What Do I Do Now? All of the Children Are Not Exercising the Same Time-sharing Schedule
Child support guidelines were first introduced in 1987 and were always designed to meet the great majority of cases (estimated historically at about 70 percent). The Florida guidelines, F.S. §61.30, have been in use for about 20 years and have developed ways for handling some of the special cases for which the guidelines were not originally designed.
In 2003, the Florida Legislature adopted F.S. §61.30(11)(b), for substantial shared residence cases (when children reside overnight with both parents more than 40 percent of the time), a second formula guidelines approach. This followed the caselaw development for split residence cases (when different children of the family live with different parents) beginning with Winters v. Katseralis, 623 So. 2d 613, (Fla. 2d DCA 1993). Since then, a series of cases has provided differing formula approaches to split residence cases. These cases have been described as nonguidelines cases or cases that require deviation from guidelines. The history of these cases will help design solutions for other types of cases.
The guidelines further recognize that they were not designed to cover all cases. It has always provided a list of circumstances in which a court is justified in going above or below the guidelines range (five percent +/- of the presumed amount). The current statute provides:
(11)(a) The court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award, based upon the following deviation factors:
1. Extraordinary medical, psychological, educational, or dental expenses.
2. Independent income of the child, not to include moneys received by a child from supplemental security income.
3. The payment of support for a parent which regularly has been paid and for which there is a demonstrated need.
4. Seasonal variations in one or both parents’ incomes or expenses.
5. The age of the child, taking into account the greater needs of older children.
6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the presumptive amount established by the guidelines.
7. Total available assets of the obligee, obligor, and the child.
8. The impact of the Internal Revenue Service dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.
9. When application of the child support guidelines schedule requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
10. The particular parenting plan, such as where the child spends a significant amount of time, but less than 40 percent of the overnights, with one parent, thereby reducing the financial expenditures incurred by the other parent; or the refusal of a parent to become involved in the activities of the child.
11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.
In substantial shared residence cases, the statute provides additional deviation factors:
7. The court may deviate from the child support amount calculated pursuant to subparagraph 6 based upon the deviation factors in paragraph (a), as well as the obligee parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan granted by the court, and whether all of the children are exercising the same time-sharing schedule. (Emphasis added.)
But what is done when all of the children are not exercising the same time-sharing schedule? What is done if some children “reside most of the time” with mom and some children “reside most of the time” with dad? What is done if some children are on a customary schedule and “reside most of the time” with one parent and other children are on a substantial shared residence schedule? What if one child resides in a customary time-sharing schedule with mom, another child is 50/50 with mom and dad, and another child is with mom 219 overnights and with dad 146 overnights? Are there formula approaches that could work in these cases? If not, what is to be done?
There are actually a number of different possible solutions to these questions. This article discusses some of those approaches and reviews how historical case law provides some possible suggested solutions. Some possible solutions discussed in this article include: 1) utilize the formula approach suggested in the Simpson dissent formula for split residence cases; 2) utilize an overnight averaging approach; 3) utilize a gross-up Katseralis approach (suggested by F.S. §61.30(11)(b)); and 4) return to the traditional needs and ability approach of yesteryear.
To get to the possible solutions, some history is helpful.1
Split Residence Cases
Back in the days when guidelines were new and there was no statute dealing with substantial shared residence cases, the courts were left to deal with special cases that didn’t seem to fit the guidelines. The deviation portion of the guidelines statute, in those days, allowed adjustment based upon “the particular parenting arrangement.”
The history of approved formula approaches for deviation in child support cases in Florida began in split custody cases. In Winters v. Katseralis, 623 So. 2d 613 (Fla. 2d DCA 1993), the court was faced with a child support case in which each parent had primary residence for one child. The court stated:
At the time of the hearing on the petition for modification of child support, both parents were teachers. Mr. Winters’ net monthly income was $1,985, and Ms. Katseralis’ net monthly income was $1,320. With a combined net monthly income of $3,305, the child support guidelines suggest that two children should receive total monthly support of $1,052. F.S. §§61.30(6) (1991). Because the father earns 60 percent of the combined net income, his share of the child support should be $631 and the mother’s share should be $421. F.S. §61.30(8) (1991).
The mathematics of child support is more complex in this case because each parent has custody of one child. All things being equal, the father should pay the mother the difference between their respective obligations, i.e., $210 per month.
In Gingola v. Velasquez, 668 So. 2d 1054 (Fla. 2d DCA 1996), the court again approved a formula approach.
