CHAPTER
137 Definitions 137-050-0320 (1) OAR 137-050-0490 constitutes the formula for determining child support awards as required by ORS 25.275. For purposes of OAR 137-050-0320 to 137-050-0490, unless the context requires otherwise the following definitions shall apply: (2) "Joint child" means the dependent child who is the son or daughter of both the mother and the father involved in the support proceeding. In those cases where support is sought from only one parent of a child, a joint child is the child for whom support is sought. (3) "Nonjoint child" means the legal child of one, but not both of the parents subject to this determination. Specifically excluded from this definition are stepchildren. (4) "Gross income" means: (a) The gross income of the parent calculated pursuant to OAR 137-050-0340 and 137-050-0350; (b) The potential income of the parent calculated pursuant to OAR 137-050-0360 in certain cases where the parent is unemployed or employed on less than a full time basis; (c) A combination of gross income and potential income as calculated under subsections (a) and (b) of this rule; or (d) The temporary income of the parent calculated pursuant to OAR 137-050-0365. (5) "Adjusted gross income" means gross income less the deductions for pre-existing child support obligations as allowed by OAR 137-050-0400 and the deductions for nonjoint children as allowed by OAR 137-050-0400 and either the addition or deduction of court ordered spousal support as allowed by OAR 137-050-0390. (6) "Basic child support obligation" means the support obligation determined by applying the parent's adjusted gross income, or if there are two parents, their combined adjusted gross income, to the scale in the manner set out in OAR 137-050-0490. (7) "Total child support obligation" means the basic child support obligation determined pursuant to OAR 137-050-0490 plus the following additions: (a) Child care costs as allowed by OAR 137-050-0420; and (b) Medical expenses as allowed by OAR 137-050-0430. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 SEE ALSO 1991 AND 1994 GUIDELINES COMMENTARY TO RULE 137-50-320 Computation of Individual Child Support Obligations 137-050-0330 (1) To determine the amount of support owed by a parent, follow the procedure set forth in subsections (1)(a) through (1)(j) of this rule. (a) Determine "gross income" of each parent. (b) Determine "adjusted gross income" of each parent, and if there are two parents, the combined "adjusted gross income." (c) If there are two parents, determine the percentage contribution of each parent to the combined adjusted gross income by dividing the combined adjusted gross income into each parent's adjusted gross income. (d) Determine the "basic child support obligation." (e) Determine the "total child support obligation." (f) Determine each parent's child support obligation by multiplying the percentage figure from subsection (1)(c) of this rule by the "total child support obligation." (g) Adjust the child support obligation determined in subsection (1)(a) through (f) of this rule in consideration of health insurance costs as provided in OAR 137-050-0410. (h) Determine whether the shared physical custody rule, OAR 137-050-0450, or the split custody rule, OAR 137-050-0460, apply. If they do, then apply them and adjust each parent's child support obligation pursuant to the applicable rule. (i) Determine whether the social security benefits rule, OAR 137-050-0405, applies. If it does, then apply it and adjust each parent's child support obligation pursuant to the applicable rule. (j) If the shared physical custody or split custody rules do not apply, determine the amount of the child support obligation that the obligated parent has the ability to pay as provided in OAR 137-050-0475. (2)(a) The amount of child support to be paid as determined in subsections (1)(a) through (1)(j) of this rule is presumed to be the correct amount. This presumption may be rebutted by a finding that the amount is unjust or inappropriate based upon the criteria set forth in subsections (2)(a)(A) through (2)(a)(P) of this rule. Both the presumed correct amount and the new amount, in variance from the guidelines, shall be recited as part of findings which explain the reason for the variance. (A) Evidence of the other available resources of the parent; (B) The reasonable necessities of the parent; (C) The net income of the parent remaining after withholdings required by law or as a condition of employment including, but not limited to the parent's mandatory contribution to a retirement plan as a condition of employment; (D) A parent's ability to borrow; (E) The number and needs of other dependents of a parent; (F) The special hardships of a parent including, but not limited to, any medical circumstances or extraordinary visitation travel related costs, if any, of a parent affecting the parent's ability to pay child support; (G) The needs of the child including, but not limited to extraordinary child care costs due to special needs; (H) The desirability of the custodial parent remaining in the home as a full-time parent or working less than full-time to fulfill the role of parent and homemaker; (I) The tax consequences, if any, to both parents resulting from spousal support awarded and determination of which parent will name the child as a dependent; the formula presumes the custodial parent will have the tax exemption allowed for the child or children; (J) The financial advantage afforded a parent's household by the income of a spouse or another person, or persons, with whom the parent lives in a relationship similar to husband and wife or domestic partnership. (K) The financial advantage afforded a parent's household by benefits of employment including, but not limited to, those provided by a family owned corporation or self-employment. (L) Evidence that a child who is subject to the support order is not living with either parent or is a "child attending school" as defined in ORS 107.108. (M) Prior findings in a Judgment, Order, Decree or Settlement Agreement that the existing support award was made in consideration of other property, debt or financial