OBTAINING AND MODIFYING ABOVE GUIDELINES CHILD SUPPORT

BARBARA D. NUNNELEYNUNNELEY FAMILY LAW CENTER

1845 PRECINCT LINE ROAD, SUITE 100HURST, TEXAS 76054

(817) 485-6431 Telephone(817) 577-9899 Telecopier

DIANA S. FRIEDMANDIANA S. FRIEDMAN, P.C.

3710 RAWLINS STREET, SUITE 1230DALLAS, TEXAS 75219

(214) 953-0600 Telephone(214) 953-0699 (Telecopier)

TABLE OF CONTENTS

I. INTRODUCTION. ................................................................................................. 1

II. OBTAINING ABOVE GUIDELINES SUPPORT

1. When Net Resources are Below $7,500.00........................................................2Norris v. Norris 2In re B.C.C. 5Lide v. Lide 6

III. A Word About § 154.125(a-1) and (a-2)......The Year of the Change................9

IV. When Net Resources Exceed $7,500.00............................................................9 Panozzo v. Panozzo.............................................................................. 10 Rodriguez v. Rodriguez........................................................................ 10 Zajac v. Penkava................................................................................... 11 Scott v, Younts. .................................................................................... 13

V. PROVEN NEEDS FACTS. ................................................................................ 15

1. U.S. Department of Agric Agriculture Study of Costs of Families Caring for Children. ......................................................................................... 15

VI. Cases Illustrating Proven Needs and Allocating Proven Needs Between the Parents. ................................................................................................. ....15 Thomas v. Thomas. ........................................................................... 15 Dolan v. Martine. ............................................................................... 16 In re T.A.W......................................................................................... 17 VII. REQUIRED FINDINGS WHEN DEVIATING FROM GUIDELINES................. 17 Tenery v. Tenery. ............................................................................ 17

VIII. MODIFICATIONS ABOVE GUIDELINES. ..................................................... 17 Rumscheidt v. Rumscheidt........................................................... 18

Appendix “1"............................................................................................................... 20

Appendix “2"............................................................................................................... 21 IX. JUDICIAL SURVEY 22

X. CONCLUSION 24

I. INTRODUCTION

One of the least imaginative andmost mundane tasks we perform asskilled family lawyers is calculating childsupport according to the guidelines. Infact, there’s an App for that! (Thankyou, Jimmy Verner, et al.!) I can stillremember the day, sometime late lastcentury, that I sat with a mentor to learnthe right way to calculate guidelineschild support....to the penny! (It tookabout 15 minutes of dreaded math...)Then came Prodocs, smartphones andIpads; no more need for so much as acalculator....

The guidelines in Chapter154.121, et seq, of the Texas FamilyCode are aptly named. TFC § 154.121reads: “The child support guidelines inthis subchapter are intended to guidethe court in determining an equitableamount of child support. (emphasisadded). Section 154.122(a) sets forththe rebuttable presumption that supportpayments established by the guidelinesare reasonable and in the child’s bestinterest, while Subsection (b) gives thecourt the discretion to determinewhether or not that amount of support isinappropriate or unjust under thecircumstances of each case.

Some of the factors the court willuse to determine the evidencenecessary to rebut the presumption of §154.122(a) are listed in § 154.123 asfollows:

“ ..... (a) The court may order periodic

child support payments in an amountother than that established by theguidelines if the evidence rebuts thepresumption that application of theguidelines is in the best interest of thechild and justifies a variance from theguidelines.

(b) In determining whether application ofthe guidelines would be unjust orinappropriate under the circumstances,the court shall consider evidence of allrelevant factors, including:

(1) the age and needs of the child;

(2) the ability of the parents to contributeto the support of the child;

(3) any financial resources available forthe support of the child;

(4) the amount of time of possession ofand access to a child;

(5) the amount of the obligee's netresources, including the earningpotential of the obligee if the actualincome of the obligee is significantly lessthan what the obligee could earnbecause the obligee is intentionallyunemployed or underemployed andincluding an increase or decrease in theincome of the obligee or income thatmay be attributed to the property andassets of the obligee;

(6) child care expenses incurred byeither party in order to maintain gainfulemployment;

(7) whether either party has themanaging conservatorship or actualphysical custody of another child;

(8) the amount of alimony or spousalmaintenance actually and currentlybeing paid or received by a party;

(9) the expenses for a son or daughterfor education beyond secondaryschool;

(10) whether the obligor or obligee hasan automobile, housing, or otherbenefits furnished by his or heremployer, another person, or abusiness entity;

(11) the amount of other deductionsfrom the wage or salary income andfrom other compensation for personalservices of the parties;

(12) provision for health care insuranceand payment of uninsured medicalexpenses;

(13) special or extraordinaryeducational, health care, or otherexpenses of the parties or of the child;

(14) the cost of travel in order toexercise possession of and access to achild;

(15) positive or negative cash flow fromany real and personal property andassets, including a business andinvestments;

(16) debts or debt service assumed byeither party; and

(17) any other reason consistent withthe best interest of the child, taking intoconsideration the circumstances of theparents.

Added by Acts 1995, 74th Leg., ch. 20,Sec. 1, eff. April 20, 1995.”

This list, though merely scratching the surface of this subject, serves as ourjumping-off point. Our journey in thispaper is to navigate the murky waters ofgreater than guidelines support, whereour ship is built on proven needs andcaptained by family law’s first mate, thebest interest of the child. Here is wherethe fun begins... Let your imaginationloose with factors such as privateschooling, tutoring, summer camps, tripsabroad, riding lessons, select soccerleagues, SAT and ACT prep courses, pre-college counseling, homecoming, prom,mums, limos and more! For this is thestuff of which proven needs are made. The basis of an award of above-guidelines support, the subject of thispaper. And there is no App for this......

II. Obtaining Above GuidelinesSupport When Net Resources are

Below $8,550.00

Whose net resources would belower than a prison inmate’s? Why orhow could an incarcerated obligor beordered to pay child support above theguidelines?

