USING THE ALABAMA DEVIATION CALCULATOR
Using the Alabama Deviation Award Calculator can improve the odds of the court accepting your deviation arguments by giving the court a foundation for a deviation award. These “notes” will briefly cover a few topics: overview of legal issues, discussion of where in the worksheet common deviation factors can be used and what some examples are, and tips on going through the deviation award calculator.
*The following is not legal advice but is for educational purposes only. Consult an attorney for case specific legal advice.
State and federal regulations require that child support guidelines be rebuttable—that is case evidence can be used to set aside the presumptive award. Under federal regulations, one can cite, 45 CFR 302.56(f):
(f) Effective October 13, 1989, the State must provide that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded.
For Alabama code, that fact that the guideline award is rebuttable is found in Rule 32 of Alabama Rules of Judicial Administration .
A) Child support guidelines established. Guidelines for child support are hereby established for use in any action to establish or modify child support, whether temporary or permanent. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:
(i) A fair, written agreement between the parties establishing a different amount and stating the reasons therefore; or
(ii) A determination by the court, based upon evidence presented in court and stating the reasons therefore, that application of the guidelines would be manifestly unjust or inequitable.
(1) Reasons for deviating from the guidelines. Reasons for deviating from the guidelines may include, but are not limited to, the following:
(a) Shared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court;
(b) Extraordinary costs of transportation for purposes of visitation borne substantially by one parent;
(c) Expenses of college education incurred prior to a child's reaching the age of majority;
(d) Assets of, or unearned income received by or on behalf of, a child or children; and
(e) Such other facts or circumstances that the court finds contribute to the best interest of the child or children for whom support is being determined.
The existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines, but such reason or reasons may be considered in deciding whether to deviate from the guidelines. The court may deviate from the guidelines even if no reason enumerated in this section exists, if evidence of other reasons justifying deviation is presented.
Basically, as especially noted in deviation factor “e,” deviation awards may be argued on ANY evidentiary based reasonable factor. It is up to a party's counsel to make the argument, provide the basis for the deviation, and for the court to agree with the argument for deviation.
Case law on rebuttal from various jurisdictions may be helpful in getting the court to accept deviation arguments. Some useful arguments might be based on (but not limited to):
A presumption that is irrebuttable, or denies a fair opportunity for rebuttal, violates the due process clause of the Fourteenth Amendment of the U.S. Constitution. See Manley v. Georgia , 279 U.S. 1, 49 S.Ct. 215 (1929).
Once a presumption set has been rebutted, the Court must exclude the presumption from the consideration of the jury or other trier of fact in order not to deny due process of law. See Seaboard Coastline Railroad Co. v. Wroblewski , 138 Ga. App. 793 (1976) regarding the rebuttal of a presumption forces the presumption to disappear from further consideration by the court in that case.
In W.& A.R. Co. v. Henderson . . . , the Supreme Court of the United States held that [the statute at issue] was unconstitutional and void, because to permit the jury to consider and weigh the presumption of negligence under this section, as evidence against the testimony of the company's witnesses tending affirmatively to prove due care, was unreasonable and arbitrary and violative of the due-process clause of the 14 th amendment. The court distinguished that case from Mobile & C. R. Co. v. Turnipseed . . . . The court held that the statute in the latter case was constitutional, for the reason that the only legal effect of the inference created by the Mississippi statute was to cast upon the railroad company the duty of producing some evidence to the contrary, and that when this was done the inference was at an end, and the question of negligence was one for the jury from all the evidence. The court further said that “The Mississippi statute created merely a temporary inference of fact that vanished upon the introduction of opposing evidence . . . . That of Georgia, as construed in this case, creates an inference that is given the effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate. The presumption raised by [such statute] is unreasonable and arbitrary, and violates the due-process clause of the fourteenth amendment. . . .”
138 Ga. App. at 795-6 (citations omitted) (emphasis in original).
In Floyd v. Colonial Stores, Inc . , 121 Ga.App. 852, 856-60 (1970), the Georgia Court of Appeals stated:
There has been much erroneous thinking and more loose language in regard to presumptions. We read of presumptions of law and presumptions of fact, of conclusive presumptions and of disputable presumptions. In truth there is but one type of presumption in the strict legal meaning of the word, and that is merely a general rule of law that under some circumstances, in the absence of any evidence to the contrary, a jury is compelled to reach a certain conclusion of fact. But a presumption so declared by the law is only raised by the absence of any real evidence as to the existence of the ultimate fact in question. It is not in and of itself evidence, but merely an arbitrary rule imposed by law, to be applied in the absence of evidence, and whenever evidence contradicting the presumption is offered the latter disappears entirely, and the triers of fact are bound to follow the usual rules of evidence in reaching their ultimate conclusions of fact. As was once said, “Presumptions may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.”
121 Ga. App. at 858 n.1 (citations omitted) (emphasis in original).
The most important caveat is that any deviation award is NOT presumptive. The court may or may not accept your suggested worksheet as the basis for a child support award. However, by submitting a deviation worksheet as an explanation as the basis for the suggested deviation, you improve the odds that deviation arguments will be accepted by the court.
It should be noted that the Alabama Deviation Worksheet continues to apply a principle of equal duty of support according to both parents' ability to pay by using the same format—but expanded—as the standard, presumptive worksheet.
