New husband used in child support calculation?


#1

Dear TR:

Greetings. So, after some research, reviewing the Moyer vs. Moyer case from 1996, I learned the following:

A step-parent can only be obligated to pay child support for a minor child when they act in loco parentis and when they have voluntarily assumed the obligation to support the child in writing, executed with the same formality as a separation agreement. Also, the step-parent cannot even be looked at for support until some findings are made by the court about both parents and their ability to support the child.

Therefore, no the income of current husband of ex-wife will not be taken into account for the child support calculations since you are already paying child support.

Now, all of your wife’s income - including bonus and investment income - get placed on her side of the child support calculation. I would also ask the court to consider the auto expenses as extraordinary circumstances if you are paying them in accordance with a separation agreement or court order. Best of luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#2

I’ve got a “real-life” story about how one Wake County judge views the stepparent’s income. Read on for the gory details!

Ex-wife and I have been in Wake County Domestic Court many times over the past few years. The subjects of our dispute are child custody and child support. A few months ago, a Wake County judge set permanent custody and child support of our child during a lengthy, bitter trial. Ex-wife was awarded primary physical and legal custody. I am the obligor parent. Or, viewed more cynically, I’m qualified to pay child support, but not fit to have a significant role in my child’s upbringing. Sorry, I digress…

Ex-wife worked for seven years (she is highly educated professional) before she decided to quit her job and relocate with our child to her new husband’s home in a “far away” part of NC. (Judge allowed our child’s relocation w/o first making any findings about effect of relocation on child’s welfare, but that’s a separate issue.) During ex-wife’s deposition, Ex testified that she is “fully supported” by her present husband (i.e. our child’s stepfather). At trial, she testified to the same. At trial, Ex’s present husband testified that he does not want her to work, that he fully supports her financially and provides for all of her material needs, and that he willingly provides Ex’s share of our child’s financial support.

Trial judge refused to allow me to determine Ex’s present husband’s income, either via discovery or direct examination. Judge refused to impute income to Ex, specifically finding that Ex had acted in “good faith” because Ex’s present husband was providing Ex’s share of our child’s financial support. I don’t quite see how judge could make this “finding” w/o also having evidence of Ex’s present husband’s financial situation. Oh well! NC trial courts are supposed to adhere to the “evidence --> findings --> conclusions --> ruling” chain at all times, unless the parties explicitly waive findings and/or conclusions or some unusual emergency situation presents itself. In Wake County Domestic Court, the rule appears to be, “I’m the judge, the evidence doesn’t matter, so I’ll make whatever d*** findings I want!”

The judge in my case did make a determination as to exactly what Ex’s financial support obligation is; i.e. according to NC statutes and case law, both custodial and non-custodial parents have to provide financial support to their children based on their ability to pay. Judge also found that Ex had exhausted her “separate estate.” However, since judge would not allow Ex’s present husband’s income to be determined, it is not possible to determine whether Ex is, in fact, meeting her financial obligation to our child. In fact, it is not possible to determine whether Ex is providing any financial support at all for our child. Can you say “Deadbeat Mom”?!!

On Child Support Worksheet A, line 3, the judge assigned 100% of the combined income to me. Judge gave Ex credit for some “work-related child care costs” (line 5a), despite the fact that Ex doesn’t work. Seems to me that one has to work in order to be eligible for work-related child care expenses. Am I missing something here?

Regarding health insurance, judge ordered that I am to provide health insurance for our child b/c I have comprehensive plan available at low cost (which, in fact, I do). But, judge also ruled that Ex has the “option” of leaving our child on her health insurance policy so that the two insurance companies can “coordinate benefits.” My health insurance plan covers pretty much everything, with very low deductibles and co-pays and good prescription drug coverage. This factoid seemed to be of no interest to the judge when judge awarded Ex a “large” credit on Child Support Worksheet A, line 5b, for our daughter’s health insurance premium. Another point of little interest to judge was the fact that Ex no longer qualifies for her group health insurance plan, b/c she no longer works. So, from Court’s perspective, our child is potentially covered under two different health insurance plans. It is highly unlikely - even if Ex chooses to fraudulently maintain coverage for our child on her plan - that Ex’s plan would provide any benefits at all, b/c my plan is the “primary” plan and covers just about everything. The Court’s “two health insurance plans” ruling in my case makes no sense whatsoever, and is of no benefit to our child. The 2003 Davis case (NC COA) states, “The trial court enjoys broad discretionary power in domestic law cases and has discretion in determining the proper amount of child support to award.” This “broad discretionary power” notwithstanding, it is clear to me that the illustrious trial Court abused its discretion in this matter.

There are many other NC appellate court cases which state that trial judge had “broad discretion” in matters of child custody and support. That discretion is not unlimited, however. Both parents have an obligation - legal and ethical - to support their child. The court needs to make a quantitative determination of the ability of both parents to provide support, and then rule accordingly. If the income of a stepparent has significant bearing on the ability of a parent to provide his or her fair share of child support, or enables the natural/biological parent to fulfill his/her financial obligation, then the stepparent’s income should, IMHO, certainly be considered.

Anyone seeking this elusive entity knows as “justice” in Wake County Domestic Court is likely to be disappointed. You will get a ruling - nothing more. Be prepared for the order to be sloppy and undisciplined, containing perhaps many “findings” which lack any supporting evidence. Judges are supposed to apply the law fairly, based on the facts of the case. If only this were so :frowning:.


#3

Did I read correctly in one of the forums that the income of the current husband of the ex-wife can be taken in account for the child support calculations? My one son 16yo lives with his mother who has full custody, I pay what is allowed through the NC Courts child enforcement dept. She felt the need to go through the Clerks Office, as she would not have to hire an attorney. I have never missed any visitation, never late with child support payments, supports all his insurance expenses: medical, dental and auto, and pay all expenses, I pay it all, she wants to take me back to court to see if I should pay her more, based on the three years since last calculations were done. What do I need to know about considering all the income of her house, ie: her husband, her bonus income, her investments etc.
Help, I’ll be broke soon!