CHILD SUPPORT IN CASES OF SHARED CUSTODY

Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998), held that where parties equally share custody of their children, the child support formula under NRS Chapter 125B is to be applied to the income of each, with the richer parent to pay the other the difference between the two amounts. Wright did not clearly state what to do in cases where the income of one or both parents exceeds the statutory ceiling. If the ceiling applies, is that the number we use when determining the difference, or should we apply the statutory percentage to each party's gross monthly income, subtract the lesser from the greater, then apply the ceiling?

This question was answered by the Nevada Supreme Court in Wesley v. Foster, 119 Nev. Adv. Op. No. 11 (March 21, 2003). In Wesley , the mom appealed the district court's application of the statutory ceiling before performing the Wright calculation, arguing that in shared custody cases, the cap must be applied after the calculation. The Supreme Court agreed, holding that the "Wright offset should take place before, not after, application of the cap. This conclusion supports 'the general philosophy of NRS 125B.070, which is to make sure adequate monthly support is paid to our children.' " Wesley at __.

Citing Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989), the Supreme Court recognized that the fixed child-related expenses of each parent do not discernibly increase or decrease by the part-time presence or absence of the children from the household. "The sad reality that must be faced is that the desirable sharing of custody responsibilities by [another] custodian in joint custody situations has the inevitable result of increasing total child-related expenses.' Nonetheless, we must still attempt to maintain the comparable lifestyle of the child between the parents' households." Wesley at __.

Because there was a large disparity in the gross monthly incomes of the parties, mom earned $1,417.00 per month and dad earned $5,417.00, the Supreme Court held that the mom's "percentage of gross monthly income should first be subtracted from [the dad's] percentage of gross monthly income. Then, after this offset is made, the cap should be applied." Id.

It is interesting that the Supreme Court cites Barbagallo to support its ruling, yet ignores the actual holding and analysis of that case. In Barbagallo, the Supreme Court held that it could not devise a formula different than that of the child support statute. The Court reviewed the legislative history of the child support statute and found that the legislature had specifically rejected the proposition that "in cases of equal physical custody the parent with the higher income had to pay the other parent an amount equal to the difference between his or her statutory obligation and the obligation of the other parent . . . . The original bill makes it apparent that the legislature did consider dealing with this problem in a formalized manner and then decided against it." Id. at 548. ". . . accordingly, we do not see it as being appropriate for the courts to devise any kind of mathematically calculated reduction formula. Id. at 550.

In his dissent in Wright, Justice Springer took the majority to task for "unfairly and improvidently conjur[ing] out of thin air a new child support formula to be applied in cases of joint, equal custody. I say "thin air" because the court states no basis in law or reason for the carelessly-concocted, "split-the-difference" formula that is adopted here . . . ." Id at 1370.

. . . what is of the most concern to me now is the unfairness that will be suffered by virtually every joint custodian who has greater earning power than the other joint custodian. Once the word gets out that an excessive, judicially-imposed formula is going to be unexceptionably applied to the joint custodian with the greater income, I fear that it will deter parents from entering into joint custody arrangements. Id. at 1371.

I disfavor the court's enacting a percentage formula of this kind because to do so properly involves taking into account many difficult social issues and policy-setting functions, functions that can be suitably carried out only by the legislative branch of government. It is not the invasion of the legislative prerogative that disturbs me most about this case, however, it is the slipshod, by-guess-and-by-golly way that the court has gone about enacting a new child support formula. Id. at page 1370

Justice Springer has retired from the Supreme Court, so we do not have the benefit of his thoughts on Wesley's extension of Wright or on the Court's ongoing refusal to follow its own precedent (or to over-rule it or distinguish it, as the case may be).