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Part 1: Introduction and NRS 125B.080(9)(a)

          The Child Support Enforcement Amendments of 1984 required all states to develop advisory mathematical guidelines to calculate child support awards by October 1, 1987.  As a result, the Nevada legislature enacted NRS 125B.070 and 125B.080 in 1987, which statutes were modeled after Wisconsin’s percentage of income formula.

          The Family Support Act of 1988 created a rebuttable presumption that guideline amounts represent the proper child support award and that deviation from the guidelines would be allowed only upon written findings that application of the guidelines would result in an unjust or inappropriate mathematical award.  These federal laws recognized the need for more realistic and equitable child support awards which provide children with a standard of living comparable to that of their noncustodial parent.

          NRS 125B.070 provides a formula based on a percentage of gross monthly income that the nonprimary parent shall pay for child support.  NRS 125B.080(9) provides that the trial court may consider the following factors when deviating from the child support award called for by NRS 125B.070:

          (a)     The cost of health insurance;

          (b)     The cost of child care;

          (c)      Any special educational needs of the child;

          (d)     The age of the child;

          (e)      The responsibility of the parents for the support of others;

          (f)      The value of services contributed by either parent;

          (g)     Any public assistance paid to support the child;

          (h)     Any expenses reasonably related to the mother’s pregnancy and confinement;

          (i)      The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;

          (j)      The amount of time the child spends with each parent;

          (k)     Any other necessary expenses for the benefit of the child; and

          (l)      The relative income of both parents.

          NRS 125B.080(9)(a).  The cost of health insurance.   Both parents are responsible for the health care needs of their children.  Virtually every case involving minor children includes controversy over the cost of health insurance as it relates to the child support obligation.  There is, however, no provision in NRS 125B specifically requiring either parent to provide or pay for health insurance.  So, it appears only fair that neither party should be required to bear the entire expense of maintaining health insurance for the minor children, and that the cost should be divided.  The question then becomes whether this expense should be divided equally, or proportionately based on the parties’ respective incomes.

          NRS 125B.080(7) provides that expenses for health care which are not reimbursed by insurance “must be borne equally by both parents in the absence of extraordinary circumstances.”  Depending on the income levels of each parent, it would seem fair that, in most circumstances, the parents should equally divide the cost of health insurance for the minor children.  If the custodial parent is providing the insurance, one-half of the cost should be added to the noncustodial parent’s child support obligation; if the noncustodial parent is maintaining the insurance, one-half of the cost should be deducted from the noncustodial parent’s child support obligation.  In district courts of Southern Nevada, this has been a general practice.

Part 2: Introduction and NRS 125B.080(9)(b) and NRS 125B.080(9)(c).

          NRS 125B.080(9)(b).  The cost of child care.  Unlike medical expenses, there is no statutory presumption regarding the treatment of child care expenses.  Other states handle this issue in different ways.  The states that use the income sharing method to calculate child support apportion this cost based upon the parties’ respective incomes. The Wisconsin formula, which Nevada’s child support statutes are modeled after, arguably assumes that the cost of child care is considered in the statutory percentage.  It may also be noted, however, that the guidelines were based on studies made between 1950 and 1980.  During that study period, child care was statistically a very small expense in most households.  The nature of child care in America has radically changed since that time and most states today consider the cost of child care in some other way.

          Child care costs have substantially risen in recent years and often the custodial parent’s day care expense exceeds the child support award.  Child care expenses average ten percent of annual income, coming in fourth behind only housing, food and taxes.  In the summer months, the cost can be as much as 22%.  The percentage is substantially more for parents with incomes of less than $15,000.00 per year.

          The courts, including those in Nevada, have been slow in reacting to the increase in child care expenses and have not uniformly increased support based on this factor alone.  If it is argued that child care is included in the statutory presumption, then why was it included as an enumerated factor in 125B.080(9)?  The State Bar of Nevada Child Support Review Committee Report recommended that child care expenses “be awarded in addition to the formula amount and allocated between the parents in proportion to their relative incomes.” This, however, ignores the reality that child care was factored into the formula to some degree and noncustodial parents could be overpaying if they are paying child care in addition to the statutory formula.  The legislature clearly needs to address this area.

