection (B)(6)(a) and did not put it in the worksheet.
Justice
Earlier you said there should not be any presumption. Whenever you have a a case where one parent hasthe residential parent having custody possession longer than 50% of the time, for example 75 and 25, does that legal break the presumption when that side, the presumption against the set off?
Attorney Collins
The presumption at the start, your honor, as the initial quote is the presumed guidelines on guidelines child support then, if the court deems it appropriate and a party meets the factors laid out on the (B)(6)(a) and regarding to deviation. They are then allowed to give a deviation. Sometimes it can be a downward deviation, other times it can be an upward deviation, but that should be left specifically to the trial court in order to determine that deviation.
Justice
I thought I understood this back when I wrote this Marker decision, as I recall I wrote the marker case, I thought it said you had to compute, as the Chief Justice pointed out, all the way down, and there's a line for each side. There is nothing on the mother's side here.
Attorney Collins
In the shared parenting worksheet, which is the same as the sole custody worksheet, the lines go down all the way until each person's presumed child support amount. However, legislature, then the worksheet simply says there will be one obligor and one obligee. One person receives a check. They simply left it as one person to receive it, one person to pay.
Justice
Based on the figures after you compute 'em all the way down, I thought we said in Marker?
Attorney Collins
That's correct, your honor, and
Justice
and here, that computation didn't take place here.
Attorney Collins
It did take place in this section, the magistrate at the trial court level came down to line 24, took over this, then determined that, on the basis of the 60/40 split parenting time, that father was the obligor mother was the obligee and therefore only one line isisin terms of the support obligation
Justice
Is there an entry for the wife's obligation?
Attorney Collins
up on line 24, not below that.
Justice
Ok. Does Marker require you go to carry beyond line 24?
Attorney Collins
No, your honor
Justice
If we took the other side's interpretation, you would start with in this case you would have started with the obligation only being $1,500.00 something, then if you ask for a deviation, you're fighting to get more money rather than a reduction. You're saying, OK, that's not enough, he doesn'tbecause he only has the kidsI mean, you have to fight to get more money. Whereas the deviation with the other version is reducing the obligation, it seems to me that that is a lot easier point from which to deal to reduce one sides obligation than to try to argue that they ought to pay more despite the final figure on the chart.
Attorney Collins
It makes much more sense, your honor. And the additional reason it does is that not only will you have people litigating just the issue of shared parenting, but then whoever, if the automatic credit is granted, as appellant seeks, the person who is given the short end of the stick so to speak will then have to try to petition for an upward deviation, which goes contrary to the underlying themes and purposes behind the child support guideline statutes. A fundamental tool that's used in interpreting this statute, is the principal that if there is an exception carved out for a statute all other exceptions are precluded. Under (B)(6)(a), in shared parenting cases with child support the exception is the deviation factors, therefore all other exceptions are precluded. The same situation is in effect for Subsection C. You start with the presumed amount, the exception is, if you have split custody, you then get the offset. Therefore, all other exceptions are precluded unless or until the legislature decides to revise the child support statute. Ohio courts should apply B6a to shared parenting cases and follow the deviation factors and not grant an automatic offset. Appellant stands before you asking you to create law, not construe or interpret it. When appellant made the case that they don't want an offset that is inconsistent with their brief, and inconsistent with the case law that they rely on from Luke v. Luke and Weinberger v. Weinberger. Each of those courts misapplied Pauly not only once. One court actually misapplied it, Pauly came back, they then wanted to get the same result that they had the first time so they misapplied it a second time. We believe that since the statute doesn't speak to it, the legislature did not intend for the statute to contain it, most recently as Senate bill 180 this past year. And, the fact that shared parenting does not mean equal parenting and to apply an automatic offset, which appellant is actually seeking, would lead to arbitrary and inconsistent child support orders that go against the purpose and nature of the child support statue.
Justice Stratton
As a bottom line, what would be the syllabus that you would like to see us write in this case?
Attorney Collins
I would be most happy to just see Pauly, your honor. Basically, saying that this is the same issue that we addressed in Paulythat they are playing semantics with the terms, and the misapplications of Pauly. But basically, there should be no offsetting credit, until the legislature deems it appropriate and they have grappled with it for the past 12 years, and this court should construeshould interpret the statute literally and technically and should follow Pauly.
