Part 1: Introduction and NRS
125B.080(9)(a)
The
Child Support Enforcement Amendments of 1984 required all states to develop
advisory mathematical guidelines to calculate child support awards by October
1, 1987. 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.
The
Family Support Act of 1988 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. 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.
NRS
125B.070 provides a formula based on a percentage of gross monthly income that
the nonprimary parent shall pay for child support. 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:
(a) The cost of health insurance;
(b) The cost of child care;
(c) Any special educational needs of the
child;
(d) The age of the child;
(e) The responsibility of the parents for the
support of others;
(f) The value of services contributed by
either parent;
(g) Any public assistance paid to support the
child;
(h) Any expenses reasonably related to the
mother’s pregnancy and confinement;
(i) 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;
(j) The amount of time the child spends with
each parent;
(k) Any other necessary expenses for the
benefit of the child; and
(l) The relative income of both parents.
NRS
125B.080(9)(a). The cost of health
insurance. Both parents are responsible
for the health care needs of their children.
Virtually every case involving minor children includes controversy over
the cost of health insurance as it relates to the child support
obligation. There is, however, no
provision in NRS 125B specifically requiring either parent to provide or pay
for health insurance. So, it appears
only fair that neither party should be required to bear the entire expense of
maintaining health insurance for the minor children, and that the cost should
be divided. The question then becomes
whether this expense should be divided equally, or proportionately based on the
parties’ respective incomes.
NRS
125B.080(7) provides that expenses for health care which are not reimbursed by
insurance “must be borne equally by both parents in the absence of
extraordinary circumstances.” Depending
on the income levels of each parent, it would seem fair that, in most circumstances,
the parents should equally divide the cost of health insurance for the minor
children. If the custodial parent is
providing the insurance, one-half of the cost should be added to the
noncustodial parent’s child support obligation; if the noncustodial parent is
maintaining the insurance, one-half of the cost should be deducted from the
noncustodial parent’s child support obligation.
In district courts of Southern Nevada, this has been a general practice.
Part 2: Introduction and NRS
125B.080(9)(b) and NRS 125B.080(9)(c).
NRS
125B.080(9)(b). The cost of child
care. Unlike medical expenses, there is
no statutory presumption regarding the treatment of child care expenses. Other states handle this issue in different
ways. The states that use the income
sharing method to calculate child support apportion this cost based upon the
parties’ respective incomes. The Wisconsin formula, which Nevada’s child
support statutes are modeled after, arguably assumes that the cost of child
care is considered in the statutory percentage.
It may also be noted, however, that the guidelines were based on studies
made between 1950 and 1980. During that
study period, child care was statistically a very small expense in most
households. The nature of child care in
America has radically changed since that time and most states today consider
the cost of child care in some other way.
Child
care costs have substantially risen in recent years and often the custodial
parent’s day care expense exceeds the child support award. Child care expenses average ten percent of
annual income, coming in fourth behind only housing, food and taxes. In the summer months, the cost can be as much
as 22%. The percentage is substantially
more for parents with incomes of less than $15,000.00 per year.
The
courts, including those in Nevada, have been slow in reacting to the increase
in child care expenses and have not uniformly increased support based on this
factor alone. If it is argued that child
care is included in the statutory presumption, then why was it included as an
enumerated factor in 125B.080(9)? The
State Bar of Nevada Child Support Review Committee Report recommended that
child care expenses “be awarded in addition to the formula amount and allocated
between the parents in proportion to their relative incomes.” This, however,
ignores the reality that child care was factored into the formula to some
degree and noncustodial parents could be overpaying if they are paying child
care in addition to the statutory formula.
The legislature clearly needs to address this area.
