MINUTES OF THE JOINT MEETING OF
SENATE COMMITTEE ON JUDICIARY
AND
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
February 15, 1993
The joint meeting of the Senate Committee on Judiciary and the Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 1:40 p.m., on Monday, February 15, 1993, in Room 105, Cashman Field Center, 850 North Las Vegas Boulevard, Las Vegas, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
SENATE COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
ASSEMBLY COMMITTEE MEMBERS PRESENT:
Assemblyman Robert M. Sader, Chairman
Assemblyman Gene T. Porter, Vice Chairman
Assemblyman Bernie Anderson
Assemblyman John T. Bonaventura
Assemblyman John C. Carpenter
Assemblyman C.W. Collins
Assemblyman James Gibbons
Assemblyman William D. Gregory
Assemblyman William A. Petrak
Assemblyman John B. Regan
Assemblyman Scott Scherer
Assemblyman Michael A. Schneider
Assemblywoman Stephanie Smith
Assemblyman Louis A. Toomin
SENATE COMMITTEE MEMBERS ABSENT:
Senator Lawrence E. Jacobsen
Senator Mike McGinness
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STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Maddie Fischer, Primary Secretary
Chandra Penderland, Committee Secretary
OTHERS PRESENT:
Marshal S. Willick, Attorney at Law
Bruce I. Shapiro, Attorney at Law
Rhonda L. Mushkin, Attorney at Law
Mr. Sader stated the purpose of the joint meeting was to hear a report to be presented by the Family Law Section of the Nevada State Bar Association, (State Bar), which would include recommendations and comments relating to child support laws in the State of Nevada. He indicated the legislature, during the 1991 session, requested the state bar to conduct a study on the subject and to report its findings to this session. The report of the state bar is attached hereto in three sections: Exhibit C is the Child Support Statute Review Committee Report; Exhibit D includes the exhibits referenced in the report; and Exhibit E includes Appendixes I, II and III. (Original Exhibits D and E are on file in the Research Library). The chairman said one of the issues to be discussed, is whether one of the two committees present wish to sponsor any proposed bills which would include recommended changes in the child support law. Mr. Sader indicated there would be no public testimony at this hearing, since there are no bills prepared at the present time.
The chairman asked the members of the state bar committee present to direct the majority of their comments to those areas in which they wish to see legislative changes to the law. He pointed out there were various areas in the report which analyze existing law, "...and conclude the existing law should stay the way it is." Mr. Sader said those areas would not be emphasized during the hearing.
Appearing before the committee were three members of the Nevada State Bar Association, Family Law Section, Child Support Statute Review Committee. They were Marshal S. Willick, Attorney at Law, Bruce I, Shapiro, Attorney at Law, and Rhonda L. Mushkin, Attorney at Law.
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Mr. Willick began the presentation. He introduced Mr. Shapiro and Ms. Mushkin and indicated there were four other members of the review committee not present. Short biographical sketches of all members of the review committee are set forth on pages 3 and 4 of Exhibit C.
Mr. Willick provided each committee member with a document entitled Summary of Recommendations as to Child Support, which is attached as Exhibit F.
Mr. Willick reiterated the scope of the review committee's task, which was to review the child support formula set forth in Nevada Revised Statutes (NRS) 125B.070, to determine whether any modifications are advisable. He said a "precondition" to service on the review committee was "to not have any preconceived agenda."
Mr. Willick referred to page 7 of Exhibit C, referencing a "historical summary of what has gone on in prior sessions." He said they looked at each of the recommendations made in prior sessions, which was an "attempt at this time to take a detailed and cold-blooded analysis of what the impact of those proposals would be...outside of the heat of any particular bill draft." Mr. Willick said they "broadcasted" to the community in general, the legal community, and the judicial committee, a request for input as to "what is working, what is not working, and what they would like to do about it."
Mr. Willick said the majority of the review committee "shifted constantly...there were no alignments...." He indicated no single member of the committee was in the majority or minority on every vote. Mr. Willick added that told him two or three things:
First, we did a good job in committee selection, insofar as our people were not predisposed toward any particular ideological viewpoint. Secondly, most of the topics we had to address are susceptible to reasonable differences. These are topics on which reasonable minds could differ, and in fact did. The number of unanimous votes was comparatively small. Most...were value judgments...what we were often faced with was the least bad of competing bad alternatives, in terms of social cost...and economic costs...."
Mr. Willick said an evaluation was done of each of the alternatives which have been "at least peripherally paraded in front of the legislature" during the last few sessions. He referred to pages 54 to 58 of Exhibit C, and Appendix I in Exhibit E.
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Mr. Willick indicated he wished to introduce each of the recommendations for change which the review committee has made. He said the recommendations were grouped into five sections: technical and corrective proposals, amount and components of child support awards, rules for courts applying child support guidelines, interpretive assistance and further work recommended. (See Exhibit F.)
