There are a number of South Carolina family court opinions that are of narrow relevance but of significant importance when relevant. Such cases tend to have a holding on a very small issue but on an issue that recurs frequently. Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996) is one such case.

S.C. Code Regs. § 114-4720(H) (part of South Carolina’s child support regulations) reads, “The cost of day care the parent incurs due to employment or the search for employment, net of the federal income tax credit for such day care, is to be added to the basic obligation.” Aggressive custodial parents who attend college will often try to argue that child care costs incurred so that parent can attend college should be factored into child support pursuant to this subsection. Woodall explicitly rejects this argument, holding,“[b]ecause Wife was a full-time student, her child care costs were not ‘work related’.”

This holding of Woodall is narrow but any attorney defending a child support claim against a college-attending parent best know it.

Continuing a very recent pattern of appellate courts disregarding the family court’s credibility determinations, the December 31, 2019, Court of Appeals opinion in Bauckman v. McLeod reversed a family court finding of equitable estoppel.

In Bauckman, the parties reached a court-approved agreement in 2002 that Father would pay $399 per month in child support. In April 2008, Father began paying $240 per month and did not pay any child support for the summer months during which he had the child. In 2015, Father filed a complaint seeking to confirm he had no child support arrearage and to “increase” his child support to $399 per month. Mother counterclaimed for child support arrears, plus interest, and an increase in child support.

At trial, Father argued equitable estoppel as a defense to his child support arrearage, claiming he had reached an oral agreement in March 2008 with Mother to reduce his obligation, based upon his difficulty paying the court-ordered amount. The family court, noting that Mother had made no attempt to collect unpaid child support for a seven-year period, and finding Mother and her witness less credible on the issue of the alleged agreement, found equitable estoppel. However, rather than eliminating Father’s child support arrears, it reduced it from $17,430 to $14,310. Because it found equitable estoppel, it denied Mother’s request for judgment interest. It further found Mother had failed to demonstrate a substantial change of circumstances to support an increase in child support. Finally, it ordered Mother to pay child support some attorney’s fees. Mother appealed.

On appeal, the Court of Appeals reversed the finding of equitable estoppel. It noted, that S.C. Code § 63-17-310, holds that child support “modification is effective as to any installment accruing prior to filing and service of the action for modification.” While recognizing equitable estoppel as a defense to support arrears, the Court of Appeals also noted the doctrine is infrequently approved [that’s been my experience in both the family court and the Court of Appeals]. Where the family court found it noteworthy that Mother provided no written objection to the reduced child support, the Court of Appeals noted Father could produce no written evidence of the alleged agreement. It determined that Mother’s apparent acquiescence was insufficient evidence of an agreement. If further held that Father failed to demonstrate any detrimental change in position–a necessary factor in an equitable estoppel defense–based on this alleged agreement.

Because the Court of Appeals rejected Father’s equitable estoppel claim, it also reversed the award of attorney’s fees and granted Mother judgment interest.

The Court of Appeals affirmed the family court’s decision not to modify child support. It found that the parties’ remarriages and subsequent children were not bases to modify child support. It found that Mother had failed to prove Father’s income had increased or her income had deceased since 2002 [a reminder that financial declarations, or the lack thereof, remain vital to subsequent support litigation].

Equitable estoppel is hard to prove. Given the lack of evidence of detrimental reliance Father presented [or, at least, what the Court of Appeals alleges Father presented] I’m not surprised that the Court of Appeals reversed the family court’s finding. However, I remain surprised at how willing the appellate courts have recently been to disregard the family court’s credibility determinations. I never expected the de novo factual finding that Lewis and Stoney require would significantly invade such determinations. In 2019 they began doing so.

An issue more philosophical than legal is whether there should be a ceiling on alimony and (especially) child support awards. On one hand, alimony (and to some extent child support) is intended to allow the spouse or child to enjoy a similar lifestyle to a high-income spouse or parent. On the other hand, why should anyone be legally required to involuntarily support others in an ultra-lavish lifestyle? This concern is even more pronounced when it comes to children, who can end up spoiled if lavished too extravagantly.