NRS
125B.080(9)(c). Any special educational
needs of the child. This is one of the
many factors that have not been addressed by the supreme court. This factor, however, should not create much
controversy because if a child needs special assistance, both parents should
contribute. Again, the question becomes
how should the court calculate the parents’ respective contributions? Should the parents contribute equally or pay
proportionate to their income? Wisconsin
law provides that the court may allocate a portion of the child support award
to be placed in “a separate fund or trust for the support, education and
welfare” of the child.
Part 3: Introduction and NRS
125B.080(9)(d)
NRS
125B.080(9)(d). The age of the
child. There can be little argument that
the cost of supporting a child varies with the child’s age. Raising an infant brings higher expenses
which are associated with birthing, formula, diapers, etc. A toddler through pre-teen, however, may
involve less expense. But when a child
reaches the teens, the costs rise again.
Some states have different child support awards for different ages. This, however, has not generally been
litigated on a significant basis.
If
a child’s parent’s divorce while the child is young, the child support received
on behalf of the child may average out over life of child, but parents get
divorced when their children are different ages. There is also an obvious relationship between
this factor and day care expenses. Our
legislature may wish to consider adopting a modified child support formula
taking into consideration the specific age of the child.
Part 4: Introduction and NRS
125B.080(9)(e)
NRS
125B.080(9)(e). The responsibility of
the parents for the support of others.
This factor does not limit the court’s discretion to base a deviation
from the formula solely upon a parent’s responsibility for the support of other
children; the court may consider parents, siblings or step-children. Thus far, however, serious consideration has
only been given for prior or subsequent children of the obligor parent. For example, New Hampshire specifically
provides that the court “shall” consider any step-children for which the party
is responsible.
This
is one of the more controversial factors for deviation from the formula and has
been addressed by the Nevada Supreme Court on several occasions. Hoover appeared to some to indicate
that, despite NRS 125B.080(9)(e), other children would not be a basis for
deviation from the formula. The supreme
court in Hoover, however, technically only objected to the lower court’s
formalistic approach outside the guidelines of NRS 125B. In Scott, the court found that a
deviation from the statutory formula, which reduced support payments of $793.43
per month for two children to $600.00 per month, was proper based on the
payor’s responsibility for the support for others. One should keep in mind the supreme court’s
warning in Lewis v. Hicks, however, that NRS 125B.080(9)(e) should be
applied “cautiously” and deviations “should be the exception rather than the
rule.”
This
factor will most likely come into play in situations such as the
following: An obligor parent, who is
getting divorced from a second spouse, now has two families to support. Should the second family receive child support
based on the payor’s full gross monthly income, or should the support be based
on the payor’s full monthly income less the previously existing child support
award? There are two major approaches
being used to resolve this question: the “first mortgage” approach and the
“equal treatment” approach. These
competing theories will likely be debated forever, and an in-depth review is
beyond the scope of this article.
The
“first mortgage approach” argues that the second family already had the burden
of paying the first child support award and therefore enjoyed a standard of
living based on less income. Using this
approach, the first family should not have to endure a lower child support
award because the payor decided to have more children with a spouse who was
aware of the existing child support obligation.
In other words, a payor parent should not be able to decrease his or her
support obligation to an existing family by undertaking the obligation of
having a subsequent family. By contrast,
the “equal treatment” approach simply promotes the policy that all children
should be treated the same and each should receive the same proportionate share
of support.
The
guidelines were intended “to provide a uniform predictable measure of child
support, not a variant method where a child’s support can be reduced or
increased by subsequent changes outside his or her family.” “Although both earlier and subsequently born
children are innocent and have no control over their situation, the parent who
brings children into the world knowing the existing prior obligation should not
be entitled to an automatic reduction in child support.” Arkansas’ child
support guidelines specifically provide that any existing child support
obligations should be deducted from the income of the payor spouse.
The
following are hypothetical situations which illustrate how this factor has been
applied in the district courts in Clark County.
