In re Administrative Order Number 10

347 Ark. 1064, 2002 Ark. LEXIS 658

• Court: Supreme Court of Arkansas
• Decided: January 31, 2002
• Status: Published

Opinion

P ER CURIAM.

On February 5, 1990, this Court first adopted guidelines for child support in response to P.L. 100-485 and Ark. Code Ann. § 9-12-312(a). Effective October, 1989, P.L. 100-485 required the following: that all states adopt guidelines for setting child support; that it be a rebuttable presumption that the amount of support calculated from the child-support chart is correct; and that each state’s guidelines be reviewed and revised, as necessary, at least every four years. In response to the federal law, the Arkansas General Assembly enacted Ark. Code Ann. § 9-12-312, which included the federal provisions and authorized the Arkansas Supreme Court to develop guidelines based on recommendations submitted to the Court by a committee appointed by the Chief Justice.

The Committee on Child Support initially made recommendations to the Court which formed the substance of the 1990 Per Curiam Order. On May 13, 1991, pursuant to the Committee’s recommendations, the Court issued a new Per Curiam Order which supplemented the original. Then, in compliance with the four-year requirement of P.L. 100-485, the Committee submitted recommendations to the Court in October, 1993, and the Court issued a Per Curiam Order on October 23, 1993, adopting the guidelines which subsequently were published in the Court Rules volume of the Arkansas Code Annotated.

On September 25, 1997, again pursuant to the four-year requirement of P.L. 100-485, the Court issued a Per Curiam Order, adopting recommendations of the Child Support Committee. In addition, the Court adopted and published Administrative Order Number 10 — Arkansas Child Support Guidelines, effective October 1, 1997. The Administrative Order incorporated by reference the weekly and monthly family-support charts and the Affidavit of Financial Means. The Court republished Administrative Order Number 10 with a Per Curiam Order of January 22, 1998, making minor corrections to the child-support charts and to the Affidavit of Financial Means.

In the ensuing four years, the Committee has continued to study the existing guidelines, pursuant to federal and state law, and once again has submitted its recommendations to the Court. Having carefully considered these most recent recommendations, the Court adopts and publishes Administrative Order Number 10 — Arkansas Child Support Guidelines, effective February 11, 2002. This Administrative Order includes and incorporates by reference the revised weekly and monthly family-support charts and the revised Affidavit of Financial Means which are attached to Administrative Order No. 10.

The Court thanks the Committee for its service, and as it has done in the past, directs the Committee and the Chief Justice, as its liaison, to continue its charge pursuant to law and the rules of this Court.

Glaze and Corbin, JJ., dissent.

* * *

ADMINISTRATIVE ORDER NUMBER 10 — CHILD SUPPORT GUIDELINES

SECTION I. AUTHORITY AND SCOPE.

Pursuant to Act 948 of 1989, as amended, codified at Ark. Code Ann. § 9-12-312(a) and the Family Support Act of 1988, Pub. L. No. 100-485 (1988), the Court adopts and publishes Administrative Order Number 10 — Child Support Guidelines. This Administrative Order includes and incorporates by reference the attached weekly and monthly family-support charts and the attached Affidavit of Financial Means.

It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.

All orders granting or modifying child support (including agreed orders) shall contain the court’s determination of the payor’s income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart. If the order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under Section V hereinafter. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate.

SECTION II. DEFINITION OF INCOME.

Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:

1. Federal and state income tax;

2. Withholding for Social Security (FICA), Medicare, and railroad retirement;

3. Medical insurance paid for dependent children; and

4. Presently paid support for other dependents by court order.

SECTION III. CALCULATION OF SUPPORT.

a. Basic Considerations.

The most recent revision of the family support charts is based on the weekly and monthly income of the payor parent as defined in Section II.

For purposes of computing child support payments, a month consists of 4.334 weeks. Biweekly means a payor is paid once every two weeks or 26 times during a calendar year. Bimonthly means a payor is paid twice a month or 24 times during a calendar year.

