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Ohio 8th District Appeal Court, Oct. 21, 2009 |
link press release
Mother asks Appeal Court, Reverse Child Support
So non-custodial Parent can Take Care of Children Too
These are the notes Mrs. Macfarlane had prepared for making her opening argumenent. The backgroung of this argument began in 2007, when she asked for a modication in child support. A magistrate decided she should pay what he thought was minimum allowable ($50). Her husband's attorney complained and the judge instead ordered that Mrs. Macfarlane's support should be increased from what it was in 2007. Mrs. Macfarlane is appealing that court decision.
1. Your Honors, It IS an abuse of discretion for the court to order me to pay the Appellee when my expenses consume virtually all of my income.
2. In McCauly (link), the appellant argued that the trial court abused its discretion in ordering support to be paid by the mother when her income was approximately one third the income of the father and the income of the mother was only sufficient to provide her with the bare necessities of life.
3. The tenth district decided, "in order to have an abuse of discretion, there must be a showing of a combination of circumstances where there is an inability to contribute even a nominal amount by the person out of custody, coupled with a showing that the person in custody has an ability to support without help."
4. In McCauly, mom had lost custody; originally a magistrate had ordered her to pay 20% of her income in child support; the trial court ordered her to pay 10% - and the appeals court ordered her to pay nothing.
5. In our case, the Appellee has an ability to support our boys without my help. He makes over four times what I make. On his expense affidavit he has enough extra income that he allots $2500 a month to pay his lawyer.
6. My income doesn't even cover my expenses. I don't have health insurance, my car has 175,000 miles on it and don't have money for a car payment. We have a clothing shortage and I rely on hand-me downs from others.
7. I regularly go further in debt. Is it in the best interest of children to drive one parent into poverty while the other parent lives in luxury? Doesn't it have a negative effect on the children?
8. The Appellee argues that disparity of income is already worked into the Child Support Schedule, and while it IS, as a simple percentage of the total income of both parents, the Schedule gives no credit to the non-custodial parent for money spent in maintaining the second home. The President of the Corporation that developed the Ohio Child Support Schedule explains that, "the Schedule is based on expenditures for children in intact households; and there is no assumption made concerning visitation costs." [...] "This does not imply that visitation costs should not be considered Ð only that it is difficult to do so in a simple and equitable way." The creators of the Support Schedule "understand a perception exists that the current guidelines are predicated on the assumption that visitation is exercised for 20 percent of the time." The creators of the Support Schedule "do not believe that this perception is correct."
9. If my husband had died, and I was supporting a house for four boys on my income, according to the child support schedule, I'd be spending about 35% of my income on expenditures for children, approximately $XX00 [omitted from website] (¤ 3119.021). I get NO credit for support I provide for our children in my home; AND if the court does not deviate from the simple Support Schedule and Guidelines, I'm being expected to pay child support twice. I pay to support our children in my home, plus I'm being ordered to pay for them in the Appelle's house.
10. That's why the Ohio legislature specified reasons for deviation from the Support Schedule: Extended parenting time, disparity of income, the relative financial resources of each parent, and the standard of living that the children would have enjoyed had the civil marriage continued.
11. This court should rule that: A) The judge abused her discretion when she overruled the magistrate's decision. B) The Magistrate properly determined the factual issues and appropriately applied the law, but in my other assignment of error, I ask whether the magistrate went far enough in deviating from the guidelines.
12. My next major question addresses a conflict in the statutes.
13. Is it definitively against public policy for the court to order the residential parent to pay the non-residential parent when there is a huge disparity of income?
a. 3119.07(A) specifies that that non-custodial parent shall pay child support
b. 3119.05(A)(1) says the court may order either or both parents to support the children
c. 3119.02 says the court shall calculate the obligor's support according to the schedule, worksheet, and any other provisions of section 3119.02-3119.24 ... as it determines to be in the best interest of the children.
d. 3119.23 lists all the reasons to deviate from the support schedules.
14. The later three statutes don't specify that the non-custodial parent must pay the custodial parent. As a matter of fact, in considering all the factors for deviation, it could be very reasonable to order the custodial to pay the non-custodial. 15. For example, Item L, is intended to provide for the children as much as possible the standard of living that they enjoyed prior to divorce. Doesn't that apply to both homes?
16. Item K, addresses the relative financial resources of both parents, such as a 38% salary increase in four years.
17. Item D, addresses extended parenting time and the costs associated with maintaining a home for the children - when the children are with mom most of their non-school days. (111 vs 76 need to provide for child care)
18. Item G, considers disparity of income, such as one parent making over four times more than the other (nearly $xx,000) [omitted from website].
19. While not controlling, the Pennsylvania Supreme court found that it was in the best interest of the children, reasonable, and just for the custodial parent to pay the non-custodial when there was a substantial disparity in incomes. Their reasoning was: a. The temptation for the well-off parent to buy the affection of the children, and the tendency of the children to favor the parent who provides them with a more attractive lifestyle are factors that do not serve the best interests of the children. (Colonna J-7-2003)
20. If the parent winning custody is always given child support, this gives that parent financial and emotional control over the children. This raises the concern that the children are being as pawns in divorce. 21. By giving the court the ability to order either parent to pay child support, the court can prevent the children from being used as pawns, and prevent post decree litigation.
22. Did the court error when it prevented me from asking questions regarding our voluntary adherence to ecclesiastic law.
23. The Appellee argues that these questions can't be raised because of the law-of-the-case doctrine. During the hearing, the magistrate prevented the direct examination of the Appellee because of the judicial doctrine "stare decisis" /stair ee dee SIE siss/
24. I recognize that the reviewing court in our 2005 appeal had ruled on particular issues of fact and law regarding religion. And I realize that IF I were preparing to raise the same particular issues of fact and law in the hearing, the law-of-the-case doctrine would apply. But I am not raising the same issues.
25. In the hearing the magistrate said he forbid my questions because there is a "separation of church and state". But the separation of church and state doesn't mean the civil court can never consider anything about religion.
26. The polity of the religion of the parties is relevant to the civil court. It is relevant whether the parties adhere to a hierarchical religion, and I could bring a catechism and a canon law and ask Appellee whether the religion described in these books is our religion.
27. Then I can show the court that there are ecclesiastical laws relevant to the questions in front of the court - the parties' obligations toward their children. Then we would have to look at who is the person to interpret this ecclesiastical law. It is our ecclesiastical system. It is either our bishop's responsibility to interpret our ecclesiastical law with and an administrative decree, or our diocese tribunal with a judicial decree.
28. The church authority applies the separation-of-spouses canon law to our family and issues a decree that includes findings for support.
29. The questions that I need to raise are first) Do we have a hierarchical church and, second) is there ecclesiastical law relevant to the question before the court. Once those facts are established, the civil court should defer to the ecclesiastic forum to apply the relevant canon laws.
30. Resolve the conflict of the statutes and determine if it is reasonable for the higher-income-earning custodial parent to pay support to the lower-income-earning non-custodial parent to better provide for the children's standard of living in the second household.
31. Rule that the judge abused her discretion when she overruled the magistrate's decision and remand to the lower court for a decision consistent with the appellate court ruling.
32. Find that the court erred when it prevented me from asking questions regarding our voluntary adherence to ecclesiastic law, and remand to the lower court for a retrial to address these issues and defer to the ecclesiastic forum to apply relevant canon laws.
33. Find in favor of the appellant's remaining errors.
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