South Carolina law hints, but doesn’t clearly state, that there is a ceiling on such support. On alimony, the case of McElveen v. McElveen, 332 S.C. 583, 506 S.E.2d 1 (Ct.App.1998), suggests there is a ceiling on alimony. In that case, the Court of Appeals reduced an alimony award from $11,000 to $7,500 per month with this rationale:

We recognize that Husband’s income is substantial and that his adultery brought about the dissolution of this marriage. Nevertheless, these facts do not alter our view that $11,000 per month constitutes an excessive award. It is inconceivable to this court that such an award would not deter Wife from ever seeking to improve her financial circumstances. After careful review of Wife’s financial declaration and monthly expenses, we hereby reduce Husband’s monthly alimony obligation from $11,000 per month to $7,500 per month, effective immediately.

This alimony reduction took place despite Wife having fibromyalgia and despite Husband having an annual income of $500,000. In reducing Wife’s alimony award, the Court of Appeals found the following expenses to be excessive: $1,105 per month for food and household supplies; $300 per month for laundry and cleaning; $900 per month for clothes; $960 per month for entertainment; $250 for child care; and $164 per month for pet expenses. For a household with a $500,000 annual income, I don’t see these expenses as outlandish but the Court of Appeals did.

Personally, while I don’t think alimony should be used to equalize income (unless the parties were married 40+ years and are both fully retired) I also don’t think there should be a ceiling on alimony. One would assume folks with ten figure net worths or nine figure annual incomes live much more lavishly than folks with “mere” eight figure net worths or seven figure annual incomes. To the extent that one believes anyone “deserves” alimony, the spouse of the former is probably entitled to greater alimony (although likely a smaller percentage of the supporting spouse’s income) than the spouse of the latter.

However McElveen suggests the Court of Appeals disagrees with me. I read McElveen as preventing alimony awards above $7,500 in 1998 dollars. Given the growth in per capita income since 1998, I assume it would approve alimony awards greater than $7,500 per month (an approximate equivalent is $15,000 per month in 2019 dollars). However, I occasionally see separation agreements in which a supporting spouse–represented by counsel–agreed to even greater alimony. Their counsel may not have read McElveen.

As for child support, per South Carolina Regulation 114-4710(A)(3), “[w]here the combined gross income [of the parties] is higher [than $360,000 per year], courts should determine child support awards on a case-by-case basis.” This regulation is silent on what factors the court should look at to determine high-income child support. Pre-guidelines cases indicated that, “In determining the proper amount of such awards a court should consider not only the needs of the children but also the ability of the father to pay and all other surrounding circumstances.” Lowe v. Lowe, 256 S.C. 243, 182 S.E.2d 75, 77 (1971). The child(ren)’s needs and a parent’s ability to pay seem a good starting point for determining high-income child support.

The issue then becomes, what does the child of an extremely high-income parent need and is there a ceiling on need? Some attorneys try to calculate high-income child support via extrapolation of the guidelines. I think that’s inappropriate. First, some states do authorize extrapolation and I assume South Carolina would have authorized it had it intended to. Second, the child support guidelines are curvilinear: that is, they slope more gently the higher the income. To use a linear extrapolation–which is the only extrapolation I’ve seen attorneys suggest–is to assume that there is no ceiling on child support and thus a child could have unlimited need. I don’t accept that.

While South Carolina has not adopted the oft cited “three pony rule,” that rule suggests there are limits to any child’s needs. The rule originated with In re Marriage of Patterson, 22 Kan. App.2d 522, 528, 920 P. 2d 450 (1996), which held “no child, no matter how wealthy the parents, needs to be provided more than three ponies.” I not only agree with that rule but find it too generous on child support–having yet to encounter the child who could not get by with a mere two ponies. But if the law believes that no child needs more than three ponies, there is a clear ceiling on child support.