When necessary, the parties in the following hypothetical situations
will be designated as either P1 (the custodial parent) or P2 (the noncustodial
parent).
child and is obligated for the support of two children from a prior marriage;
P2 earns $2,000 per month. With a
pre-existing support obligation of $500.00 for the two children from the prior
marriage (25% of $2,000.00), P2 now has an adjusted gross monthly income of
$1,500.00 which yields a child support obligation to the “second family” of
$270.00 (18% of $1,500.00).
have agreed that Wife shall maintain custody of three children while Husband
shall maintain custody of one child; Wife’s gross monthly income is $1,000.00;
Husband’s gross monthly income is $2,000.00.
In situations, such as this, varying methods for determining child
support obligation(s) may be used by the court.
Results may vary depending upon the split-custody calculation method
used by the court.
By one method, the court follows
the child support formula in determining the child support obligation of each
parent as if the child in the custody of the other was the only child at
issue. The court then offsets the sums
each would owe the other. Applying this
method to the above situation, Husband would be obligated to pay Wife child
support in the amount of $580.00 (29% of $2,000.00) and Wife would be obligated
to pay Husband child support in the amount of $180.00 (18% of $1,000.00). The net result is that Husband would be
obligated to pay Wife child support in the amount of $400.00 ($580.00 –
$180.00).
By another method, the court
determines for each parent the total percentage amount of child support that
would be due if all of the children were residing with the other parent,
divides this percentage amount by the number of children at issue to determine
the percentage of income to be paid per child, multiplies this percentage by
the number of children being supported by the other parent, assigns the results
to the respective parents according to the number of children each maintains,
and then offsets the sums each would owe the other. Applying this method to the above situation,
Husband would be obligated to pay 21¾% (¾ of 29%) of his monthly income [which
calculates to $435.00 in this situation] to Wife, and Wife would be obligated
to pay 7¼% (¼ of 29%) of her income [which calculates to $72.50 in this
situation] to Husband. The net result is
that Husband would be obligated to pay Wife child support in the amount of
$362.50 ($435.00 – $72.50).
By yet another method, the court
determines for each parent the total formula amount of child support that would
be due if all children were residing with the other parent, divides this amount
by the number of children at issue to determine the amount of support to be
paid per child, multiplies this amount by the number of children being
supported by the other parent, assigns the results to the respective parents,
and then offsets the sums each would owe the other. Applying this method to the above situation,
Husband would be obligated to pay Wife $145.00 per month per child (29% of
$2,000.00 = $580.00; $580.00 ÷ 4 = $145.00) for a total of $435.00 per month
($145.00 x 3), and Wife would be obligated to pay Husband $72.50 per month per
child (29% of $1,000.00 = $290.00; $290.00 ÷ 4 = $72.50) for a total of $72.50
per month ($72.50 x 1). The net result
is that Husband would be obligated to pay Wife child support in the amount of
$362.50 ($435.00 – $72.50).
One must keep in mind, however, that
the Nevada Supreme Court has prohibited the district courts from devising their
own formulas. See Hoover
and Lewis.
Part
5: Introduction and NRS 125B.080(9)(f)
NRS 125B.080(9)(f). The value of services contributed by either
parent: This is a rather broad, vague
factor which, although it could be used in many ways, has not been addressed by
the supreme court or the legislature and has probably not been addressed much
at the trial level. The question of
whether the services that the custodial parent provides should be considered in
calculating a child support award was presented in Lewis v. Hicks, but
the supreme court declined to address it.
The custodial parent’s income is only
indirectly reflected in the statutory formula, but the guidelines should not
overlook the value of the custodial parent’s own child care services and should
encourage the desirability that the custodial parent remain in the home as a full-time
parent. It is inconsistent to reimburse
a custodial parent in whole or in part for the expense of paid child care while
denying any financial recognition for the value of the care provided. This inconsistency could be resolved by
dividing the cost of full-time day care between the parents in all cases and
allowing the custodial parent to spend this allotment any way that parent
desires. Of course, it then follows that
if the noncustodial parent exercised greater than average visitation or provides
“day care services,” then that parent, too, should be provided consideration.