A recently decided case out of theThird District Court of Appeals in Austinanswers these questions. In Norris v.Norris, 022713 TXCA3, 03-12-00108-CV,a Memorandum Opinion, the trial court’sorder increasing incarcerated Father’schild support obligation to an amount overthe guidelines was affirmed. The parents’agreed divorce decree required nomonthly child support payments at thetime of the divorce in August, 2006. Mother, who was appointed SMC of theparties’ one child, was earning

approximately $100,000.00 per year,while Dad was eking out about $7.00per hour in a restaurant. Mom movedto modify when she lost her job 3 yearslater, after she sold practically all of herassets, including her house, car andpossessions, to make ends meet. Shesubsequently moved herself and thechild in with her Mom, and went back toschool to obtain a degree. At the timeof the hearing, Mom, a full-timestudent, was unemployed, and Dadwas in jail. During the 3 years betweenthe divorce decree and modification,Dad’s mother passed away, leavingDad to inherit between $500,000 and$750,000 which had previously beenheld in a trust that he owned with hisnow deceased mom. When Momtestified as to Dad’s inheritance, and anAmeritrade account in the amount of$500,000 that Dad possessed, incarcerated Dad did not appear, nordid his attorney call witnesses orpresent any evidence to controvertMom’s testimony on those items. Thetrial court found application of theguidelines would be inappropriate andnot in the child’s best interest. Thecourt further found that Dad’s netresources were $3,300.00 per month,and ordered him to pay child support of$885.00 per month, as well as arrearsand attorney’s fees. The courtdetermined the father’s net resourcesbased upon federal minimum wageguidelines for a 40 hour work weeksince no evidence of income waspresented by him. The factors thecourt considered in setting Dad’s childsupport and varying from the guidelinesincluded the small amount of time thatthe father actually had possession of

the child, the mother’s evidence at trial ofthe $2,475.00 per month she attributed tothe child’s expenses, and increasedfinancial needs of the child, includingacademic fees for college entranceexams.

The opinion states:

“In the absence of evidence of wage andsalary income, courts must presume thatthe party has wages or salary equal to thefederal minimum wage for a forty-hourweek. Id. § 154.068 (West 2008); Monroyv. Monroy, No. 03-10-00275-CV, 2011 WL3890401, at *5 (Tex. App.—Austin Aug.31, 2011, pet. denied) (mem. op.).Incarceration alone does not rebut theminimum-wage presumption, and there isno legal presumption that an inmate hasno assets. Monroy, 2011 WL 3890401, at*5 (citing In re M.M.,980 S.W.2d 699, 700-01 (Tex. App.—San Antonio 1998, nopet.)). Courts consider these resources,then deduct certain expenses todetermine the net monthly resourcesavailable. See Tex. Fam. Code Ann. §§154.061-.062 (West 2008 & Supp. 2012).Next, the courts apply an assignedpercentage—here, 20%—to the first $7,500 of those net monthly resources. Seeid. (West Supp. 2012).

The family code allows courts to deviatefrom the guidelines in situations where itsapplication would be "unjust" or"inappropriate" under the circumstances.See id. § 154.122(b). In determiningwhether application of the guidelineswould be unjust and inappropriate, courtsmust consider several issues, including"any financial resources available for thesupport of the child, " as well as the

"amount of the obligee's net resourcesincluding the earning potential of theobligee if the actual income of theobligee is significantly less than whatthe obligee could earn because theobligee is intentionally unemployed orunderemployed and including anincrease or decrease in the income ofthe obligee or income that may beattributed to the property or assets ofthe obligee . . . ." Id. § 154.123(b)(West 2008). The court may alsoconsider "any other reason consistentwith the best interest of the child, takinginto consideration the circumstances ofthe parties." Id. § 154.123(b)(17). If atrial court determines that application ofthe guidelines is not appropriate, thecourt must include in its order modifyingchild support certain statutorily requiredfindings. See id. § 154.130(b) (WestSupp. 2012). id.

The Court’s findings upon whichits award of $885.00 per month wasbased was its application of thestatutory 20% to Dad’s $3,300.00 ofmonthly net resources ($660.00), plus20% of the minimum wage guidelinessupport ($225.00), which it determinedhim to be capable of earning.

The standard of review withwhich the appellate courts view childsupport cases is from an abuse ofdiscretion standpoint. A trial court hasbroad discretion in setting or modifyingchild support payments. In re A.M.W.,313 S.W. 3d 887, 890 (Tex. App.-Dallas 2010, no pet.)

The test for abuse of discretion iswhether the court acted withoutreference to any guiding rules and

principles. Worford v. Stamper, 801S.W.2d 108, 109 (Tex. 1990). Statedanother way, a trial court abuses itsdiscretion when it acts in an arbitrary orunreasonable manner. Downer v.Aquamarine Operators, Inc., 701 S.W.2d238, 242 (Tex. 1985). An abuse ofdiscretion does not occur merely becausea trial court may decide a matter within itsdiscretionary authority in a differentmanner than an appellate court in asimilar circumstance. Id. A trial court’smodification order is reversed only when itappears from the record as a whole thatthe trial court abused its discretion.Gillespie v. Gillespie, 644 S.W.2d 449,451 (Tex. 1982). When there is someevidence of a substantive and probativecharacter to support the trial court’sdecision, no abuse of discretion occurs. Inre B.A.W., 311 S.W.3d 544, 550 (Tex.App.–El Paso 2009, no pet.).

There is much room for creativelawyering within the bounds of thisstandard of review. The practitionerneeds to delve into the everyday“uncommon” needs of each particularchild and present those needs to theJudge in a memorable fashion. The clientcan help you with exhibits such as charts,diaries, calendars, photos, videos andmore. Remember that your Judge isprobably a parent as well and had tospend the same money for lessons,camps, special occasion clothing, sportsuniforms, band instruments, braces,contact lenses, birthday parties, etc., adinfinitum, as did your client. Do not beafraid to test the boundaries and swim inthe deep end of the pool!

The Court’s authority to orderretroactive child support above the

guidelines was addressed in In reB.C.C., 110205 TXCA4, 04-05-00220,November 5, 2005, a MemorandumOpinion out of the Fourth District Courtof Appeals in San Antonio. In thatcase, the Office of the Attorney Generalwas establishing paternity of a childwho, at the time of the hearing, was anadult. Although alleged Father assertedthe OAG had no standing under TexasFamily Code § 160.602, the suit hadbeen filed in April, 2001, at which timethe Code did not limit the prosecution ofparentage cases to the adult child only.The Court found the OAG had standingunder the laws in effect at that time.See Tex. Fam. Code Ann. §§102.003(a)(5-6), 102.007,231.101(a)(2) (Vernon 2002).

