by Bruce I. Shapiro, Pecos Law Group, Henderson, Nevada
I The Dark Ages
Before child support guidelines were adopted by the Nevada Legislature in 1987, child support orders were found to be severely deficient when compared to the actual economic costs of rearing children. Judicial discretion, unassisted by any objective guidelines, often resulted in severely deficient child support awards.1 The federal mandate for the development of guidelines was intended to address several deficiencies in the traditional case-by-case method of setting amounts for child support orders. These deficiencies were:
- A shortfall in the adequacy of child support orders when compared with the true costs of rearing children, as measured by economic studies;
- Inconsistent orders causing inequitable treatment of parties in similarly situated cases; and
- Inefficient adjudication of child support awards in the absence of uniform standards.2
II The Renaissance
The Child Support Enforcement Amendments of 1984 required all states to develop advisory mathematical guidelines to calculate child support awards by October 1, 1987.3 As a result, the Nevada legislature enacted NRS 125B.070 and 125B.080 in 1987, which statutes were modeled after Wisconsin’s percentage of income formula.4
The Family Support Act of 1988 5 created a rebuttable presumption that guideline amounts represent the proper child support award and that deviation from the guidelines would be allowed only upon written findings that application of the guidelines would result in an unjust or inappropriate mathematical award.6 These federal laws recognized the need for more realistic and equitable child support awards which provide children with a standard of living comparable to that of their noncustodial parent. 7
NRS 125B.070 provides a formula based on a percentage of gross monthly income that the nonprimary parent shall pay for child support. 8 NRS 125B.080(9) provides that the trial court may consider the following factors when deviating from the child support award called for by NRS 125B.070:
- The cost of health insurance;
- The cost of child care;
- Any special educational needs of the child;
- The age of the child;
- The responsibility of the parents for the support of others;
- The value of services contributed by either parent;
- Any public assistance paid to support the child;
- Any expenses reasonably related to the mother’s pregnancy and confinement;
- The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
- The amount of time the child spends with each parent;
- Any other necessary expenses for the benefit of the child; and
- The relative income of both parents. 9
III The Classical Period
Nevada’s child support guidelines are contained in NRS 125B.070, while NRS 125B.080 sets forth the methods by which to apply those guidelines and determine a parent’s obligation of support for a child. An “obligation of support” is defined, in NRS 125B.070(1)(b), as being “the sum certain dollar amount determined according to” a percentage, based on the number of children at issue, “of a parent’s gross monthly income, but not more than the presumptive maximum amount per month per child . . . unless the court sets forth findings of fact as to the basis for a different amount pursuant to subsection 6 of NRS 125B.080.” NRS 125B.080(6) provides that if “the amount of the awarded support for a child is greater or less than the amount which would be established under the applicable formula, the court shall:
(a) Set forth findings of fact as to the basis for the deviation from the formula; and
(b) Provide in the findings of fact the amount of support that would have been established under the applicable formula.”
Similarly, NRS 125B.080(2) provides that:
If the parties agree as to the amount of support required, the parties shall certify that the amount of support is consistent with the appropriate formula set forth in NRS 125B.070. If the amount of support deviates from the formula, the parties must stipulate sufficient facts in accordance with subsection 9 which justify the deviation to the court, and the court shall make a written finding thereon.
NRS 125B.070 and NRS 125B.080 contain clear provisions allowing deviations from the child support guidelines-whether agreed to by the parties or ordered by the court-and also provide the means and methods for the court to justify and implement such deviations. The foregoing section, however, shows that there is statutory authority allowing parties to deviate from the child support formula. NRS 125B.080(2) and (6) clearly allow the parties and court, respectively, to deviate from the formula, and the said statutes provide a method by which to implement such a deviation.
From 1987, after the guidelines were adopted, through Rivero I in October 2008, child support orders in Nevada were relatively consistent and in the spirit of the existing legislation. When the district courts made deviations that were contrary to the letter and the spirit of the child support guidelines, they were reversed by the Nevada Supreme Court. 10 More recently, the Nevada Supreme Court has been addressing modifications of child support guidelines.