Rearing children requires expenditures
of both time and money. Less tangible,
but no less important, is the income the custodial parent forgoes by working
less and spending more time with the child.
These “opportunity costs” borne by the custodial parent may be measured
in terms of reduced working hours, greater time away from work, limits on after
hours commitments, and being forced to accept lower paying and less challenging
jobs, to be nearer and more available to the children and to accommodate their
school schedules. Because of the
additional demands that go along with being the primary parent, the custodial
parent also enjoys less leisure time.
Although the Nevada Supreme Court
declined to address the issue, in Wisconsin the statute provides that the court
should consider the desirability that the custodian remains in the home as a
full-time parent. It also provides that
the court should consider the value of custodial services performed by the
custodian if the custodian remains in the home.
And in Arkansas, an unemployed spouse will be counted as two dependents
for calculating support.
Part
6: Introduction and NRS 125B.080(9)(g) and NRS 125B.080(9)(h)
NRS 125B.080(9)(g). Any public assistance paid to support the
child: It is unclear how this factor
should be considered in a child support obligation. Obviously, if a child is receiving public
assistance, the court will order the parent or parents to pay the appropriate
support. If, however, a child is
receiving disability payments due to the noncustodial parent’s disability,
should the child receive that disability payment plus an additional sum based
on the parent’s disability income? In
Arkansas, as in most states, if the payor parent is receiving Social Security
Disability, “the court should consider the amount of any separate awards made”
to the children.
- NRS
125B.080(9)(h). Any expenses reasonably
related to the mother’s pregnancy and confinement: At first glance this may appear like the NRS
125B.080(7) requirement for parents to share unreimbursed medical expenses of
their minor children, but it has the potential to be far broader. The language for this factor was taken from
the paternity statute and dates to 1923.
Although it has never been interpreted by the supreme court, it appears
that it could be read to include lost wages and other incidental expenses of a
mother while pregnant.
Part
7: Introduction and NRS 125B.080(9)(i)
NRS 125B.080(9)(i). 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: This factor is perhaps the
most abused by litigants, attorneys and judges alike. This factor should become much more prominent
with the recent significant liberalization of NRS 125.350. It should, however, be one of the easiest to
utilize and, hopefully, will be examined before a request for relocation is
granted.
Oftentimes in cases involving a
transportation expense, courts would merely use the expense as an arbitrary
factor upon which to base an “equitable” deviation from the child support
award. There would often be no relationship
between the amount of the expense incurred for travel and the amount of the
deviation awarded. Further, the
deviation would often be awarded without consideration as to whether the
noncustodial parent utilized the visitation or incurred the expense.
The court should first carefully
examine the cost of the noncustodial parent’s exercising visitation over the
period of an entire year. Next, the
court should take that cost and divide it by twelve to calculate an average
monthly transportation expense. The
court should then apply the transportation as a monthly offset and specifically
provide that, if the visitation is not utilized, or if the expense related to
the transportation is not incurred, then the offset may not be taken.
On a related note, a question often arises
as to whether this expense should be divided, or should it become the burden of
the parent who left the jurisdiction where the child resides? Equity would seem to dictate that the parent
who left the jurisdiction where the child resided and therefore caused the
expense to arise should be responsible for the entire expense. On the other hand, however, it does not seem
fair that the noncustodial parent, who would suffer the loss of being distanced
from his or her children, should also bear the entire burden of
transportation. If the noncustodial
parent cannot afford it, this will result in the parent being unable to see his
or her children. Of course, if both
parties move from the jurisdiction, it may be fair to have the parents equally
divide the expense. The court,
therefore, must look at the parties’ respective incomes and the frequency of
visitation before ordering such.
Hopefully the visitation by the noncustodial parent will be determined
to be feasible before the move is granted.