Even if the supporting parent is a multi-billionaire, I cannot envision a South Carolina appellate court affirming a child support award of $1,000,000 (or even $100,000) a year. Ultimately, I think there should be a ceiling on child support but not on alimony. However, I believe South Carolina law suggests there is a ceiling on both.

The May 8, 2019 Court of Appeals opinion in Klein v. Barrett, 427 S.C. 74 828 S.E.2d 773 (Ct. App. 2019), finds the Court of Appeals affirming a very detailed and highly unusual custody arrangement.

Kline involved a custody modification brought by (Ex-)Wife. At the time of the parties’ 2010 divorce, (Ex-)Husband had primary custody of the children with Wife having liberal visitation and both parties having the right of first refusal. It was agreed that Wife would not have to pay child support while she pursued a degree to become a certified registered nurse anesthetist (CRNA).

Initially, the parties were able to effectively co-parent. Shortly after Wife finished her degree Husband asked her to begin paying child support. At that point communication between the parties broke down and Wife filed this modification action seeking custody and child support. After trial and motions to reconsider, the family court issued an order maintaining primary physical custody with Husband but giving Wife more visitation (in an extremely detailed schedule), providing each party legal custody of particular aspects of the children’s lives, and requiring Wife to pay child support, 2/3rds of the guardian ad litem’s fee, and $10,000 of Husband’s attorney’s fees. Wife appealed and the Court of Appeals affirmed.

The physical custody arrangement ordered by the family court and affirmed by the Court of Appeals ended the previous right of first refusal but gave Wife alternating weekend visitation, starting Thursday after school and continuing until the start of school on Monday. In weeks for which Wife has weekend visitation (visitation weeks), Wife additionally has after school visitation Monday through Wednesday until 7:00 p.m. During visitation weeks, the children eat dinner with Wife. Conversely, during non-visitation weeks, Wife has after school visitation Monday through Thursday until 6:00 p.m., and the children eat dinner with Husband.

The family court believed this arrangement was the best way to relieve conflict between the parties while serving the best interests of the children. Apparently the parties’ children (a daughter age 16 and a son age 11 at the time of trial) did not like going long periods of time without seeing either parent. Both children told the clinical psychologist, who was appointed by the court to conduct a comprehensive custody evaluation, that they wished to spend more time with Wife.

On appeal Wife argued that an alternating week custody arrangement was in the children’s best interests. The Court of Appeals disagreed, specifically finding that this case presented “exceptional circumstances” justifying joint custody:

In considering the physical placement arrangement challenged by Wife, we commend the family court’s efforts to serve the needs of all parties involved. We find the court properly weighed the preferences of the children and the recommendations of the experts and guardian ad litem. The court appropriately incorporated this input into the new custody framework. Specifically, the court addressed the children’s desire to spend more time at Wife’s home during the week by extending the visitation until 7:00 p.m. on certain evenings so as to increase quality time and allow for family meals with both parents. Additionally, the court expanded the duration of Wife’s weekend visitation.

 

Citations omitted.

Given that Wife was also seeking joint custody, it’s not surprising that the Court of Appeals affirmed a joint custody arrangement. What is surprising is how detailed the custody arrangement is and how the family court fashioned a schedule with so many transitions between parties that no longer got along. However given that the Court of Appeals found that the underlying conflict arose when Husband asked Wife to begin paying child support upon her completion of the CRNA program (as she had agreed to do in the parties’ divorce decree) and Wife responded by informing Husband she intended to seek custody, it is hard to lay the fault for this breakdown on Husband.

The Court of Appeals further affirmed the award of $15,000 in attorney’s fees to Husband. The Court noted that Wife’s annual income was $51,969.60 greater than Husband’s, that Husband’s attorney’s fees amounted to approximately forty-four percent of his gross annual income whereas Wife’s accrued fees were equivalent to around twenty-five percent of her gross income, and that Husband obtained beneficial results. It concluded that Wife was in a superior position to bear the cost of the fees.

