Tuesday, April 22, 2014

New Criteria in Child Support

I think child support may have just gotten a lot more complicated in Mississippi.  The Mississippi Supreme Court decided Huseth v. Huseth, No. 2012-CA-01576-SCT (Miss. April 10, 2014) a few weeks ago located here. 

The case ultimately reversed a trial court's setting of child support for failure to make certain findings on the record.  The opinion held that there are certain factors the trial court must address in setting child support.  Justice Kitchens explained it in his opinion at the relevant parts:

“¶30. The chancellor granted child support in the amount of $988, as that is fourteen percent of the income of $7,058 the chancellor imputed to Mike … Additionally, the chancellor’s computation of child support based upon a percentage of Mike’s imputed income, using only the statutory guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child support, the chancellor should consider

1. The health of the husband and his earning capacity.

2. The health of the wife and her earning capacity;

3. The entire sources of income for both parties;

4. The reasonable needs of the wife;

5. The reasonable needs of the child;

6. The necessary living expenses of the husband;

7. The estimated amount of income taxes the respective parties must pay on their incomes;

8. The fact that the wife has the free use of the home, furnishings, and automobile, and

9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.

Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992) (emphasis added) (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955)).

“¶31. “When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents.” Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983) (second emphasis added). Here, the chancellor imputed the living expenses of Mike as income, without offsetting those same expenses in her determination of the money Mike had available to pay child support. She did not consider the necessary living expenses of the husband in computing the amount of child support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed income was based upon his earning potential, and upon what his earning potential was based. Therefore, we reverse the chancellor’s child support award and remand for a determination of child support in which all of the facts and circumstances, including what Mike actually can pay, are taken into account.”

The bold and underlined section is what really sticks out to me.  From my reading of it, the court now has to consider the Gillespie factors on the record also in setting an amount of child support.  I have discussed in the past that any kind of factor tests that is required to be done must be done on the record.  In Lowrey v. Lowrey, 25 So. 3d 274, 280-281 (Miss. 2009), the Mississippi Supreme Court ruled that factor tests such as provided in Ferguson for property division, McKee for attorney’s fees, and Armstrong for alimony, must be considered on the record in every case.  These factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings. Id. Following these guidelines reduces unintended errors that may affect the court's ultimate decision. Id. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.  Id.   Failure to make an on-the-record Armstrong analysis is manifest error. See Henderson v. Henderson, 703 So.2d 262, 266 (Miss.1997); Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). 

 From my reading of this, just following the guidelines alone is probably not enough anymore.  I am having to file a notice of supplemental citation on a case I am working on now as a result of this opinion.  I will address how to do that in tomorrow's post. 


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