A recent Nevada Supreme Court case
addressed, for the first time, the interplay between the presumed level of
support and the way a deviation should be calculated. Should a court provide the noncustodial
parent an offset before or after applying the presumptive maximum support level
of $500.00? In affirming the trial
court, the supreme court found that once child support is established under the
statutory guidelines, the court may then consider deviating from the child
support award based on the travel expenses. In a footnote, however, the court
implied that its decision could be different in a case where the noncustodial
parent’s income exceeded the presumptive $500.00 per month by more than a
nominal sum.
Part
8: Introduction and NRS 125B.080(9)(j)
NRS 125B.080(9)(j). The amount of time the child spends with each
parent: This is another difficult factor
because it presents the question, “How much time should the noncustodial parent
have the child before he or she receives an abatement in his child support
obligation?” Only one-half of this
country’s children live in a “traditional nuclear” family. As more children live in split homes, this
issue will continue to emerge. It
generally emerges as a means of obtaining a reduction in the noncustodial parent’s
child support.
The Nevada Supreme Court in Barbagallo
stated that an abatement should not be granted unless an “injustice” would
occur. This decision applied to weekly
visitation. Although the statute
presumes that there will be a certain amount of visitation by the noncustodial
parent, how much is not clear.
This factor has generally been
litigated on how much time does the noncustodial parent have with the child
before the court will order an abatement.
Should the court look at the decreased financial burden of the custodial
parent or the increased financial burden of noncustodial parent? Custodial parents still have fixed expenses,
such as rent and utilities, which will not be eliminated when the noncustodial
parent has visitation or extended custody.
Other expenses of the custodial parent, however, decrease, such as food,
entertainment and perhaps clothing.
Further, it must be considered that the noncustodial parent may have an
increased rent and utilities expense to accommodate substantial visitation with
his or her children. Additionally, the
noncustodial parent will surely have increased food and entertainment expenses
while caring for the child.
Barbagallo presents difficult
questions, such as how much time, and what kind of time, is appropriate for a
court to consider when deviating from the statutory formula. Which parent receives credit for the child
during school hours or during the night?
It is not an easy question to determine when a noncustodial parent
should receive an abatement in his or her child support obligation.
Conversely, because the statute
presumes that the noncustodial parent receives some level of basic visitation,
if the noncustodial parent does not exercise any visitation, should this be a
factor in increasing support since the custodial parent has a greater
burden? An Arkansas court held that
“assessing economic penalty for not exercising visitation would be an indirect
means of ordering visitation.” The
dissent, however, opined that the guidelines contemplate visitation with the
noncustodial parent every other weekend for two days. If this visitation is not exercised, this
could mean an additional 66-82 days of care that the custodial parent must
provide and finance. Arkansas provides
for an abatement for visitations more than 7 consecutive days.
The Nevada legislature was aware of
the problem relating to the formula but took no action. The original bill provided that the
presumptive level of support would apply if the noncustodial parent had
physical custody for less than 147 days per year, which is approximately 40
percent of the time. If that time share
was exceeded, the guideline amount would be multiplied by the custodial
parent’s fractional time and that was the amount payable. Arkansas’ guidelines presume that the
noncustodial parent will have visitation of alternating weekends and several
weeks during the summer. If the
noncustodial parent spends more than 14 consecutive days with the child, the
court should consider whether an adjustment is necessary, considering the fixed
obligations of the custodial parent which are attributable to the child, and to
the increased costs of the noncustodial parent attributed to the child’s
visits. The court may award an abatement
up to fifty percent of the child support award.
A separate issue that frequently
arises is that of an abatement for extended visitation, such as summer
vacation. Many of the judges in Clark
County provide noncustodial parents with extended visitation (generally for one
month or more), and along with the visitation, award noncustodial parents a
one-half abatement in their child support obligations during the period in
which those parents have the child. This
seems a reasonable compromise regarding periods such as summer visitation. It is generally in the child’s best interest
to spend as much time with each parent as possible. It therefore appears equitable that each
parent bears a part of the burden and that the burden should not always fall solely
on the noncustodial parent.