Mother testified at the paternityhearing in which Father did not appear. She told the Court what she knew ofFather’s employment status at the timeof the child’s birth, and thereafter, factsshe had discovered throughconversations with Father and otherpeople who knew him, although he haddisappeared from her life shortly afterthe child’s birth. Her testimony as toFather’s alleged construction company,his hobbies, including fly-fishing,mountain-biking, cross-country skiingand tinkering on an “old Land Cruiser”convinced the Court that Father couldearn in excess of the federal minimumwage at the time, which was set at$5.15 per hour. The B.C.C. Courtstated:

“ . . . In the absence of evidenceregarding the obligor’s resources, “thecourt shall presume that the party haswages or salary equal to the federal

minimum wage for a 40-hour week.” Id. §154.068. The court next must determinethe percentage of net resources, basedon the number of children before the courtthat the non-custodial parent would payunder the guidelines, and then considerwhether any additional factors wouldjustify varying from the guidelines. In reM.M.,980 S.W.2d 699, 700 (Tex.App.—San Antonio 1998, no pet.); seeTex. Fam. Code Ann. §§ 154.123,154.125.

The Mother also testified that itcost her approximately $10,000.00 peryear to raise the child, and an additional$16,000.00 in medical expenses over the18 years of the child’s minority.

The Court properly applied thefederal minium wage guidelines tocalculate Father’s child support obligationat $178.53 per month. Since Father hadoffered no support of any kind to Motherfor 18 years, his retroactive child supportfor that period would equal $38,562.48. However, the amount of retroactivesupport the Court actually awarded toMother was $70,000.00.

The opinion continues, “A court“may order periodic child supportpayments in an amount other than thatestablished by the guidelines if theevidence rebuts the presumption thatapplication of the guidelines is in the bestinterest of the child and justifies avariance from the guidelines.” See id. §154.123(a). Section 154.123 lists a varietyof factors the court may consider indetermining whether application of theguidelines would be unjust orinappropriate under the circumstances.See id. § 154.123(b). Here, the court

heard testimony that Guzman spent$10,000 per year to raise B.C.C., andapproximately $16,000 in medicalexpenses; and she received no supportfrom Cahill. See id. § 154.123(b)(1),(12). Both Guzman and B.C.C. attestedto Cahill’s ability to work in theconstruction industry. See id.§154.123(b)(5). This evidence issufficient to rebut the presumption thatapplication of the guidelines was inB.C.C.’s best interest and justified avariance from the guidelines.

While it would be the better practice forthe A.G. to present the trial court withsome evidence of financial resourcesrather than merely suggest a vaguerange on support, on this record wecannot say the trial court abused itsdiscretion in ordering Cahill to payretroactive child support in the amountof $70,000.” See id.

Clearly, had the pro se litigantFather appeared and controvertedMother’s testimony with evidence of hisactual income and earnings over thefirst 18 years of the child’s life, theresult would not have been so harsh. However, he began this phase of thelitigation by contesting not only theCourt’s jurisdiction over him, but a 10year old paternity test, which excluded99.97% of the population from thepossibility of being the child’s father. Probably not a good idea....especiallywhen you choose not to show for trial!

The Eighth District Court ofAppeals in El Paso affirmed a trialcourt’s decision to deviate from thestatutory guidelines for child support inLide v. Lide, 116 S.W.3d 147

(Tex.App.-El Paso 2003). In this case,Father was a veterinarian and Mother wasa homemaker, with a twist....she hadinherited some mineral interests thatgenerated oil royalties between $2,500.00and $5,000.00 per month, and sheoperated a horse-training business on theland surrounding the family home, whichincurred a loss each year. While thedivorce was pending, Father was in themidst of selling his veterinary practice forits fair market value of $450,000.00, buthe was able to postpone the sale untilafter the divorce. Apparently he had runinto some financial difficulties, because itcame to light during the litigation that hehad withdrawn some $80,000.00 from thechildren’s college accounts, which hadbeen funded by his wife and mother-in-law. (That was brilliant....no wonder theCourt named Mom sole managingconservator!)

The parties’ 4 children were activein all sorts of livestock events, includingbarrel racing, roping and goat tying,ribbon roping, cow catching and breakaway roping. The children made use ofthe horses that their mother trained intheir activities.

Father’s income was determinedby reviewing a few years’ tax returns, andthe trial court found that he earned anaverage monthly income for 1998 and1999 in the sum of $7,333.64. Hismonthly net resources per monthamounted to $4,754.80, an amount belowthe $6,000.00 net resource cap in effect atthe time the divorce was filed in July,2000. Calculating support for 4 childrenat 35% of net resources resulted in aguidelines amount of $1,664.18 eachmonth. The Court set the child support

obligation at $2,500.00 and stated asfollows: “....

The specific reasons for theamount of child support permonth ordered by the courtvaries from $1,664.18 per monthare:

(A) The ability of Henry tocontribute to support ofthe children.

(B) Financial resourcesavailable to Henry,including the pending saleof the University SmallAnimal Clinic.

© The amount of time ofpossession with thechildren by Deborah.

(D) The extracurricularactivities of the childrenincluding livestockactivities.

(E) The negative cashflow of Deborah in herhorse training and salebusiness.

(F) The needs of thechildren in living at theresidence in AndrewsCounty, Texas amountsto the sum of $4,977.24.

· It is in the best interest of thechildren to set the child supportobligation of Henry at the sum of$2,500 per month.

Henry does not complain of the trialcourt's finding that the net monthlyresources from his veterinary practicetotal $4,754.80. Instead, he challengesthe sufficiency of the evidence to supporta child support award which exceeds theguidelines. Although he addresses all ofthe factors articulated by the court injustifying an above-guideline award, hemostly focuses his attack on the needs ofthe children and the sale of his clinic.” Id,at 157.

Mother had prepared an exhibitlisting the expenses she incurred on amonthly basis in order to live on thefamily’s property with the children. However the exhibit was never admittedinto evidence, nor had Mother segregatedher living expenses from those of thechildren, as required, if one is establishingthe proven needs of the children. See, Nordstrom v. Nordstrom, 965 S.W.2d 575,579-80 (Tex.App.-Houston [1st Dist.]1997, pet. denied), cert. denied, 525 U.S.1142, 119 S.Ct. 1034, 143 L.Ed.2d 42(1999); Clark v. Jamison, 874 S.W.2d312, 316 (Tex.App.-Houston [14th Dist.]1994, no writ); In re Marriage of Edwards,804 S.W.2d 653, 656 (Tex.App.-Amarillo1991, no writ).

However, the Court’s decision wasbased upon the factors listed above, sinceFather’s net resources were below$6,000.00 and testimony of the children’sproven needs was not necessary todeviate from the statutory guidelines inthis case.

