I have full custody of my son. His mother has remarried and refuses to find employment claiming the 3 year old child she had with her new husband is the reason. Her husband makes decent money. They live in California, my son and I are in Nevada (where my son was born and where the case is). I am hoping to have his wages included for her child support determination, but can't find any cases for precedence.
1 Answer from Attorneys
The relevant cases are Jackson and Rodgers, but you will have an uphill climb:
Rodgers v. Rodgers, 110 Nev. 1370, 887 P.2d 269 (1994) In 1991 divorce, Mother got custody and Father paid $250.00 per month child support. In a stipulation six months later, custody was transferred to Father; Mother was to pay $125.00 per month child support. Mother moved to California and remarried; Father moved to increase child support.
A Domestic Relations Referee recommended imputing half of the Mother's new spouse's net income to the Mother, and basing support thereon. Mother objected; district court judge (Guy) reversed Referee's findings and recommendation without explanation. Father appealed.
The Supreme Court rejected the Father's contention that NRS 125B.070 grants district courts the discretion to consider a new spouse's income in setting child support, but held that "under appropriate circumstances, a noncustodial parent's community property interest may be taken into account pursuant to NRS 125B.080."
Specifically, the definition of "gross monthly income" in NRS 125B.070(1)(a) includes "income from any source" for a wage-earner, or the gross income from any source of a self-employed person." The Court recited several rules of statutory construction: "It is well settled in Nevada that words in a statute should be give their plain meaning unless this violates the spirit of the act"; "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided"; when a statute's language is clear and unambiguous, "there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself"; if a statute is ambiguous, however, courts should attempt to follow the legislature's intent.
The Court termed 125B.070 "hardly a model of clarity." The Court reaffirmed its holding in Lewis v. Hicks, 108 Nev. 1107, 843 P.2d 828 (1992) that "gross monthly income" does not include a parent's community property interest in a new spouse's income.
However, the Court went on to note that under NRS 125B.080, the lower courts can, upon making appropriate findings of fact, deviate from the statutory schedule, and noted that NRS 125B.080(9)(1) lists "the relative income of both parents" as a factor. In prior cases, the Court construed this provision as including relative standards of living and financial circumstances, and reiterated its holding in Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989) that "[w]hat really matters in these cases is whether the children are being taken care of as well as possible under the financial circumstances in which the two parents find themselves. Greater weight, then, must be given to the standard of living and circumstances of each parent, their earning capacities, and the `relative financial means of parents' than to any of the other factors." From dicta in Barbagallo, Lewis, and Herz v. Gabler-Herz, 107 Nev. 117, 808 P.2d 1 (1991), the Court inferred that "considerations such as standard of living and financial means may be intimately connected to community income," and noted that under the community property scheme, a spouse has a present, vested one-half interest in the other spouse's earnings under NRS 123.130, 123.220, and 123.225, and under California Family Code sects. 751, 760.
Turning to tax law, the Court noted that the IRS considers half the income and expenses of the community to belong to each spouse, and that such a spousal share may be liable for that spouse's premarital debts under NRS 123.050 and Cal. Fam. Code sect. 910. Thus, while spousal income is not part of gross income, the remarried parent's imputed community property right to share in income does count for comparing "relative income" of the two parents. The Court found its approach compatible with the view of Idaho, New Mexico, and Washington courts.
Here, the district court had discretion to consider such income, but erred in failing to make specific findings, so the case was reversed and remanded for such findings.