The Domestic Relations Issue, 0321 ALBJ, Vol. 82 No. 2 Pg. 172 (June, 2021)

AuthorBy Stephanie M. Pollard
PositionVol. 82 2 Pg. 172


No. Vol. 82 No. 2 Pg. 172

Alabama Bar Lawyer

March, 2021

Coloring Outside the (Child Support Guide) Lines

By Stephanie M. Pollard

The one certainty we can all depend on in family law is that Rule 32 of the Alabama Rules of Judicial Administration establishes guidelines for calculating child support for combined family income of zero to $20,000 per month.1 It establishes a rebuttable presumption that "the amount of the order that would result from application of these guidelines is the correct amount of child support to be ordered."[2]

But what about the circumstances where our clients' incomes or custodial schedules do not fit so neatly inside the guidelines?

While Rule 32 contemplates reasons for deviation,[3] we have to look to case law for guidance on how to color outside the guidelines.

When Combined Monthly Gross Income Exceeds the Uppermost Limits of the Guidelines

Rule 32(C)(1) Ala. R.Jud. Admin, provides: "The court may use its discretion in determining child support in circumstances where combined adjusted gross income ... exceeds the uppermost levels of the schedule."4

The Alabama Court of Civil Appeals has held that when parties' combined adjusted gross income exceeds the uppermost levels of the schedule, "the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce and must reasonably relate to the obligor's ability to pay for those needs."5

The trial court is free to consider other factors in making its determination, but it must consider the two Dyas factors.6 Notably, this does not have to include consideration of the obligee parent's income.7

As counsel for the obligee parent (the one who is asking for money), it is imperative for you to have evidence and testimony to establish the reasonable and necessary needs of your client's children and to be able to relate those expenses to the lifestyle and standard of living the children enjoyed before the divorce.

You also need to be able to establish that the obligor parent is financially able to pay the child support obligation.8 For example, if you are representing one of the mothers of Mick Jagger's children,9 you could easily show that Mick (let's pretend that he and I are on a first-name basis) tours worldwide and earns millions of dollars each year to support his children.

If your client's child wasn't fathered by a rock superstar, this can be done through discovery of income, production of bank account records (do not forget apps such as Venmo, PayPal, and CashApp), and evidence of large purchases and lifestyle items.

On the other hand, if you are representing the obligor parent (the one who has to pay), it is your duty to prove the obligee parent did not meet the two-prong Dyas test, and to make a compelling argument that the obligor parent's income and ability to meet the children's needs should be considered in the calculation, or you can prove other ways the obligor is satisfying the children's needs outside of child support.

Just ensure that the expenses incurred by the obligor can be "clearly categorized as essential to basic child support"-the court of civil appeals has excluded payments for vehicle purchases, vehicle accessories, vehicle-registration fees, vehicle servicing, vehicle parts, automobile insurance, guns, a tree stand, skateboard parts, and monthly cellular-telephone payments from being credited to a parent's child support arrearage, citing the same as "nonessential 'extras.'"[10]

Shared (50/50) Custody Situations

Currently, the Schedule of Basic Child Support Obligations is premised on the assumption that the non-custodial parent will exercise "customary visitation rights, including summer visitation."11 But what a re "customary visitation rights, including summer visitation?"

Each circuit seems to have its own idea of a...

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