awards. (N) The net income of the parent remaining after payment of financial obligations mutually incurred. (O) The tax advantage or adverse tax effect of a party's income or benefits. (P) The return of capital. (b) If the child support presumption is rebutted pursuant to subsection (2)(a) of this rule, a written finding or a specific finding on the record must be made that the amount is unjust or inappropriate. That finding must recite the amount that under the guidelines is presumed to be correct, and must include the reason why the order varies from the guidelines amount. A new support amount shall be calculated by determining an appropriate dollar value to be attributed to the specific criteria upon which the finding was based and by making an appropriate adjustment to the calculation. (3) Although a monetary obligation is computed for each parent, only the non-custodial parent will be ordered to pay support except in shared custody and split custody cases. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0330(2)(a)(A) "Evidence of the other available resources of the parent" may include any income earned as overtime, not already included in gross income. The drafters note that overtime earnings are generally included in quarterly or annual earnings reports and should be considered as part of regular gross income. Evidence of overtime earnings not included in quarterly or annual reports is "evidence of other available resources of the parent." COMMENTARY TO 137-050-0330(2)(a)(C) Language has been added to this rebuttal to clarify that employee contributions to a retirement plan that is required as a condition of employment may make a significant impact on a parent's ability to pay the presumed amount of child support. In order to be considered by the trier of fact, any deduction must be mandatory and significantly reduce the income that is available to the parent. COMMENTARY TO 137-050-0330(2)(a)(F) No substantive changes have been made to this subsection. However, two changes in semantics have been made to clarify the following: There has been some confusion on the part of child support practitioners and parents that extraordinary visitation costs must be related to "medical circumstances" to create a special hardship for a parent. This is not the case. The drafters, therefore, changed the "and" to "or" to clarify that visitation costs do not need to occur in conjunction with medical costs. When a parent travels a distance to fulfill parenting time, costs other than mileage may be incurred, especially if the distance requires an overnight stay. Therefore, the drafters have changed "transportation" to "travel-related." Such costs must still be "extraordinary" and impact the presumed correct child support amount. See also 1994 Guidelines Commentary. COMMENTARY TO 137-050-0330(2)(a)(G) The drafters declined requests to add another rebuttal criterion that would include a child's earnings or property. The drafters adopt the Court of Appeals' analysis in Redler and Redler, 153 Or App 135 (1998)(review pending in Oregon Supreme Court), that a child's earnings may be considered as a possible basis for departing from the presumed support amount if there is evidence that those earnings impact "the needs of the child." Such earnings, therefore, should be extraordinary, e.g., a large personal injury settlement, a significant trust fund, etc., and does not include a teenager's part-time employment. In the vast majority of cases, a child's earnings or property should not impact a parent's responsibility to contribute to the support of his or her child. To conclude otherwise would negatively impact the parent-child relationship and provide a disincentive for children to obtain experience in the workforce. On a related but distinctly different issue, please see OAR 137-050-0405 for the treatment of social security benefits received on behalf of a child. COMMENTARY TO 137-050-0330(2)(a)(O) At (2)(a)(O) of this rule, "tax free" has been changed to "tax advantage." This is to clarify that a "tax advantage" may result in a situation in which a rebuttal may be appropriate even though the party's income or benefit is not actually "tax free." See 1994 Guidelines Commentary for a greater explanation of this rebuttal. SEE ALSO 1991 GUIDELINES COMMENTARY TO RULE 137-50-330 Implementation of Changes to Child Support Guidelines 137-050-0335 New rules, repealed rules, and amendments to the rules that constitute the formula for determining child support awards, found at OAR 137-050-0320 through 137-050-0490, shall be applied to the computation of child support obligations on actions in which the initiating motion or petition is filed with the court or a notice or motion is signed by an authorized representative of the administrator after the effective date of these rules. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0335 The changes made to these rules apply to actions filed on or after March 1, 1999. Any action initiated prior to this date would be completed using the previous child support guidelines rules. If it becomes necessary to amend an action initiated prior to March 1, 1999, the previous rules will continue to be used until the action is completed. A petition for de novo review does not initiate a new action. The guidelines in effect at the time the action was initiated will continue to apply. This decision is based upon the general principle that the rights and liabilities of persons are defined and measured by the rules in effect at the time an action is initiated. The term "action" refers to the motion, notice, or pleading for modification or establishment of a child support order. Gross Income 137-050-0340 (1) Except as excluded below, gross income includes income from any source including, but not limited to, salaries, wages, commissions, advances, bonuses, dividends, severance pay, pensions, interest, honoraria, trust income, annuities, return on capital, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, including lottery winnings, and alimony or separate maintenance received. (2) Gross income may be calculated on either an annual or monthly basis. Weekly income shall be translated to monthly income by multiplying the weekly income by 4.33. (3) If the custodial parent of a joint child is a recipient of Temporary Assistance for Needy Families (TANF), the gross income attributed to that parent shall be the amount which could be earned by full-time work (40 hours a week) at the state minimum wage. (4) Excluded and not counted as income is any child support payment. