September 2, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
I’ve often reminded readers that one of the chief reasons non-custodial parents are so far behind in their payments of child support is that the original orders were set to high. I’ve referred to publications by the federal Office of Child Support Enforcement that clearly ask state courts to start being more reasonable in the levels of support they set. The result of course is that, overwhelmingly, those abused by the system of child support are the poor.
But that’s all abstract. Here’s how that happens in practice.
It’s another case out of Nebraska and in fact the opinion comes to us from the very same Court of Appeals that twisted itself in knots to find that children living with a child sex abuser posed “no significant risk” to them.
Jason Sellers had three children with Stephanie Sellers. They divorced, she received primary custody and he was ordered to pay child support. That was true despite the fact that, at the time the order was entered, he was in jail and unable to pay anything.
But Jason got out of jail shortly thereafter and found a decent job paying $16.12 per hour. So, based on his increased income, Stephanie moved to increase his support payments. The trial court granted her motion and Jason appealed.
What could the problem be? After all, he’s earning more and his support obligation while he was in prison was only $96 per month. That’s hardly enough to support three kids, so surely he should pay more, right?
Well, it’s a bit more complicated than that.
Jason has married another woman and they have a one-year-old child together. She also has another child who lives with her and whom Jason supports. And she doesn’t work for pay. In short, Jason earns about $32,000 per year on which he is required to support himself, his wife and five children, four of whom are his.
So our original assumption that, because he now earns more than when he was in jail and thus should pay more, begins to look a bit shaky. But the facts get worse — much worse.
Jason has chronic diverticulitis that required him to undergo three separate surgical procedures in the first half of 2014 alone. Doctors have told him that he will continue to suffer and more surgeries will probably be needed, but of course they can’t say when.
Faced with those facts, the trial court ordered Jason to begin paying $712 per month and the appellate court found no fault with the judge’s calculations. But that wasn’t all.
The court also ordered Jason to continue to maintain health and medical insurance on the minor children through his employer if available to him at a reasonable cost and to pay 63 percent of any uninsured health or medical expenses for the minor children in excess of $480 per child per year.
The health insurance for the children costs Jason $135 per month above what his employer pays. Obviously, what medical costs the children incur in a given year is unknowable in advance, but suffice it to say that Jason will incur substantial costs for that as well.
So how did the court rationalize its decision? First, it ignored Jason’s stepson altogether. According to Nebraska law, the costs of raising stepchildren may not be used to decrease child support for other children. Apparently the state legislature simply assumed that any stepchild is being supported by its biological non-custodial parent. Of course it didn’t need to make such an assumption. It could have allowed courts to gather evidence on what non-custodial parents actually pay by way of support and simply adjusted orders for dads like Jason accordingly.
But that would have been the fair and sensible thing to do. Instead, family courts in Nebraska are required to pretend that children like Jason’s stepson invariably receive sufficient support from their non-custodial parents. In the Sellers case, there was no evidence that Jason’s stepson received a penny from anyone but Jason. Indeed,
Jason has been involved in his stepson’s life since his birth and is the only father this child has ever known.
That leads us to believe that in fact Jason is the boy’s only source of support. But the law permits no reduction in his support obligation to his other children even though his limited financial resources in fact go in part to his stepson.
Next, the court considered Jason’s earnings. Well, not exactly. In fact what the court did was consider only Jason’s earnings in 2013, despite the fact that the hearing was held on June 17, 2014. Why did it consider only his income from 2013 and not from the first five months of 2014? That’s a good question, but the result was to hugely overstate his income. That’s because in 2013, Jason was apparently in good health, while in 2014, his earnings were interrupted at least three times for his various surgeries.
So in fact, his income during 2014 bore little resemblance to that in 2013, but the same court that pretended that it takes Jason no money to support his stepson also pretended that he worked and earned the same in 2014 as he did in 2013. And of course it also pretended that he would continue to work and earn as he did in 2013, despite his testimony that doctors had told him he’d need future surgery.
That Jason would need future surgery the court called “speculative,” and in a sense it is. That’s because the court required Jason to hire a doctor and pay him/her to produce evidence to the court of Jason’s condition, the costs of his treatment, the likelihood of future treatment and how that would impact his future earnings.
The court never entertained the notion that a man who’s trying to support himself, five children and a wife on $32,000 per year and who’d just incurred over $13,000 in out of pocket medical expenses might not be able to also pony up the many thousands of dollars it would take to hire such an expert witness and produce such testimony. No, like its other pretenses, the court simply pretended that Jason could do so and penalized him for not following through.
Finally, the court came to grips with its most daunting problem — the fact that Jason’s current wife doesn’t work at paid employment. That fact meant that, if the trial court’s ruling were to stand, Jason and his wife and the two children who live with him would be plunged into abject poverty. That’s not only morally wrong, it contravenes Nebraska law that prohibits a child support order from reducing a non-custodial parent’s earnings below the federal poverty guidelines.
In Jason’s case, four people live in his household, so the guidelines require a net monthly income of $1,987 in order to exceed the poverty line. But, once all the child support and extras had been deducted, Jason’s net pay was only $1,351 per month.
So, how could the appellate court possibly save a child support order that so plainly violated Nebraska law and, in the process, condemned Jason, his wife and two live-in children to a life far below the poverty line? Stated another way, how could it impoverish two children for the purpose of supporting three others?
Simple. The appellate court took a lesson from the trial judge; it engaged in pretense. It pretended that Jason’s wife is actually working even though the uncontradicted evidence demonstrated that she’s not. It simply imputed income to her that she doesn’t earn. It decided that she actually earns $1,257 per month, or $1,061 net of taxes, and that imaginary money was sufficient for the court to pretend that Jason, his wife and two children would not in fact be thrown into poverty when in fact they would be. Of course imaginary funds can’t pay actual expenses, but never mind.
Now, you may think that’s outrageous, but not understand just how much so. Consider that appellate courts are almost invariably restricted in what they can decide by the facts produced at the trial level. Appellate judges can’t just supply facts of their own to suit themselves. It’s extremely common to see an appellate court referring to the trial record and saying in effect, “there’s no evidence, so we can’t make a ruling on such and such a point.”
Indeed, when it came to evidence of Jason’s medical problems, the appellate court did exactly that. Jason didn’t hire a doctor and produce evidence of his medical problems or what treatment he would need in the future, so the court refused to consider any medical expenses he might incur.
But when it came to imputing income to Jason’s wife, the appellate court had even less evidence of her ability to work and earn, but had no difficulty in providing non-existent facts to suit its purpose.
Apparently just to rub it in, the court had this to say a mere three sentences later:
An appellate brief generally may not expand the evidentiary record and should limit itself to arguments supported by the record.
Yes, when it might work on Jason’s behalf, evidence outside the record can’t be considered, but when it works against him, well, that’s another matter entirely.
And there we have it. A man and his family plunged into poverty by a court order that’s specifically prohibited by state law from doing so. This is public policy. Is it any wonder that child support orders aren’t being paid? Can we possibly be surprised that arrears keep building up and up year after year? Does anyone seriously believe that Jason Sellers can pay this? We know who’s being hurt — Jason, his wife and the two kids who live with him — but is anyone being served by this order?
The OCSE has been bemoaning this behavior for many years now. Jason Sellers’ case shows just what it’s been talking about.
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