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:=;eL@;, SUPERiORBOURT GF GUAM
ZUIBHAR 19 AH 9:09 l cLERk UF 'DHFQT 2 r 3 8y.- 4
6 IN THE SUPERIOR COURT OF GUAM 7
8. REDINA J. PEREZ, ) Child Support Case No. CS0249-16 ) g ) Plaintiff, ) 10 ) vs. ) ORDER 11 ) ) 12 ) SICKSON s. Ton Aw, ) 13 ) Defendant. ) 14 ) 1 15
16 The Office of the Attorney General, Child Support Enforcement Division ("CSED")
17 filed a Complaint for Child Support against Defendant on September '9, 2016. At the \ 18 Defendant's second appearance on January 10, 2017, the court set child support at $661.30 19 0 pursuant to the Child Support Worksheet filed with the Complaint on September .15, 2016. The 2
21 matter was set for an April 2017 for calculation of arrears. At the April hearing, Defendant
22 demonstrated that he had been making $100 per month child support payments to the Plaintiff;
23 so the m atter was continued to June to ascertain how m uch had been paid directly to the 24 Plaintiff outside this child support case. Also at the April 2017 hearing, the Defendant first 25
stated to the court that he would be requesting a deviation from the guidelines. 26
\§ -_ /
The deviation request proceeded before the Court on June 20, 2017, along with the issue 1
2 of arrears. Because payments from Defendant's employer had to be double checked, deviation
3 and arrears were continued again to August 22, 2017, and then again to November 21, 2017. 4 The CSED Office filed an August 3, 2017 Statement of Arrears. This AG's request for 5 arrears incorporated CSED's request for monthly child support in the amount of $616.30 per 6 7 month starting January 1, 2016. The AG also requested retroactive child support back to date of
8 separation based on reconstructed worksheets based on income for years 2011, 2012, 2013,
9 2014, and 2015. T he A G initial1y requested arrears of $19,597.92 as supported by the 10 Submission of Updated Statement of Arrears Retroactive Child Support filed by CSED on
August 3, 2017. However, the reconstructed worksheets are based on support of two children. 12
13 On August 22, it was confirmed that only one of the two children in the case was under
14 the age of six at the time that the Complaint was filed on September 9, 2016. Therefore, any 15 calculation of arrears could only go back to the date of separation for the youngest child, born 16 on September 23, 2010. Therefore, the calculations for the support of two children as shown in 17 the Aug. 3, 2017, Statement of Arrears were in error, as they were calculated for two children 18
19 instead of one child. The court ordered at the August 22, 2017 hearing that arrears were to be
20 re-calculated to reflect that the arrears prior to date-of-filing should be calculated for only one 21 child. 22 On November 21, 2017, counsel for CSED presented new worksheets in court that 23
24 reflected support for only one child prior to date-of-filing. For each of the years that the
25 Defendant did not support the youngest child, the government calculated what Mr. Tonaw's
26 child support would have been. On the record, counsel for CSED stated that new worksheets 27 which were circulated in the hearing would be filed. Both the court and counsel quoted firm 28
Page 2 of 6 w
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the newly constructed worksheets prepared by CSED counsel, so these worksheets were in I
2 existence at the time of the hearing. However, perhaps inadvertently, none are on file.
