Archer v. Archer

1991 OK CIV APP 28, 813 P.2d 1059, 1991 Okla. Civ. App. LEXIS 43, 1991 WL 147853
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 2, 1991
Docket72157
StatusPublished
Cited by23 cases

This text of 1991 OK CIV APP 28 (Archer v. Archer) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Archer v. Archer, 1991 OK CIV APP 28, 813 P.2d 1059, 1991 Okla. Civ. App. LEXIS 43, 1991 WL 147853 (Okla. Ct. App. 1991).

Opinion

MEMORANDUM OPINION

ADAMS, Presiding Judge:

Both parties appeal in this divorce action. Husband claims the trial court should have *1060 based any award of child support in excess of the top amount in the Child Support Guidelines (Guidelines), 12 O.S.Supp.1988 §§ 1277.7 and 1277.8 (renumbered as 43 O.S.Supp.1989 §§ 118 and 119), solely on actual need. He argues the child support award is excessive because Wife demonstrated no extraordinary need. In her counter-appeal, Wife contends support alimony is too low, and the visitation ordered is an abuse of discretion.

The parties had been married eleven and one-half years when Husband filed for divorce, citing incompatibility. Husband is an osteopathic physician specializing in cardiovascular surgery. Husband was successful in his career, and the family lived in a large home with a pool. Wife worked as a registered nurse until after the birth of their first child, but has been out of the work force since 1978. Although focusing her primary attention on home and family, Wife also joined a medical auxiliary group to cultivate referral contacts for Husband’s practice.

Custody of the couple’s three minor children was awarded to Wife. In initially setting child support, the trial court found Husband’s high income was an “extraordinary circumstance” which excused Guidelines compliance, and ordered Husband to pay $900 per month per child. In denying Husband’s Motion for New Trial, the trial court noted it was awarding child support based on $10,000 per month income under the Guidelines table, plus an additional amount as it determined. The record contains no court-approved child support guideline worksheet.

Under the trial court decree, Wife received property valued at $74,986.04, including the marital homestead which is subject to an outstanding mortgage requiring monthly payments of approximately $1,800. She also received household furnishings, a van, two I.R.A. accounts, and a checking account. Alimony in lieu of property of $50,000 brought the value of her property award to $124,986.04. Wife also will receive a total of $121,500 support alimony, paid in decreasing increments ranging from $4,500 to $500 per month over four years.

Husband received a Porsche automobile, a Jaguar automobile, the assets of his medical practice, stock, various I.R.A. and other accounts, insurance policies, a checking account, and his pension fund. He was ordered to pay the note on the Porsche and a loan used to pay taxes. The net awarded him was $219,091.22.

From his employment, Husband received a monthly car allowance, salary, and bonuses. He also received compensation in the form of “forgiven” loans, which income could be realized when advantageous from a tax perspective. Although there was some dispute as to his monthly income, the trial court found it “substantially exceed[ed] the Ten Thousand Dollar ($10,000) monthly maximum contained on the child support guideline table_” In fact, Husband’s own evidence was that he earned over $18,500 monthly ($390,000 in 21 months).

Husband presented evidence tending to indicate Wife could earn $20,000 per year ($1,666 per month) working at a hospital. Wife testified she wished to specialize as a school nurse so her work schedule would be compatible with the childrens’ school hours, but that she needed extra college courses which would take one year to complete before she could qualify for a full time position with starting pay of $16,000 per year ($1350 per month). At the time of hearing she had earned a negligible amount working on a part-time, temporary basis as a school nurse.

HUSBAND’S APPEAL

Husband complains only of the level of child support. He contends $2,700 per month child support, when combined with support alimony and income which she could earn from investments and employment, exceeds the demonstrated needs for Wife and the children. He argues the Guidelines cap child support at the amount shown in the tables for $10,000 monthly income, and that support may exceed that amount only if there are exceptional needs by the children.

*1061 In adopting the Guidelines, our Legislature devised a scheme which took into account both the presumed needs of the children, and the parties’ ability to pay. For ordinary circumstances, the Guidelines first establish the amount of combined monthly support which both parents may be expected to provide the children, based upon their combined incomes. The level of that support increases with the number of children and the parents’ combined income. Rather than “capping” support at the $10,-000 level of combined monthly income, as argued by Husband, the Legislature determined combined support levels in households with such high parental income should be determined on case by case basis, with a minimum at the level required for $10,000 combined income.

Consistent with this approach of the Guidelines, a trial court, when confronted with high total parental income, must determine an appropriate combined support level in excess of the table amount based upon the circumstances of each case. In making that determination, it is appropriate to consider the overall scheme of the Guidelines. As noted previously, that scheme provides support for children based not only on need, but on the parents’ ability to pay. Pre-divorce standard of living has long been considered a factor in setting post-divorce support obligations. Ford v. Ford, 766 P.2d 950 (Okla.1988); Henderson v. Henderson, 764 P.2d 156 (Okla.1988); Stansberry v. Stansberry, 580 P.2d 147 (Okla.1978); Dowdell v. Dowdell, 463 P.2d 948 (Okla.1969); De Roin v. De Roin, 198 Okl. 430, 179 P.2d 685 (1947). Children of the marriage likewise have lifestyle needs.

The trial court should consider the childrens’ needs, and the parents’ ability to pay and prior standard of living. Sokol v. Sokol, 441 So.2d 682 (Fla.Dist.Ct.App.1983). A trial court may properly require the children to be maintained in the same style as before the parents’ divorce to the extent the parents may reasonably do so, Kincaide v. Kincaide, 444 So.2d 651 (La.Ct.App.1983), not just at a “bare bones” level. D’Onofrio v. D’Onofrio, 200 N.J.Super. 361, 491 A.2d 752 (Ct.App.Div.1985); Baham v. Baham, 456 So.2d 1032 (La.Ct. of App.1984). Where the noncustodial parent has an affluent lifestyle and access to resources, a trial court does not err when it allows the children to benefit from those resources even though the custodial parent also receives an incidental benefit. Hubner v. Hubner, 205 Cal.App.3d 660, 252 Cal.Rptr. 428 (1988).

Any other approach is tantamount to granting the noncustodial parent a “divorce” from the children, as well. Denying children the benefits which they have experienced from an affluent lifestyle simply because the resources to support that lifestyle are in the wallet or purse of the non-custodial parent not only penalizes the children, but places in the hand of the non-custodial parent a potent weapon in the war for affection which all too often follows marital dissolution.

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Cite This Page — Counsel Stack

Bluebook (online)
1991 OK CIV APP 28, 813 P.2d 1059, 1991 Okla. Civ. App. LEXIS 43, 1991 WL 147853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/archer-v-archer-oklacivapp-1991.