In Re Lister: No credit on child support for SSI benefits received from child's disability

In May 2011, the New Hampshire Supreme Court issued its opinion In the Matter of Richard Lister and Marianne Lister.

The Facts

Father and mother have a disabled adult son who resides with mother. Doctors indicate that the son will always be dependent on others for care. Due to his disability, the son receives Supplemental Security Income (SSI) of about $450 per month (this amount is reduced from the maximum benefit of $674 due to child support that he receives and/or government housing payments). Pursuant to RSA 461-A:14, IV, the son, as a disabled adult, is entitled to child support.

In 2010, the mother filed for a modification of child support, and requested an increase in child support. The father, who did not dispute that his son was eligible for child support, requested a dollar for dollar credit on his child support payments, citing In the Matter of State & Taylor and In the Matter of Angley–Cook & Cook.

The trial court modified the father’s child support obligation, refusing the grant a dollar for dollar credit, and increased the amount of child support. The trial court distinguished the SSI benefits, pointing out that the son is the source of the benefits and not the father.

The Appeal 

The father appealed the trial court’s decision, arguing that State & Taylor and Angley-Cook & Cook are controlling, and require the trial court to grant him a dollar for dollar credit, regardless of whether the benefits derive from the child or the parent.

The Holding

The trial court did not err in refusing to grant a dollar for dollar deduction in child support from son’s SSI, because the SSI benefits derive from the child and not the father. The SSI payments replace some of what the son would have earned but for his disability, instead of replacing lost income of the father.

The Takeaway

While parents may receive a credit on child support when the child receives social security benefits derived from the parent, there is no deduction for benefits based on the child’s disabilities. The Supreme Court urges the trial court to consider that increases in child support can affect the child’s eligibility for SSI, as child support is considered in calculating entitlement and need.

Concord, we have a problem!

Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.  

Pending Legislation

 

The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.

  • HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.
  • HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.
  •  HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.

If you have comments or concerns about these bills, contact your legislature to make your voice heard. You can find the contact information for your representative or senator on the state website.  

 

Impeachment of Master Cross

 

For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."

 

Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration."  The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.

 

Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.

 

The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.

 

State Budget

 

Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.

 

Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.

In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.

 

The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.

 

I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.

 

Please write to Governor Lynch, and tell him how his proposed budget affects your family.

New Year, New Child Support Guidelines

On January 1, 2011, two pieces of legislation will go into effect modifying some aspects of the child support guidelines.

Allowable daycare expenses

 

The child support guidelines allow for a credit to a parent who pays daycare expenses that are “work-related”. Currently, allowable daycare expenses are capped at up to no more than an annual total of $5,000 for one child, $9,000 for 2 children, and $12,000 for 3 or more children. For one child, the cap translates to about $416 per month. HB 1993 expands the definition of “work-related” to include daycare required for a parent’s education and training. In addition, the new law will remove the cap on allowable expenses, allowing a parent to claim all work-related daycare in the guidelines calculations.

 

Self-support reserve

 

Child support orders require that the obligor be left with a self-support reserve, i.e. a sum of money that the obligor will have to support him or her before paying out child support. Currently, the self-support reserve is $903 per month. On January 1, 2010, HB 1216 increases the self-support reserve to $1,038 per month.

Shared parenting? No child support? Not so fast...

In New Hampshire, more and more parents share joint residential responsibility for children, sharing equally in the parenting time. Many people may assume that if parents share equally in the time with the children, then they will have equal expenses and therefore neither party would pay child support to the other. However, the general philosophy of the court system says not so fast. The law holds that equal parenting time in and of itself will not negate the obligation for child support. If two parents earn substantially different incomes, then the parent with the higher income is often ordered to pay child support to the other parent.

For example, John and Jane are divorcing. They have two children, and will share time with the children in a week on/week off schedule. John is a mechanic who earns $50,000 per year. Jane is a teacher’s aide, and earns $25,000 per year. The New Hampshire Child Support Guidelines, if John were the obligor (person paying the child support) would require child support in the amount of $1,051 per month. If Jane were the obligor, the guidelines would require her to pay $571 in child support per month. Often, a court will look at the difference between those to figures, in this case $480, and order the parent with the higher salary to pay that figure as child support to the other parent. Here, John’s child support liability is probably between $450 and $750 per month, depending on other factors like property division, debt, expenses for the children and alimony.

The statutory frame work for the child support guidelines, and adjustments to those guidelines, can be found at RSA 458-C. The court will consider the following specific factors in making an order for child support:

·         Whether, in cases of equal or approximately equal residential responsibility, the parties have agreed to the specific apportionment of variable expenses for the children, including but not limited to education, school supplies, day care, after school, vacation and summer care, extracurricular activities, clothing, health insurance costs and uninsured health costs, and other child-related expenses.

·         Whether the obligor parent has established that the equal or approximately equal residential responsibility will result in a reduction of any of the fixed costs of child rearing incurred by the obligee parent.

·         Whether the income of the lower earning parent enables that parent to meet the costs of child rearing in a similar or approximately equal style to that of the other parent.

If you are involved in a child support case, it is important to get the facts and information that you need for your case. Often, that means hiring an experienced and knowledgeable attorney to represent you in court. Please consider contacting Crusco Law Office, PLLC to explore your options for representation.

 

Are uninsured medical expenses and extracurricular activities included in child support guildelines?

Clients often ask about including in their parenting plan a provision requiring both parents to contribute to a child’s extracurricular activity expenses and uninsured medical expenses. These issues were brought before the New Hampshire Supreme Court In the Matter of Cheryl Anne Coderre and Paul A. Coderre on September 30, 2002. The father appealed an by the trial court that ordered him to pay for his children’s uninsured medical expenses and extracurricular activity expenses in addition to the child support ordered under the child support guidelines.

First, the Court determined that uninsured medical expenses are extraordinary expenses that are not included in child support guidelines. The Court looked at the statute regulating child support RSA 458-C and determined that the calculations under the guidelines are presumed to be correct but that the court may adjust the guidelines either upward or downward if it deems this deviation is warranted. More specifically looking at RSA 458-C:5, I(a) which states that the trial court “may deviate from the guideline support amount if it finds that a child will incur ongoing extraordinary medical expenses.” Therefore, the Court upheld the trial court’s order for payment of uninsured health insurance.

Additionally, the Court held that “extracurricular activity expenses are part of basic guidelines support” because they fall into the same category of such basic support as food, shelter and recreation. Because there is no language to the contrary in the guidelines the Court concluded that extracurricular activity expenses are included in the parties’ total support obligation. Therefore, the Court reversed the trial court’s decision on this matter.

In sum, a court has discretion to award uninsured medical expenses that are separate from the child support award determined by the guidelines. On the other hand, extracurricular activity expenses are considered to be included in the child support guidelines and may not be awarded separately.

Blog credit: Marisa L. Ulloa, Crusco Law Office Law Clerk