Child Support Modification

January 4th, 2010

Floyd v. Morgan 383 S.C. 469, 681 S.E.2d 570 (Ct. App. 2009) involves issues of modification of a child support order based upon the change in one’s income. The mother, who was the non-custodial parent sought a change of her child support obligations because the father’s income had increased by 43% since the prior child support order was entered and the $544 of child care at time of previous order no longer existed. Of note, the previous child support order of $920 a month was based upon an agreement reached by the mother and father in 2000.

“The family court may always modify child support upon a proper showing of a change in either the child’s needs or the supporting parent’s financial ability. The party seeking the modification has the burden to show changed circumstances. This burden is increased where the child support award is based on a settlement agreement. However, changes within the contemplation of the parties at the time of the initial decree are not sufficient bases for the modification of a child support award. . . . a reduction in child support cannot be based on a decrease in the noncustodial parent’s income absent a strong showing by the latter that he or she can no longer make the support payments required by the earlier order.”

The Court of Appeals held that the “Mother failed to meet the heightened burden necessary to warrant a downward modification of her child support obligation.”

The Court stated that “Although the increase in Father’s income is of some import, this factor alone did not warrant a downward modification of Mother’s obligation absent a strong showing that she was incapable of meeting the initial agreed-upon amount of child support. . . Mother had to prove more than an increase in Father’s income to warrant a downward modification of her child support obligation. Mother failed to do so given her income actually increased 18% since the 2000 order and, thus, she could not establish that she was incapable of meeting the initially agreed-upon child support obligation of $920 per month.”

The Court went on and stated that “given the children’s young ages at the time of the initial decree, we believe the parties would have foreseen the eventual elimination of the $544 child care expense used to calculate Mother’s initial child support obligation. Moreover, Regulation 114-4720 points out that support payments are based on data reflecting the average cost of rearing a child to its age of majority. This Regulation also recognizes that this cost increases as the child’s age increases. Therefore, the reduction in child care cost is offset over time by the increase in cost associated with the needs of an aging or maturing child. Thus, it would appear that a reduction in child care cost is expected and considered in the child support guidelines formulation.”

The Court went back to its earlier statement of the law: “changes within the contemplation of the parties at the time of the initial decree are not sufficient bases for the modification of a child support award.”

Thus, because the mother could not prove that she could no longer pay the agreed upon child support, regardless of the increase in the father’s pay, the Court would not modify the previous child support order.

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