In Part Five, I began to discuss the puzzling new provisions of our current 2013 Guidelines and ended with the presentation of what I see as seven inter-related and overlapping issues, which I will further examine in this part using a recent court case as an example. First, a short restatement of those basic seven issues (for a more detailed description of these issues themselves, see Part Five again):
Nearly all of these issues arose in a recent post-divorce case. In it, I represented a Father
with less parenting time and less income than the mother. Father believed he had his children 36-38 percent of the time, while Mother claimed he had 33 percent or even less. How to calculate time – days, nights, school days, weekends, holidays – is an open question that threatened to be a big one for us before we managed to settle right before trial, although without resolving that issue.
The 2013 Guidelines unfortunately made percentage of time important without also stating how to calculate it. Before the 2013 Guidelines, there was rarely a need to calculate parenting time with precision. Case law pre-dating the new guidelines suggests night time and sleeping hours cannot be discounted in favor of “quality time” during the day. Katzman v. Healy, 77 Mass.App.Ct. 589, 594 (2010) (" The law has not…neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it.”) But that 2010 case by itself is insufficient to answer the questions posed by the 2013 Guidelines, and there is almost no help from other cases or statutes. Had we gone to trial, Father and Mother would have advanced evidence and arguments for very different ways to count time and it is uncertain how the judge would have ruled.
Another question was how to calculate Support
for the new 33-50 percent parenting time category. Father’s income was slightly under $100,000, and Mother’s was about $200,000. If the parenting share was an approximately one third/two thirds split, Father would pay $290/week to Mother. I argued Father was in the new 33-50 percent zone and should benefit from the second cross-calculation.
Here’s where it gets interesting. If Father was in that new zone, we needed to “average” the $290/week sole custodial support award from Father to Mother with the joint custodial award, a $308/week support award from Mother to Father. The literal “average” of $308 and $290 is $299. I argued the “average” should require the use of a negative number for the smaller number, to indicate the difference in direction, following mathematical logic and a belief the intent of the averaging was to effect a perfect compromise. The numbers to be averaged were nearly equal, but in opposite directions, and so I reasoned we should take the average of $308 and -$290, or $9, thus requiring a payment of $9 from Mother to Father.
I contended we should treat the “average” in all cases in a mathematically consistent way, as the true midpoint. When numbers to be averaged are going in the same direction, that is, when the parent with less time also makes more money, and would be the payor under both a joint custody calculation and a sole custodial calculation, the “average” would properly yield a number exactly between those two numbers, a perfect compromise. But in our very different case, a mathematically consistent compromise between my client’s paying $290 and his receiving $308 would be an award to him of $9. That $9 number would be the precise midpoint between the numbers to be averaged if graphed as a positive and a negative number to reflect their opposite directions.
Opposing counsel countered that language in the guidelines suggests the “recipient” is always the parent with more time; furthermore, there is no support at all for my crazy idea ever to use a negative number when calculating the average. The Guidelines state: “The average of the base child support and the shared custody cross calculation shall be the child support amount paid to the Recipient.” They speak of averaging the base child support paid to the recipient and the shared custody cross calculation paid to the recipient.
Still, if the recipient is always the parent with more time, and we must always use the literal average, then how could we justify using this literal average $299? Furthermore, if someone had to pay $299 and it had to be Father, why would Father then have to pay $9 more than the $290 he would have paid with less parenting time, that is, under a straight one third/two thirds split?
Imagine if the variables had been only slightly different – a real possibility – with numbers to average being exactly equal, $300 to him and $300 to her. The average would then also be $300. So who pays whom? The literal average will properly function in all cases where the putative support numbers go in the same direction, as it would be the exact compromise, equidistant between the two positive numbers. However, it is logical to require use of a negative number for one of the numbers when they represent transfers in opposite directions, to get the number that is similarly the real compromise, the true midpoint between those numbers to be averaged, here (-$300 +300)/2 = 0, and in my actual case, (-$290 + 308)/2 = $9.
In many cases, results would be even more skewed than in my real-life example and the slightly modified hypothetical I just posed, if we merely insisted upon using the literal average without the negative sign, and always required the parent with less time to pay the other. In fact it is in all cases where the parent with less time also has less income that results skew in the wrong direction with such an approach. In the most extreme examples, this literal approach yields the absurd result that the payor would pay more than his/her actual available income! I will demonstrate that next.
In Part Seven, I will show those most absurd results of the new formula using a literal "average".
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.