Either the legislature or the supreme
court should address these issues so that there can be some level of uniformity
in treating these common issues. In any
event, abatements should be granted only “after the fact” in cases where the
noncustodial parent exercises the visitation. In other cases, the custodial
parent should have the burden of seeking reimbursement for an unearned offset.
The usual application of a child
support guideline is with a traditional custodial arrangement in which one
parent has primary custody of the child or children and the other parent has
limited visitation. In recent years,
however, shared physical custody arrangements have become more common.
Shared custody situations have also
given rise to the use of mathematical formulas for calculating child
support. Although such formulas have not
been adopted by the legislature or by the supreme court, and although the lower
courts may not explicitly use such formulas for fear of being reversed by the
supreme court, the lower courts have nevertheless done so.
The Nevada Supreme Court and the
legislature have yet to address the way a district court should set child
support in a shared custody situation.
In a shared custody arrangement, the cost for each parent does not decrease
proportionately. More likely, there is
an increase in the total expenditures on behalf of the child. The courts, however, must balance the
equities between the parents and the impact it will have on the children’s
standard of living while in each parent’s respective custody. The district courts desperately need guidance
in this area.
An equal physical custody arrangement
does not necessarily mean that there should not be child support paid by one of
the parents. Even if one parent has
substantial visitation or shared custody, he or she should not be excused from
paying child support if the circumstances justify such. In some cases, the parties may attempt to
posture themselves during the litigation to minimize or maximize their child
support award.
“Under the most common approach, each
parent theoretically owes support to the other, based on the proportion of time
the child spends with the other parent.
The theoretical support amounts thus calculated are then offset
(`cross-credited’), with the parent owing the higher amount paying a net
obligation.” There is authority in
Nevada’s legislative history that supports this type of calculation. Although the legislature did not act
regarding adopting a formula in a joint custody situation, it was contemplated.
The problem with these methods,
however, is that they often result in child support awards that are “too low”
and do not provide “adequate compensation to the lower income parent for actual
child rearing expenditures.” Such
adjustments fail to consider that some expenses in a shared physical custody
arrangement are being duplicated.
To resolve this problem, the court or
legislature may wish to find that for calculating child support in an equal
shared custody situation, the court should consider the parent with the lesser
income the primary physical custodian.
The court should begin with the statutory presumption and use the
factors set forth in NRS 125B.080 to consider any deviation based on the
enumerated factors. There is an equal
duty of both parents to contribute toward the support of their children in
proportion to their respective incomes.
NRS 125B.020(1). The needs of the
child are in part determined by the income level of the parents and the ability
of each parent to contribute support in proportion to his or her share of that
income level. After all, the percentage
of income approach reflects a public policy that, after a family separation,
parents should spend on their children the approximate percentage of income
that they would have had the family stayed together. The statutory sum considers the child’s need
as well as the income that each parent should contribute to the financial
responsibility of his or her child. The
guidelines, in part, are based on the benefit a child will receive by receiving
a fair portion of each parent’s income.
The statutory formula is a means of calculating child support to
maintain the standard of living that the child would have enjoyed if his
parents had not divorced. Considering
this purpose, the fact that there is a joint physical custodial arrangement
should not alter the way the court calculates child support.
Part
9: Introduction and NRS 125B.080(9)(k) and NRS 125B.080(9)l)
NRS 125B.080(9). Any other necessary expenses for the benefit
of the child: In Scott, the
supreme court stated that “any other necessary expenses for the benefit of the
child” could justify a deviation. In Scott
these other necessary expenses appeared to be for the special educational needs
of an adult child. The court could have
used 125B.080(9)(c) or 125B.110 to justify the support award in Scott,
and its citation of 125B.080(9)(k) appears to have had no special significance.