Second, the calculation of child support in this case is extraordinarily complex. When the amended final judgment was entered, two of the children resided with Mr. Gingola and one with Mrs. Gingola. Mr. Gingola was paying day care expenses for a daughter who resided with him and health insurance premiums on all three children. Judge Charles Cope carefully determined the items necessary to complete the child support guidelines worksheet and performed the proper calculations. He concluded, however, that neither that form nor this court’s opinion in Winters v. Katseralis, 623 So. 2d 613 (Fla. 2d DCA 1993), provided more than a general solution to the problem.*fn1 Judge Cope provided each child with a pro rata share of the statutory basic obligation and their specific share of the additional obligations. He then made certain that Mr. Gingola received credit for his payments on the health insurance and on the allowable child care costs when calculating each parent’s share of the total child support responsibility. In the end, because Mr. Gingola had primary residential custody of two children, Mrs. Gingola was required to pay Mr. Gingola $230 each month, and he paid her nothing. We conclude that this payment accurately split the total child support obligation in a manner that placed 54 percent of the responsibility upon Mr. Gingola, as warranted by his pro rata share of the combined net monthly income.
The court further explained its corrections in footnote 1 stating “The general approach taken in Winters is still correct. In a split custody case, the trial court first determines the total child support obligation and each child’s share of that obligation. Thereafter, the court determines the method of parental payment that gives each child his or her share while assuring that each parent pays no more than the proper percentage of the total support. . . . ” (See Diagram 1.)
In Simpson v. Simpson, 680 So. 2d 1085 (Fla. 4th DCA 1996), the court reviewed a case similar to Gingola. Appellant argued that the Gingola formula was unfair in that it didn’t take into account adequately that the child support obligations of the parties stemming from a split primary residence situation were more than the amount for the combined children. The trial court agreed and created a different formula using the guidelines for the number of children with each party rather than the combined children. Appellant argued that the formula used by the trial court was irrational since one got to a different result depending on which parent’s support was first calculated. (That formula used the same approach as the dissent, but the second calculation gave a deduction from gross income for the amount of child support to be paid in the first calculation.)
The majority opinion affirmed the trial court’s resolution of the child support issue using this additional formula, and resisted the suggestion presented in the dissent to require a revised third formula.
In reviewing this final judgment of dissolution, we affirm both the provision requiring the father to pay $788 per month in child support for those children residing with the mother, and the corresponding provision requiring the mother to pay $339 per month in child support for the child residing with the father.
We conclude that the child support guidelines do not speak to the circumstance in which 3 children are split between their parents, who have nearly comparable incomes. If the guidelines do not cover this circumstance, as both parties and the dissent seem to agree, we think it impossible to contend that there has been an unwarranted deviation from them. See F.S. §61.30 (1995). A trial judge cannot logically be accused of deviating from a standard that by its own terms does not purport to apply to the facts. We thus recur to the rule of discretion that governs dissolution of marriage cases. See, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). Applying that rule, we cannot say on the evidence adduced that the trial judge’s resolution of this issue is arbitrary and unfair.
The exact method suggested in the dissent was not raised or argued by the parties, although it is similar to the one argued by appellant. It was thus never considered by the trial judge. We do not believe, moreover, that it is necessarily required by anything contained in §61.30.
On the other hand, if the trial judge had employed the dissent’s suggested method, we would not find its usage an abuse of discretion. A trial judge would certainly be free to apply the suggested method when the judge finds the circumstances appropriate to do so. Unless it is adopted by the legislature as part of §61.30, however, we are unable to agree with the dissent that it is the exclusive method available to the judge who is faced with separating the custody of [three] children between [two] parents with roughly equivalent income. (Emphasis added and internal citations omitted; see Diagram 2.)
In Rooney v. Rooney, 750 So. 2d 118 (Fla. 2d DCA 1999) the Second DCA refused to follow Simpson, sticking to its approach in Gingola.
In 1999, the state had the following positions in the district courts on split custody cases:
1) The Second DCA had an approved formula that divided the guidelines amount for the total children between the parents and had each parent pay a portion of their share to the other parent for the percentage number of children they had, netting the two payments and paying an adjustment amount to make the add-ons (employment childcare and health insurance) paid proportionately per each parent’s percentage of support.
2) The Fourth DCA had a rule that said that the guidelines do not contemplate this problem and that as long as the trial court used a rational way of approaching support, the result would be affirmed. It further indicated that the approach used by the trial court and the approach set out in the dissent were both acceptable approaches. The dissent approach called for the parties’ net incomes to be determined and to then run separate guideline work-ups for the children mostly with mother and for the children mostly with father and paying an adjustment amount to make the add-ons (employment childcare and health insurance) paid proportionately per each parent’s percentage of support.
3) The First, Third, and Fifth districts could follow either of these, since they had no cases of their own, which meant that they could follow the Fourth District, and as long as a trial court used a rational way of approaching support, the result would be affirmed. Subsequent cases have not added much to this discussion. Kelley v. Kelley, 987 So. 2d 1246 (Fla. 5th DCA 2008), approved the Katseralis approach of the Second District, but stated, “We do not suggest that a different method of calculation of child support in this circumstance would not be appropriate or approved, only that no such alternative has been put forth in this case.”