IV The Modern Era
The legislature provided two ways to trigger review of a child support order in Nevada. An order for the support of a child must be reviewed by the court upon the filing of a request for review by the state [NRS 125B.145(1)(a)], or upon the filing of a request for review by “a parent or legal guardian of the child.” NRS 125B.145(1)(b). The legislature has also addressed how often such reviews should be conducted. Child support orders must be reviewed “at least every 3 years” [NRS 125B.145(1)], or “at any time on the basis of changed circumstances.” NRS 125B.145(4). In the latter regard, NRS 125B.145(4) was amended in 2003 to include that “a change of 20% or more in the gross monthly income of a person who is subject to an order for the support of a child shall be deemed to constitute change in circumstances, requiring a review for modification of the order.”
NRS 125B.070(3) was also amended to provide for annual adjustments in the presumptive maximum child support “corresponding to the percentage of increase or decrease in the Consumer Price Index (All Items) published by the United States Department of Labor for the preceding calendar year.” As these statutory annual adjustments in the maximum support obligation constitute changed circumstances, they provide the basis for review of the child support order as often as every year under NRS 125B.145(4). Finally, this court had held that a “child support award can be modified in accordance with the statutory formula, regardless of a finding of changed circumstances. Scott v. Scott, 107 Nev. 837, 822 P.2d 654 (1991).
The clear meaning of NRS 125B.145(1) is that, as a matter of right, “[a]n order for the support of a child must . . . be reviewed by the court at least every 3 years pursuant to this section to determine whether the order should be modified or adjusted.” [Emphasis added.] The clear meaning of NRS 125B.145(2)(b) is that “the court shall enter an order modifying or adjusting the previous order for support in accordance with the requirements of NRS 125B.070 and NRS 125B.080.” [Emphasis added.] And as noted above, the clear meaning of NRS 125B.080(1) is that “[a] court of this state shall apply the appropriate formula set forth in NRS 125B.070,” not only at the time of determining a child support obligation, but also at the time of changing a child support obligation.
In sum, a child support order could be reviewed at almost any time, and application of the child support formula is mandatory on each successive review. NRS 125B.145 was correctly interpreted as requiring the district court to conduct a de novo review and adjustment of the support obligation.
V The Reformation
In “Rivero II,” the Nevada Supreme Court held that “the district court only has authority to modify a child support order upon finding that there has been a change of circumstance and the modification is in the best interest of the child.” Rivero v. Rivero, Nev. Ad. Op. 34, 216 P.3d at 228 (2009). The party seeking the modification bears the burden of showing that changed circumstances warrant modification. It no longer was relevant whether the initial award was determined in conformance with the statutory guidelines. In a significant change of law, the court also found that a district court may “review” a support order pursuant to NRS 125.145 without changed circumstances, but may not “modify” it without changed circumstances.
There were some unpublished opinions that suggested the court was considering a change in this direction. 11 When confronted with clarifying custody, the court also took the opportunity in Rivero to clarify its previously unpublished position on modifying child support. Then in Fernandez v. Fernandez, 126 Nev. Ad. Op. 3, 222 P.3d 1031 (2010), the court repeated that the mere passage of time is insufficient to justify a modification of child support. To prevail on a motion for a modification of child support, there must first be a showing of changed circumstances. Fernandez at 17. The court’s position become embolden in subsequent unpublished opinions.
For better or worse, the law is now clear that a child support obligation may not be modified unless there has been a change of circumstance and a finding that the modification serves the best interest of the child. It may be argued, however, that the Nevada Supreme Court’s misplaced reliance on the isolated term “best interests of the child,” with respect to the initial determination and any subsequent modification of a child support order, contravenes the legislature’s intent as well as the prior established precedent of this court. 12 The best interests of the child are already contemplated in NRS 125B.080(5), which states in relevant part that:
It is presumed that the basic needs of a child are met by the formulas set forth in NRS 125B.070. This presumption may be rebutted by evidence proving that the needs of a particular child are not met by the applicable formula.
Under Scott, however, notwithstanding any other factors, the court always maintained the jurisdiction to modify a child support obligation to make the order consistent with the statute. In other words, if the parties stipulated and the court adopted their stipulation, the parties could agree to a child support order above or below the statutory presumption. It therefore followed and the parties could modify that order in the future so that it conformed with the statutory presumption. Reversing Scott was not necessarily good public policy because it discourages parents from agreeing to pay support in excess of the statutory guidelines knowing that they may not be able to modify it in the future.