In requiring Wife to pay 2/3rds of the guardian’s fees the Court of Appeals noted that the family court erred in applying the Glasscock factors and should instead have applied the factors from S.C. Code § 63-3-850(B). In layman’s terms, this means that successful results are not a factor in the award of guardian’s fees. However the Court of Appeals affirmed this unequal allocation of the guardian’s fees for the same reasons it affirmed the award of attorney’s fees to Husband.

Finally, the Court of Appeals affirmed the award of child support to Husband. Given the unusual visitation schedule, the family court employed Schedule C shared custody guidelines. On appeal, Wife asserted neither party should pay child support. However given Wife’s greater income, Husband’s retention of primary physical custody, and the agreement that Wife would begin paying child support once she completed her CRNA program, the Court of Appeals affirmed the award of child support (at trial, the family court did not award Husband any retroactive child support–something Husband should have appealed). The Court of Appeals also made Wife pay 100% of the daughter’s orthodontic expense because she informed Husband via email that she would do so.

It is unclear whether Kline portends a future in which South Carolina appellate courts approve creative and detailed joint custody arrangements. It could simply be that one cannot defeat a joint custody arrangement on appeal if one is seeking a result that moves the parties even closer to 50-50 physical custody.

Klein describes a situation all too familiar to family law practitioners: one parent upsets a stable domestic situation to further an unrealistic desire to avoid paying support (or to get more support). Wife was graced by the initial moratorium on her child support obligation. Had Husband demanded child support be set based upon her earning capacity at the time of their divorce Wife would have been ordered to pay it, even if this obligation hindered her ability to obtain the credential needed to obtain a higher paying job. Yet, once Husband attempted to obtain his benefit from this bargain, Wife’s litigation strategy enabled her to avoid paying child support for another 2+ years and insured their daughter’s teenage years were spent in custody litigation. Great job family court in rewarding this intransigence.

The long strange journey of the Stoney appeal took another step on August 29, 2018 when the Court of Appeals issued its remanded opinion in Stoney v. Stoney, 425 S.C. 47, 819 S.E.2d 201 (Ct. App. 2018). Told by the Supreme Court to review the case on a de novo standard of review, and then told by the Supreme Court to review evidentiary and procedural issues on an abuse of discretion standard, this fourth opinion in Stoney (the second from the Court of Appeals) mostly scrubs the July 2016 opinion of reference to an abuse of discretion standard and simply finds that the family court largely erred. My analysis of the July 2016 Court of Appeals opinion remains accurate.

Other than the changed standard of review (which was expected because the Supreme Court demanded it) there are three interesting changes from the July 2016 Court of Appeals opinion.

First, the Court of Appeals granted Wife a divorce on the ground of Husband’s adultery rather than remanding the ground for divorce to the family court.

Second it explained that one reason the family court erred in not reopening the case based upon Wife’s after discovered evidence is that the party (Husband) representing at trial that such evidence did not exist was an attorney:

It is difficult to determine how the family court reached its conclusion that Wife could have discovered the documents prior to trial because Husband, an attorney, testified that certain of these documents did not exist. See e.g., Chewning v. Ford Motor Co., 354 S.C. 72, 82, 579 S.E.2d 605, 610–11 (2003) (“Contrary to perjury by a witness or a party’s failure to disclose requested materials, conduct which constitutes intrinsic fraud, where an attorney—an officer of the court—suborns perjury or intentionally conceals documents, he or she effectively precludes the opposing party from having his day in court.”).

Finally the Court of Appeals explained why it was remanding the matter back for a complete new trial (something I do not recall the Court of Appeals ever doing in a family court appeal):

When an order from the family court fails to make specific findings of fact in support of the court’s decision, the appellate court may remand the matter to the family court but when the record is sufficient, the court may make its own findings of fact in accordance with the preponderance of the evidence.