Justice Sweeney
Quickly carry me through the math with an example.
Attorney Collins
I'm sorry, your honor.
Justice Sweeney
10,000.00 just quickly carry me through the math so I can ...
Attorney Collins
In this
Justice
You've gotlets assume that you have $10,000 for an obligation, total, that's what it's gonna take to support the child or the children. And the line shows 6,000 for the husband and 4,000 for the mother. Then if you would wipe out the 4,000 and just take a percentage of the 6,000, would the child support obligation total be more than 10,000?
Attorney Collins
No. Not at all. It would be drastically less, your honor. (Viewing lights indicating his time was finished.) Mr. Chief Justice, may I go on with my presentation?
Chief Justice
You may finish. Yes, you may finish your answer.
Attorney Collins
It would be less (inaudible) because when you're indicating that (inaudible) telling the father that he on
Justice
Why delay means they don't consider it at all, your taking it that his position is a discount.
Attorney Collins
That is correct.
Justice
4 from 6 leaves 2. I'm saying they don't consider the 4 at all, that is what happened here.
Attorney Collins
They don't.
Justice
So then, he then pays the 6,000
Attorney Collins
That's his presumed guideline amount. He has the ability then to petition to lower it, if he meets certain factors.
Justice
the court doesn't grant that, so, what does he pay? 40 - 60% of the $6,000, or all $6,000?
Attorney Collins
He pays all $6,000.00.
Justice
OK. So he pays 6000 and her 4000 that was wiped out, not considered, uh, equals the 10,000 which is the amount, so it comes out the same.
Attorney Collins
That's correct. Thank you very much.
Chief Justice
Thank you, Mr. Collins. Mr. Dougherty, you have used your time so you have 30 seconds.
Justice
You know, my example with your argument the total obligation of support, not the total obligation, the total revenue that (inaudible).
Attorney Dougherty.
As I understood your example, you said the father presumptively would pay 6000 and the mother presumptively pays 4000
Justice
That's what we adopted on line 24.
Attorney Dougherty
Ok.
Justice
4 and 6.
Attorney Dougherty
Right.
Justice
So we're going to ignore the 4 and he pays 6.
Attorney Dougherty
That's not my policy.
Justice
He pays 6, she paysher portion is paid because she has the childrenabout 10,000. Now you want a reduction from 6000.
Attorney Dougherty
I don't know; that would depend on the facts of the case, your honor.
Justice
Well, that's what we have here, I think.
Attorney Dougherty
Well, what we're saying is that we don't write with a clean slate. We have a statue that says the amounts on line 24 must be presumed, and there's only one exception to that, Subsection C which addresses sole custody. It says in a sole custody case were only one parent has been designated as the residential parent, it's ok to ignore that parent's obligation.
Justice
Wait a minute, just stick with the example. We have 6,000 and you don't want to pay the total 6,000. You want some credit against that and I'm looking for the right word. You don't like set-off, you don't like ignoring, now how about some credit. Do you want some credit against that? You don't want your client to pay the full 6,000.
Attorney Dougherty
If I was representing the father in that case, if the facts justify a deviation, I would argue that the court should grant a deviation and his obligation should be less than 6. If I was representing the mother, and I thought that 4000 was too much for her, I would argue that she should receive a deviation. The court would then grant a deviation for one or for both. The court would then come up with a final number for the father
Justice Douglas
which is going to be less than what the child support obligation chart shows, that's the problem I struggled with in Marker. That's why we get to that point, if you reduce the 6000, lets say for deviation that you want to use that,
Attorney Dougherty
Ok
Justice Douglas
Ok, so you have 4000 from him and 4000 from her, that's 8000 and the standard says it's got to be 10,000.
Attorney Dougherty
Justice Douglas, the thing that you forget is the following, people support their children not just by paying child support to an ex-spouse. They support their children everyday when the children live in their house
Justice Douglas
I understand that, I had 4(laughter)and I can tell you that I understand that, but we're dealing with a schedule.
Attorney Dougherty
Yes, sir.
Justice Stratton
The 4000 is not actually wiped out, it's presumed that she is going to contribute that because she has the kids the majority of the time. That's the presumption that the legislature has made.
Attorney Dougherty
I respectfully disagree, that it not what the statute says, your honor.
Justice
Well, didn't they specifically take out that section that lets you do the formula that you want? They took it out in the last version.