Use the lower figure on the chart for income to determine support. Do not interpolate (i.e., use the $200.00 amount for all income pay between $200.00 and $210.00 per week.)

The amount paid to the Clerk of the Court or to the Arkansas Clearinghouse for administrative costs pursuant to Ark. Code Ann. § 9-12-312(e)(l)(A), § 9-10-109(b)(l)(A), and § 9-14-804(b) is not to be included as support.

b. Income Which Exceeds Chart.

When the payor’s income exceeds that shown on the chart, use the following percentages of the payor’s weekly or monthly income as defined in SECTION II to set and establish a sum certain dollar amount of support:

One dependent: 15%

Two dependents: 21%

Three dependents: 25%

Four dependents: 28%

Five dependents: 30%

Six dependents: 32%

c. Nonsalaried Payors.

For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient’s spouse and children on account of the payor’s disability. SSI benefits shall not be considered as income.

For Veteran’s Administration disability recipients, Workers’ Compensation disability recipients, and Unemployment Compensation recipients, the court shall consider those benefits as income.

For military personnel, see the latest military pay allocation chart and benefits. BAQ (quarters allowance) should be added to other income to reach total income. Military personnel are entitled to draw BAQ at a “with dependents” rate if they are providing support pursuant to a court order. However, there may be circumstances in which the payor is unable to draw BAQ or may draw BAQ only at the “without dependents” rate. Use the BAQ for which the payor is actually eligible. In some areas, military personnel receive a variable allowance. It may not be appropriate to include this allowance in calculation of income since it is awarded to offset living expenses which exceed those normally incurred.

For commission workers, support shall be calculated based on minimum draw plus additional commissions.

For self-employed payors, support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor’s income should include contributions made to retirement plans, alimony paid, and self-employed health insurance paid; this figure appears on line 22 of the current federal income tax form. Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.

d. Imputed Income.

If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.

e. Spousal Support.

The chart assumes that the custodian of dependent children is employed and is not a dependent. For the purposes of calculating temporary support only, a dependent custodian may be awarded 20% of the net take-home pay for his or her support in addition to any child support awarded. For final hearings, the court should consider all relevant factors, including the chart, in determining the amount of any spousal support to be paid.

f. Allocation of Dependents for Tax Purposes.

Allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the Court shall have the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.

g. Health Insurance.

In addition to the award of child support, the court order shall provide for the child’s health care needs, which normally would include health insurance if available to either parent at a reasonable cost.

SECTION IV. AFFIDAVIT OF FINANCIAL MEANS.

The Affidavit of Financial Means shall be used in all family support matters. The trial court shall require each party to complete and exchange the Affidavit of Financial Means prior to a hearing to establish or modify a support order.

SECTION V. DEVIATION CONSIDERATIONS.

a. Relevant Factors.

Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:

1. Food;

2. Shelter and utilities;

3. Clothing;

4. Medical expenses;

5. Educational expenses;

6. Dental expenses;

7. Child care (includes nursery, baby sitting, daycare or other expenses for supervision of children necessary for the custodial parent to work);

8. Accustomed standard of living;

9. Recreation;

10. Insurance;

11. Transportation expenses; and

12. Other income or assets available to support the child from whatever source.

b. Additional Factors.

Additional factors may warrant adjustments to the child support obligations and shall include:

1. The procurement and maintenance of life- insurance, health insurance, dental insurance for the children’s benefit;

2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g., orthopedic shoes, glasses, braces, etc.);

3. The creation or maintenance of a trust fund for the children;

4. The provision or payment of special education needs or expenses of the child;

5. The provision or payment of day care for a child;

6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements;

7. The support required and given by a payor for dependent children, even in the absence of a court order; and

8. Where the amount of child support indicated by the chart is less than the normal costs of child care, the court shall consider whether a deviation is appropriate.

SECTION VI. ABATEMENT OF SUPPORT DURING EXTENDED VISITATION.