Unfortunately, the record here simply does not provide the information necessary for this court to make its own findings as to Husband and Wife’s actual marital assets and debts, Husband’s true income, the BHBI income not properly distributed to Wife and Child (with respect to both marital income and in accordance with their percentage ownership interests), the income Husband diverted to fund his ongoing business ventures, any legitimate debts that may be owed Brother, and the extent to which Brother may or may not have an interest in certain marital properties. Because of the conduct of the trial, Wife did not have a full and fair opportunity to develop the record and present the necessary evidence on these issues. Thus, we are unable to simply correct any error found in our de novo review. Instead, we must reverse and remand for the family court to proceed in accordance with this opinion.

Citation omitted.

No doubt a Petition for a Writ of Certiorari from Husband (after the mandatory Petition for Rehearing) awaits.

With Wife achieving an overwhelming victory in the initial July 2016 Court of Appeals opinion (albeit, a victory that necessitated a complete new trial), and with the Supreme Court demanding the application of a less deferential standard of review by the Court of Appeals of the family court order, there was little way for Wife to win bigger (or do worse) in round two.  The Supreme Court clearly used the Stoney case as a method of forcing the Court of Appeals to stop applying an “abuse of discretion” standard in reviewing family court decisions regarding substantive issues.  However all it really did is delay Wife’s remanded trial by twenty-five months.

One of the many fundamental unfairnesses in South Carolina’s child support system is that a payor’s increased income almost universally leads to an increase in child support while any decrease in the payor’s income requires the payor to prove he or she (generally he) isn’t underemployed or didn’t suffer the decrease in income due to his own actions before he gets a decrease. Contrast Rogers v. Rogers, 343 S.C. 329, 540 S.E.2d 840 (2001), which held a 21% increase in a noncustodial parent’s income justified an upward adjustment to child support with Miller v. Miller, 299 S.C. 307, 310-11, 384 S.E.2d 718 (1989), which held “[a] downward modification of child support based upon a decrease in the noncustodial parent’s income is not warranted absent a strong showing the person seeking the change is no longer in a condition to make the support payments prescribed by an earlier Family Court order.”

Roy Stuckey’s Marital Litigation in South Carolina, 4th Ed., notes that “making ‘inability to pay’ a precondition for child support reduction is contrary to the conceptual foundation of the Child Support Guidelines which is that both parties should be responsible for providing child support in proportion to their incomes.” Id, at 680. He further notes this system “raises Equal Protection issues.” Id. The system creates a continued upward pressure on child support obligations that are one cause of the mass incarceration for civil contempt, a system that troubled the United States Supreme Court in Turner v. Rogers, 564 US 431 (2011).

The system become further unfair to noncustodial parents when they take second jobs to maintain their own lifestyle when face with a support obligation or an increased support obligation. South Carolina’s child support guidelines note that child support is premised on the idea that:

The Income Shares Model calculates child support as the share of each parent’s income which would have been spent on the children if the parents and children were living in the same household. The shares are based on the amount of money ordinarily spent on children by their families living in the United States and adjusted to South Carolina cost of living levels. This evidence indicates that individuals tend to spend money on their children in proportion to their income, and not solely on need.

Conceptually, this Income Shares Model accurately reflects how most parents link income and expenditures on children. As income goes up, expenditures go up. These expenditures tend to go up proportionally with income–as does child support (at least until incomes increase above middle-class).

However, in the midst of or after support litigation, non-custodial parents often take on second jobs as a method of paying their support obligation without diminishing their own lifestyle. The useful fiction that parents will use some portion of their income to support their children is a falsehood here. I’ve yet to see anyone take on a second job because they want to pay more child support. Yet, South Carolina family law treats this second-job income no differently than the primary job and will use the combined income to increase the support obligation. And, as noted above, a noncustodial parent who then cuts back on his or her second income will have a hard time getting a support reduction.

Second-job income that exists at the time of separation (in marital litigation) or the time of the initial support request is properly considered in setting child support as the fiction that part of this income was meant to support the child is justifiable. However a parent who wishes to quit a second job should be entitled to automatically have support adjusted so long as he or she is working a full-time first job. And a parent who takes on a second job after the support obligation is set shouldn’t have that income count towards child support. Adults should be able to better their financial circumstances through extra work without having ex-spouses or co-parents taking a chunk.