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0340(2) After reviewing accounting formulas, the drafters agreed that the most accurate way to determine an average monthly income when wages are paid weekly is to multiply the weekly earnings by 4.33. This method of converting weekly earnings captures all 52 pay periods per year. This language was added to the rule so that wage computations will be done consistently by practitioners and tribunals. SEE ALSO 1991 AND 1994 GUIDELINES COMMENTARY TO RULE 137-50-340 Income from Self-Employment or Operation of a Business 137-050-0350 (1) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, gross income is defined as gross receipts minus costs of goods sold minus ordinary and necessary expenses required for self-employment or business operation. Specifically excluded from ordinary and necessary expenses for purposes of OAR 137-050-0320 to 137-050-0490 are amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the Administrator, Court, or Hearings Officer to be inappropriate or excessive for determining gross income for purposes of calculating child support. (2) Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0350 There are no substantive changes to this rule. Undistributed corporate income is included in determining the gross income of the parties (see Perlenfein and Perlenfein, 316 Or 16 (1993)). However, the gross income thus calculated may be rebutted in whole or in part if there is evidence that such income is not actually available to the parent. SEE ALSO 1991 GUIDELINES COMMENTARY TO RULE 137-50-350 Potential Income 137-050-0360 (1) If a parent is unemployed, employed on less than a full-time basis or there is no direct evidence of any income, child support shall be calculated based on a determination of potential income. For purposes of this determination, there shall be a rebuttable presumption that a parent can be gainfully employed on a full-time basis. (2) Determination of potential income shall be made according to one of two methods, as appropriate: (a) Determine employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, or prevailing job opportunities and earnings levels in the community; or (b) Notwithstanding any other provision of this section, the amount of potential income attributed to a parent will not be less than full-time work (40 hours a week) at the current state minimum wage. (3) Potential income shall not be attributed to an incarcerated obligor as defined in OAR 461-195-0078. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0360 For purposes of subsection (1) of this rule, the drafters have adopted the definition of "full time work" used by the Employment Department, i.e., forty hours of work in a week except in those industries, trades or professions in which most employers due to custom, practice or agreement utilize a normal work week of more or less than 40 hours in a week. The term "underemployed" was not added to this rule. The drafters agree with the reasoning in La Favor and La Favor, 151 Or App 257 (1997), that the question of whether a person is employing his or her abilities on a full-time basis must be determined on a case-by-case basis. The drafters also note that ORS 107.135(3)(b) and the analysis found in Hogue and Hogue, 115 Or App 697 (1992), adequately address the issue of intentional underemployment. If potential income is used as the basis of a support calculation, child care cost should not be presumed. Evidence of additional child care costs may be the basis for a future modification. SEE ALSO 1991 GUIDELINES COMMENTARY TO RULE 137-50-360 Temporary Income 137-050-0365 If a parent subject to this determination is receiving income of a temporary nature such as, but not limited to, unemployment compensation or workers' compensation, that parent's income for purposes of this determination may be either: potential income pursuant to rule 137-050-0360; or, if the presumption of that rule is rebutted, the actual amount of the temporary income. The temporary income is defined as income that is not anticipated to continue for more than six months. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 SEE ALSO 1994 GUIDELINES COMMENTARY TO RULE 137-50-365 Income Verification 137-050-0370 Income statements of the parents shall be verified with documentation of both current and past income where available. Suitable documentation of current earnings includes pay stubs, employer statements, the records of the Oregon Employment Department, or receipts and expenses if self-employed. Documentation of current income shall be supplemented with copies of the most recent tax return to provide verification of earnings over a longer period. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 SEE ALSO 1991 GUIDELINES COMMENTARY TO RULE 137-50-370 Spousal Support 137-050-0390 The amount of any pre-existing or concurrently entered court-ordered spousal support shall be deducted from the gross income of the parent obligated to pay such spousal support whether the spousal support is to be paid to the other parent or any other person. The amount of any pre-existing or concurrently entered court-ordered spousal support to be received by a parent from the other parent or any other person shall be included in determining the adjusted gross income of the parent entitled to receive such spousal support. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0390 This rule now clarifies that spousal support to or from a third party is to be given the same credits and deductions that is given to spousal support paid between parents of joint children. The adjustment made under this rule requires the order of a specific amount of money as spousal support. Property received in lieu of cash spousal support is not an adjustment to the gross income of the party receiving the property but may be considered as a rebuttal to the presumed Guidelines amount pursuant to OAR 137-050-0330(2)(a)(M). SEE ALSO 1991 GUIDELINES COMMENTARY TO RULE 137-50-390 Nonjoint Children 137-050-0400 (1) When either or both parents of the joint child subject to this determination are legally responsible for a nonjoint child who resides in that parent's household, or a nonjoint child to whom or on whose behalf a parent owes child support under a court or administrative order, a credit for this obligation shall be calculated pursuant to this rule. The credit does not apply to custodial parents receiving TANF if that parent's gross income is calculated using OAR 137-050-0340(3). (2) Subtract from a parent's gross income the amount of any spousal support a court orders that parent to pay, and add to a parent's gross income any spousal support the parent is entitled to receive as allowed by OAR 137-050-0390. (3) Determine the number of nonjoint children in the parent's immediate household, and the number of nonjoint children to whom the parent has been ordered to pay support by prior court or administrative order. The result is "total nonjoint children." (4) Using the scale set down in 137-050-0490, determine the basic child support obligation for the nonjoint child or children by using the income of the parent for whom the credit is being calculated and adjusting that income for spousal support, if applicable, according to subsection (2) of this rule, and using the number of "total nonjoint children" in subsection (4) of this rule. (5) Subtract from the parent's income derived in subsection (2) of this rule the amount obtained as the basic child support obligation for the "total nonjoint children" in subsection (4) of this rule. (6) A parent's gross income plus or minus any spousal support per OAR 137-050-0390, minus nonjoint childcare credit per OAR 137-050-0400, is the parent's adjusted gross income for calculation of basic child support under OAR 137-050-0490. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 SEE 1991 AND 1994 GUIDELINES COMMENTARY FOR FURTHER EXPLANATION OF RULE 137-50-400 Social Security or Veteran's Benefit Payments Received on Behalf of the Child 137-050-0405 To determine how to treat social security benefit income under Title II of the Social Security Act or apportioned veteran's benefits that are received on behalf of a child because either parent receives social security or veteran's retirement benefits or social security or veteran's disability benefits, follow the procedure set out in this rule. (1) Determine "adjusted gross income" of each parent, and if there are two parents, the combined "adjusted gross income." (2) Add the monthly social security or apportioned veteran's benefit received on behalf of the child to the combined adjusted gross income. (3) Using the amount calculated in subsection (2) of this rule, determine the combined child support order from the scale in OAR 137-050-0490. (4) Subtract the amount of monthly social security or apportioned veteran's benefit the parent receives on behalf of the child from the combined child support order amount calculated pursuant to subsection (3) of this rule. (5) Determine the percentage contribution of each parent pursuant to OAR 137-050-0330(1)(c). In determining the percentage contribution of each parent use the combined adjusted gross income pursuant to subsection (1) of this rule which is the combined adjusted gross income before the social security benefit amount is added. (6) Determine each parent's child support obligation by multiplying the percentage figure from subsection (5) of this rule by the adjusted total child support obligation from subsection (4) of this rule. (7) Notwithstanding the result of the calculation made pursuant to subsection (6) of this rule, the presumption found in OAR 137-050-0470 ($50 minimum) continues to apply. (8) For purposes of this rule, "apportioned veteran's benefit" is the amount the Veterans Administration deducts from the veteran's award and disburses to the child or his or her representative payee. The apportionment of veteran's benefits is determined by the Veterans Administration and is governed by 38 CFR 3.450 through 3.458. [Publications: The publications referenced in this rule are available for review at the agency.] Stat. Auth.: ORS 180.340, ORS 25.270 - ORS 25.290 & 1999 OL, Ch. 1030 Stats.Implemented: ORS 25.270 - ORS 25.290 & 1999 OL, Ch. 1030 COMMENTARY TO 137-050-0405 This is a new rule. While social security income (based upon the parent's retirement or disability) received on behalf of the joint child or children was previously a permissible consideration under rebuttal 2(a)(G) (see Lawhorn and Lawhorn, 119 Or App 225, 850 P2d 1126 (1993)), the drafters concluded that a systematic treatment of this kind of household income would be helpful to practitioners and produce a more equitable result for families. The drafters rejected the approach taken by some other states where a dollar-for-dollar credit is given for social security benefits against the presumed child support amount. Such an approach does not enhance the well-being of children, particularly when a parent who receives social security benefits has other sources of income available. This rule acknowledges the income that social security provides to the child's household but also allows for a reduction to the presumed child support amount by the benefit amount. The non-custodial and custodial parent continue to be obligated to contribute to the support of the joint child or children for the amount remaining after the reduction. A minimum order, however, is still appropriate. Social security death/survivor benefits are not addressed under this rule because such benefits are not derived from either party to the support order. Death benefits should be treated as income to the child only and should be considered, when appropriate, as a rebuttal under 137-050-0330(2)(a)(G). Due to the passage of HB 3361 incorporated as 1999 Oregon Laws, Chapter 1030, veteran's benefits are also included in this rule and should be treated