The guidelines assume that the noncustodial parent will have visitation every other weekend and for several weeks during the summer. Excluding weekend visitation with the custodial parent, in those situations in which a child spends in excess of 14 consecutive days with the noncustodial parent, the court should consider whether an adjustment in child support is appropriate, giving consideration to the fixed obligations of the custodial parent which are attributable to the child, to the increased costs of the noncustodial parent associated with the child’s visit, and to the relative incomes of both parents. Any partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period of more than 14 consecutive days.

In situations in which the noncustodial parent has been granted annual visitation in excess of 14 consecutive days, the court may prorate annually the reduction in order to maintain the same amount of monthly child-support payments. However, if the noncustodial parent does not exercise said extended visitations during a particular year, the noncustodial parent shall be required to pay the abated amount of child support to the custodial parent.

SECTION VII. PROVISIONS FOR PAYMENT

All orders of child support shall fix the dates on which payments shall be made. All support orders issued shall include a provision for immediate implementation of income withholding, absent a finding of good cause not to require immediate income withholding or a written agreement of the parties incorporated in the order setting forth an alternative agreement as required by Ark. Code Ann. § 9-14-218(a). Payment shall be made through the Arkansas Clearinghouse pursuant to Ark. Code Ann. § 9-14-805. Times for payment should ordinarily coincide with the payor’s receipt of salary, wages, or other income.

* * *

IN THE CIRCUIT COURT OF_COUNTY, ARKANSAS _DIVISION

STATE OF ARKANSAS

AFFIDAVIT OF FINANCIAL MEANS COUNTY OF_ Revised 02-02

_ PLAINTIFF

Vs. Case No._

_ DEFENDANT

BOTH PARTIES MUST COMPLETE AND EXCHANGE THIS AFFIDAVIT PRIOR TO ANY HEARING. BOTH PARTIES MUST SUPPLY THE ORIGINAL NOTARIZED AFFIDAVIT TO THE COURT. THE COURT WILL PUNISH PERJURY BY APPROPRIATE ACTION.

The affiant, being duly sworn, says under penalty of peq'ury that affiant is the [Plaintiff/Defendant/Party] (circle one) to this support action herein, has prepared this financial statement, knows the contents thereof, and that it is true and correct.

Attach additional pages as needed.

INCOME

Complete Item 29.

1. My weekly take-home pay [from Item 29(i)] is $_.

2. I claim_dependents for the purpose of determining my State of Arkansas withholding. I claim _ dependents for the purpose of determining my federal withholding. I [did/did not] (circle one) claim myself as a dependent. I [do/do not] (circle one) have an additional amount withheld from my payroll checks for tax purposes and, if so, that amount is $_ per [week/pay period] (circle one) and itemized below. All other deductions taken from my payroll check before I receive it total $_[from Item 29 (j) (8)].

3. I receive total payments, periodic, or otherwise, from the following sources:_in the following amount(s) of $_.

4. I have cash on hand in the amount of $_from the following sources:____.

5. I have on deposit in banks and savings institutions the amount of $_ from the following source (s):

6. I have stocks and bonds in the amount of $_and their source was_.

CREDITORS

Complete Items 30, 31 and 32.

7. Debts in the name of plaintiff only: ALL CREDITORS LISTED UNDER ITEM 30:

(a) TOTAL UNPAID BALANCES: $_

(b) TOTAL MONTHLY PAYMENTS:_

8. Debts in the name of defendant only: ALL CREDITORS LISTED UNDER ITEM 31:

9. Debts in our JOINT NAMES are: ALL CREDITORS LISTED UNDER ITEM 32:

AVERAGE MONTHLY EXPENSES

10. My present average monthly expenses to support myself and children are:

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Place a check mark next to those not being paid currently.

GENERAL INFORMATION

11. My full name is_.

12. My social security number is_.

My military I.D. number is_.

13. My Arkansas driver’s license number is_:_.

14. My date of birth is_.

My place of birth is_.

15. My father’s full name is_.

My mother’s full name is_.