          NRS 125B.080(9)(c).  Any special educational needs of the child.  This is one of the many factors that have not been addressed by the supreme court.  This factor, however, should not create much controversy because if a child needs special assistance, both parents should contribute.  Again, the question becomes how should the court calculate the parents’ respective contributions?  Should the parents contribute equally or pay proportionate to their income?  Wisconsin law provides that the court may allocate a portion of the child support award to be placed in “a separate fund or trust for the support, education and welfare” of the child.

Part 3: Introduction and NRS 125B.080(9)(d)

          NRS 125B.080(9)(d).  The age of the child.  There can be little argument that the cost of supporting a child varies with the child’s age.  Raising an infant brings higher expenses which are associated with birthing, formula, diapers, etc.  A toddler through pre-teen, however, may involve less expense.  But when a child reaches the teens, the costs rise again.  Some states have different child support awards for different ages.  This, however, has not generally been litigated on a significant basis.

          If a child’s parent’s divorce while the child is young, the child support received on behalf of the child may average out over life of child, but parents get divorced when their children are different ages.  There is also an obvious relationship between this factor and day care expenses.  Our legislature may wish to consider adopting a modified child support formula taking into consideration the specific age of the child.

Part 4: Introduction and NRS 125B.080(9)(e)

          NRS 125B.080(9)(e).  The responsibility of the parents for the support of others.  This factor does not limit the court’s discretion to base a deviation from the formula solely upon a parent’s responsibility for the support of other children; the court may consider parents, siblings or step-children.  Thus far, however, serious consideration has only been given for prior or subsequent children of the obligor parent.  For example, New Hampshire specifically provides that the court “shall” consider any step-children for which the party is responsible.

          This is one of the more controversial factors for deviation from the formula and has been addressed by the Nevada Supreme Court on several occasions.  Hoover appeared to some to indicate that, despite NRS 125B.080(9)(e), other children would not be a basis for deviation from the formula.  The supreme court in Hoover, however, technically only objected to the lower court’s formalistic approach outside the guidelines of NRS 125B.  In Scott, the court found that a deviation from the statutory formula, which reduced support payments of $793.43 per month for two children to $600.00 per month, was proper based on the payor’s responsibility for the support for others.  One should keep in mind the supreme court’s warning in Lewis v. Hicks, however, that NRS 125B.080(9)(e) should be applied “cautiously” and deviations “should be the exception rather than the rule.”

          This factor will most likely come into play in situations such as the following:  An obligor parent, who is getting divorced from a second spouse, now has two families to support.  Should the second family receive child support based on the payor’s full gross monthly income, or should the support be based on the payor’s full monthly income less the previously existing child support award?  There are two major approaches being used to resolve this question: the “first mortgage” approach and the “equal treatment” approach.  These competing theories will likely be debated forever, and an in-depth review is beyond the scope of this article.

          The “first mortgage approach” argues that the second family already had the burden of paying the first child support award and therefore enjoyed a standard of living based on less income.  Using this approach, the first family should not have to endure a lower child support award because the payor decided to have more children with a spouse who was aware of the existing child support obligation.  In other words, a payor parent should not be able to decrease his or her support obligation to an existing family by undertaking the obligation of having a subsequent family.  By contrast, the “equal treatment” approach simply promotes the policy that all children should be treated the same and each should receive the same proportionate share of support.

          The guidelines were intended “to provide a uniform predictable measure of child support, not a variant method where a child’s support can be reduced or increased by subsequent changes outside his or her family.”  “Although both earlier and subsequently born children are innocent and have no control over their situation, the parent who brings children into the world knowing the existing prior obligation should not be entitled to an automatic reduction in child support.” Arkansas’ child support guidelines specifically provide that any existing child support obligations should be deducted from the income of the payor spouse.