First, although Guideline Software's deviation award calculator offers some suggested deviation factors to consider offering to the court, these suggested factors certainly are not the only ones that may exist for a given case. Given that there are places for factors to be entered against income, basic costs, add-ons, and direct spending items, with little creativity, it should be possible to add many other deviation factors not listed below. Guideline Software welcomes your comments and suggestions—including for any suggested added deviation formulas.
Deviation factors are generally entered into four different facets of the deviation worksheet (with the sections analogous to those in the standard, presumptive worksheet):
1) Income,
2) Basic child costs,
3) Add-ons, and
4) Credits for direct payments by the non-custodial parent.
These deviation factors are intended to have awards conform to case specific facts with the award based on comprehensive analysis of the parents' ability to pay and on the needs (costs) children in accordance with an equal duty of support.
Income Deviations
Typical deviations reflect reductions in a parent's ability to pay—although some additions to income can exist. Examples of reductions to income that may be appropriate can include: bankruptcy court payments, payment on excessive marital debt, school loans that led to a parent's higher income, and a parent's special needs (notably medical needs such as for diabetic supplies for a diabetic). A notable example of adding to a parent's income can be non-cash benefits that lower a parent's cost of living. These can be quite expansive and may include: employer benefits such as the use of a company vehicle, housing allowances for military personnel, and implied rent and utilities costs for a parent that “moves back” with his or her parents. One could also impute income equivalents for rent, utilities, and other services provided by a “second spouse” should one parent choose to become unemployed or underemployed after remarriage. On a final note for deviations that add to a parent's income, a not uncommon issue is that of government disability (or similar) benefits to go to the custodial parent in behalf of a disabled non-custodial parent. Economically, it is appropriate to credit the disability payment as income to the non-custodial parent, calculate the child support award, and then also give credit to the non-custodial parent for the disability payment against the overall child support obligation.
The deviation worksheet assumes that adjustments to income are subtracted. For any income adjustment that is added to income, enter in the input section as a minus.
Basic Child Cost Deviations
The Alabama presumptive guidelines assume that spending on the child or children is based on a national study conducted by Thomas Espenshade but with adjustments for Alabama's relative income distribution. (See Rule 32, Comment ). Case specific evidence may indicate that typical expenses for the child or children differ significantly from what is shown in the presumptive cost schedule. This should be a basis for setting aside the presumptive cost amount and substituting the amount as found through evidence. The deviation worksheet allows for case specific child costs to be substituted for that from the presumptive cost table. These substituted child costs are then shared between the two parents in the same manner as in the presumptive calculations.
Add-ons Deviations
Presumptively, only two add-ons are included beyond the basic child support obligation—work-related child care costs and health insurance costs for the children. However, it is implied that only the custodial parent's day care costs are included since there is only a credit (later in the worksheet) for the non-custodial parent for the health insurance paid directly by the obligor but not for child care paid directly by the obligor. So, if the non-custodial parent has to pay for work-related day care, this can be an add-on and a credit for the non-custodial parent. Other add-ons (for either parent) might be: extraordinary travel expenses for exercising parenting time rights, private school tuition for the children, braces, and regularly occurring extraordinary medical expenses not covered by medical insurance among others.
Credits for Direct Payments by the Non-custodial Parent
This portion of the deviation worksheet is to ensure that the non-custodial parent does not pay portions of child costs twice. The guidelines assume that the custodial parent incurs all of the child costs. Without a credit section, whenever a non-custodial parent incurs child costs directly, the non-custodial parent would be paying twice—at least in part. For example, as discussed above, if work-related child care is added on for that paid by the non-custodial parent, then the non-custodial parent should receive credit for that payment so as to avoid double payment. If extraordinary travel expenses are added to the add-ons section, reflecting non-custodial parent travel costs, then the non-custodial parent also should receive credit for that direct payment. However, it might be argued that these credits (resulting from deviation add-ons) are limited to those not included in typical visitation by the non-custodial parent. Rule 32 asserts that the presumptive cost schedule already takes into account standard parenting time costs of the non-custodial parent. (This assertion appears to contradict documentation on the background of Alabama's child support guidelines but rebuttal of this assumption is probably beyond the scope of relatively simple deviation arguments).
It is relatively easy to key in deviation amounts according to any of the four deviation areas. Be sure to clearly label each deviation factors. For each deviation section there are two lines—one for either parent if needed. If there are multiple factors for a given parent in a given section, then combine the dollar amounts and include a line item name that covers all items. You may need to add a longer explanation in the comments section.
There is only one input allowed for substituting “actual child costs” for the presumptive cost schedule amount. It is up to each party to argue their own version of what are actual child costs if that deviation is attempted. If you use the deviation factor for case evidence based child costs, be sure not to double count expenses in the add-ons section. As with the presumptive worksheet, only the custodial parent's child cost should be used in this section. Non-custodial parent's costs can be in the add-on and credits sections.
For additional comments or questions, email us at guideline@guidelinesoftware.com.
For more complex deviation or rebuttal arguments, you may want to contact R. Mark Rogers Economic Consulting, which specializes in child support issues. See more at RogersEconomics.com or GuidelineEconomics.com.