CONSIDERATION OF A CHILDS INDEPENDENT INCOME AS A DEVIATION FACTOR UNDER THE GUIDELINES
Laura W. Morgan
Many states have built into the guidelines as a deviation factor consideration of a childs independent financial means. E.g., Alabama (assets and income of child); Alaska (income of child); District of Columbia (court may consider childs income); Florida (independent income of child); Illinois (financial resources of the child); Kentucky (independent financial resources of the child); Maine (financial resources of the child); Michigan (childs sources of income); Minnesota (financial resources of child); Mississippi (independent income of child); Montana (childrens earnings); Pennsylvania (other income in the household); South Carolina (income and assets of children); South Dakota (income contribution of third party); Virginia (independent financial resources of the child); Washington (income of child); Wisconsin (financial resources of the child). Cf. Arizona (income earned or money received by a child from sources other than child support shall not relieve a parent of the support obligation established by these guidelines.) Whether a childs earnings actually reduce the need for parental support will vary from case to case, and for this reason it is a deviation factor only.
The court is not automatically bound to deduct the entire amount of the childs income from the support obligation, but it must determine to what extent such income reasonably should be applied to reduce parental support. As a general rule, where a child has significant independent financial means, the court may consider this and deviate accordingly.
There is no reason why the parent of a child who is earning a substantial income should not have that income considered, because such income goes to the needs of the child. E.g., In re Marriage of Frazier, 205 Ill. App. 3d 621, 563 N.E.2d 1236 (1990); In re Marriage of Boehlje, 443 N.W.2d 81 (Iowa Ct. App. 1989); Rainwater v. Williams, 930 S.W.2d 405 (Ky. Ct. App. 1996) (trial court erred in not considering childs $13,000,000 personal injury settlement in deciding whether to deviate from guidelines); Mistler v. Mistler, 816 S.W.2d 241 (Mo. App. 1991) (childs substantial financial resources, comprising $108,000 annuity, should be considered in setting support); Frost v. Frost, 84 Ohio App. 3d 699, 618 N.E.2d 198 (1992) (court was required to consider $100,000 fund set up for benefit of child); Sherrill v. Sherrill, 831 S.W.2d 293 (Tenn. Ct. App. 1992) (childs financial resources to be considered include trust income where the trust was designated for support). But see S.L.J. v. R.J., 778 S.W.2d 239 (Mo. Ct. App. 1989) (childs receipt of interest income, even substantial amount, does not justify departure from guidelines); Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911 (1993) (even though child had $2,000 per month income that exceeded childs reasonable needs, this was not sufficient reason to deviate from the guidelines; a parent remains obligated to support a child where he can do so). See also Sanders v. Sanders, 902 P.2d 310 (Alaska 1995) (although not a guidelines case, because it considers the support of an adult disabled child, court held it was error not to consider income son would receive from one-half ownership of two valuable income-generating fishing permits).
Where a childs earnings are not significant, however, such earnings should generally not be considered. In re Marriage of Cropper, 895 P.2d 1158 (Colo. Ct. App. 1995); Buntje v. Buntje, 511 N.W.2d 479 (Minn. Ct. App. 1994) (while court can consider earnings of child, childs nominal income should not have a bearing on duty to support); Cohen v. Cohen, 258 N.J. Super. 24, 609 A.2d 57 (1992) (estate of minor should not be used if those responsible have sufficient funds to fulfill their support responsibilities); Alice C. v. Bernard G.C., 193 A.D.2d 97, 602 N.Y.S.2d 623 (1993) (court may consider childs resources, including childs personal injury settlement; child should not, however, be forced to diminish his own assets to supply basic needs such as shelter, food, and clothing); In re Marriage of Redler, 330 Or. 51, 996 P.2d 963 (2000) (two minor daughters income from paper routes would not justify deviation); Rinaldi v. Dumsick, 32 Va. App. 330, 528 S.E.2d 134 (2000) (childs SSI and wages from part-time employment would not be considered); In re Marriage of Trichak, 72 Wash. App. 21, 863 P.2d 585 (1993). But see In re Marriage of Beacham, 19 Kan. App. 2d 271, 867 P.2d 1071 (1994) (childs sources of income irrelevant to determination of support). Further, the childs income should be considered only to the extent that it is consistent and predictable, just like a parents income must be consistent and predictable. Sweeney v. Sweeney, 556 A.2d 660 (Me. 1989) (court abused its discretion in setting off fathers obligation to pay childs school expenses with income taxable to child, where such income was controlled by mothers parents). See also In re Marriage of Short, 155 Or. App. 5, 964 P.2d 1033 (1998) (childrens trust income would not be considered when it was never distributed).
The same rule has been applied to a childs account established under the Uniform Gifts to Minors Act. The custodian of a UGMA account may generally not use the funds in the account to reimburse himself or herself for expenditures that he or she is legally obligated to make from his or her own funds for the benefit of the minor child who is the beneficiary of the custodial account. Newman v. Newman, 123 Cal. App. 3d 618, 176 Cal. Rptr. 723 (1981); In re Marriage of Wolfert, 42 Colo. App. 433, 598 P.2d 524 (1979); Weisbaum v. Weisbaum, 2 Conn. App. 270, 477 A.2d 690 (1984); Cohen v. Cohen, 258 N.J. Super. 24, 609 A.2d 57 (App. Div. 1992); Gold v. Gold, 96 Misc. 2d 481, 409 N.Y.S.2d 114 (Sup. Ct. 1978); Sutliff v. Sutliff, 339 Pa. Super. 523, 489 A.2d 764 (1985), affd, 515 Pa. 393, 528 A.2d 1318 (1987); Erdman v. Erdman, 67 Wis. 2d 116, 226 N.W.2d 439 (1985).
A childs receipt of public assistance should also not be considered to offset a parents obligation of support. In re Marriage of Thornton, 802 P.2d 1194 (Colo. Ct. App. 1990) (SSI benefits cannot be credited against fathers obligation); Kyle v. Kyle, 582 N.E.2d 842 (Ind. Ct. App. 1991) (childs receipt of supplemental security income will not support deviation; the intent of SSI is to supplement support, not replace it); Matter of Marriage of Emerson, 18 Kan. App. 2d 277, 850 P.2d 942 (1993) (childs receipt of SSI benefits could not support deviation from guidelines); Hammett v. Woods, 602 So. 2d 825 (Miss. 1992) (childs receipt of SSI could not be considered in determining support); Monroe County ex rel. Hollar v. DeGraff, 178 A.D.2d 796, 578 N.Y.S.2d 736 (1991) (fact that mother and child lived in household with other children not sired by obligor and that all received AFDC benefits did not allow obligor a deviation downward). Contra Barker v. Hill, 949 S.W.2d 896 (Ky. Ct. App. 1997) (SSI received by child for his/her own disability may be considered independent financial resource of child, justifying deviation); In re Marriage of Trichak, 72 Wash. App. 21, 863 P.2d 585 (Ct. App. 1993) (court may deviate due to childs receipt of SSI). The reason for this general rule is simple: it would be incongruous to reduce an obligors child support payments due to the childs receipt of public assistance, where the child is receiving that very public assistance because of the obligors failure to pay an adequate amount of support. Arkansas Dept of Human Services v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).