A new case from Division I, Marriage of Krieger and Walker, docket 01-3-02588-4, held that a court may order child support above the advisory amount established by the child support table without a showing of extraordinary need. This holding is consistent with the statute, which provides that a court has discretion to award child support in excess of the advisory amount upon written findings. (“Upon written findings” is a lower standard than “extraordinary need.”)
However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.
The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.
Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.
Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.
Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.