Again, when obligor’s netresources do not exceed $7,500.00, Texas Family Code § 154.121 states thatthe Court is to use the guidelines as a

guide in determining an equitableamount of child support. The trialcourt’s use of percentage guidelinesunder the child support statutes isdiscretionary, not mandatory. Escue v.Escue, 810 S.W.2d 845, 848(Tex.App.-Texarkana 1991). The childsupport guidelines create a rebuttablepresumption that an order enteredpursuant to the guidelines is correctand is in the best interest of the child.MacCallum v. MacCallum, 801 S.W.2d579 (Tex.App.-Corpus Christie 1990)Reh. O. See § 14.055, predecessor to§ 154.122(a).

III. A Word About § 154.125(a-1) and(a-2)......The Year of the Change

All this talk about net resourcesabove and below $7,500.00 will seemdated less than a month after thisseminar. The initial adjustmentrequired in § 154.125(a-1) takes effecton September 1, 2013. On this date,the maximum amount of net resourcesapplicable to the guidelines for childsupport will be raised to $8,550.00. This section will apply to cases filed onor after September 1, 2013, but no laterthan on September 1, 2014.

The text of the statute follows:“APPLICATION OF GUIDELINES TONET RESOURCES

(a) The guidelines for the support of achild in this section are specificallydesigned to apply to situations in whichthe obligor's monthly net resources arenot greater than $7,500 or the adjusted

amount determined under Subsection(a-1), whichever is greater.

(a-1) The dollar amount prescribed bySubsection (a) is adjusted every six yearsas necessary to reflect inflation. The TitleIV-D agency shall compute the adjustedamount, to take effect beginningSeptember 1 of the year of theadjustment, based on the percentagechange during the preceding six-yearperiod in the consumer price index, asrounded to the nearest $50 increment.The Title IV-D agency shall publish theadjusted amount in the Texas Registerbefore September 1 of the year in whichthe adjustment takes effect. For purposesof this subsection, "consumer price index"has the meaning assigned by Section341.201, Finance Code.

(a-2) The initial adjustment required bySubsection (a-1) shall take effectSeptember 1, 2013.

(b) If the obligor's monthly net resourcesare not greater than the amount providedby Subsection (a), the court shallpresumptively apply the followingschedule in rendering the child supportorder:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NETRESOURCES OF THE OBLIGOR

1 child 20% of Obligor's Net Resources

2 children 25% of Obligor's NetResources

3 children 30% of Obligor's NetResources

4 children 35% of Obligor's NetResources

5 children 40% of Obligor's NetResources

6+ children Not less than the amountfor 5 children

Added by Acts 1995, 74th Leg., ch. 20,Sec. 1, eff. April 20, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. “

For cases filed between thosedates, a high wage earner’s motnhlychild support obligation will be$1,710.00 for one child; $2,137.50 fortwo children before the court, etc.. Thismay create some impetus for filing priorto September 1 if you representst

someone whose gross monthly incomeis $11,828.80 and above!

This mandated adjustment willmake it that much more difficult toobtain an award of above guidlelinessupport for obligors who earn above thenew cap, although a difference of$210.00 per month does not seem tobe much, it might make the differencein some cases.

IV. Obtaining Above GuidelinesSupport When Net Resources

Exceed $7,500.00

Texas Family Code § 154.126entitled “Application of Guidelines toAdditional Net Resources” states asfollows:(a) If the obligor's net resources exceedthe amount provided by Section154.125(a), (think $8,550.00 as ofSeptember 1, 2013), the court shallpresumptively apply the percentageguidelines to the portion of the obligor's

net resources that does not exceed thatamount. Without further reference to thepercentage recommended by theseguidelines, the court may order additionalamounts of child support as appropriate,depending on the income of the partiesand the proven needs of the child.(Emphasis added)

(b) The proper calculation of a childsupport order that exceeds thepresumptive amount established for theportion of the obligor's net resourcesprovided by Section 154.125(a) requiresthat the entire amount of the presumptiveaward be subtracted from the proven totalneeds of the child. After the presumptiveaward is subtracted, the court shallallocate between the parties theresponsibility to meet the additional needsof the child according to thecircumstances of the parties. However, inno event may the obligor be required topay more child support than the greater ofthe presumptive amount or the amountequal to 100 percent of the proven needsof the child.” (Emphasis added)Added by Acts 1995, 74th Leg., ch. 20,Sec. 1, eff. April 20, 1995.Amended by:Acts 2007, 80th Leg., R.S., Ch., Sec. 3,eff. September 1, 2007.

The two-pronged test which is thebasis of an above guidelines awardaccording to § 154.126 is comprised ofthe income of the parties (both obligor andobligee) and the proven needs of thechild.

Evidence of the parties’ income willsatisfy the first prong of the test. We haveseen in case law that both active and

passive forms of income areconsidered, but there must be someevidence of income above the cap todefeat a charge of abuse of discretionor challenge of legal and factualsufficiency. In Panozzo v. Panozzo,904 S.W.2d 780 (Tex.App.-CorpusChristi 1995), Father’s writ of error wassustained on those grounds. The trialcourt had ordered him to pay$10,000.00 per month to support theparties’ 2 children, based uponMother’s testimony at a default hearingon their divorce. Father had ignoredseveral discovery requests for incomeinformation, although there wasevidence presented of his being“financially well off” with “considerableresources available to him” (emphasissupplied), there was no actual evidenceof his net monthly resources.

The Appellate Court held: “ Thecourt clearly violated the provisions ofthe Family Code in setting child supportat $10,000 per month for two children.The court was obviously frustrated byits dealings with Husband who ignoredthe court's orders, but we cannot allowthe court's legitimate frustration toresult in orders not sustainable underthe Family Code. The completeabsence of evidence to support thecourt's decision to award supportsubstantially in excess of the guidelinesconstitutes error on the face of therecord and an abuse of discretion bythe trial court.” Panozzo, at 785.

In the absence of evidence ofincome, but with some understandingof Father’s financial picture gleanedfrom his ability to extensively travel the

world, and in consideration of thechildren’s best interest, the Court refusedto apply the Federal minimum wageguidelines, but instead remanded thecase to the trial court for a new trial onchild support and other issues.