VI The Post Modern Era
It is fundamental child support law that future support of a child cannot be waived by either parent and that the parties cannot usurp the authority of the court to ultimately determine child support. 13 Indeed, parents cannot agree to prospectively waive child support. This includes agreements to not impute any income to the recipient. 14 Any such agreements are against public policy and unenforceable, even if contained in a final order agreed upon by the parties and not appealed. 15 An agreement not to review child support in the future is akin to a prospective waiver of child support. Fernandez v. Fernandez, 126 Nev. Ad. Op. 3, 222 P.3d 1031 (2010).
An unintended consequence of the Nevada Supreme Court’s decision in Rivero is that it erroneously establishes a different standard of review for child support modifications than for initial determinations of support. NRS 125B.145 establishes a mandatory right to review of child support orders. 16 It does not proscribe a different standard of review for a child support modification than already exists for an initial setting of support. Rather, it provides that if the court has jurisdiction, it shall “enter an order modifying or adjusting [a] previous order of support in accordance with the requirements of NRS 125B.070 and NRS 125B.080.” 17 The Nevada Supreme Court had specifically found that equitable factors alone are insufficient. Khaldy v. Khaldy, 111 Nev. 374, 892 P.2d 584 (1995).
Under NRS 125B.080(1), “a court of this state shall apply the appropriate formula set forth in NRS 125B.070 to [either] (a) Determine the required support in any case involving the support of children [or] (b) any request filed after July 1, 1987, to change the amount of the required child support of children.” Thus, by statute, there should no difference between applying the formula in initial child support determinations or in modification proceedings.
In the unpublished opinion leading up to Rivero, the father had agreed to pay $1,500.00 per month child support at a time when the presumptive maximum was only $500.00 per month per child. After three years, the father requested a de novo review and asked that his child support be modified to reflect the then statutory presumption of $968.00 per month. The district court agreed, but the Supreme Court reversed. The decree of divorce specifically provided that the support obligation would be reviewed in three years. Under Rivero, since the district courts are deprived of jurisdiction to reduce child support orders made in excess of the presumption, it would be financially risky for any parent to voluntarily agree to pay a support obligation beyond what they are legally required to pay. If a parent believes it is in his or her child’s best interest to pay child support beyond the presumption, competent counsel must advise that parent that he or she may be “stuck” with that child support award absent extraordinary circumstances.
Conclusion
Rivero is poor public policy to the extent that it deters parents from volunteering to pay child support beyond the child support provided by law because in order to obtain a subsequent modification, a simple change of circumstances is insufficient to obtain a reduction. The moving parent in addition to showing a change of circumstances, must also show that a change in the support obligation would be in the child’s best interest. But when would a reduction of child support ever be in a child’s best interest? Although Fernandez states that “more child support is not necessarily better,” the burden of showing any reduction is significant. One could imagine a situation where an obligor was ordered to pay so much of his net monthly income that he was unable to provide the child with the basic necessities during his or her visitation, but absent such a showing, when would a reduction possibly promote the best interest of a child. Scott v. Scott was good law and the “change of circumstances” standard served Nevada well for more than 20 years. Rivero should be reversed to the extent that a change of circumstances is sufficient to modify child support so as to be consistent with the statutory guidelines.
1 See Williams, Guidelines For Setting Levels of Child Support Orders, 21 Fam. Law Quart. 281, 283 (1987); Child Support Guidelines: Formula To Protect Our Children From Poverty and the Economic Hardships of Divorce, 23 Creighton 835 (1990); Goldfarb, Child Support Guidelines: A Model For Fair Allocation of Child Care, Medical, And Educational Expenses, 21 Fam. Law Quart. 335 (1987); U.S. Department Of Health And Human Services, Administration For Children and Families, Office Of Child Support Enforcement, The Treatment of Multiple Family Cases Under State Child Support Guidelines, July, 1991 pages 1-4 (hereinafter “Treatment”) citing U.S. Bureau of the Census, U.S. Dept. of Commerce, Divorce, Custody and Child Support, Current Population Reports, Series P-23, No. 84 (1979), Bureau of the Census, U.S. Dept. of Commerce, Child Support and Alimony – 1983, Current Population Reports, Series P-23 No. 141 (1985); Bureau of the Census, U.S. Dept. of Commerce, Child Support and Alimony: 1985 (Supplemental Report), Current Population Report, Series P-23, No. 154 (1989).