Mr. Willick explained the recommendations on Exhibit F as follows:
Technical or Corrective:
1. The change is explained on pages 16 and 17 of Exhibit C. There was an apparent typographical error, stemming from the original bill draft. As currently phrased, there is no presumptive ceiling application in families with more than four children, but there is, if there are four children or less. That doesn't strike me as something the legislature could have possibly intended to do...it is a typographical error...we would like to switch the four to a five...if there is going to be a ceiling, it should be uniformly applicable, irrespective of family size....
2. We found one interesting difficulty...one of the advantages to having a committee as widespread as ours was...we got feedback from what is really happening in the trial courts all over the state. We found a statute which everybody thought had been consistently interpreted...in reality has been inconsistently interpreted...it is set out in detail on page 52 of the report...and has to do with when a child turns 18. We know the child has a last year of high school...there are only three possibilities. Either the child turns 18 before graduating from high school, turns 18 after graduating from high school, or turns 18 somewhere during the last year...in the first two scenarios we don't have a problem. But when the child turns 18 prior to graduation...Clark and Washoe County are doing different things. In some courts, child support is ordered continued through 19 [years], irrespective of the graduation date...in other counties, child support would terminate at the moment of graduation...we came up with a recommendation to rephrase the statute. [See page 52, Exhibit C].
Mr. Willick said the above recommendation is conditioned upon the legislature not wanting to do one of the things the United States Interstate Commission on Child Support has recommended, which is to
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extend child support through age 22 in the event of higher education, "within the discretion of the courts." He said the review committee did not recommend this provision, but referenced pages 52 and 53 of Exhibit C, which explained a possible federal mandate in that regard.
Mr. Willick continued to explain the recommendations set forth on Exhibit F:
Amount and Components of Child Support Awards
1. Referring to presumptive ceiling...also known in prior legislative history as the 'cap provision.' This is set forth in detail on pages 16 through 20 of Exhibit C...we did a thorough analysis of where [the statutory language] came from...frankly, it came out of an internal...not reported in the legislative history...discussion in the assembly judiciary committee in 1987. Somebody...suggested throwing in a cap...it was disputed by the senate judiciary committee... ultimately it was compromised as the language we now see, and has the effect of applying a maximum amount per child of $500 per month, irrespective of the income of the obligor, unless the court sets out...why it is awarding more than that amount. ... We examined whether the ceiling should be deleted entirely...the question posed by the senate committee in 1987, was, 'Why does this provision exist...it seems to impact on the income sharing goal.' ... You cannot both share in proportional amount of income...of the non-custodial obligor spouse, and provide for presumptive ceiling...those two ideas are in conflict.
Mr. Willick pointed out the options set forth on pages 19 and 20 of Exhibit C, specifically the "statement of purpose" question in paragraph one, page 19. He noted also, "As of last January, it would take $608 to equal the value of $500 that was true on the date this legislation was passed." He said this problem will exist so long as there is a fixed amount in the statute. Mr. Willick said the majority of the review committee recommended the ceiling be raised to $1,000 per month, per child.
Senator Adler asked if the review committee wanted to "do away with the ceiling?" Mr. Willick said the feeling was "mixed," and the $1,000 ceiling "boiled down to a compromise," between the members who "felt [the ceiling] should not be there at all, and the people who want to recognize that the legislature apparently felt otherwise...." Mr. Willick referenced the chart set forth as Exhibit 5 on Exhibit D, which is a summary table of child support payments. He said it was
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an important chart, because it "...gives a clear idea of how much money is actually at stake...you can see the real world impact...of any proposed minimum or maximum you have...."
Mr. Shapiro said the economic data provided to the review committee was "very limited...so you could argue the $1,000 maximum is just as arbitrary as the $500 maximum." He said until there is some "hard, economic data to show what the costs of raising children are," any figure which is picked is going to be arbitrary.
Mr. Anderson asked Mr. Willick why the committee was willing to deal with the issue of the $500 ceiling, "...while ignoring the disparity in dollar value of the floor...." Mr. Willick answered the review committee found Nevada has the "highest minimum child support award in the United States." He said they concluded it would probably require courts "in more cases than would otherwise be true" to order an exception to the statutory minimum. Mr. Willick said the decision was made "...that it would be better to allow inflation to catch up a little with our floor, making it a little more like what is going on in the rest of the United States." Mr. Anderson asked, "Given that rationale, where does the $500 ceiling rest in comparison to the other states, on a comparative basis?" Mr. Willick answered most states using the Wisconsin model, as does Nevada, do not have a ceiling. He explained:
Generally, a Wisconsin model statutory child support theory is that a child is entitled to share in a certain percentage of a noncustodial obligor's income, irrespective of what that income is...a ceiling is really a factor which comes in more in an income-shares model...it has been pulled out of that other way of interpreting child support, and inserted into this model....
Mr. Willick added the average "floor" in most states is $50.
Mr. Petrak asked if the annual income set forth in the example was "gross income" or "taxable income." Mr. Willick said all figures were based on gross income.