The second prong of the TFC §154.126 test is: What constitutes provenneeds? We must consider these needson a case by case basis, as each child’sproven needs are as individual as thechild herself. Case law has shown us thatneeds are not limited to the barenecessities of life, i.e, food, clothing andshelter. See, Rodriguez v. Rodriguez,860S.W.2d 414 (Tex. 1993). TheRodriguez Court provided the followingexplanation: “

We therefore conclude that "needs of thechild" includes more than the barenecessities of life, but is not determinedby the parents' ability to pay or thelifestyle of the family. In determining theneeds of the child, we direct courts tocontinue to follow the paramount guidingprinciple: the best interest of the child.”Id., Note 3.

The best interest of the childdetermines the child’s needs .....thatopens the door for all sorts of ideas...some of which we have included inAppendix “1”, a proposed demonstrativeaid for the court which can be customizedto suit each child’s needs for your use attrial. (And admitted as a summary of yourclient’s testimony) Again, this exhibit islimited only by your imagination and thefacts of your case.

The San Antonio Court of Appealsaffirmed the trial court’s award of above

guidelines support in the divorce ofhusband and wife physicians in Zajac v.Penkava, 924 S.W.2d 405 (Tex.App.-San Antonio 1996).

The Wife presented an exhibitlisting both current and anticipatedfuture needs and expenses for thefamily as well as each separate child. There were 3 children, and the Wifecalculated that the children’s expensescomprised 75% of the common familyexpenses, which resulted in totalmonthly expenses for the children ofover $8,300.00. The listed expensesincluded vacation, travel, Christmas,birthdays, music lessons, other extra-curricular activities and the children’sNanny, since the Wife did work part-time. The children also attendedprivate school, which Wife felt was intheir best interest, while Husbandargued it was a luxury, but one hegladly provided for them. Although heoffered no rebuttal evidence as to thechildren’s needs, the Husbandappealed the trial judge’s award of$3,000.00 per month in child support asan abuse of discretion, as well as thelack of requested findings of fact whichhe argued were required by the statutein effect at the time, § 14.057 of theTexas Family Code. That section hasbeen superceded by current § 154.130,which reads:

Ҥ 154.130. FINDINGS IN CHILDSUPPORT ORDER. (a) Without regardto Rules 296 through 299, Texas Rulesof Civil Procedure, in rendering anorder of child support, the court shallmake the findings required bySubsection (b) if: (1) a party files awritten request with the court not later

than 10 days after the date of the hearing;(2) a party makes an oral request in opencourt during the hearing; or (3) theamount of child support ordered by thecourt varies from the amount computed byapplying the percentage guidelines. (b) Iffindings are required by this section, thecourt shall state whether the application ofthe guidelines would be unjust orinappropriate and shall state the followingin the child support order: "(1) the monthlynet resources of the obligor per month are$______; "(2) the monthly net resourcesof the obligee per month are $______;"(3) the percentage applied to theobligor's net resources for child supportby the actual order rendered by the courtis ______%; "(4) the amount of childsupport if the percentage guidelines areapplied to the first $6,000 of the obligor'snet resources is $______; "(5) ifapplicable, the specific reasons that theamount of child support per monthordered by the court varies from theamount stated in Subdivision (4) are:______; and "(6) if applicable, the obligoris obligated to support children in morethan one household, and: "(A) the numberof children before the court is ______;"(B) the number of children not before thecourt residing in the same household withthe obligor is ______; and "© the numberof children not before the court for whomthe obligor is obligated by a court order topay support, without regard to whether theobligor is delinquent in child supportpayments, and who are not counted underParagraph (A) or (B) is ______." © Theapplication of the guidelines underSection 154.129 does not constitute avariance from the child support guidelinesrequiring specific findings by the courtunder this section. Added by Acts 1995,

74th Leg., ch. 20, § 1, eff. April 20,1995. Amended by Acts 2001, 77thLeg., ch. 1023, § 8, eff. Sept. 1, 2001.”

Dr. Zajac further challenged theinclusion of anticipated future expensesin the child support award, and arguedthat only the needs of the child at thetime of the order can be considered. The Court stated in its holding:

“The argument that only the needs ofthe child "at the time of the order" canbe considered is without merit. Thephrase "at the time of the order" wasomitted when amended by theLegislature. It is a rule of statutoryconstruction that every word of thestatute is used for a purpose, and everyword is excluded for a purpose.Cameron v. Terrell and Garrett,Inc.,618 S.W.2d 535, 540 (Tex.1981).We hold that estimates and projectionsof future expenses and needs of thechildren are as relevant and probativeas past and current expenses andneeds.

The supreme court said in Rodriguez,Supra, that "needs of the child"includes more than the bare necessitiesof life but is not to be determined by theparents' ability to pay or their lifestyle.Rodriguez, 860 S.W.2d at 417 n. 3.Further, the paramount guidingprinciple is the best interest of the child.Most of this language is still viable. Thereferences to ability to pay and lifestylewhich had been omitted in a priorrecodification have now beensuperseded by the Legislature in the1993 amendments. The trial court isnow affirmatively directed to considerthe income and circumstances of the

parties. We must assume the Legislatureintended exactly what it said.

In its findings, the trial court stated that itconsidered the net resources of the fatherand mother, other factors listed in theguidelines including the evidentiaryfactors in section 14.054 of the FamilyCode.

The father contends that the trial courtabused its discretion in considering theevidentiary factors in section 14.054. Heargues that these factors are not to beconsidered where the net resources of theobligor exceed $6,000 per month, againciting Rodriguez, 860 S.W.2d at 417(referring to original statutory amount of$4,000). Rodriguez does not so hold.Rodriguez authorizes the trial court toconsider the listed factors as they apply tothe first $6,000 of net resources evenwhen the total resources exceed $6,000.

Several of the evidentiary factors insection 14.054 are particularly relevantunder the facts in this case, i.e., the ageand needs of the children, child careexpenses so that a parent could maintaingainful employment, and specialeducational expenses of a child. It wasnot an abuse of discretion for the trialcourt to consider these factors.

In its first set of findings the trial courtstated that the child support order of$1,000 per month per child was based onthe needs of the children. In thesupplemental findings, the court statedwith more specificity that the additionalamounts of child support above thatbased on the guidelines, was allocated tothe father "to meet the additional needs ofthe children as proven by obligee." Finally,

the trial court found that the amount ofchild support set in the case was in thebest interest of the children. Thisfollows the paramount guiding principle.Rodriguez, 860 S.W.2d at 417 n. 3.

We conclude that the trial court did actpursuant to guiding rules and principlesand that there was sufficient evidencein the record to support his action. Noabuse of discretion has been shown.Points of error one through five areoverruled.