          The following are hypothetical situations which illustrate how this factor has been applied in the district courts in Clark County.  When necessary, the parties in the following hypothetical situations will be designated as either P1 (the custodial parent) or P2 (the noncustodial parent).

  1.         In a current divorce action, P2 has one child and is obligated for the support of two children from a prior marriage; P2 earns $2,000 per month.  With a pre-existing support obligation of $500.00 for the two children from the prior marriage (25% of $2,000.00), P2 now has an adjusted gross monthly income of $1,500.00 which yields a child support obligation to the “second family” of $270.00 (18% of $1,500.00).
  1.        The divorcing parents of four children have agreed that Wife shall maintain custody of three children while Husband shall maintain custody of one child; Wife’s gross monthly income is $1,000.00; Husband’s gross monthly income is $2,000.00.  In situations, such as this, varying methods for determining child support obligation(s) may be used by the court.  Results may vary depending upon the split-custody calculation method used by the court.

By one method, the court follows the child support formula in determining the child support obligation of each parent as if the child in the custody of the other was the only child at issue.  The court then offsets the sums each would owe the other.  Applying this method to the above situation, Husband would be obligated to pay Wife child support in the amount of $580.00 (29% of $2,000.00) and Wife would be obligated to pay Husband child support in the amount of $180.00 (18% of $1,000.00).  The net result is that Husband would be obligated to pay Wife child support in the amount of $400.00 ($580.00 – $180.00).

By another method, the court determines for each parent the total percentage amount of child support that would be due if all of the children were residing with the other parent, divides this percentage amount by the number of children at issue to determine the percentage of income to be paid per child, multiplies this percentage by the number of children being supported by the other parent, assigns the results to the respective parents according to the number of children each maintains, and then offsets the sums each would owe the other.  Applying this method to the above situation, Husband would be obligated to pay 21¾% (¾ of 29%) of his monthly income [which calculates to $435.00 in this situation] to Wife, and Wife would be obligated to pay 7¼% (¼ of 29%) of her income [which calculates to $72.50 in this situation] to Husband.  The net result is that Husband would be obligated to pay Wife child support in the amount of $362.50 ($435.00 – $72.50).

By yet another method, the court determines for each parent the total formula amount of child support that would be due if all children were residing with the other parent, divides this amount by the number of children at issue to determine the amount of support to be paid per child, multiplies this amount by the number of children being supported by the other parent, assigns the results to the respective parents, and then offsets the sums each would owe the other.  Applying this method to the above situation, Husband would be obligated to pay Wife $145.00 per month per child (29% of $2,000.00 = $580.00; $580.00 ÷ 4 = $145.00) for a total of $435.00 per month ($145.00 x 3), and Wife would be obligated to pay Husband $72.50 per month per child (29% of $1,000.00 = $290.00; $290.00 ÷ 4 = $72.50) for a total of $72.50 per month ($72.50 x 1).  The net result is that Husband would be obligated to pay Wife child support in the amount of $362.50 ($435.00 – $72.50).

          One must keep in mind, however, that the Nevada Supreme Court has prohibited the district courts from devising their own formulas.  See Hoover and Lewis

Part 5: Introduction and NRS 125B.080(9)(f)

          NRS 125B.080(9)(f).  The value of services contributed by either parent:  This is a rather broad, vague factor which, although it could be used in many ways, has not been addressed by the supreme court or the legislature and has probably not been addressed much at the trial level.  The question of whether the services that the custodial parent provides should be considered in calculating a child support award was presented in Lewis v. Hicks, but the supreme court declined to address it. 