Mr. Carpenter asked if the question of the "ceiling" came up very often "out in the real world?" Mr. Willick said in litigated cases it comes up "reasonably often." Mr. Shapiro added the $500 figure was a "presumptive maximum, not an absolute maximum." He said in most situations the presumption is not rebutted, so the $500 figure comes into play. Ms. Mushkin pointed out the case of Herz v. Gabler-Herz, which is cited and discussed on page 18 of Exhibit C. She reiterated
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the $500 "cap" is only a presumption, as set forth in the above-cited case. Mr. Carpenter asked if the courts often rule to override the "presumptive" $500 figure. Mr. Willick answered it is "increasingly likely the courts will do so, as the noncustodial income exceeds the statutory level where the ceiling comes into effect." He added he did not believe it was possible for the information in their possession to "give any sort of statistically reliable answer to that question."
Ms. Mushkin added:
If you earn $50,000 per year and the amount is $500, you are looking at paying 10 percent child support versus 18 percent which the statute had intended. If the cap is there, anybody earning more than $33,000-per-year with one child is going to reap a much better benefit than the $33,000 per year person, who is actually going to pay a full 18 percent of his gross income.
Mr. Shapiro stated:
One of the things the Supreme Court hasn't done is give the lower courts a lot of guidance on when to go over the presumptive amount. Prior to Herz v. Gabler-Herz, many people perceived the cap as being $500. Since the Herz decision...the Supreme Court awarded $1,000 per child in that case...some people perceived the cap as being $1,000. The Supreme Court has not given that much guidance on when the presumptive amount should be rebutted.
Ms. Mushkin said the issue is confused and gave as an example a rules committee meeting when a district court judge was "absolutely convinced" $500 was the top number, and there was no ability to go over that amount. She added, "No matter what you do...increasing, lowering or eliminating the ceiling...clarity on the issue is going to help everybody involved." Ms. Mushkin said even the ruling in Herz has not changed the fact there is "still a presumptive cap involved."
Senator Adler asked,
The lower the cap, the more likely it is there is going to be litigation on the amount of support...if we were to raise the cap to $1,000, would we have fewer cases litigated on the upper end of the child support spectrum?
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Mr. Willick agreed and indicated the report states, "By leaving it [the cap] where it is, because of inflation...an ever increasing number of people are going to be running into this presumption ceiling." He added:
We are essentially dealing with something that affects the wealthy...this statutory provision is something which benefits wealthy, noncustodial parents and injures the former spouses of comparatively wealthy, noncustodial parents.
Senator Adler asked if there would be fewer cases if there were no cap at all, and a straight percentage formula was applied. Ms. Mushkin said domestic law attorneys, as litigators, try to take their clients out of the adversarial "knocking heads" type of arena and attempt to make the proceedings more conciliatory. She continued:
With the ability to look at a statute and tell your client...you will pay [a certain amount], with minimal exception, it would logically have to reduce the amount of litigation. That is not to say that when you are dealing with broken hearts and personal issues that are so deep... some people want to litigate...they need their day in court...we can never eliminate that segment of the population.
Mr. Shapiro said if the cap were eliminated, it would be simple to set child support but added, "That doesn't necessarily mean it is going to be fair." He then referred to the question regarding raising the "presumptive cap" to $1,000 and said, "You may have just as much litigation...but it will involve going down from the $1,000 presumption." Mr. Willick said the review committee had not expressly discussed the issue of how raising the cap to $1,000 would affect the number of litigated cases.
Mr. Collins asked if they would expect a lot of "new cases and refilings" if the cap were affected, and Mr. Willick answered there would be "a large number of people who would want another round." He pointed out, however, that by federal mandate "...we have to look at these things every three years anyway." Mr. Willick stated a legislative enactment could be made which would create a "no retroactivity sunset" for child support set within the past 3 years.
Mr. Sader asked Mr. Willick to set forth for the committee members an explanation of how child support is currently set. Mr. Willick stated:
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Basically, child support is formula-plus in Nevada. We essentially have a base child support amount...set in NRS 125B.070...then you flip to NRS 125B.080...under our current statute, the only thing which more or less automatically modifies the child support amount is...expenses for health care which are not reimbursed...what this basically does is set child support at 'X' amount, and then have another consideration of whether or not there are medical expenses....
Mr. Sader asked Mr. Willick to explain the standards for rebuttal of the "presumptive cap." Mr. Willick said there were no standards set out in legislation, and "not much from the Supreme Court." He said the only standard set out by the court in the cases cited in Exhibit C, was the "demonstrable wealth...comparative wealth...of the noncustodial parent." He cited a case which was decided in the past few weeks, Lewis v. Hicks (citation omitted), in which the Supreme Court "mandated application of the formula, reversing a determination that a less-than-formula amount should apply." Mr. Willick explained this to mean "application of the formula has to be the rule and variance from it the exception."