Under point of error six, the fathercontends that the trial court abused itsdiscretion by failing to follow therequirements of Section 14.055© forthe determination of child support. Weconclude from the argument in his briefthat his specific complaint is the failureof the trial court to file findings of thecalculations made under the provisionsof section 14.055©. There is nostatutory requirement that thecalculations be included in the findings.The only requirement is that, after thecalculations are made, the court shouldallocate between the parties, accordingto their circumstances, theresponsibility to meet the additionalneeds of the children, and the obligormay not be required to pay more than100 percent of the proven needs.” Zajac, at 409-410.

A variety of needs was approvedby the Corpus Christi Court of Appealsin Scott v. Younts, 926 S,W,2d 415(Tex.App.-Corpus Christi 1996), a casethat involved an absentee father withnet resources in excess of $25,000.00per month who challenged amodification of his child support from

$700.00 per month to $2,500.00. (I am ofthe opinion that the irony of setting hischild support at 1/10th of his net monthlyresource figure was not lost on theappellate court.) The child here was bornout of wedlock and Father did not supporther for her first 2 years of life, nor did itappear from the facts that he visited hermuch, if at all. In fact, the Mother’stestimony as to the child’s needs revolvedaround the child’s lack of self-esteem andthe child having been picked on at schooldue to her not “having a Father”.

At trial, the Mother presented thecourt with 2 lists of child-relatedexpenses. One list comprised her actualcurrent expenditures, and the second listwas made up of items she wanted thechild to have, but which she could notafford on her salary, which had diminishedsubstantially since the entry of the originalorder. The Court found that Mother had$900.00 in net monthly resources at thetime of the modification hearing.

Upon review, the Appellate Courtfound the following with regards to thechild’s needs:

12. The child has trouble adjusting to her“

circumstances without a visible father inher life and has been the victim of jokesand embarrassing comments. She needsextra support, care, and insulation fromembarrassment for her welfare.

14. The average monthly expense for thechild (after prorating of shared expensesfor the mother) of this suit incurred in thepast ... total $2,041.79.

15. The child needs the structure and self-esteem that a private school couldprovide. The school costs $250.00 per

month. She needs encyclopedias thatcost $75.00 monthly and has asked fora horse that costs $150.00 monthly.

16. The child needs counseling thatcosts $100.00 per month.

17. Tumbling and cheerleading lessonscost $200.00 monthly and have beenrequested by the child, but cannot bepaid for on current child support orincome of the mother.

18. Shirley Elaine Younts is a workingmother who plays the role of bothparents to the child. She has had ahousekeeper in the past but cannotafford one now. The housekeeper costs$500.00 per month; the child's share ofthis expense is $250.00 monthly.

19. Shirley Elaine Younts desires tosave $500.00 toward the college needsof the child.

23. The total needs of the child are$3,250.00

In addition to these findings, the courtmade the following "conclusions oflaw":

6. The fact that no visitation or contactwith the child has ever occurred is acompelling circumstance in this case. Itcreates a special and extraordinarycircumstance that makes privateschool, summer camp, counseling, aspecial pet, and private extracurricularlessons appropriate and necessary forthis child.

7. Other relevant factors in addition tothe resources of the parents are the

amount of visitation exercised herein andthe special needs of the child:

1) extraordinary educational expense ofprivate school;

2) counseling needed; and

3) summer camp for self-esteem.

We conclude that the court's findings inreference to the needs of the child areadequate to apprise the appellant of thebasis for its calculation of the total needsof the child. While not every finding andconclusion is worded in the same manner,the court nonetheless provided sufficientbasis to decipher those items which itfound to be needs, as the total cost of theitems listed in the findings exceed the$3,250 finding. Point four is overruled.” Scott v. Younts, at 424.

The court then apportioned thechild’s needs between the parents,according to their ability to contribute tothose needs based upon their incomes. Mother’s contribution was calculated at$700.00, and Father’s at $2,500.00. TheCourt held: “However, given the broaddiscretion allowed to courts to determinethe needs of the child, we cannotconclude that the court abused itsdiscretion in setting the support order at$2500. Clearly, the evidence on thecurrent expenses for the child amountedto $2067. See Thomas, 895 S.W.2d at897(Tex.App.-Waco 1995) (court modifiedsupport where movant introducedhousehold budget based on expenses forprior year as evidence of increasedneeds). Adding expenses for privateschool ($250 per month), extracurricularactivities ($200 per month), and summer

camp ($200 per month), the provenneeds of the child exceed $2700.Although these items are not barenecessities, we cannot say that theyare contrary to the best interests of thechild. The evidence supports a findingsof the child's proven needs of anamount between $2067 and $3166.

The court is allowed to allocate thesupport of the child between parentsbased on the circumstances of theparties. TEX. FAM.CODE ANN. §14.055©. Therefore, because $2,500 amonth is less than 100 percent of theproven needs of the child, and is withinthe calculations required by the Code,we cannot say that the court abused itsdiscretion. Thomas, 895 S.W.2d at 898.Appellant's first point is overruled.” Id,at 422.

As an aside, the Scott court didstop short of approving the Mother’srequest for a horse for the child, whichwould have cost an additional $150.00per month, when it made its finding thatthe child’s needs amounted to$3,250.00 each month. (The child didhave a poodle, after all)

V. PROVEN NEEDS FACTS

How much does it cost to raise achild? Appendix “2" illustrates what itcosts to support a 10 year old child by atwo-parent family with an income lessthan $59,790.00 living in Texas,according the U.S. Department ofAgriculture Center for Nutrition Policyand Promotion estimates. The figure of$11,163.00 annually (which is a little bit

less than the National average) translatesto $930.25 per month.

Unfortunately, our child supportguidelines would impose upon an obligorwho earns that amount to pay $780.66(exclusive of health insurance) in monthlychild support. It would appear that manyof our cases warrant a child supportaward above the guidelines, consideringthis data.

Although proven needs have notbeen defined by statute or case law, wedo know that they are not limited to the“bare necessities of life”. See, Rodriguezv. Rodriguez, at 417 n. 3 (Tex. 1993) Wealso know that the Court evaluates thoseneeds based upon the best interest of thechild, and that its order will not beoverturned on appeal absent a finding ofabuse of discretion.