3 However, both the court and counsel relied on the missing worksheets during the November 21, 4 2017 hearings. In addition to using these worksheets, the government received confirmation 5 that Mr. Ton aw had paid $100 to Plaintiff for many months, and Defendant was therefore 6
credited with total payments of $9,526.73.1 Using the worksheets that are not yet on file, the 7
8 court reduced the Defendant's arrears to judgment on November 21, 2017, to the amount of
9 $11,594.30. The Defendant agreed to pay the arrears at $10.00 per month. However, because 10 the corrected worksheets are not yet on tile, the entry of the arrears reduced-to-judgment awaits 11 filing of supplemental documents. 12
13 Also at the November 21, 2017 hearing, Defendant's paycheck stubs were extensively
14 discussed in the court's continued consideration of his motion for a deviation. The pay stubs
15 did not establish a pattern of overtime, but showed that Defendant worked overtime sometimes. 16 The Defendant's worksheet in support of deviation showed that the Defendant lived 17 modestly. None of his expenditures were extravagant, and there was no evidence that another 18
19 wage earner was contributing to Defendant's household. The court granted a downward
20 deviation to $550 a month temporarily for three future months to terminate February 2018 due 21 to Defendant's claim of economic hardship. The court took under advisement whether the 22 deviation to $550 would continue past February. The court also decided that the deviation 23
24, would begin in July 2017 because the deviation papers were presented to the court (by way of
26 l The amount of credits attributed to Mr. Ton aw is not memorialized in any document on file so this may not be the correct amount of credits received by Mr. Ton aw from his $100/month payments since 2013. The arrears reached 27 by the court, after discussion on the record, need to be substantiated by a Statement of Arrears. In addition to the corrected reconstructed income sheets from 2011, 2012, 2013, 2014 and2015, counsel for CSED should submit a 28 new Statement of Arrears to substantiate $11,594.30. If$11,594.30.is not the correct amount of arrears, CSED should notice arrears for further hearing at CSED counsel's convenience.
Page 3 of6 f 1 ; \_-
the AG's Blind of "Submission of Defendant's Financial Declaration") on July 6, 2017. l
2 Therefore, the child support of $661.30 which was ordered by the court on January 10, 2017
3 would apply starting September 2016, when the case was filed, and end on July2017. 4 On November 21, 2017, the court granted a downward deviation to $550 per month for 5 the following reasons: Although his 2016 income supported the amount of $661.30, the 6 7 Defendant's income was never Shown conclusively to have supported $661.30 per month
8 thereafter. The court stated on August 22, 2017 that the $14.79 per hour madeby the Defendant
9 did not support the child support ordered of $661.30. The $661.30 calculation had been made
10 on the basis of a time during which the Defendant made provable overtime. 11 At the August 22, 2017 hearing, CSED was encouraged to provide some evidence that 12
13 the Defendant could expect to continue to work overtime, since the law requires that overtime
14 pay must be reliable before it is taken into account in child support determinations.. In some
15 states, the law reflects a policy that parents should not be encouraged or required to work more 16 than 40 hours per week merely because he did in the past. An Iowa appellate court, for 17 instance, opined that "a parent's child support obligation should not be so burdensome that the 18
19 parent is required to work overtime to satisfy it.as In re: Marriage of Heinemann, 309 N.W.2d
20 151 153 (Iowa App. 1981), see also Meredith v. Meredith, 854 N.E.2d 942 (Ind. Appl.
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:=;eL@;, SUPERiORBOURT GF GUAM
ZUIBHAR 19 AH 9:09 l cLERk UF 'DHFQT 2 r 3 8y.- 4
6 IN THE SUPERIOR COURT OF GUAM 7
8. REDINA J. PEREZ, ) Child Support Case No. CS0249-16 ) g ) Plaintiff, ) 10 ) vs. ) ORDER 11 ) ) 12 ) SICKSON s. Ton Aw, ) 13 ) Defendant. ) 14 ) 1 15
16 The Office of the Attorney General, Child Support Enforcement Division ("CSED")
17 filed a Complaint for Child Support against Defendant on September '9, 2016. At the \ 18 Defendant's second appearance on January 10, 2017, the court set child support at $661.30 19 0 pursuant to the Child Support Worksheet filed with the Complaint on September .15, 2016. The 2
21 matter was set for an April 2017 for calculation of arrears. At the April hearing, Defendant
22 demonstrated that he had been making $100 per month child support payments to the Plaintiff;