And now the counterargument from my esteemed colleague, Paul LeBarron, who is offering his personal opinion, and is not the official position of South Carolina’s Child Support Services Division.

Child support in South Carolina is calculated pursuant to the income-shares model, which is the prevalent model of child support determination in the United States. The model aims to approximate the support of a child in a household if both parents were still together in that household and providing for that child, with each parents’ share determined. In this basic fiction, it follows that as more monies come into the shared household the child is benefited proportionately.

The child does not have the ability to support itself, so it must depend on the parents who created the child. Each parent has the duty to provide for their children to their utmost ability. That utmost ability is reflected in a demonstrated capacity for earning. Absent unearned income, such as investments or royalties, this wage capacity defines the gross income utilized in calculating a child support obligation. A second, third, or fourth job increases this wage capacity. When one has a duty to support a child, that person cannot be allowed to choose not to support that child to the best of their ability. Although an individual can choose not to continue working several jobs, the standard of living of the child should not diminish due to those choices.

One of the anecdotal reasons to support this position is the other side of the equation. Many single mothers are forced to work a second job to make sure the children get their needs met. The expense is constant: food, clothes, housing, child care, school, activities. These mothers do not work for themselves, they work for the children. The other parent should do no less.

Society does not impose children on individuals. The individuals make the children through voluntary, consensual actions. While a child is living, the parent’s life should be devoted to providing for and nothing that child. The fact that the child is no longer in the constant care of one of the parents is immaterial, and therefore makes it selfish for such parent to believe that bettering his own standard of living should not also benefit the child’s through increased child support.

On the other hand, when an individual works in excess of sixty, seventy, or eighty hours per week, that level of activity may not be physically possible over an extended period of time. That argument goes to the Miller factor of ability, where a judge would need to determine whether a parent should be forced to continue working at that level for years to come. As each individual is unique, there is no cookie-cutter answer to that question, and should only be addressed on a case-by-case basis.

In the January 17, 2018, opinion in Scott v. Scott, 422 S.C. 154, 810 S.E.2d 439 (Ct. App. 2018), the Court of Appeals refused to apply lump sum social security disability auxiliary benefits to a pre-disability child support arrearage.

In Scott, Father had a child support arrearage when he became disabled. He petitioned for, and obtained, a temporary reduction in his child support obligation. Eventually he was found disabled and his child received approximately $6,500 in past due benefits and an ongoing monthly check of $543 as a result of Father’s disability. At trial, the family court increased Father’s child support obligation to $543 per month but indicated that the auxiliary benefit his child was receiving would satisfy this obligation. The family court refused to apply the past due benefits to any arrearage that had accumulated prior to his disability, requiring him to pay that arrearage at a rate of $75.00 per month. Father appealed.

He raised three issues on appeal. First he alleged that the family court erred in increasing his child support obligation given his disability. The Court of Appeals rejected that claim, noting:

According to the family court’s order, “the benefits that the [minor child] is receiving from Social Security are in lieu of [Scott’s] child support going forward.” Nothing in the family court’s order increases the amount of Scott’s child support obligation. Instead, the family court’s order indicates Scott was no longer required to pay his monthly child support obligation because the minor child was receiving monthly Social Security benefits greater than Scott’s child support obligation. Although the SSA deemed Scott disabled, he still has an obligation to support his child.