in the same manner that social security benefits received on behalf of a child are treated. However, only apportioned veteran's benefits are considered because only such benefits are actually distinct from the award received by the veteran and disbursed directly to the child or his or her representative payee. Veteran's benefits that are not apportioned should be treated as income to the veteran parent. Health Insurance 137-050-0410 (1) If the assignee or custodial parent has elected to have health insurance included in the order, and it is not a shared or split custody case, the Administrator, Hearings Officer or Court shall follow the procedure set out in subsections (1)(a), (1)(b), (2) and (3) of this rule. In the case of shared or split custody, proceed to subsection (5) of this rule. (a) Determine whether health insurance is available to the obligor on a group basis or through his or her employer or union at reasonable cost. Health insurance is considered reasonable in cost if it is employment related insurance or other group health insurance, regardless of service delivery mechanism unless the group insurance is not accessible to the child or obligee, and the cost to cover the subject child or children does not exceed the monthly child support obligation determined under the formula provided by ORS 25.275 and 25.280. (b) Determine the cost to the obligor of carrying health insurance coverage for only the obligor's joint and nonjoint children, if it can be determined, prorated for the total number of children covered. (2) In every case where an obligee or assignee of support rights has elected to have the subject child named as a beneficiary on the health insurance plan available to the obligor through his or her employment or union, or through other group plan, it shall be ordered. When the obligor provides health insurance coverage for the child or children, the amount of the child support order shall be reduced by an amount equal to the obligee's pro rata share of the obligor's out-of-pocket costs of health insurance for the child, which is determined by the obligee's proportionate share of the combined income of the parents. No reduction shall be allowed for the cost attributable to covering the obligor or obligor's spouse or domestic associate under such insurance. (3) When an obligor does not provide health insurance for the subject children and such insurance is provided by an obligee, the obligor's child support obligation shall be increased by an amount which represents the obligor's pro rata share of the obligee's out-of-pocket costs of the health insurance. (4) When the support obligation of a parent is determined for a child who is not in the custody of the other parent, and assuming that only the income of the parent against whom support is ordered is considered, the entire cost of any insurance for that child provided by the obligated parent shall be deducted from the amount of the support ordered with respect to that parent. (5) In the case of shared or split custody, either one or both of the parents may provide the health insurance, if available. Refer to the shared custody rule 137-050-0450 or the split custody rule 137-050-0460 for instructions on how to allocate these costs. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0410 137-050-0410(1)(b): This rule has been changed. Previously a child support credit was given to a parent based on the cost incurred by "adding" the joint child or children to an insurance plan. If the parent already had insurance coverage and no additional expense was incurred by adding the joint child, no credit was allowed. The present rule allows for a credit based upon the cost to cover all the parent's minor dependents divided by the number of minor dependents covered, regardless of whether there is any "additional" cost to include the joint child or children. (Costs attributed to insure the obligor or obligor's domestic associate should not be considered. See subsection (2).) The drafters concluded that this approach produces a more equitable result by attempting to tie each child's share of the insurance costs to that child's order. 137-050-0410(2): The rule has been amended to clarify that the health insurance costs attributable to the obligor's spouse or domestic partner should not be considered in determining the reduction allowed to the child support order. The drafters recognize that while it may be a fairly simple equation to determine the costs attributable to the obligor under the insurance plan (individual vs. family plan) it may be more difficult to ascertain the costs of covering the obligor's spouse or domestic associate when a "family plan" covers both adult and minor dependents. In such a case, the costs attributable to the dependent coverage should be divided by the number of all the dependents covered. The pro rata share of the joint child's cost should then be applied. (Example: The cost to cover four children and new spouse is $500.00. Two joint childrens' pro rata share would be $200.00.) Such an approach recognizes the costs attributable to the joint children without allowing a credit for the costs of covering the obligor's spouse or domestic associate. 137-050-0410(3): The drafters also want to clarify that if support rights (including medical support) have been assigned to the State, the election to have the joint child named as a beneficiary to the health insurance available to the obligor belongs to the State. As the assignee, the State will always elect to pursue the insurance available to the obligor through his or her employment or other group plan. If, however, the Oregon Health Plan is the only insurance available to the joint children, out-of-pocket costs incurred by the custodial parent shall be treated like the costs incurred in any other insurance plan under this rule or OAR 137-050-0430. Child Care Costs 137-050-0420 An amount equal to the annualized monthly child care costs, including government child care subsidies, less the federal and state child care credit payable on behalf of joint children, which are due to employment or job search of either parent, or the physical custodian of the children, shall be added to the basic obligation. Such childcare costs shall be reasonable; that is, such costs shall not exceed the level required to provide quality care for the child or children from a licensed source. Child care costs required for active job search and child care costs required to allow the custodial parent to obtain training or education necessary to obtain a job are allowable on the same basis as costs required in connection with employment. In the case of shared custody, follow the instructions in rule 137-050-0450; and in the case of split custody, follow the instructions in rule 137-050-0460, regarding the allocation of these costs. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0420 The rule has been changed to clarify that government subsidies for child care should be included in the cost of care. In August 1992 the phrases "out-of-pocket" and "any subsidy incurred" were deleted. These changes to the rule reflect the drafters' intent that the total costs for day care, including any costs funded by government programs, be used in calculating support. For example, if the custodial parent is receiving job skills training through the AFS Jobs Program, he or she may be paying $100 per month in out-of-pocket child care costs and the state may be paying the day care provider the remaining $200 through the Employment Related Day Care program (ERDC). In this scenario, the figure that should be used in the guidelines calculation is the full $300. ERDC is an income based program. Once child support is received, the custodial parent's eligibility for day care assistance is reduced. If government subsidies are not included in the calculation, a disproportionate share of the cost of child care is transferred to the custodial parent. Please note that this is only true with regard to government subsidized day care costs. There is no like rationale to include subsidies received through a private plan provided by an employer or insurance policy. Although the Support Enforcement Division worksheets are not part of the official child support guidelines, they are widely used by all Oregon child support practitioners for calculating child support obligations. On worksheet SED109E dated 12/92, Federal and Oregon tax credit tables for child care credit are given as a reference for calculating the child care credit. The tax credit table for Oregon is current, but is based on federal adjusted gross income, including exemptions and deductions. The child support calculations are based on monthly gross income which may or may not include exemptions or deductions. After examining several sample calculations, the drafters concluded that the use of monthly gross income, which may or may not include exemptions or deductions, does not significantly impact the presumed amount and does not justify a change in the child support credit calculation. SEE ALSO 1991 GUIDELINES COMMENTARY FOR FURTHER EXPLANATION OF THE CHANGE TO THE GUIDELINES REGARDING DAY CARE COSTS AFTER THE FEDERAL AND STATE TAX CREDITS HAVE BEEN FIGURED. SEE ALSO 1994 GUIDELINES COMMENTARY FOR AN EXPLANATION OF HOW RULE 137-50-420 WAS CHANGED WITH REGARD TO SHARED AND SPLIT CUSTODY. Medical Expenses 137-050-0430 The basic child support obligation may be increased by a reasonable amount which recognizes recurring medical costs on behalf of joint children by the custodial parent. Such an increase is allowable only to the extent that such medical costs are not eligible for payment by health or other insurance. Recurring medical costs are defined as those costs which are reasonably expected to occur regularly and periodically in the future based on documented past experience or on substantial evidence of future need. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0430 This rule has been changed to reflect that medical costs may be "eligible" for payment by health insurance but may not be paid for a period of time. This lag in payment does not make the costs "uninsured" costs. "Uninsured" or "out-of-pocket" medical costs include co-payments, premiums, deductibles, over-the-counter medications and other medical costs not covered by the family health insurance. The Guidelines scheduled amounts include ordinary unreimbursed medical costs of $250 per child per year. Recurring uninsured costs as defined by this rule, that exceed $250 per child per year may be added to the basic support obligation. Uninsured costs that exceed $250 per child per year and that are not predicable or anticipated are not addressed in this rule. SEE ALSO 1991 AND 1994 GUIDELINES COMMENTARY TO RULE 137-50-430 Shared Physical Custody 137-050-0450 Shared Physical Custody is defined as a situation when by agreement of the parents in writing or by court order one parent has physical custody not more than 65 percent of the time and the other parent has physical custody not less than 35 percent of the time. When the parents are sharing physical custody as defined in this section, the amount of support to be paid shall be calculated pursuant to this rule. (1) Determine combined adjusted gross income. (2) Determine basic child support from the scale set down in OAR 137-050-0490. (3) Multiply the basic child support amount by 1.50. (4) Determine the percentage of overnights the child will be in the physical custody of each parent. (5) Pro rate the basic child support amount for each parent by multiplying the support amount determined in subsection (3) of this rule by the percentage of time the child will be in that parent's custody. (6) Determine: the total out of pocket expenses paid by each parent for health insurance; the total paid by each parent for child care as defined in OAR 137-050-0420; and the total paid by each parent for any recurring medical costs as defined in OAR 137-050-0430. (7) Add the total costs/expenses paid by each parent determined in subsection (6) of this rule to the prorated child support amount determined in subsection (5) of this rule for that parent. (8) Determine each parent's percentage contribution to the combined adjusted gross income. To calculate this percentage, divide each parent's adjusted gross income by