          The custodial parent’s income is only indirectly reflected in the statutory formula, but the guidelines should not overlook the value of the custodial parent’s own child care services and should encourage the desirability that the custodial parent remain in the home as a full-time parent.  It is inconsistent to reimburse a custodial parent in whole or in part for the expense of paid child care while denying any financial recognition for the value of the care provided.  This inconsistency could be resolved by dividing the cost of full-time day care between the parents in all cases and allowing the custodial parent to spend this allotment any way that parent desires.  Of course, it then follows that if the noncustodial parent exercised greater than average visitation or provides “day care services,” then that parent, too, should be provided consideration.

          Rearing children requires expenditures of both time and money.  Less tangible, but no less important, is the income the custodial parent forgoes by working less and spending more time with the child.  These “opportunity costs” borne by the custodial parent may be measured in terms of reduced working hours, greater time away from work, limits on after hours commitments, and being forced to accept lower paying and less challenging jobs, to be nearer and more available to the children and to accommodate their school schedules.  Because of the additional demands that go along with being the primary parent, the custodial parent also enjoys less leisure time.

          Although the Nevada Supreme Court declined to address the issue, in Wisconsin the statute provides that the court should consider the desirability that the custodian remains in the home as a full-time parent.  It also provides that the court should consider the value of custodial services performed by the custodian if the custodian remains in the home.  And in Arkansas, an unemployed spouse will be counted as two dependents for calculating support.

Part 6: Introduction and NRS 125B.080(9)(g) and NRS 125B.080(9)(h)

          NRS 125B.080(9)(g).  Any public assistance paid to support the child:  It is unclear how this factor should be considered in a child support obligation.  Obviously, if a child is receiving public assistance, the court will order the parent or parents to pay the appropriate support.  If, however, a child is receiving disability payments due to the noncustodial parent’s disability, should the child receive that disability payment plus an additional sum based on the parent’s disability income?  In Arkansas, as in most states, if the payor parent is receiving Social Security Disability, “the court should consider the amount of any separate awards made” to the children.

  •        NRS 125B.080(9)(h).  Any expenses reasonably related to the mother’s pregnancy and confinement:  At first glance this may appear like the NRS 125B.080(7) requirement for parents to share unreimbursed medical expenses of their minor children, but it has the potential to be far broader.  The language for this factor was taken from the paternity statute and dates to 1923.  Although it has never been interpreted by the supreme court, it appears that it could be read to include lost wages and other incidental expenses of a mother while pregnant.

Part 7: Introduction and NRS 125B.080(9)(i)

          NRS 125B.080(9)(i).  The cost of transportation of the child to and from visitation if the custodial parent moved with the child from the jurisdiction of the court which ordered the support and the noncustodial parent remained:  This factor is perhaps the most abused by litigants, attorneys and judges alike.  This factor should become much more prominent with the recent significant liberalization of NRS 125.350.  It should, however, be one of the easiest to utilize and, hopefully, will be examined before a request for relocation is granted.

          Oftentimes in cases involving a transportation expense, courts would merely use the expense as an arbitrary factor upon which to base an “equitable” deviation from the child support award.  There would often be no relationship between the amount of the expense incurred for travel and the amount of the deviation awarded.  Further, the deviation would often be awarded without consideration as to whether the noncustodial parent utilized the visitation or incurred the expense.

          The court should first carefully examine the cost of the noncustodial parent’s exercising visitation over the period of an entire year.  Next, the court should take that cost and divide it by twelve to calculate an average monthly transportation expense.  The court should then apply the transportation as a monthly offset and specifically provide that, if the visitation is not utilized, or if the expense related to the transportation is not incurred, then the offset may not be taken.

          On a related note, a question often arises as to whether this expense should be divided, or should it become the burden of the parent who left the jurisdiction where the child resides?  Equity would seem to dictate that the parent who left the jurisdiction where the child resided and therefore caused the expense to arise should be responsible for the entire expense.  On the other hand, however, it does not seem fair that the noncustodial parent, who would suffer the loss of being distanced from his or her children, should also bear the entire burden of transportation.  If the noncustodial parent cannot afford it, this will result in the parent being unable to see his or her children.  Of course, if both parties move from the jurisdiction, it may be fair to have the parents equally divide the expense.  The court, therefore, must look at the parties’ respective incomes and the frequency of visitation before ordering such.  Hopefully the visitation by the noncustodial parent will be determined to be feasible before the move is granted.  