NRS 125B.080(9)(l). The relative income of both parents: The
percentage of income formulas generally do not consider the income of the
custodial parent. It presumes that the
custodial parent will spend the same percentage of income directly on the child
as the noncustodial parent has been assessed for child support.
Herz and Chambers clearly
stand for the proposition that the income of the payor parent may be considered
in deviating from the statutory formula.
But if the noncustodial parent earns $20,000.00 per year and the
custodial parent earns $200,000.00 per year, should the noncustodial parent
still be required to pay 18% of his or her gross monthly income for child
support? NRS 125B.020 states that both
parents have an obligation to support their children. Conversely, if the custodial parent is on
food stamps and the noncustodial parent earns $250,000.00, should the
noncustodial parent be allowed to pay only the statutory formula amount? Herz clearly implies that a purpose of
the child support statute is to permit a child to share in the wealth and
standard of living of the noncustodial parent.
In Rodgers v. Rodgers, the
supreme court held that “under appropriate circumstances, a noncustodial
parent’s community interest may be taken into account pursuant to NRS
125B.080.” In the recent case of Jackson
v. Jackson, the supreme court held that an obligor’s cohabitant’s income
may also be considered. These two cases,
however, conflict with Lewis v. Hicks in one aspect. In Lewis v. Hicks, the supreme court
said that spousal income may not be used “directly” in setting child support. A court, however, may consider spousal income
“where they have a significant impact on recognized statutory factors.” In a footnote of Lewis v. Hicks, the
supreme court noted that with the repeal of NRS 125B.060, “the courts no longer
have explicit authorization to consider the parents’ standard of living or
their financial means other than from income.”
In fact, the court noted that Nevada’s statutory scheme “does not
authorize consideration of spousal income” and in fact noted that the Nevada
legislature specifically rejected such a use.
Nevertheless, Rodgers and Jackson
may be read in harmony with Lewis.
Lewis v. Hicks addressed the importance of the income of the
custodial parent’s spouse and stated that a court may consider a spouse’s
contribution if it has a “significant impact on recognized factors, such as the
parents’ standards of living or their relative financial means.” Nevada, however, “does not authorize using
spousal income directly.” Rodgers
and Jackson address the issue of the noncustodial/obligor spouse’s
income. These cases confirm the finding
in Lewis that only the obligor’s actual monthly income should be used in
calculating the presumptive amount of support pursuant to NRS 125B.070. In setting child support, however, the court
may consider, for deviating from the presumptive level, the income of the
obligor parent, his spouse or any other relevant factor to ensure that he is
providing the child with an appropriate level of support. Support may be found in this case law that
the court should not consider the income of the custodial parent’s spouse
because this factor is irrelevant to the obligor’s obligation to his child.
As stated above, the implementation of
the guidelines as a rebuttable presumption requires a court to apply the
guidelines unless the result would be inequitable to the parties or children,
in which instance, reasons for the deviation must be stated on the record. NRS 125B.080(6) requires the court to set
forth specific findings of fact as to the basis for a deviation from the
formula. The basis for the deviation
must be found in unfairness or injustice that would result from application of
the formula. Equity alone is not enough
to justify a deviation; a deviation must be based on the nine factors. The legislature found this condition so
essential that, even in cases where the parties stipulate to an award of child
support which is not in conformance with the statutory guidelines, it requires
the parties to provide enough facts which justify the deviation. In fact, the original draft of NRS 125B.080
required a court to set forth written findings if the award deviated by five
percent either higher or lower than the formula’s presumptive amount. The five percent provision was deleted from
the final version, however, symbolizing the legislature’s conviction that any
deviation should be justified.
The intent of the statutory presumption
was to make the presumptive amount binding absent a judicial finding of
“exceptional circumstances.” Specific
findings of fact are, in part, required so that the parties may understand the
“justice” of the support award thereby leading to fewer appeals.
n