the combined adjusted gross income. (9) Multiply the income percentage determined in subsection (8) of this rule and allocated to each parent by the total support and costs/expenses amount calculated in subsection (7) of this rule and assigned to the other parent. The result of this calculation is two support amounts; each amount reflecting an amount owed by one parent to the other. (10) The court or administrator may, but need not, net out the obligations obtained in subsection (9) of this rule by subtracting the smaller obligation from the larger, and require the parent with the larger obligation to pay the difference between the two amounts. (11) When calculating shared custody, OAR 137-050-0470 ($50 minimum) and OAR 137-050-0475 do not apply. (12) If the parent who is to pay support has physical custody less than 35 percent of the overnights, a credit may be given against the parent's support obligation upon a showing that the parent has physical custody more than 25 percent of the total overnights and that the parent's direct contribution to the support of the child significantly reduces the cost of support to the other parent. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 COMMENTARY TO 137-050-0450 This rule has only been changed to reflect that "time" means "overnights." By doing so, the drafters adopt the holding of the Court of Appeals in Clifton and Clifton, 149 Or App 229 (1997). The drafters recognize that many non-custodial parents are responsible for significant periods of parenting time during the day that does not involve overnights. More research is necessary before any responsible changes can be made to this rule that would produce a formula that can be administered fairly and efficiently. SEE ALSO 1991 AND 1994 GUIDELINES COMMENTARY TO RULE 137-50-450 Split Custody 137-050-0460 (1) Split custody is defined as a situation where there is more than one joint child and in which each parent has physical custody of at least one of the children. (2) When split custody is involved, the calculation of child support shall be as follows: (a) Add together the adjusted gross income of each parent. Adjusted gross income is defined in OAR 137-050-0320(5). (b) Determine the basic child support obligation from the Scale set down in OAR 137-050-0490. (c) Divide the number of children with each parent by the total number of joint children. Assign to each parent the resulting percentage. (d) Pro rate the basic child support amount for each parent by multiplying the support amount determined in subsection (2)(b) of this rule by the percentage of children determined in subsection (2)(c) of this rule for that parent. (e) Determine: the total out-of-pocket expenses paid by each parent for health insurance; the total paid by each parent for child care as defined in OAR 137-050-0420; and the total paid by each parent for any recurring medical costs as defined in OAR 137-050-0430. (f) Add the total costs/expenses paid by each parent determined in subsection (2)(e) of this rule to the pro rated child support amount determined in subsection (2)(d) of this rule for that parent. (g) Determine each parent's percentage contribution to combined adjusted gross income. To calculate this percentage, divide each parent's adjusted gross income by the combined adjusted gross income. (h) Multiply the income percentage determined in subsection (2)(g) of this rule and allocated to each parent by the total support and costs/expenses amount calculated in subsection (2)(f) of this rule and assigned to the other parent. The result of this calculation is two support amounts; each amount reflecting an amount owed by one parent to the other. (i) The court or administrator may, but need not, net out the obligations obtained in subsection (2)(h) of this rule by subtracting the smaller obligation from the larger, and require the parent with the larger obligation to pay the difference between the two amounts. (j) When calculating split custody, OAR 137-050-0470 ($50 minimum) and OAR 137-050-0475 do not apply. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 SEE ALSO 1991 AND 1994 GUIDELINES COMMENTARY TO RULE 137-50-460 Minimum Order 137-050-0470 Notwithstanding the amount of the gross income of either parent subject to a determination under OAR 137-050-0320 through 137-050-0490, it shall be a rebuttable presumption that the noncustodial parent has an ability to pay at least $50 per month as child support for the benefit of a joint child or children. Stat. Auth.: ORS 180.340 & ORS 25.270 - ORS 25.290 Stats. Implemented: ORS 25.270 - ORS 25.290 NOTE: THERE IS ALSO MENTION OF THIS RULE IN THE 1991 GUIDELINES COMMENTARY. Ability to Pay 137-050-0475 It is a rebuttable presumption that a child support order should not exceed the obligated parent's ability to pay. To determine the amount of child support the obligated parent has the ability to pay, follow the procedure set out in this rule: (1) Calculate the obligor's income available for support by subtracting a self-support reserve of $776.00 from the obligated parent's "adjusted gross income" as defined in OAR 137-050-0320(5). (2) Compare the obligated parent's income available for support to the amount of support calculated as per OAR 137-050-0330(1)(a) through (1)(i). The amount of child support that is presumed to be correct as defined in OAR 137-050-0330(2)(a) is the lesser of these two amounts. (3) Notwithstanding the result of the calculation made pursuant to subsection (2) of this rule, the presumption found in OAR 137-050-0470 ($50 minimum) continues to apply and is to be given greater weight than the presumption under this rule. (4) This rule does not apply to an incarcerated obligor as defined in OAR 461-200-3300. COMMENTARY TO 137-050-0475 This rule presumes that an obligated parent needs a self support reserve of $776 in order to meet his or her basic needs. $776 is a gross income figure and is the self support reserve factored into the current guidelines scale developed in 1998, as a result of the study entitled Economic Basis for Updated Child Support Schedule, prepared by Policy Studies, Inc. Prior to the adoption of this rule, this self