Senator James indicated he had read the report (Exhibit C) and had noted with interest the portion regarding "the perceived lack of a statement of legislative intent in the statutes." He said there were two "possible legislative purposes," the first being to meet the basic needs of the child. Senator James indicated the second purpose was to allow the child to share in the wealth of both parents, so that the home would financially represent what it would have had there not been a dissolution of the marriage. He said in listening to testimony at this hearing, he determined the following:
The legislative purpose or intent changes as you go up the scale...up to the $500 cap, you are dealing with the basic needs of the child. Beyond that...you are talking about the equities between the parents...whether or not the child should be able to share in the wealth of the parent whose income would cause the cap to be exceeded. It seems the issue boils down to what the legislature might do as far as stating what the purpose is. If we state it is the purpose of these statutes to allow the child to share in the wealth of the noncustodial parent, then a cap would seem to be inappropriate. Whereas, if we don't articulate that as the purpose, then the cap is appropriate...it seems like the cap is a legislative purpose to some degree.
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Mr. Willick said the argument has been made that the existence of a ceiling constitutes the legislative statement of purpose. He pointed out, however, there was not a definition of "basic needs," and it was not clearly delineated. Mr. Willick added there was a "philosophical tension" between aspects of the child support formula. He said there was an "implication" that the $500-per-month per child formula would "satisfy a child's basic needs...and anything beyond that constitutes an award of alimony to the custodial spouse." Mr. Willick continued:
If that is, indeed a legislative finding and determination...you are entitled to make it. But, I need you to be aware that finding is being imposed on you by the commentators in the field, and if that is not what you intended to say by enacting what you have enacted, you should probably change the enactment to more accurately reflect that which you actually intended.
Senator James stated the judiciary has essentially been allowed, because there is not a set of criteria statutorily set forth, to exceed the limit. Ms. Mushkin asked Senator James to review NRS 125B.080(9)(a-l), which states, "The court shall consider the following factors when adjusting the amount of child support upon specific findings of fact...." She said that language will allow both an increase and decrease in the amount of child support. Ms. Mushkin also referred to their recommendation regarding Interpretative Assistance on Exhibit F, and said the review committee spent hours trying to "figure out exactly what we were going to look at...we were uncertain if the legislature had intended this to be an income sharing or a basic needs approach." Ms. Mushkin continued, "We were very macro in our analysis and ended up very micro in our approach, because we weren't certain as to exactly where it is we were to begin and end."
Mr. Shapiro said "the standard to rebut the presumption is as important as the actual presumptive maximum." He suggested the possibility of "loosening the burden to rebut the presumption," instead of raising the presumptive amount. Mr. Willick said that was the reason the review committee provided three or four alternatives regarding the ceiling factor. He added, "We weren't sure the degree to which [the legislature] wanted to hang on to this provision in any particular amount across the wide spectrum of cases it might fit."
Senator James pointed out NRS 125B.080(9)(l) "...the relative incomes of both parents...doesn't seem to be a statement of guidance to give to the courts." Ms. Mushkin stated:
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You have hit the nail on the head...let's assume the noncustodial parent makes four or five times what the custodial parent makes...let's assume the judge things $500 is the cap...your argument is over with."
Mr. Gibbons asked if their research showed any studies around the country which indicated "what relative portion of the parental income a child or children take...to determine what would be a basic needs level?" Mr. Willick referred Mr. Gibbons to Appendix II, Exhibit E, but added, "...there isn't much, and it is not good." He said the outcome of the various studies was "highly subjective" and open to interpretation. Mr. Willick did indicate the problem was a national one, and he expected a nationwide study to be instituted by the United States Congress within the next year. He stated the review committee found the studies measured "how much is traditionally spent on children...not how much children need." Mr. Willick said the committee found "a single parent with two children can be expected to spend 50 percent to 70 percent of total income directly or indirectly for the children." He said the "Wisconsin model" ascertained a family would spend 25 percent of their income for two children, which indicates a "tremendous discrepancy."
Mr. Scherer referred to NRS 125B.080(5), which says it is presumed the basic needs of a child are met by the formula set forth, and asked:
The cap is part of [subsection b]...doesn't that seem to imply the 'basic needs' was where the legislature was coming from when they adopted this statute?"
Mr. Willick answered this was a conclusion, but the Supreme Court in the cases cited in this study did not "take on the question of what is being ascertained."
Ms. Mushkin continued with an explanation of Exhibit F, referring to (2) under Amount and Components of Child Support Awards:
2. Child care expenses. The report gives an interesting statistic...a majority of the studies that were reviewed when adopting this particular formula...the data gathered was between 1950 and 1980. These estimates were probably made before many mothers worked and before there were such resulting child care costs.
Ms. Mushkin said the above fact "lends itself to the question of whether the economic data underlying the Wisconsin model contains a false premise." She said the review committee, in an effort to be
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as complete as possible, tried to establish a reasonable amount of money a mother could expect to spend on child care costs. Ms. Mushkin stated their conclusion was a range between $60 and $75 per week. She pointed out a monthly payment of $500 for two children would be nearly exhausted by child care expenses. Ms. Mushkin said the review committee concluded, "If basic needs [is the underlying premise of the legislation]...the basic needs are nowhere met by the amount of money that is being paid today." She referred to footnote 40, page 21 of Exhibit C, and said, "We know the aggregate amount of people that we are dealing with...is in the majority and not the minority." Ms. Mushkin continued:
The committee, after reviewing all of the data, determined that child care expenses should be awarded in addition to the formula amount and allocated between the parents in proportion to their relative incomes...leave your percentages where they are, but by all means...consider the amount of child care as a factor.