          A recent Nevada Supreme Court case addressed, for the first time, the interplay between the presumed level of support and the way a deviation should be calculated.  Should a court provide the noncustodial parent an offset before or after applying the presumptive maximum support level of $500.00?  In affirming the trial court, the supreme court found that once child support is established under the statutory guidelines, the court may then consider deviating from the child support award based on the travel expenses. In a footnote, however, the court implied that its decision could be different in a case where the noncustodial parent’s income exceeded the presumptive $500.00 per month by more than a nominal sum.

Part 8: Introduction and NRS 125B.080(9)(j)

          NRS 125B.080(9)(j).  The amount of time the child spends with each parent:  This is another difficult factor because it presents the question, “How much time should the noncustodial parent have the child before he or she receives an abatement in his child support obligation?”  Only one-half of this country’s children live in a “traditional nuclear” family.  As more children live in split homes, this issue will continue to emerge.  It generally emerges as a means of obtaining a reduction in the noncustodial parent’s child support.

          The Nevada Supreme Court in Barbagallo stated that an abatement should not be granted unless an “injustice” would occur.  This decision applied to weekly visitation.  Although the statute presumes that there will be a certain amount of visitation by the noncustodial parent, how much is not clear.

          This factor has generally been litigated on how much time does the noncustodial parent have with the child before the court will order an abatement.  Should the court look at the decreased financial burden of the custodial parent or the increased financial burden of noncustodial parent?  Custodial parents still have fixed expenses, such as rent and utilities, which will not be eliminated when the noncustodial parent has visitation or extended custody.  Other expenses of the custodial parent, however, decrease, such as food, entertainment and perhaps clothing.  Further, it must be considered that the noncustodial parent may have an increased rent and utilities expense to accommodate substantial visitation with his or her children.  Additionally, the noncustodial parent will surely have increased food and entertainment expenses while caring for the child.

          Barbagallo presents difficult questions, such as how much time, and what kind of time, is appropriate for a court to consider when deviating from the statutory formula.  Which parent receives credit for the child during school hours or during the night?  It is not an easy question to determine when a noncustodial parent should receive an abatement in his or her child support obligation.

          Conversely, because the statute presumes that the noncustodial parent receives some level of basic visitation, if the noncustodial parent does not exercise any visitation, should this be a factor in increasing support since the custodial parent has a greater burden?  An Arkansas court held that “assessing economic penalty for not exercising visitation would be an indirect means of ordering visitation.”  The dissent, however, opined that the guidelines contemplate visitation with the noncustodial parent every other weekend for two days.  If this visitation is not exercised, this could mean an additional 66-82 days of care that the custodial parent must provide and finance.  Arkansas provides for an abatement for visitations more than 7 consecutive days.

          The Nevada legislature was aware of the problem relating to the formula but took no action.  The original bill provided that the presumptive level of support would apply if the noncustodial parent had physical custody for less than 147 days per year, which is approximately 40 percent of the time.  If that time share was exceeded, the guideline amount would be multiplied by the custodial parent’s fractional time and that was the amount payable.  Arkansas’ guidelines presume that the noncustodial parent will have visitation of alternating weekends and several weeks during the summer.  If the noncustodial parent spends more than 14 consecutive days with the child, the court should consider whether an adjustment is necessary, considering the fixed obligations of the custodial parent which are attributable to the child, and to the increased costs of the noncustodial parent attributed to the child’s visits.  The court may award an abatement up to fifty percent of the child support award.