Next Father claimed that the lump sum benefits should have been applied to his pre-disability arrearage. Again the Court of Appeals rejected his claim:

Although South Carolina has clearly established that a parent should get credit for Social Security benefits paid to a minor child, the question of whether a child’s excess Social Security benefits should be credited against a parent’s arrearage is a question of first impression. We note many jurisdictions deem excess benefits a gratuity on behalf of the child. …

We agree with these jurisdictions and hold it is proper for the date of disability to be used for the purposes of establishing when Social Security benefits may be utilized as a substitute for income. Requiring a parent to pay pre-disability arrears merely puts the minor child in the financial position they would have been in if the parent paid the proper amount of support prior to becoming disabled. This rule properly focuses on the importance of meeting the current needs of children, thereby protecting their right to regular and uninterrupted support. … To hold otherwise would create an incentive for a non-custodial parent to withhold support payments in the hope or expectation that a future receipt of disability benefits by the child would later satisfy those obligations. Therefore, the family court properly credited Scott for the lump-sum payment when it dismissed all of his arrearage that accumulated after September 26, 2013—the date he was deemed disabled.

Citations omitted.

Finally Father argued that, when he was preparing for his appeal, he requested a complete file of his case from the clerk’s office but two documents were missing. The Court of Appeals refused to address this issue, finding it was not preserved for review and that Father was not aggrieved by any decision or order of the family court.

To the extent a child’s auxiliary disability benefits are greater than the disabled parent’s prior support obligation, there’s no reason child support should not go up. Further, given that lump sum benefits are intended to cover the period between the disability and the finding of the disability, there’s no justification for applying those benefits to a pre-disability arrearage. Scott seems a sensible decision.

It has always struck me as fundamentally unfair that student loan payments–especially interest on those payments–are not deductible from income for income tax purposes. Borrow $200,000 for business equipment and there’s no argument that the principal and interest on that loan is deductible from income. Borrow $200,000 to obtain a law degree (as many of my younger colleagues have) and it’s “too bad, so sad.” Yet, when it comes to advancing one’s earning capacity, most of the folks intelligent and driven enough to attend law school are much better off investing in their education than in business equipment.

The problem is particularly acute when it comes to student loans and child support. Often, for the purpose of setting child support, a parent has been “imputed” a higher income than they actually earn while attending college or graduate school because they are underemployed. Upon graduation they receive a substantial income boost from obtaining a degree. Yet the court doesn’t take into consideration the years support was set on an inflated “imputed” income and give them some break. Rather, the court will, if asked, immediately set child support on the new, higher, income. Further, a substantial portion of that parent’s new, higher, income will often be used to pay back student loans (often 20% or more of net income).

Due to income tax and withholding, a parent earning $5,000 a month but paying $1,000 a month in student loans has less net income than a parent earning $4,000 a month with no student loans. However the parent making the $5,000 a month with $1,000 a month in student loans will likely pay more child support (or receive less child support) than the parent earning $4,000 a month with no student loans.

Is there a remedy for this obvious injustice? Maybe. S.C. Code of Regulations R. 114-4710(B) begins, “Deviation from the guidelines should be the exception rather than the rule.” However it continues, “When the court deviates, it must make written findings that clearly state the nature and extent of the variation from the guidelines. These Child Support Guidelines do not take into account the economic impact of the following factors which can be possible reasons for deviation.” It then lists three factors that could potentially be“possible reasons for deviation” as it regards student loan debt:

1. Educational expenses for the child(ren) or the spouse (i.e., those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or related costs);
3. Consumer debts;
8. Monthly fixed payments imposed by court or operation of law;

I’ve been aware of this issue for well over a decade but never had to actually try it. Further, as this regulation invests a lot of discretion in a family court judge–whether to make student loans “the exception rather than the rule;” whether to grant what is only labeled a “possible reason[] for deviation”– any trial is only going to be the opinion of that one judge. Ultimately an appellate court will need to weigh in on this matter if we are going to have state-wide uniformity.

My opinion is that payments on any student loan debt incurred to obtain a degree that a parent is utilizing in his or her current employment should be deducted from income for the purpose of setting child support. However that is simply my opinion. Until the appellate courts are provided an opportunity to address this issue, there is no clear answer. Some intrepid family law attorney would be doing many of his or her colleagues (and a whole lot of other debt-ridden college graduates) a solid by litigating this issue at trial and, if not prevailing, taking it up on appeal.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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