Ms. Mushkin stated the review committee recommended a "proportionate split" rather than an "equal split," which they believe would be more equitable, appropriate and fair with regard to child care expenses.
Mr. Carpenter stated he was concerned about those persons "on the lower end of the wage bracket" and said they need to be very careful, since child care can constitute 21 percent of total income. He said this will "work a real hardship" on some people. Mr. Carpenter said he believed this was why the original legislation "allowed the courts to decide." He indicated the problem may lie with the courts who are not "biting the bullet" and making decisions allowed them by the legislature. Mr. Willick made it clear the purpose of the review committee was not to lay fault with the judiciary, but added, "Since we work in the field every day, we know where there is a problem. It wasn't of importance to us from whence the problem arises."
Mr. Regan asked if there was any "analysis of propensities in child care costs...the higher the income, the less spent...propensity to save." Ms. Mushkin indicated Mr. Regan might have misunderstood what she had stated and commented:
If somebody earns a lot of money, then the percentage of that amount of money that goes for child care is less, and that is statistically based."
Mr. Regan reiterated: "That is a simple word called propensity...to save or consume."
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Mr. Shapiro explained the next item on Exhibit F, under Amount and Components of Child Support Awards.
3. Medical Expenses. You cannot take medical expenses in isolation. It depends upon what you do with child care and the presumption, before you can decide...there are three different types of medical expenses: insurance premiums, ordinary medical expenses and extraordinary medical expenses.
Mr. Shapiro referred to NRS 125B.080(7), which states, "Expenses for health care which are not reimbursed will be equally divided between the parties, absent extraordinary circumstances." He said in the vast majority of cases at this time, regarding expenses not covered by insurance, the parties to the action will equally divide, "no matter what the income." He stated there was no rule or guideline with respect to the cost of insurance premiums. Mr. Shapiro said it was noted in the report that some judges will give the noncustodial parent 100 percent credit for any cost of insurance payments, and some will give a lesser percentage.
Mr. Shapiro next referred to the area of "ordinary and extraordinary medical expenses" and said this was an area that had the highest variance between the states. He said the general rule was states using an income share to calculate child support, also use an income share with regard to medical expenses. Mr. Shapiro defined "ordinary expenses" as the relatively small, predictable expenses, and added some states include ordinary expenses as part of normal calculated child support. He said an "extraordinary medical expense" would be substantial and unpredictable. Mr. Shapiro indicated the statute at this time provides for either an equal share of those expenses or a proportionate share based upon income. He said medical expenses may also be viewed "on a case-by-case basis."
Mr. Shapiro stated the review committee has recommended that extraordinary medical expenses be prorated based upon the parties' incomes.
In response to a question from Mr. Sader, Mr. Willick reiterated a point regarding insurance expense:
It is absent from the statute. The courts are uncertain whether medical insurance premiums are part of unreimbursed medical expenses or whether the definition of unreimbursed medical expenses doesn't include health insurance premiums, and the legislature is just presuming it is a normal cost
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of one of the parties or the other...there is a tremendous uncertainty as to what the rules are.
Ms. Mushkin added, "The courts need direction...considering the cost of medical care...."
The next section of the outline contained on Exhibit F was explained by Mr. Willick.
Rules for Applying Child Support.
1. We are back to trying to decide what happens in a non-Ken and Barbie situation. The days of Ozzie and Harriet have ended...we have a situation where the statisticians tells us about one-half of those getting married involve relationships where there are former husbands and wives and children from previous relationships... it is therefore not possible for us to ignore the existence of the multiple family situation. The committee did a great deal of background work into multiple family cases, and we tried to separate out the issues in such a way that it would make sense.
Mr. Willick discussed Exhibit C, Section E, page 26, regarding the basic questions to be asked regarding "second families" in a divorce situation. He said the review committee tried to decide whether to rank the rights and responsibilities of the various persons involved. Mr. Willick said this was a situation where "there was no good answer," and they "tried to come up with the least bad alternative they could." He continued:
The two schools of thought are this: that which comes first in time is first in right...the idea being you already know about your obligations from whatever you did first, before you entered into the situation which gave rise to the obligations which arose second. ... However, the conflicting school of thought says that all children...who are innocents...have the same right to draw upon whatever resources are available in the family, and we shouldn't differentiate person from person, based simply on when they were born.
Mr. Willick said the above two "schools of thought" are "utterly, completely and impossibly contradictory" and cannot both be recognized in the statutes. He added, "Nonetheless, our existing statutory scheme attempts to do that, by not ruling on how it should be resolved...." Mr. Willick said the discretionary language appears in
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NRS 125B.080(9)(e). He said the committee, after weighing all the options, agreed with the 1985 Governor's Commission on Child Support Enforcement, and concluded:
Since the preexisting obligation is known to the obligor at the time of entry into the second relationship, which gives rise to the later obligation, child support to the first family should not be affected by the existence of later born children.
