To catch a time-sharing deviation.

• Author: Kauffman, Ronald H.
• Position: Family Law

On November 16, 2011, Floridians woke up to find that their most popular child support deviation and adjustment was gone. This article investigates the missing deviation and adjustment, examines the rare jewel of the child support guidelines--the catch-all exception--and how the case was finally cracked.

Child Support

Calculating child support used to be entirely at the judge's discretion, based on a parent's ability to pay, and the child's needs. (1) Judicial discretion resulted in inconsistent awards, which contributed to delinquent payments. (2) To correct this, in 1984, Congress required all states to establish nonbinding child support guidelines, keeping some judicial discretion in case the guideline amounts proved unjust or inappropriate. (3)

Florida established F.S. [section]61.30, which follows the income shares model. (4) The guidelines are far from foolproof. (5) They are regressive, so poorer parents pay a larger share of income than wealthier parents. They impose a higher marginal rate on income earned by the poor, which penalizes earning extra money. (6) For high-income parents, the guidelines can award support far exceeding any child's needs. (7) Finally, Florida's guidelines have never been updated, so they are based on the cost of goods as they existed in the 1970s. (8)

Because of these problems, the guidelines expressly provide the amounts can be adjusted upward or downward. Section 61.30(1)(a) allows deviations by up to 5 percent after considering relevant factors. (9) Section 61.30(11)(a) authorizes deviations by more than 5 percent, pursuant to a list of 10 enumerated factors, and one equitable factor--the colloquial "catch-all" exception. (10) Finally, [section]61.30(11)(b) mandates use of a gross-up calculation of support for substantial time-sharing. (11)

Time-sharing

Florida policy is to see that children have frequent and continuing contact with both parents after they divorce or separate and that parents share in childrearing. (12) The guidelines historically frustrated this policy and, in fact, discouraged time-sharing. For example, they previously did not allow a child support adjustment for substantial time-sharing unless a parent spent at least 40 percent of the overnights with his or her children. (13)

Two households are being maintained for a child after divorce or separation. Parents exercising substantial time-sharing incur their own child rearing expenses when they time-share, and are duplicating payment for items already included in their child support. Without adjustments for substantial time-sharing, parents can be paying twice for a child's expense, making time-sharing prohibitively expensive. (14) Accordingly, in 2008, F.S. Ch. 61 was amended to expand the meaning of substantial time-sharing to include more timesharing arrangements. (15)

There is also an interrelationship between time-sharing and child support. (16) Parents who frequently time-share tend to pay child support and parents who do not frequently time-share tend not to. (17) In addition to greater compliance in paying support, parents who substantially time-share are also reducing the other parent's expenses. (18)

The Missing Time-sharing Deviation

In Dept. of Rev. ex rel. Sherman v. Daly, 74 So. 3d 165 (Fla. 1st DCA 2011), the Department of Revenue appealed a child support order because it contained a deviation for a verbal time-sharing schedule. (19) Florida has an administrative procedure for child support in which an administrative law judge (ALJ) calculates the amount. 20 An ALJ uses the same guidelines as a circuit court judge. (21) Daly involved an administrative proceeding. (22)

In Daly, both parents testified they shared a roughly 60/40 time-sharing schedule. However, they never put their agreement into writing or had it approved by a court. (23) Notwithstanding the lack of a court-ordered parenting plan, the ALJ authorized a deviation based on the time-sharing schedule the parents testified to. (24) The First District Court of Appeal reversed, holding Florida law prohibited the deviation.

The Daly panel noted that the statute requires a parenting plan and rejected the ALJ's time-sharing deviation because the parents' schedule was not "pursuant to a court authorized parenting plan." (25) The Daly court read [section]61.30 as requiring deviations only when a parent time-shares pursuant to a court-ordered parenting plan. (26) As no such court order existed in Daly, the deviation was not authorized.

Daly refused to apply the [section]61.30(11) (a)(11) catch-all exception. The catch-all exception authorizes a court to make "any other adjustment that is needed to achieve an equitable result." (27) The Daly panel narrowly interpreted the term "other" in the catchall section to mean "some grounds not already stated in the statute." (28)

The Daly panel also feared that extending the catch-all provision to include time-sharing without a court-ordered parenting plan would conflict with [section]61.30(11)(a)(10); the permissive deviation factor for under 20 percent of time-sharing. Daly reasoned that the legislature authorized timesharing deviations only when there was a court-ordered parenting plan. Allowing deviations without a court-ordered plan would directly conflict with [section]61.30(11)(a)(10).

There is a question about the scope of the catch-all exception. (29) Daly answers it by limiting its application to cases where a deviation factor is not "already stated in the statute." This narrow construction has the advantage of preventing the catch-all from becoming the exception that swallows the rule. (30) However, Daly marks a significant departure from the catchall provision's construction in earlier child support cases. Some may be left to wonder where the catch-all's construction went in the cases of Dept. of Rev. ex rel. Marshall v. Smith, 716 So. 2d 333 (Fla. 2d DCA 1998)...