support reserve was not always maintained for lower income obligors when other items were factored into the child support calculation such as child care costs, large numbers of nonjoint children, extraordinary medical expenses, or health care costs. The ability to pay calculation ensures that the obligated parent is left with this basic amount of income in order to support him or herself. Section (3) of the rule reflects the intent of the drafters that the presumption stated in OAR 137-050-0470 ($50 minimum) should be given preference over the presumption stated in this rule. The $50 minimum may still be rebutted by using one of the factors set out in OAR 137-050-0330. When an obligor has more than one child support obligation being paid to different households, this rule does not contemplate that the self support reserve must be maintained after subtracting all child support obligations from the parent's income. Rather, the obligor's adjusted gross income (after the nonjoint child credit) is used to calculate the obligor's ability to pay in order to factor in other child support obligations the parent may have. In this way, the obligor's ability to pay can be considered in each individual case without giving one family a preference over another and without requiring a modification of all child support cases the obligor may have at one time. The drafters note that using adjusted gross income to calculate the obligor's ability to pay, may, in some circumstances, give a former spouse preference over the support of the children. In these instances, it may be appropriate to add spousal support back into the obligor's adjusted gross income when calculating the obligor's ability to pay. If appropriate, this should be treated as a rebuttal. This rule applies to new orders and modifications initiated after the effective date of the rule and does not give rise to a change of circumstance modification by itself. To request a modification, the party must have other qualifying circumstances or qualify for a two year review. The Scale Used in Child Support Determinations 137-050-0490 (1) Table 1 shall be used in any judicial or administrative proceeding to establish or modify a support obligation under ORS Chapters 107, 108, 109, 110, 416, 419(B) & (C) and determinations pursuant to OAR 137-050-0320 through 137-050-0490. (2) Where one parent has physical custody of a child and support is sought against the other parent, or when the shared or split custody rules apply, the combined adjusted gross income of the parents should be used. (3) Where a child is not in the custody of one of the parents and a support order is sought against one or each of them individually, a parent's adjusted gross income, not the adjusted gross income of both, should be used. (4) For combined adjusted gross incomes exceeding $15,000 per month, the presumed basic child support obligations shall be as for parents with combined adjusted gross income of $15,000 per month. A basic child support obligation in excess of this level may be demonstrated for those reasons set forth in OAR 137-050-0330. (5) In determining the support amount for seven or more children, the following shall apply: (a) For seven children, add 5.6% to the amount for six children listed on the scale; (b) For eight children, add 4.2% to the amount calculated for seven children; (c) For nine children, add 2.8% to the amount calculated for eight children; (d) For ten children, add 1.4% to the amount calculated for nine children; (e) For eleven or more children, the support amount does not increase beyond the amount calculated for ten children. (6) When the combined income falls between two income amounts on the scale, use the lower income amount on the scale to determine the child support obligation. (7) The scale below presumes the obligee will take the tax exemption for the joint children for income tax purposes. When the obligee does not take the tax exemption, the rebuttals in OAR 137-050-0330 may be used to adjust the obligor's child support obligation. Stat. Auth.: ORS 25.275 & ORS 25.280 COMMENTARY TO 137-050-0490(5) This rule provides a new formula for determining the amount of support when support is sought for seven or more children. The Guidelines promulgated in 1994 determined a presumed support amount by using a fixed multiplier of 6.6% to the presumed amount for six children for each additional child thereafter. There is no current data to support a specific 6.6% increase for each additional child after six children. Policy Studies, Inc.'s 1998 study discusses adjustments for the number of children, and reports that the multiplier decreases as the number of children increases, because of a reallocation of the adult's share of expenditures to provide for more children, and each child's share of expenditures is reduced to accommodate the needs of additional children. The drafters have extrapolated support figures provided by Policy Studies, Inc. to go beyond six children, and taken into consideration those adjustments discussed in the study that gradually reduces the "needs factor" for each child after six and recognizes that there is a point at which additional support is not needed or is no longer affordable. Therefore, the current scale adds 5.6% to the figure for six children for the seventh child, and to that adds 4.2% for the eighth child, and to that adds 2.8% for the ninth child, and to that adds 1.4% for the tenth child. There is no further additional support for any child beyond the tenth child. COMMENTARY TO 137-050-0490(7) The Oregon Child Support Program contracted with the Colorado-based company Policy Studies, Inc. for an economic study for our use during our review of the Oregon Child Support Guidelines. This study provided a scale that presumed the obligee would take any tax exemption allowed for the child or children. Although there is no change in the language of the rule, the drafters noted that this presumption is reflected in the language of 137-050-0330(2)(a)(I). SEE ALSO 1991 GUIDELINES COMMENTARY TO RULE 137-50-480 (REPEALED) AND 1991 AND 1994 GUIDELINES COMMENTARY TO RULE 137-50-490 _____________________ |
||