As noted, the premier cases cited above all took place prior to the creation of F.S. §61.30(11)(b) in 2001, relating to substantial shared residence cases. That statute was actually influenced by this prior case law and the case of Jones v. Johnson, 747 So. 2d 1066 (Fla. 5th DCA 2000).
At the time of Jones v. Johnson, F.S. §61.30(11)(b) had a discretionary approach to substantial shared residence cases in which the court “shall adjust any award of child support” based upon a list of factors. The statute provided no formula as to how much to deviate and no specific amount of time that made it “a substantial amount of time with both parents.” In that context, the Fifth DCA provided its solution to the problem stating:
This statute recognizes that in rotating custody situations, both parents necessarily will have to provide both direct and indirect expenses on the child’s behalf. Both will have to adequately feed, clothe, and transport the child, and provide suitable accommodations to house the child — whether it be a mortgage payment (in Johnson’s situation) or rent (in Jones’ situation). Any method of apportioning a support award should account for proration of time spent with the child, as well as the parties’ incomes. For example, the court should 1) calculate the total child support award, and each parent’s share under the guidelines as it is presently done; 2) determine the amount of time each parent has the child and reduce it to a percentage, e.g., each parent has the child 50% of the time; 3) proportion the total child support award to each parent, based on the percentage of time each parent has the child with him or her; and 4) offset each parent’s dollar responsibility under the guidelines.
In this case, the total guidelines child support award for this child was $1,000 per month, with Jones responsible for $285 per month and Johnson responsible for $716. Since the parties have the child roughly 50 [percent] of the time, each parent should have available to him or her $500.00 per month (or 50 [percent] of the total guidelines amount). Thereafter, the amount that Jones is responsible for should be deducted from the $500, so that she should not be required to pay Johnson child support. However this is worked out, it was error for the trial judge to require Jones to pay Johnson child support, in view of the fact that she earns far less per month than he does, and has custody of the child an equal amount of the time. When time is factored into the equation, it would have been more appropriate to require Johnson to pay Jones some child support.. . .
The Jones v. Johnson formula became accepted in the courts but became controversial with many child support recipients complaining that it cut their child support payments drastically. (See Diagram 3.)
In 2001, the legislature again amended F.S. §61.30(11)(b) and provided the current gross-up formula approach. It defined “substantial shared residence” to be 40 percent or more of the overnights with both parents and designated a new formula for determining guideline support in these cases. This formula is determined by grossing up the child support guidelines amount (by multiplying it by 150 percent), then using a Katseralis type formula (based on overnight percentage instead of number of children with parent percentage) to create the basic transfer amount between the parents. The add-ons were still apportioned by the parents’ percentage share of support, but now 100 percent of employment child care expense would be added in rather than 75 percent. (See Diagram 4.) But this only applied if the number of overnights exceeded 146 for each parent.
This statute was a new way of recognizing, as noted in Jones v. Johnson, that“both parents necessarily will have to provide both direct and indirect expenses on the child’s behalf. Both will have to adequately feed, clothe, and transport the child, and provide suitable accommodations to house the child. . . . ” The statute is similar to statutes in many other states, such as North Carolina,2 South Carolina,3 and Maryland,4 with guidelines based on the “income shares model” similar to Florida.5
What Do I Do Now?
It’s 2010, and I have a client who has negotiated his case with his wife involving his three children: Child one (15-year-old daughter) will live with father and only time-share with mother on holidays because child one claims mother abuses her; child two (11-year-old son with attention deficit disorder) will live most of the time with mother, but will spend 150 overnights per year with father; and child three (six-year-old daughter) will have equal time-sharing so she can be with her siblings as much as possible. Mother earns $3,000 per month gross income. Father earns $5,000 per month gross income. Mother pays child care of $450 per month for the six-year-old. Father provides health insurance for all three children ($300 per month). Mother gets to claim two children for tax exemption, and father gets to claim one. Father wants to know what child support the court will order.
What do you tell him?
Child Support Analysis in Complex Cases
The Florida Supreme Court established the basic method for determining child support in complex cases in Finley v. Scott, 707 So. 2d 1112, 1117 (Fla. 1998). This case involved NBA star Dennis Scott and one child. The basic child support under the guidelines came out to $10,000 per month for the child. The court stated in this case:
[A] trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate …, the trial court must explain in writing or announce a specific finding on the record as to the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court’s determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors.
Although Finley v. Scott was not a split custody case, we can begin with Finley’s premise that the basic child support guidelines are used as a starting point in child support cases (even though Simpson says that these split custody cases are not contemplated by the guidelines).
