What do I do now? All of the children are not exercising the same time-sharing schedule.

• Author: Levin, Norman D.
• Position: Florida

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, FS. [section] 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 FS. [section] 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 FS. [section] 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. ES. [section][section] 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. ES. [section] 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 u 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...