Attorney Dougherty
We're dealing with the version that was in effect
Justice
Is thereis he is the attorney correct, that in the in one of the original versions they had a formula like you want and they took it out, is that legislative history correct?
Attorney Dougherty
That is absolutely incorrect. What he's talking about is that at different times in the past the legislature has considered what they call a time-based adjustment. The legislature has decided not to include a time based adjustment in the statute because its too simplistic. They said, well maybe one parent has the children for a greater period of time, but maybe the other parent is paying for private school, maybe there are special needs involved, there is a whole plethora of other factors that may come into play. So, the legislature said we will not be shackled by time alone, we want to give the courts the discretion to deviate from the 2 line 24 numbers based on the totality of the circumstances. So,
Justice
Your response, just to make sure I understand as to the deviation aspect, in your response to Justice Douglas' point about the 6000 and the 4000, is that the statute does give the trial court the opportunity to take into account the fact that the father, in this case, could be the mother, the mother may be the higher earner, but in this case the father, that the father may be making a substantial contribution in some other way, private school for instance, or maybe extraordinary medical expenses, and so that 6000 can be reduced to reflect the fact that the father, the obligor, is paying some extraordinary amount of support that doesn't show up in the formula, is that correct?
Attorney Dougherty
That's correct. But it goes beyond that, it also reflects the fact that if the child is livint with, say the father, more than 50% of the time, the father is paying for non-extraordinary payments: food, clothing, shelter, utilities, all of this comes into play.
Justice
That's part of the formula in the shared parenting situation. So that's taking into account the normal
Attorney Dougherty
Yes, it is, and that is why
Justice
the normal things that one does for a child if they are living with a parent, that's taken into account in the formula, is it, or is it not?
Attorney Dougherty
It's taken into account in that when you look at the schedule it says for two parents who's income is approximately this amount and who have this number of children, the approximate total amount of support that should be paid is a certain number. The formula then divides that number between the parents proportionately based on their income. So what we're saying is, that is the logical starting point. It is presumed that poppa should pay his line 24 amount and that momma should pay her line 24 amount but the court retains absolute discretion to deviate from either of those numbers, if the deviation standards are met. If the deviation standards are not met, they should stick with the line 24 numbers and offset them so there is not duplicity in terms of the order, and issue one net order.
Justice
Your client got a 40% deviation from this formula, correct?
Attorney Dougherty
Yes, he did.
Justice
Now, if we had accepted your version of the formula he would owe roughly $1500, would he have still gone for another 40% deviation so he'ld only have to pay $800 a year?
Attorney Dougherty
He would not have owed $1500 that would have been the presumptive amount. If the mother thought that was too low
Justice
No, no. Let's get away from presumptions. If you went by the formula he would owe $1500. Correct? We just applied your formula, and then you, would still have the right to go and ask for a 40% reduction because you have the kids 40% of the time.
Attorney Dougherty
No. That is incorrect.
Justice
Why not?
Attorney Dougherty
Because what we are arguing is that once you get the two line 24 numbers, at that point in time you argue for a deviation. In fact if you look at the worksheet
Justice
But why wouldn't you argue for a deviation? You say you should offset the two, you know, it's equal incomes, or relatively equal incomes, we should offset the two, I owe $1500 but you know, I have the kids 40% of the time, I get a 40% reduction, I only owe them $800. That's your deviation that you would want to see, because you have the kids 40% of the time. Why wouldn't you as a good lawyer argue that?
Attorney Dougherty
Well, I'm not saying that I wouldn't but I'm saying that the statute is more complicated then that. The statute says that the court retains its discretion to order a deviation up or down for either parent and then after the court determines if there will be a deviation for either parent then there's a final number and once the final numbers are determined, it is those numbers that must be netted. Indeed, line 26 specifically directs the court to determine not only what deviation if any should be granted, but in any case then the court must indicate numerically the specific amount of the deviation. And then line 27 is the line on which we go from two obligations to one child support order. Our system merely recognizes the statutory presumption, it recognizes that a deviation cannot be granted unless the standards in the statute are met, and preserves the courts discretion to do whatever is appropriate and to issue whatever order is appropriate given the facts and circumstances of the individual case.
Chief Justice
Thank you Mr. Dougherty. The case is submitted. You will be advised of our opinion. We will take a brief recess.