Mr. Willick said the committee concluded, with regard to child support available to later born children, in fairness to the person paying the support, money paid for the earlier born children should be considered "not available" before applying percentages for payment to the second family. He said the rationale was:
While the second marriage was intact, husband and wife only have his reduced income to draw upon for support of their children. The second wife shouldn't essentially get a raise in how much money is available to her simply by divorcing the husband.
Mr. Willick cited the case of Hoover v. Hoover, 106 Nev. 388, 793 P.2d 1329 (1990), discussed on page 26 of Exhibit C, and Scott v. Scott, (Adv. Opn. No. 130, Dec. 6, 1991), discussed on page 27. He said the judges are "paying different amounts of attention" to the holdings in each case. Mr. Willick said the problem with the Scott decision, read in conjunction with Hoover, is as follows:
It says it is alright for the court to reduce the amount of child support owed to the first family because of the existence of the second family, as long as the court doesn't come up with a formula for how it is doing so. The problem with this holding is essentially...it tells the court it is alright to reduce child support as long as you don't explain what you are doing.
Mr. Willick said this will lead inherently to less certainty and consistency among similarly situated people. He stated it was the review committee's recommendation the legislature "...should provide some better explicit guidance on how to treat the multiple family situation...."
Senator Adler said he had a problem with the analysis set forth by Mr. Willick, because the first family's support would be set out as if the second family did not exist, and the second family's support is
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determined considering the support of the first family. He pointed to the fact child support is redetermined every 3 years and said, "Every time the noncustodial parent gets a pay raise, the gap between family one and family two increases." Mr. Willick said the second family's support would also increase, because "it is figured on the remaining differential." He said it was the committee's intention to have the percentage between family one and family two remain constant. Mr. Gibbons asked:
Without raising the specter of equal protection, how did the committee balance the two concepts, when it talked about sharing of parental income between children, and their right to share in that parental income from family one to family two?
Mr. Willick said this referred to the "equal protection argument," and said there was no straightforward rebuttal to that argument. He said it was simply a second way of perceiving the situation. Mr. Willick reiterated there were two complete opposite ways of beginning, i.e.:
You either start from the presumption that a pre-existing obligation should not be self-defeatable by the obligor...he should not be able to take a unilateral action which can cause the formula to respond by reducing the amount of support payable to his first family (the first family first approach)...or you start from the child view that all children of all parents are created equal...and it doesn't make any difference how, when, where or why they got there...they are entitled to an equal share of their parents' income. The committee could not reconcile those two views.
Mr. Willick reminded the joint committees of the 1985 Governor's Commission on Child Support Enforcement recommendation, upon which the present statute is based, "...came up with a first mortgage, first family first approach." He said that has translated through the legislative process into what is now embodied in NRS 125B.080(9)(e). Mr. Willick said the problem was the confusing application. Mr. Gibbons asked Mr. Willick how the courts handled the interpretation. Mr. Willick said that times it worked "...as an unstated grounds for reducing child support payable."
Ms. Mushkin continued with a discussion of the section on Rules for Applying Child Support.
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2. 'Barbagallo' Revisited. The issue is one of abatement, and whether an abatement should be allowed during times of extended visitation. The custodial parent's fixed expenses usually do not substantially or even modestly decrease when the children go live with the noncustodial parent. Be that as it may, the issue is whether the noncustodial parent, who has the children for an extended period of time, is entitled to some amount of offset or abatement of child support during the time they have the children.
Ms. Mushkin stated the argument in support of abatement is:
If the noncustodial parent is paying out the continuous amount of child support, and has the children, [he or she] may not have sufficient money with which to do things with the children during the time they have them.
The inverse argument to that is, the custodial parent's mortgage doesn't change, the electric bill...and issues of that family...don't really change much.
Ms. Mushkin cited the case of Barbagallo (citation omitted) indicated "there should be no abatement in child support for the time a child spends in the actual physical custody of the secondary custodian, unless an injustice would occur." She said there would be an adjustment in the amount of child support paid when the children are in a "shared custody" situation. Ms. Mushkin continued:
The question then is, 'Do we come up with some formula to apply?' We as a committee...thought it would seem wisest to avoid what we call a 'bright line test,' and instead phase in any effect given time share arrangements.
Pages 35-38 of Exhibit C set forth the recommendation of the review committee, which would add a discretionary power to the court to specifically allow an abatement.
Mr. Gibbons referred to the suggested section to be added to NRS 12B.080(9), (see page 38, Exhibit C), and asked if the language "...that visitation period..." would require the noncustodial parent who is exercising visitation to apply to the court each and every time it occurs if he or she wants a reduction. Ms. Mushkin answered she believed it would not be necessary, because most visitation schedules are set out at the time of the issuance of the decree, and any time beyond 14 days should be worked into those arrangements.