23 so the m atter was continued to June to ascertain how m uch had been paid directly to the 24 Plaintiff outside this child support case. Also at the April 2017 hearing, the Defendant first 25
stated to the court that he would be requesting a deviation from the guidelines. 26
\§ -_ /
The deviation request proceeded before the Court on June 20, 2017, along with the issue 1
2 of arrears. Because payments from Defendant's employer had to be double checked, deviation
3 and arrears were continued again to August 22, 2017, and then again to November 21, 2017. 4 The CSED Office filed an August 3, 2017 Statement of Arrears. This AG's request for 5 arrears incorporated CSED's request for monthly child support in the amount of $616.30 per 6 7 month starting January 1, 2016. The AG also requested retroactive child support back to date of
8 separation based on reconstructed worksheets based on income for years 2011, 2012, 2013,
9 2014, and 2015. T he A G initial1y requested arrears of $19,597.92 as supported by the 10 Submission of Updated Statement of Arrears Retroactive Child Support filed by CSED on
August 3, 2017. However, the reconstructed worksheets are based on support of two children. 12
13 On August 22, it was confirmed that only one of the two children in the case was under
14 the age of six at the time that the Complaint was filed on September 9, 2016. Therefore, any 15 calculation of arrears could only go back to the date of separation for the youngest child, born 16 on September 23, 2010. Therefore, the calculations for the support of two children as shown in 17 the Aug. 3, 2017, Statement of Arrears were in error, as they were calculated for two children 18
19 instead of one child. The court ordered at the August 22, 2017 hearing that arrears were to be
20 re-calculated to reflect that the arrears prior to date-of-filing should be calculated for only one 21 child. 22 On November 21, 2017, counsel for CSED presented new worksheets in court that 23
24 reflected support for only one child prior to date-of-filing. For each of the years that the
25 Defendant did not support the youngest child, the government calculated what Mr. Tonaw's
26 child support would have been. On the record, counsel for CSED stated that new worksheets 27 which were circulated in the hearing would be filed. Both the court and counsel quoted firm 28
Page 2 of 6 w
-_» »
the newly constructed worksheets prepared by CSED counsel, so these worksheets were in I
2 existence at the time of the hearing. However, perhaps inadvertently, none are on file.
3 However, both the court and counsel relied on the missing worksheets during the November 21, 4 2017 hearings. In addition to using these worksheets, the government received confirmation 5 that Mr. Ton aw had paid $100 to Plaintiff for many months, and Defendant was therefore 6
credited with total payments of $9,526.73.1 Using the worksheets that are not yet on file, the 7
8 court reduced the Defendant's arrears to judgment on November 21, 2017, to the amount of
9 $11,594.30. The Defendant agreed to pay the arrears at $10.00 per month. However, because 10 the corrected worksheets are not yet on tile, the entry of the arrears reduced-to-judgment awaits 11 filing of supplemental documents. 12
13 Also at the November 21, 2017 hearing, Defendant's paycheck stubs were extensively
14 discussed in the court's continued consideration of his motion for a deviation. The pay stubs
15 did not establish a pattern of overtime, but showed that Defendant worked overtime sometimes. 16 The Defendant's worksheet in support of deviation showed that the Defendant lived 17 modestly. None of his expenditures were extravagant, and there was no evidence that another 18
19 wage earner was contributing to Defendant's household. The court granted a downward
20 deviation to $550 a month temporarily for three future months to terminate February 2018 due 21 to Defendant's claim of economic hardship. The court took under advisement whether the 22 deviation to $550 would continue past February. The court also decided that the deviation 23
24, would begin in July 2017 because the deviation papers were presented to the court (by way of
26 l The amount of credits attributed to Mr. Ton aw is not memorialized in any document on file so this may not be the correct amount of credits received by Mr. Ton aw from his $100/month payments since 2013. The arrears reached 27 by the court, after discussion on the record, need to be substantiated by a Statement of Arrears. In addition to the corrected reconstructed income sheets from 2011, 2012, 2013, 2014 and2015, counsel for CSED should submit a 28 new Statement of Arrears to substantiate $11,594.30. If$11,594.30.is not the correct amount of arrears, CSED should notice arrears for further hearing at CSED counsel's convenience.