We can use the average overnights the children are with each parent (total overnights divided by the number of children): 229 overnights per child with father and 136 average overnights with mother. The basic guidelines workup identifies mother’s presumed guidelines share as $918.64 per month and father’s presumed guidelines share as $1,474.36 per month. Mother is paying direct items of child care ($380 included in the calculation), and father is paying direct items of insurance ($355 included in the calculation). So who pays who what, if anything?
This is a split residence case, so let’s see how those formulas work. (See Chart 1.)
But since these cases, the Jonescase and the new statute have come about, and we have learned that when there are two substantial households to provide for the children, “[b]oth will have to adequately feed, clothe, and transport the child[ren], and provide suitable accommodations to house the child[ren].. . . ” It makes sense that a gross-up method (like the one in the statute) should be used in this kind of a deviation case. Using that theory, then we receive the results illustrated in Chart 2.
There might be another way to consider this problem as well. If you use the Simpson dissent and consider each differing situation, you could produce yet a fifth concept, the mixed analysis approach. Here are the steps to take for this analysis:
1) Enter the overnights with each parent for each child individually.
2) If children have identical entries, they would make a group for calculating support.
3) Children with no similar overnights shall each constitute their own group.
4) Count the number of groups.
5) Run separate guidelines for each group using the Simpson dissent formula.
6) Net the guidelines amounts.
7) Perform the add-ons (employment child care using 100 percent of child care amount and children’s health insurance).
Using the analysis in the sample case illustrated in Chart 3 below, we would have three groups with one child support analysis for each. (See Diagrams 7, 8, and 9.)
But there might also be a sixth concept, the mixed group average analysis approach. Here are the steps to take for this analysis. This is the same as the mixed analysis approach, but the two shared children are combined, and their average overnights are used.
Using this analysis in our case, illustrated in Chart 4, we would have the two groups with a child support analysis for each. (See Diagram 10.)
Needs and Ability Analysis
These are all shortcut approaches to convince the court of what is a reasonable amount of child support. As can be seen, formula approaches can give significantly varying results and, at least, it is important to understand the reasoning behind the approach.
However, when all is said and done, it will be effective to perform an analysis on the children’s needs and the parent’s ability to pay, which is the underlying historical basis for child support under Florida law.
Finley says: “The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors.”6
The deviation factors in §61.30(11)(a) that bring into play the needs of the child for upward deviation include:
1. Extraordinary medical, psychological, educational, or dental expenses….
5. The age of the child, taking into account the greater needs of older children….
6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the presumptive amount established by the guidelines….
7. Total available assets of the…child….
11. Any other adjustment which is needed to achieve an equitable result….
The deviation factors in F.S. §61.30(11)(a) that bring into play the parents ability to pay for downward deviation include:
2. Independent income of the child, not to include moneys received by a child from supplemental security income….
3. The payment of support for a parent which regularly has been paid and for which there is a demonstrated need….
9. When application of the child support guidelines schedule requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order….
11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.
Additionally, the deviation factor in F.S. §61.30(11)(b)7 in a case where there would be substantial shared residence considerations:
The court may deviate from the child support amount calculated pursuant to subparagraph 6 based upon the deviation factors in paragraph (a), as well as the obligee parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan granted by the court, and whether all of the children are exercising the same time-sharing schedule. (Emphasis added.)
In a split time-sharing case, it should not be difficult to correlate a factor and bring in such a needs and ability showing under the language of Finley, in which existing expenses for the direct payments in the household are compared against the net income of each party to show there are little funds to pay child support to the other parent.
1 Throughout this article, a basic scenario will be used for diagrams. There are three children. Mother works and earns $3,000 per month gross and pays $450 per month for child care. Father earns $5,000 per month and pays $300 per month for health insurance for the children. Two children are with mother. One child is with father.
2 N.C. Gen. Stat. §50-13.4, invoked by AOC-A-162 Rev. 10/06.
3 S.C. Code Ann. §§43-5-580(b) and 20-7-852(a) (1976), as amended.
4 M.D. Code Ann. §§12-201–12-204.
5 The income shares model for calculation of child support takes into account each parent’s income and then combines them to determine a combined household income, then applies the combined income to a chart of support amounts based on the combined income and the number of children in the household. The basic support is then divided between the parents based on their comparative income amounts.
6 Finley, 707 So. 2d at 1117 (Fla. 1998) (emphasis added).
APPENDIX
(Pdfs of each diagram are available at the bottom of the page.)
Norman D. Levin is a board certified marital and family lawyer and fellow of the American Academy of Matrimonial Lawyers practicing family law in Longwood. He served on the executive council of the Family Law Section of The Florida Bar from 1994 through 2003 and was chair of the Section in 2001-2002. He is also the author of the book The Real Family Law Practice.
This column is submitted on behalf of the Family Law Section, Peter Gladstone, chair, and Laura Davis Smith and Ingrid Keller, editors.