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Mr. Willick asked the joint committees to use "great caution" regarding this recommendation and said the review committee was "very sensitive to potential damage." He said it would be easy to accidentally do "too much or too little." Mr. Willick said the impact he would ask the joint committees to keep in mind when phrasing any legislation, is "a child-centered view." He ask that they attempt to determine how the court would look at any impact on the custodial spouse's household when considering any abatement.
Mr. Shapiro addressed the next subsection under Rules for Applying Child Support:
3. Withholding of visitation. Is there or should there be a connection between child support and the exercising of visitation. There have been bills introduced on both sides of the issue...that child support and visitation should be two separate and independent items, and conversely that there should be a relationship between child support and visitation.
Mr. Shapiro said the review committee has recommended the court be given power to waive support during periods that visitation is withheld from the noncustodial parent. Ms. Mushkin stated there was an argument that support and visitation are "apples and oranges...never to be intermixed." She indicated, however, at times there is no other enforcement mechanism to insure the noncustodial parent is receiving visitation. Mr. Shapiro pointed out a custodial parent could risk losing custody, if the noncustodial parent brought an action because he or she was denied visitation. Mr. Shapiro cited Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 299 (1990), in which the court held "...if the parties agree that if there is no visitation, no child support will be paid...that agreement would be binding." Mr. Shapiro said the review committee's recommendation regarding this issue would legislate what the Supreme Court decided in Parkinson.
Mr. Willick stated:
We were very troubled by that whole analysis... what we are doing at this point is what the courts have been doing, which is reading a great deal of intent into legislative silence. The [Supreme Court] noted that the 1987 legislature 'stripped out' of the original language...a provision which would have made considerations of custody
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and visitation on the one hand and support on the other...completely distinct... leaving the door open to connect those two concepts.
Mr. Willick said the question before the joint committees was, "What should the policy," and assuming they agree the courts are doing it correctly, "...whether to legislate explicitly when and according to what standard it should occur to allow for uniformity." He said these questions led to the review committee's reluctance in their recommendations, and why they recommended "very high levels of proof."
Senator Titus commended Mr. Willick on the fact the review committee had attempted to put the child's benefit first in most of their recommendations, but she said the provision they were discussing "seemed to fly in the face of that." She said it would create a "two wrongs to make a right" situation. Mr. Willick once again referred to the Parkinson case and said the agreement which was the issue in that case was termed "the Devil's bargain," and the child involved "lost all the way around." He said because of the custodial mother's action in that case, the child had no contact with the father for over 5 years and because of the court's action, the child received no benefit of any money the father might have paid during that period. Mr. Willick indicated the court ratified the agreement made between the parties, "...that if he would go away...she wouldn't get any money." He said the Governor's Commission on Child Support Enforcement determined that to be a "terrible idea that should never be allowed to happen." In 1985, a provision was placed into proposed legislation which would not let this happen, "...and this [legislative] body took it out."
Mr. Scherer asked if there were any alternative short of hiring an attorney every time a situation arose where visitation was denied. Mr. Willick answered there were no alternatives under the current statutory scheme and added the review committee was not charged with attempting to find ways of appropriately enforcing visitation. Mr. Willick said research and proposals have been instituted in other states, but the report set forth on Exhibit C does not address that subject. Mr. Scherer asked Mr. Sader if the research staff could be contacted with a request to provide information on alternatives.
Senator James indicated Dennis Neilander could be asked to begin this research. The senator stated he understood the problem set forth in the Parkinson case. He asked Mr. Willick if by submitting the recommendation set forth on page 49 of Exhibit C, was the review committee asking for legislative authorization. Senator James asked if it would be better to "legislatively rule out this option as a
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means of enforcing visitation...because you are putting the child in the middle." Mr. Willick reiterated their committee was "reading intent in prior legislative non-action," and if that reading was correct, "...it was shared by the courts."
Senator James asked Mr. Neilander to begin researching actions taken in other states, and requested Mr. Willick provide him with information he has obtained regarding visitation enforcement mechanisms. Senator James reiterated the objective was "...to find an alternative so we don't have to interfere with support."
Senator Adler asked if the state welfare division would "get stiffed" if the custodial parent was on welfare in a situation such as described earlier. Mr. Willick answered they do not, since "state welfare doesn't care what deals mom and dad strike...as far as they are concerned, the statute allows them to collect...." Ms. Mushkin referred to the Uniform Reciprocal Enforcement of Support Act (URESA), and said, "They will not ever touch the issue of visitation." Senator Adler said if legislation were passed covering this issue, "...there should be a specific exception for welfare cases." Mr. Willick said it was not the intention of the review committee "...to attempt to set up any artificial distinctions amongst people in terms of support obligation."
Senator Adler asked a question regarding lack of agreed visitation when the custodial parent "disappears" for a period of time. Mr. Willick referred again to Parkinson, which found an agreement can be "express or implied," and said the subject was explored in the body of the report (Exhibit C). He said a case could come down to "...whether a sufficient implication of agreement by nonaction was present by the parties." Senator Adler pointed out a case where a custodial parent removes a child from the court's jurisdiction, and the noncustodial parent does not know where the child is. Mr. Willick said an argument could be made that "there was a deal" because the noncustodial parent made no effort to find the child, and he should not have to pay support, but if he did make an effort, "...there was no deal, so he is on the hook for full back support." Senator Adler said that made no sense, and Mr. Willick agreed, adding he was not trying to allude that it did, but said that is what the statute allows at the present time. Senator Adler indicated he would be inclined to provide for an abatement if the situation were reversed, but Mr. Willick stated "...that is not the interpretation of the law we have today...."