Page 3 of6 f 1 ; \_-
the AG's Blind of "Submission of Defendant's Financial Declaration") on July 6, 2017. l
2 Therefore, the child support of $661.30 which was ordered by the court on January 10, 2017
3 would apply starting September 2016, when the case was filed, and end on July2017. 4 On November 21, 2017, the court granted a downward deviation to $550 per month for 5 the following reasons: Although his 2016 income supported the amount of $661.30, the 6 7 Defendant's income was never Shown conclusively to have supported $661.30 per month
8 thereafter. The court stated on August 22, 2017 that the $14.79 per hour madeby the Defendant
9 did not support the child support ordered of $661.30. The $661.30 calculation had been made
10 on the basis of a time during which the Defendant made provable overtime. 11 At the August 22, 2017 hearing, CSED was encouraged to provide some evidence that 12
13 the Defendant could expect to continue to work overtime, since the law requires that overtime
14 pay must be reliable before it is taken into account in child support determinations.. In some
15 states, the law reflects a policy that parents should not be encouraged or required to work more 16 than 40 hours per week merely because he did in the past. An Iowa appellate court, for 17 instance, opined that "a parent's child support obligation should not be so burdensome that the 18
19 parent is required to work overtime to satisfy it.as In re: Marriage of Heinemann, 309 N.W.2d
20 151 153 (Iowa App. 1981), see also Meredith v. Meredith, 854 N.E.2d 942 (Ind. Appl. 2006) 21 As another court put it, "Were we to base his support obligation in part on his overtime pay, we 22 would clearly be requiring him to work overtime to satisfy his obligation." In re: Marriage of 23 Close, 478 N.W.2d 852, 855 (Iowa App. 1991). 24
25 Counsel for the government was invited to present factual evidellce or legal authority for
26 the court to include overtime in Mr. Tonaw's case. Defendant gave the name of Mr. Tonaw's 27
Page 4of 6 supervisor at his place of employment so that they could get a statement lion him regarding 1
2 reliability of overtime. Nothing was filed.
3 Due to the unreliability of overtime, the parties could not establish whether the child 4 support amount of $550 per month was a deviation firm the Defendant's income of $14.79 per 5 hour. If the Defendant's income is calculated at a straight $14.79 per hour, his child support as 6 determined by the guidelines is $518.74 per month. 7
8 Obligor: Obligee:
9 Monthly Gross Income: 2563.60 1430.002 10 Deduction 775.00 775.00 Adjusted Monthly Gross Income: 1788.60 655.00 Cost of supporting other children: 0 Adjusted Gross Income: 1788.60 655.00 12
13 Combined adjusted gross income 2443.60 Number of children support requested 2 14 Percentaige to use firm guidelines .2918 Basic child support obligation 713.04 15
16 Each parent's percentage of combined income 73% 27% Each parent's obligation 520.52 192.52 17 18 There is no justification on the record for keeping the Defendant's child support at $661.30 per
19 month. For this reason, the amount of $661.30 is not currently supported, so $550.00 per month
20 is not even a deviation. The proper amount of child support in this case might be $520.52. 21 Moreover, the AG stated that the wage assignment would be modified on the date of the 22 most recent hearing, on November 21, 2017. However, if that wage assignment has been 23 24 modified, it has not been filed pursuant to 5 GCA §34113(6) (B), which requires that an order
25 for income withholding from an employer must be transmitted to the Judicial Hearings Division
26 of the Superior Court. None is on file with the court, leaving open the possibility that the 27
28 z Custodial parent is attributed income of minimum wage full time because the children are now both over six and she is able to work.
Page 5 of 6 court's deviation ordered in November has not yet taken effect. If a wagewithholding order has l
2 not been served on the employer, then the Defendant may be \paying in significant excess of the
3 child support required of him. CSED is directed to remedy this if necessary. 4 The deviation was ordered as a tem porary deviation, and the court took under 5 advisement whether to make the deviation down to $550 per month permanent. The deviation 6
7 was ordered to begin on the date that the motion for a deviation was filed, which was June 23,
8 2017. Therefore, accrual of child support at $550 is to begin in July 1, 2017, and continue
9 through the date of the hearing on the deviation. The amount of $520.52 is ordered to begin as
10 the monthly child support on March 1, 2018. At the November 21, 2017 hearing Defendant 11 agreed to pay $10 per month toward arrears, though arrears has yet to be finalized. Income 12
13 Withholding Order(s) and a new Statement of Retroactive Support should be filed in this case.
14 The case is set for July31, 2018, for a Status Hearing at 2:00 p.m.
15 ORDERED this day of March, 2018. 16
18 B. ANN KEIT H EAwJK 19 Administrative Hearing Officer Superior Court of Guam 20
25 SERVICE VIA COURT BOX I acknowledge that a copy al the 26 or i gi nal hereto was placed In the c our t box al:
27 M 28 Da1e:.7)M Time: w e
Depuw ulterior r curl 01 Guan. Page 6 of 6