[They/He/She] reside(s) at_.

My [father and/or mother] [is/are] deceased.

16. My present resident address is_.

17a The full names, birth dates and social security numbers of children born (or legally adopted) of this marriage are:

17b The full names, birth dates and social security numbers of Children born out of wedlock to the parties are:

Name Birth Date Soc. Sec. Number

(a) ___

(b) ___:_

(c) ___:_

Paternity has_has not_been established for these children.

17c I also have the obligation to support the following additional children born to me and_:

(b) ___

(c) ___

Please attach any court orders estabhshing paternity and establishing a child support obligation.

18. My employer is_.

19. My employer’s full address is_.

20. My home telephone number is_.

My work telephone number is_.

INFORMATION ABOUT OPPOSING PARTY, IF KNOWN (DO NOT GUESS)

21. The opposing party’s full name is_.

22. The opposing party’s social security number is_.

The opposing party’s military I.D. number is_.

23. The opposing party’s Arkansas driver’s license number is

24. (a) The opposing party’s father’s full name is_.

(b) The opposing party’s mother’s full name is_.

(c) [They/He/She] reside(s) at_.

(d) Opposing party’s [father and/or mother] [is/are] deceased.

25. The opposing party’s present residence address is_.

26. The opposing party’s employer is_.

27. The opposing party’s employer’s address is_.

28. The opposing party’s home telephone number is

The opposing party’s work telephone number is

29. How often are you paid and what are your gross wages, salary or commission due each time? (Check one)

Weekly (52 times a year)

Bi-Weekly (26 times a year)

Semi-Monthly (24 times a year)

Monthly (12 times a year)

Other (Explain)

PAYROLL DEDUCTIONS

(a) GROSS WAGES $.

(b) Federal income tax withheld $_

(c) Arkansas income tax withheld $_

(d) FICA (social security) or railroad retirement $_

(e) Health insurance $_ (children only)

(f) Court-ordered child support for dependents $_ of previous marriage or previously legally determined adopted or illegitimate children

(g) TOTAL WITHHELD ((b) through (f) above) $

(h) NET TAKE-HOME PAY PER PAY $. PERIOD (Subtract (g) from (a) above)

(i) CONVERT TO WEEKLY TAKE-HOME $ PAY AND CARRY TO ITEM 1 ABOVE

Example: If (h) above is $300.00 and is received

bi-weekly, multiply $300.00 by 26

(26x300=$7,800), divide $7,800 by 52

($150.00); carry $150.00 to Item 1

(j) OTHER ITEMS WITHHELD FROM MY CHECK ARE:

(1) Union dues $_

(2) Credit union, thrift plans $_

(3) Pension benefits, stock purchase plans $.

(4) Charitable contributions $.

(5) Debt payments, garnishments $.

(6) Life insurance payments $.

(7) other (identify) $.

Items (1) through (7) above are not allowed in computing take-home pay.

(8) TOTAL WITHHELD (sum of items (1) $. through (7) above)

If self-employed, attach copies of your past two years’ state and federal income tax returns and a list of all disbursements made to you during the current calendar year.

CREDITORS AND DEBTS

30. Debts in the name of PLAINTIFF only are:

Creditors Total Unpaid Balance Monthly Payment

(a) _

(b) _

(c) -

(d) __

(e) _

(f) TOTAL: *$_

* Carry forward to Item 7(a) ** Carry forward to Item 7(b)

31. Debts in the name of DEFENDANT only are:

(d) _

* Carry forward to Item 8(a) ** Carry forward to Item 8(b)

32. Debts in JOINT names:

(c) _

(f) TOTAL: *$_ **$_

* Carry forward ** Carry forward to Item 9(a) to Item 9(b)

33. The weekly take-home pay of opposing party is

34. All other income of the opposing party is

Affiant

STATE OF_

COUNTY OF_

Subscribed and sworn to before me, a Notary Public, on this _day of_,_. (month) (year)

Notary Public

My Commission Expires:

(SEAL)