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The next section of the review set forth on Exhibit F, entitled Interpretive Assistance, was discussed by Mr. Willick.
Mr. Willick stated the review committee had no specific recommendation regarding the interpretation of "basic needs," because they were unsure what was intended in the statute. He said they tried to isolate what the possible alternatives are, and believed there are a cost and benefit to each option presented. Mr. Willick advised the committee, "If you do nothing, you leave it to the discretion of a now increased number of first-line decision makers...to try to figure out what you were trying to mean by not saying anything."
The final section of the outline on Exhibit F, Further Work Recommended, was discussed by Mr. Willick.
Mr. Willick referred to page 13, Exhibit C, which outlines a recommendation for funds to research, distill and represent meaningful data to establish whether child support awards are adequate to meet children's needs. He said there was talk on the national level at this time concerning the establishment of a national child support formula. Mr. Willick stated prior legislative committees have indicated they did not want a specific formula. He said the review committee examined whether the people of Nevada, "given [Nevada's] peculiar demographics," are doing better or worse in terms of child poverty than similarly situated demographic states which use different child support formulas. Mr. Willick stated the committee was unable to answer that question, because they lacked data to do such an evaluation. He said if the joint committees present today were seriously contemplating "tossing out our Wisconsin-based formula, and adopting a completely different formulation," it might be wise to find out if Nevada is better or worse at keeping kids out of poverty.
Mr. Willick pointed out other suggestions in the report. One would direct the counties to implement a low-cost or no-cost pro se (in proper person) modification procedure. (See pages 41-43 of Exhibit C). He said the problem will lie with setting up a methodology for modification of child support amounts that is sufficiently simple to reduce the chance of fraud, intimidation, "...and all the other things that go on when people deal with each other directly without attorneys." Mr. Willick stated another area to discuss was collection and enforcements matters, discussed on page 46. He said visitation matters are also set forth on page 46.
Mr. Toomin asked if provisions were in force to "track the income of the person paying support." Mr. Willick said there were not, and
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added, "That is the reason the feds have asked states to mandate that these decisions...are re-examined every 3 years."
Mr. Carpenter referred to earlier testimony regarding a legislative "statement of purpose." He asked which recommendation might lead to the least amount of litigation and queried, "Do we have to do a combination of all of them?" Mr. Willick answered that question was not expressly addressed in the report, but added, "Making the statement of purpose that which the model is designed to provide would provide the greatest clarity and therefore the least litigation."
Mr. Carpenter then raised a question regarding "basic needs" to which Mr. Willick responded:
All of the 'high end' payors...anybody paying more than several hundred dollars per month, regardless of the number of children, would almost certainly be back asking the custodial spouses to justify the expenditure of child support dollars received...if you explicitly state this is needs driven, I believe you will end up with a large number of noncustodial spouse-initiated modification procedures....
Mr. Carpenter asked, "What if we say the statutes are intended to share in parental income...then what do we do?" Mr. Willick stated he did not believe that would cause an impact on litigation by a statement of that purpose, "except...relitigation of those cases where there have been prior downward modifications on the need evaluation." Ms. Mushkin responded to the question raised by Mr. Carpenter on the subject of "income sharing vs. basic needs." She agreed with Mr. Willick on the basic needs issue and said there might be a problem with accountability. Ms. Mushkin said cases are now "moving in an income-sharing direction," and apportioning percentages based upon the statutes.
Mr. Shapiro said if "basic needs" is defined, and a certain percentage of income meets those basic needs, "...then you have a simple procedure and very little litigation." He said income sharing was much more complicated, since there are so many different ways of calculation and would lead to more litigation.
Mr. Petrak addressed Mr. Willick and said changes must be made in the present law. He said he had a major concern with the fact there are 80,000 child support cases presently in the State of Nevada, with only 9,000 obligors being current in payments. Mr. Petrak asked if the recommended changes to the statutes will increase the number of
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persons who are current in their payments. Mr. Willick said questions of collection were not brought up in the review committee's study. However, he said, it was his observation "...that the fairer you can make a system, both in reality and in appearance, the more likely people are to comply with the obligations [of the law.]"
Mr. Sader and Senator James thanked the members of the review committee for their presentation, and indicated their assistance would be requested if legislation were drafted. There being no further business to come before the joint committees, the meeting was adjourned at 4:00 p.m.
RESPECTFULLY SUBMITTED,
_______________________________
Marilyn Hofmann,
Committee Secretary
APPROVED:
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Assemblyman Robert M. Sader, Chairman
DATE: __________________________________
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Senator Mark James, Chairman
DATE: ___________________________________
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