2 See Williams, Guidelines For Setting Levels of Child Support Orders, 21 Fam. Law Quart. 281, 282, 326 (1987). See also Advisory Panel On Child Support Guidelines, Development Of Guidelines For Child Support Enforcement, National Center For State Courts I-3, 4 (1987) (hereinafter “Advisory Panel”).
3 Pub. L. No. 98-38, section 18, 98 Stat. 1305.
4 See Nevada Child Support Enforcement Commission Minutes, June 23, 24, 1986, page 3.
5 Pub. L. No. 100-485, 102 Stat.
6 Id.
7 Id.
8 NRS 125B.070, at the time, provided as follows:
Definitions.
1. As used in this section and NRS 125B.080, unless the context otherwise requires:
(a) “Gross monthly income” means the total amount of income from any source of a wage-earning employee or the gross income from any source of a self-employed person, after deduction of all legitimate business expenses, but without deduction for personal income taxes, contributions for retirement benefits, contributions to a pension or for any other personal expenses.
(b) “Obligation for support” means the amount determined according to the following schedule:
- For one child, 18 percent;
- For two children, 25 percent;
- For three children, 29 percent;
- For four children, 31 percent; and
- For each additional child, an additional 2 percent,
of a parent’s gross monthly income, but not more than $500 per month per child for an obligation for support determined pursuant to subparagraphs (1) to (4), inclusive, unless the court sets forth findings of fact as to the basis for a different amount pursuant to subsection 6 of NRS 125B.080.
2. On or before January 18, 1993, and on or before the third Monday in January every 4 years thereafter, the State Bar of Nevada shall review the formulas set forth in this section to determine whether any modifications are advisable and report to the legislature their findings and any proposed amendments.
9 NRS 125B.080(9).
10 See Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989); Hoover v. Hoover, 106 Nev. 388, 793 P.2d 1329 (1990); Lewis v. Hicks, 108 Nev. 1107, 843 P.2d 828 (1992); Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998)
11 Torres v. Torres, No. 49076 (Nev. April 9, 2009). Despite the request in Respondent’s Petition for Rehearing, the court declined to publish this decision, effectively denying notice to those paying child support they will have an increase burden of reducing child support orders they voluntarily agree to pay in excess of the presumptive amount.
12 See Torres v. Torres, No. 49076 (Nev. April 9, 2009), Order of Reversal at page 3, stating that “although respondent’s child support obligation is modifiable, the district court failed to make factual findings as to whether a reduction in respondent’s child support obligation was in the children’s best interest. NRS 125B.145(2)(b).”
13 Dechant v. Florida Dept. of Revenue ex rel. Rees, 915 So.2d 215 (Fla. 3d DCA 2005) (custodial parent’s waiver of a child’s right to all support would clearly be contrary to public policy and unenforceable by the courts because it is not in the best interests of the child); Maschoff v. Leiding, 696 N.W.2d 834 (Minn. Ct. App. 2005) (agreement to waive child support is not enforceable because it is contrary to public policy); Chen v. Warner 280 Wis.2d 344, 695 N.W.2d 758 (2005) (divorcing parents cannot child support or give up the children’s present and future rights to receive child support; waivers of child support are void as against public policy); Hammack v. Hammack, 114 Wash.App. 805, 60 P.3d 663 (2003) (parents cannot agree to waive child support obligations; such agreements are against public policy and do not affect subsequent requests for child support); Thomas v. Hague, 639 N.W.2d 520 (S.D. 2002) (court approved stipulation of divorced parties permanently and irrevocably waiving child support was contrary to public policy of state, invalid, and void); Tyrone W. v. Danielle R., 129 Md.App. 260, 741 A.2d 553 (1999) (duty to pay child support is rooted in public policy and may not be bargained away or waived). See also L. Morgan, Child Support Guidelines: Interpretation and Application, section 4.09[a].
14 In re Marriage of Goodell, 130 Wash. App. 381, 390, 122 P.3d 929 (2005); Hammack v. Hammack, 114 Wash. App. 805, 808, 60 P.3d 663 (2003); In re Marriage of Fox, 58 Wn. App. 935, 937 n.3, 795 P.2d 1170, 1171 (1990); Pippins v. Jankelson, 110 Wash..2d 475, 479, 754 P.2d 105, 107 (1988).
15 Pippins v. Jankelson, 110 Wn.2d 475, 479, 754 P.2d 105 (1988).
16 NRS 125B.145 generally;
17 NRS 125B.145(2)(b).