          A separate issue that frequently arises is that of an abatement for extended visitation, such as summer vacation.  Many of the judges in Clark County provide noncustodial parents with extended visitation (generally for one month or more), and along with the visitation, award noncustodial parents a one-half abatement in their child support obligations during the period in which those parents have the child.  This seems a reasonable compromise regarding periods such as summer visitation.  It is generally in the child’s best interest to spend as much time with each parent as possible.  It therefore appears equitable that each parent bears a part of the burden and that the burden should not always fall solely on the noncustodial parent.

          Either the legislature or the supreme court should address these issues so that there can be some level of uniformity in treating these common issues.  In any event, abatements should be granted only “after the fact” in cases where the noncustodial parent exercises the visitation. In other cases, the custodial parent should have the burden of seeking reimbursement for an unearned offset.

          The usual application of a child support guideline is with a traditional custodial arrangement in which one parent has primary custody of the child or children and the other parent has limited visitation.  In recent years, however, shared physical custody arrangements have become more common.

          Shared custody situations have also given rise to the use of mathematical formulas for calculating child support.  Although such formulas have not been adopted by the legislature or by the supreme court, and although the lower courts may not explicitly use such formulas for fear of being reversed by the supreme court, the lower courts have nevertheless done so.

          The Nevada Supreme Court and the legislature have yet to address the way a district court should set child support in a shared custody situation.  In a shared custody arrangement, the cost for each parent does not decrease proportionately.  More likely, there is an increase in the total expenditures on behalf of the child.  The courts, however, must balance the equities between the parents and the impact it will have on the children’s standard of living while in each parent’s respective custody.  The district courts desperately need guidance in this area.

          An equal physical custody arrangement does not necessarily mean that there should not be child support paid by one of the parents.  Even if one parent has substantial visitation or shared custody, he or she should not be excused from paying child support if the circumstances justify such.  In some cases, the parties may attempt to posture themselves during the litigation to minimize or maximize their child support award.

          “Under the most common approach, each parent theoretically owes support to the other, based on the proportion of time the child spends with the other parent.  The theoretical support amounts thus calculated are then offset (`cross-credited’), with the parent owing the higher amount paying a net obligation.”  There is authority in Nevada’s legislative history that supports this type of calculation.  Although the legislature did not act regarding adopting a formula in a joint custody situation, it was contemplated.

          The problem with these methods, however, is that they often result in child support awards that are “too low” and do not provide “adequate compensation to the lower income parent for actual child rearing expenditures.”  Such adjustments fail to consider that some expenses in a shared physical custody arrangement are being duplicated.

          To resolve this problem, the court or legislature may wish to find that for calculating child support in an equal shared custody situation, the court should consider the parent with the lesser income the primary physical custodian.  The court should begin with the statutory presumption and use the factors set forth in NRS 125B.080 to consider any deviation based on the enumerated factors.  There is an equal duty of both parents to contribute toward the support of their children in proportion to their respective incomes.  NRS 125B.020(1).  The needs of the child are in part determined by the income level of the parents and the ability of each parent to contribute support in proportion to his or her share of that income level.  After all, the percentage of income approach reflects a public policy that, after a family separation, parents should spend on their children the approximate percentage of income that they would have had the family stayed together.  The statutory sum considers the child’s need as well as the income that each parent should contribute to the financial responsibility of his or her child.  The guidelines, in part, are based on the benefit a child will receive by receiving a fair portion of each parent’s income.  The statutory formula is a means of calculating child support to maintain the standard of living that the child would have enjoyed if his parents had not divorced.   Considering this purpose, the fact that there is a joint physical custodial arrangement should not alter the way the court calculates child support. 

Part 9: Introduction and NRS 125B.080(9)(k) and NRS 125B.080(9)l)

          NRS 125B.080(9).  Any other necessary expenses for the benefit of the child:  In Scott, the supreme court stated that “any other necessary expenses for the benefit of the child” could justify a deviation.  In Scott these other necessary expenses appeared to be for the special educational needs of an adult child.  The court could have used 125B.080(9)(c) or 125B.110 to justify the support award in Scott, and its citation of 125B.080(9)(k) appears to have had no special significance.