VI. ALLOCATING PROVEN NEEDSBETWEEN THE PARENTS

The Waco Court of Appealsaffirmed an increase in obligor’s childsupport obligation from $1,250.00 to$3,000.00 per month for the parties’ fourchildren in Thomas v. Thomas, 895S.W.2d 895 (Tex.App.-Waco 1995) nopet.

In this case, obligor/Dad had netresources of more than $6,000.00 permonth, and obligee/Mom’s alimonypayments under the divorce decreeterminated, resulting in her filing a motionto modify to increase child support basedupon her change in circumstances. Thecourt found a material and substantialchange sufficient to warrant modification,and further found that the children’s needsamounted to more than $4,000.00 permonth. Mom’s testimony included

budgeted expenses for vacations forherself and the children, drinking water,department store charges, credit cardpayments and college application andpreparations for the parties’ son. Afterdeducting the drinking water,department store charges and otheritems that related to her own expenses,she admitted the children’s needswould be just in excess of $2,300.00per month. The court was moregenerous, finding the children’s needsto be $4,068.00 per month, andordered Dad to pay $3,000.00 of thatamount in child support. The courtcorrectly subtracted the presumptiveamount of support based upon Dad’sincome and his other child not beforethe court, correctly allocating to himless than 100% of the children’s provenneeds.

In a Memorandum Opinion fromthe Third District Court of Appeals inAustin, Dolan v. Martine, No. 03-03-00112-CV, a modification of childsupport paid by an obligor with netresources in excess of $14,000.00 permonth was affirmed. Obligor/Dad, anexecutive with Dell Corp at the time ofdivorce, agreed to pay $1,500.00 permonth plus 30% of any bonuses hereceived for the parties; 3 children in anagreed decree. After a suit forenforcement for his failure to paysupport based on some of the bonuseshe received, Mom filed a modification tochange the payments to a fixed amounteach month, thereby requesting anincrease in ordered support. Dadcountered for a decrease to pay childsupport in accordance with themaximum amount under the guidelines.

The court ordered that Dad pay monthlychild support in the amount of $4,000.00,and he appealed, arguing that there hadbeen no evidence of the children’s “actualneeds” to warrant such an increase.

The Court stated: “Although achild's "needs" do not includeextravagances, trial courts have broaddiscretion in deciding what constitutes anextravagance in each particular case. SeeIn re Grossnickle, 115 S.W.3d 238, 248(Tex. App.--Texarkana 2003, no pet). Trialcourts are accorded broad discretion indetermining whether a movant has metthe burden of proving the needs of thechild. McCain v. McCain, 980 S.W.2d 800,802 (Tex. App.--Fort Worth 1998, no pet.)”

After Mom testified concerning thechildren’s needs, including but not limitedto their share of the household expenses,tutors, prescription meds, counseling,school lunches, car, auto insurance, classring, physical therapy, orthodontia,eyeglasses, scientific calculator,gymnastics, flute lessons, birthdayparties, Girl Scouts, church activities,presents, school and sports pictures,dentists, lions, tigers and bears.... oh my!the Court found the children’s needs to beat least $6,500.00 per month.

After subtracting the presumptiveamount of support required by theguidelines in § 154.126 (b) of $1,642.80from the proven needs of $6,500.00, theCourt allocated the balance between theparents. Mom’s portion was $2,500.00and Dad’s was $2,357.50. That amountplus the presumptive amount totaled the$4,000.00 which was affirmed by theCourt of Appeals.

Mom’s meticulous record-keepingmade it easy for the Judge to renderhis ruling. The common thread in thesecases is the specificity and effort thecustodial parent puts into their trialexhibits. Most of these litigants haveoffered check registers, budgets anditemized statements of their children’sexpenses to prove their points. It iswell worth the effort, and the moredetailed your client can be, the easier itwill be for your Judge to award supportabove the guidelines to meet thechildren’s needs.

A more recent MemorandumOpinion from the Second District Courtof Appeals in Fort Worth, In Re T.A.W.,No. 02-09-309-CV, November 24, 2010addressed the court’s denial ofObligor/Dad’s motion to modify todecrease his child support paymentsfor the parties’ four children, which hadbeen set at $6,500.00 in the parties’agreed divorce decree.

Although Mom’s evidence of thechildren’s needs was specific as toeach child and to the children as awhole, she failed to properly segregatethe children’s household expenses fromthose of herself, her new husband andthe step-children that resided therepart-time. The trial court’s denial ofDad’s requested decrease wasreversed on appeal, due to that issue,the trial court’s improper allocation toDad of more than 100% of thechildren’s unmet proven needs, as wellas the court’s reliance on evidenceregarding Dad’s lifestyle, amisapplication of the law in effect.

VII. REQUIRED FINDINGS WHENDEVIATING FROM GUIDELINES

As previously stated, Texas FamilyCode § 154,130 requires that the courtshall make child support findings if theamount of child support ordered by thecourt varies from the amount computed byapplying the percentage guidelines. TFC§ 154.130 (a)(3). The Texas SupremeCourt, in Tenery v. Tenery, 923 S.W.S2d29 (Tex. 1996) states that these findingsare mandatory when the trial court usesfactors other than net resources indetermining the amount of child support. It is reversible error for a court to fail tomake requested findings with respect tothe net resources of the parents, theamount of support according to theguidelines, and the reasons for theamount of the court’s support order. See,Hanna v. Hanna, 813 S.W.S3d 626(Tex.App.-Houston [1 Dist.] 1991, writst

denied); Chamberlain v. Chamberlain,788 S.W. 2d 455 (Tex.App.-Houston [1st

Dist.] 1990, writ denied).

However, the mandated findingsrequired by § 154.130 only apply to thosecases wherein the percentage guidelinesare applicable, so that when supportabove the guidelines is ordered in caseswhere the obligor’s net resources areabove the cap, there is no suchrequirement. See, Yarbrough v.Yarbrough,151 S.W.3d 687, (Tex.App.-Waco 2004, no pet.).

VIII. MODIFICATION ABOVEGUIDELINES

In Scott v. Younts, supra, theCorpus Christi Court of Appeals held that,The Family Code permits courts to modifychild support orders whenever there has

been a material and substantial changein the circumstances of the child, or aperson affected by a support order, andthe modification is in the best interestsof the child. TEX. FAM.CODE ANN. §§14.08 & 14.056(a).

In determining whether amaterial and substantial change incircumstances warrants a modification,courts may refer to the child supportguidelines listed elsewhere in the Code.Id. § 14.056. The Code also specificallyprevents courts from consideringcertain things as grounds formodification: namely, any increase inneeds, standard of living or lifestyle ofobligee, any history of voluntarilyprovided support, and net resources ofnew spouses. Id. § 14.056(a),(b) & ©.

