ATTORNEYS AT LAW 1009 W 7TH AVENUE ANCHORAGE, ALASKA 99501 TELEPHONE: (907) 279-4529 FAX: (907) 279-9223
When will the court allow a deviation from the Alaska Child
Support guidelines?
In the commentary to the Child Support Rule, is stated the
following:
EXCEPTIONS
A. Generally. Child support in the great majority of cases
should be awarded under 90.3(a) or (b) in order to promote consistency
and to avoid a tendency to underestimate the needs of the children.
Nevertheless, the circumstances in which support issues arise
may authorize courts to vary support awards for good cause.
The court may apply this good cause exception only upon proof
by the parent requesting support be varied that there is clear
and convincing evidence that manifest injustice would result if
the support award were not varied. In addition, a prerequisite
of any variation under 90.3(c) is that the reasons for it must
be specified in writing by the court.
What constitutes "good cause" will depend on the
circumstances of each cause. Three situations constituting "good
cause" are discussed . . . in [other] sections. . . These
three specific exceptions are not exclusive; however, the general
exception for good cause may not be interpreted to replace the
specific exceptions. Absent unusual circumstances, 90.3(c)(1)(A),
or the exceptions for low or high incomes, 90.3(c)(1)(B) and (c)(2),
the rule presumes that support calculated under 90.3(a) or (b)
does not result in manifest injustice.
B. Unusual Circumstances. 90.3(c)(1) provides that a court
shall vary support if it finds, first, that unusual circumstances
exist and, second, that these unusual circumstances make application
of the usual formula unjust. The subparagraph specifies several
possible factors that the court may consider when deciding whether
unusual circumstances exist. This determination should be made
considering the custodial parent's income because the percentage
of income approach used in Alaska tends to slightly understate
support relative to the national average for cases in which the
custodial spouse does not earn a significant income. This understatement
relative to the national average becomes substantial if the custodial
parent has child care expenses. The application of the unusual
circumstances exception to particular types of factual situations
is considered below.
1. Agreement of the Parents. The fact that the parties, whether
or not represented by counsel, agree on an amount of support is
not reason in itself to vary the guidelines. The children have
an interest in adequate support independent of either parent's
interest. Thus, approval of any agreement which varies the guidelines,
whether in a dissolution, by
stipulation or otherwise, must be based upon an explanation by
the parties of what unusual factual circumstances justify the
variation.
2. Subsequent Children. A parent with a support obligation
may have other children living with him or her who were born or
adopted after the support obligation arose. The existence of such
"subsequent" children, even if the
obligor has a legal obligation to support these children, will
not generally constitute good cause to vary the guidelines. However,
the circumstances of a particular case involving subsequent children
might constitute unusual circumstances justifying variation of
support. The court should reduce child support if the failure
to do so would cause substantial hardship to the "subsequent"
children.
In addition, the interests of the subsequent family may be taken
into account as a defense to a modification action where an obligor
proves he or she has taken a second job or otherwise increased
his or her income specifically to better provide for a subsequent
family. This defense to an upward modification action should not
be allowed to the extent that the prior support was set at a lower
amount prior to the adoption of this rule, or to the extent that
the obligor's increase in income is limited to ordinary salary
increases.
In considering whether substantial hardship to "subsequent"
children exists, or whether the existence of a subsequent family
should defeat a motion to increase child support, the court should
consider the income, including the potential income, of both parents
of the "subsequent" children.
3. Relocation of Custodial Parent. The relocation of the custodial
parent to a state with a lower cost of living normally will not
justify a reduction in support. The level of Alaska's guidelines
is comparable to the national
average. The fact that the obligor parent's income has in effect
marginally increased relative to the children's living expenses
simply enables the children to be supported at a slightly higher
level.
4. Prior and Subsequent Debts. Prior or subsequent debts of
the obligor, even if substantial, normally will not justify a
reduction in support. The obligation to provide child support
is more important than the obligation to fulfill most other obligations.
However an obligor parent may attempt to present evidence which
shows the existence of exceptional circumstances in an individual
case.
5. Income of New Spouse. The income of a new spouse of either
the custodial or obligor parent normally will not justify a variation
in support. Either party may attempt to show that exceptional
circumstances exist in a particular case.
6. Age of Children. While the costs of raising children who
are very young or who are over about ten years old are generally
greater than raising other children, this in itself does not justify
an increase in support. However, it should be considered in concert
with other circumstances, and a parent always may seek to establish
exceptional expenses in
a particular case.
7. Denial of Visitation. A denial of visitation may not be
countered with a reduction in support. . . .. Neither may non-payment
of support be countered by a denial of visitation. Courts should
use their powers to strictly enforce the visitation and custody
rights of obligor parents.
8. Property Settlement. A parent may justify variation of the
guidelines by proving that a property settlement in a divorce
or dissolution between the parents provided one of the parents
with substantially more assets than the parent otherwise would
have been entitled to, that this inequity was intended to justify
increasing or decreasing child support, and that this intent specifically
was stated on the record. Any such change in monthly child support
may not exceed the actual excess of the property settlement apportioned
over the minority of the child.
However, courts should not approve in the first instance unequal
property settlements which are meant to increase or decrease child
support payments. "Property divisions are final judgments
which can be modified only under limited circumstances, whereas
child support awards can be changed periodically under much more
liberal standards. One
should not be a trade-off for the other." Arndt v. Arndt,
777 P.2d 668 , (Alaska 1989)
9. Overtime Income. In most cases income from overtime or a
second job will be counted as adjusted annual income under Rule
90.3(a).However, the court has discretion not to include this
income when, for example, the
extra work is undertaken to pay off back child support.
C. Low Income of Obligor.
90.3(c)(1)(B) provides that the guidelines do not apply if the
obligor has a gross income below the federal poverty level. The
applicable figure from the Federal Register is for the obligor
alone,
without regard to any subsequent family of the obligor. Subsequent
children, and any income from a subsequent spouse, are relevant,
if at all, only under 90.3(c)(1)(A) concerning the unusual circumstances
exception.
Even if the obligor has an income of less than the poverty level,
or no income at all, a minimum support of $50.00 per month applies.
This $50.00 minimum support applies for all children, not to each
child separately. The minimum level may be reduced under 90.3(a)(3)
based on a visitation credit, or reduced under 90.3(b) based on
the offset of the other parent's support obligation.
D. High Income of a Parent. Rule 90.3 provides that the percentages
for child support will not be applied to a parent's adjusted annual
income of over $72,000, unless the other parent is able to present
evidence which justifies departure from this general rule. The
factors which the court should consider in such a determination
are specified in
the rule.
Steven Pradell is an Anchorage attorney with a practice emphasizing family law, including child custody, divorce, child support and adoption. He is the author of The Alaska Family Law Handbook, which is available in local bookstores and can be obtained by calling (907) 279-4529. Articles on legal topics of interest to Alaskans can be accessed on the internet at Http://www.alaska.net/~pradell © 2003 by Steven Pradell. This article is not intended to provide legal advice and should not be relied on for that purpose.