          NRS 125B.080(9)(l).  The relative income of both parents: The percentage of income formulas generally do not consider the income of the custodial parent.  It presumes that the custodial parent will spend the same percentage of income directly on the child as the noncustodial parent has been assessed for child support.

          Herz and Chambers clearly stand for the proposition that the income of the payor parent may be considered in deviating from the statutory formula.  But if the noncustodial parent earns $20,000.00 per year and the custodial parent earns $200,000.00 per year, should the noncustodial parent still be required to pay 18% of his or her gross monthly income for child support?  NRS 125B.020 states that both parents have an obligation to support their children.  Conversely, if the custodial parent is on food stamps and the noncustodial parent earns $250,000.00, should the noncustodial parent be allowed to pay only the statutory formula amount?  Herz clearly implies that a purpose of the child support statute is to permit a child to share in the wealth and standard of living of the noncustodial parent.

          In Rodgers v. Rodgers, the supreme court held that “under appropriate circumstances, a noncustodial parent’s community interest may be taken into account pursuant to NRS 125B.080.”  In the recent case of Jackson v. Jackson, the supreme court held that an obligor’s cohabitant’s income may also be considered.  These two cases, however, conflict with Lewis v. Hicks in one aspect.  In Lewis v. Hicks, the supreme court said that spousal income may not be used “directly” in setting child support.  A court, however, may consider spousal income “where they have a significant impact on recognized statutory factors.”  In a footnote of Lewis v. Hicks, the supreme court noted that with the repeal of NRS 125B.060, “the courts no longer have explicit authorization to consider the parents’ standard of living or their financial means other than from income.”  In fact, the court noted that Nevada’s statutory scheme “does not authorize consideration of spousal income” and in fact noted that the Nevada legislature specifically rejected such a use.

          Nevertheless, Rodgers and Jackson may be read in harmony with LewisLewis v. Hicks addressed the importance of the income of the custodial parent’s spouse and stated that a court may consider a spouse’s contribution if it has a “significant impact on recognized factors, such as the parents’ standards of living or their relative financial means.”  Nevada, however, “does not authorize using spousal income directly.”  Rodgers and Jackson address the issue of the noncustodial/obligor spouse’s income.  These cases confirm the finding in Lewis that only the obligor’s actual monthly income should be used in calculating the presumptive amount of support pursuant to NRS 125B.070.  In setting child support, however, the court may consider, for deviating from the presumptive level, the income of the obligor parent, his spouse or any other relevant factor to ensure that he is providing the child with an appropriate level of support.  Support may be found in this case law that the court should not consider the income of the custodial parent’s spouse because this factor is irrelevant to the obligor’s obligation to his child.

          As stated above, the implementation of the guidelines as a rebuttable presumption requires a court to apply the guidelines unless the result would be inequitable to the parties or children, in which instance, reasons for the deviation must be stated on the record.  NRS 125B.080(6) requires the court to set forth specific findings of fact as to the basis for a deviation from the formula.  The basis for the deviation must be found in unfairness or injustice that would result from application of the formula.  Equity alone is not enough to justify a deviation; a deviation must be based on the nine factors.  The legislature found this condition so essential that, even in cases where the parties stipulate to an award of child support which is not in conformance with the statutory guidelines, it requires the parties to provide enough facts which justify the deviation.  In fact, the original draft of NRS 125B.080 required a court to set forth written findings if the award deviated by five percent either higher or lower than the formula’s presumptive amount.   The five percent provision was deleted from the final version, however, symbolizing the legislature’s conviction that any deviation should be justified.

          The intent of the statutory presumption was to make the presumptive amount binding absent a judicial finding of “exceptional circumstances.”  Specific findings of fact are, in part, required so that the parties may understand the “justice” of the support award thereby leading to fewer appeals. n

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