The "guidelines" referred to in § 14.056instruct the courts to consider variousfactors when ordering child support,based in part on the net resources andabilities of the parties, as well as theneeds of the child. Id. §§ 14.052(b) &14.054. A court may deviate from theguidelines when their application wouldbe inappropriate or unjust under thecircumstances. Id. § 14.055(a).”

The Court of Appeals of Texas,Fourteenth District, Houston, in Rumscheidt v. Rumscheidt, 362S.W.3d 661 (Tex.App.-Houston [14Dist.] 2011) in affirming the trial court’sdenial of Obligor’s motion to modifychild support, stated: “The TexasFamily Code provides that the trialcourt may modify a child-support orderif the movant shows (1) that thecircumstances of a child or a personaffected by the order has materially and

substantially changed since the earlier of:(a) the date of the order's rendition; or (b)the date the settlement agreement onwhich the order is based was signed; or(2) three years have elapsed since theorder was rendered or last modified, andthe child support award differs by eithertwenty percent or $100 from the amountthat would be awarded in accordance withthe child support guidelines. See Tex.Fam.Code. § 156.401; Hardin v. Hardin,161 S.W.3d 14, 20-21 (Tex.App.-Houston[14th Dist.] 2004), judgm't vacated, op.not withdrawn, No. 14-03-00342-CV, 2005WL 310076 (Tex.App.-Houston [14thDist.] Feb. 10, 2005, no pet.) (mem. op.).

The best interest of the child is always thetrial court's primary consideration indetermining questions of child support.See Tex. Fam.Code § 156.402; McLanev. McLane, 263 S.W.3d 358, 362(Tex.App.-Houston [1st Dist.] 2008, pet.denied). In determining whether amodification in child-support payments isappropriate, the trial court should examinethe circumstances of the child and parentsat the time the decree was rendered, inrelation to the circumstances existing atthe time modification is sought. Holley v.Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

To determine whether there has beenmaterial or substantial change ofcircumstances warranting a modificationof an existing child-support order, the trialcourt may consider the child-supportguidelines. Tex. Fam.Code § 156.402(a).The court may also consider " otherrelevant evidence in addition to the factorslisted in the guidelines." Id. § 156.402(b).Thus, a court's consideration of the child-

support guidelines in a modificationproceeding is discretionary, notmandatory. See Friermood v.Friermood, 25 S.W.3d 758, 760(Tex.App.-Houston [14th Dist.] 2000, nopet.).

The requesting party's financial abilityto pay child support does not dependsolely on current earnings, but extendsto all sources that might be available.Clark v. Jamison, 874 S.W.2d 312, 317(Tex.App.-Houston [14th Dist.] 1994, nowrit); McLane, 263 S.W.3d at 362; seealso Tex. Fam.Code § 154.062(providing that in calculating netresources for purposes of determiningchild-support liability, the court maylook to all wage and salary income andall other income actually beingreceived, including gifts and prizes).The burden is on the requesting partyto show the requisite change incircumstances. In re D.S., 76 S.W.3d at520; Clark, 874 S.W.2d at 317.

We hope this paper hashighlighted and illustrated the factorsnecessary to obtain or defend againstan award of above guidelines childsupport. A hypothetical fact scenario,with the enlightening results of ourJudicial Survey, follows.

IX. JUDICIAL SURVEY

A modification of child supportover guidelines is an area of law forwhich case law is very scarce. Thisabsence of case law makes it difficult topredict the outcomes and effectivelyadvise clients.

The following fact scenarioinvolving a modification of child supportabove guidelines was sent to Judges inTexas to obtain their thoughts andrationales:

Fact Scenario for Modification ofChild Support Above Guidelines

The parties divorced in 2009. Atthe time of the divorce Husband was asuccessful investment banker who hadearned between $1,800,000 and$2,200,000 a year for the past five years. Wife had been a successfulpharmaceutical salesperson but becamea stay at home mom after the childrenwere born. Before the divorce wasfinalized, Wife went back to work part timeand was a making about $400,000 a yearin a sales position. Wife receivedsubstantial assets in the divorce,contractual alimony of $5000 per monthfor ten years. The parties were namedJMC’s, Wife had primary possession withHusband having possession pursuant toan expanded standard possession order. Husband agreed to pay child support forthe two children in the amount of $7000per month.

In 2013, Husband files a motion toreduce his child support on the basis thatsince the divorce he had remarried, had totwo more children with his new wife andthat Wife does not need that amount ofchild support. Husband says that he feltguilty about his affair and agreed to morechild support than was necessary out ofguilt and now regretted it. NeitherHusband’s nor Wife’s income haschanged substantially since the divorce. Wife argues that she agreed to the termsof the divorce based in part on the amount

of child support, Husband can easilyafford to pay it and that if Husband’sfamily needs more money new wife cango to work. Wife believes that the realissue is that Husband and new wife arebuilding a house and that new wife isbehind the request for the reduction ofchild support.

The Judges were asked toanswer the following questionspertaining to the fact scenario:

Survey

1. Is your Court a specializedfamily law Court?

___ Yes

___ No

2. Would you grant Husband areduction of child support in thefact scenario above?

___ Yes

___ No

3. If you answered “Yes” toQuestion 2, what amount of childsupport would you Order?

$______ per month

4. If you answered “Yes” toQuestion 2, what is the primarybasis for your ruling?

A. The two children from the new marriage needsupport

B. $7000 is too much childsupport in any case

C. Wife can’t show the sheneeds $7000 per month forchild support

D. Wife makes too muchmoney to receive $7000 amonth in child support

E. Other_________________________

5. If you answered “No” to Question2, what is the primary basis foryour ruling?

A. No material and substantialchange of circumstances

B. No evidence that Husbandcan’t afford to pay $7000 permonth and he makes too muchmoney to reduce

C. Wife negotiated her divorcesettlement counting on $7000 permonth in child support.

6. If you answered “No” to Question2, what additional fact wouldpersuade you to reduce the $7000per month child support?

Over 140 Judges responded to thesurvey and the results will berevealed during the presentation.

X. CONCLUSION

The outcome of a modification forguideline child support clearly varies from

Court to Court. If a client desirescertainty, it is wise to settle their casesunless the Court’s views are wellknown. The difference could be tens ofthousands of dollars per year for theparties.