Legal Memorandum

Jun 5, 2018
folder_opencategory: Law

Statement of Assignment

The client requested for legal advice in the precincts of applicable case law and the state’s family laws regarding:

  1. Was it permissible for Ms. Thomas to unilaterally reduce support when the oldest child reached the age of majority?
  2. What is the likelihood of the court granting a modification of child support due to Ms. Thomas change of occupation?

Issue

Under family code section 4326, was it permissible for Ms. Thomas to unilaterally reduce support when the oldest child reached the age of majority?

Brief Conclusion

No. It was not permissible for Ms. Thomas to unilaterally reduce the support when the oldest child reached the age of majority.

Statement of facts

When Sam Cook and Suzie Thomas were legally divorced in a court of law, the court granted primary custody of the family’s three children to Sam Cook. At the time, Suzie Thomas was a brain surgeon and the court found it in order to impose a monthly support payment of $3,000 considering her occupation and income as well as the needs of the children. However, the court did not expressly state the per child payment. When their firstborn attained the age of the majority, Ms. Thomas reduced the amount paid without pursuing the relevant legal procedures.

Ms. Thomas then changed her career path and started pursuing a paralegal course. The change in career drastically reduced her income and thus she could no longer be able to pay the whole amount considering that she was also studying. Ms. Thomas reduced the amount from $3,000 to $ 500.

Analysis

The statutory family law under section 4326 of the family code governs the execution to the effect of any termination of child support and any modifications thereof. In the case of Cook v. Thomas, the family had three children and Ms. Thomas was required to pay a monthly amount of $3,000. The subdivision of the amount per child was not expressly stated neither was there a statement of the conditions or time at which Ms. Thomas would be allowed to terminate or modify the payments. The reduction in the amount payable on the basis of the first child attainment of the majority age under section 6501 and 6502 of the family code constitutes a termination which under section 4326-a of the family code is not permissible since the payment was not subdivided per child. The section provides that the termination where the subdivision is stated shall be pursuant to section 3901and regards the change of circumstances. Where the subdivision is not specified, the statewide guideline formula outlined in the section 4055 of the family code will apply.

Based on the apparent change of circumstances where the child attained the majority age, Ms. Thomas ought to have followed the procedure provided for in section 4326-b which states that if a motion to modify spousal support based on the change of circumstances described in subdivision (a) shall be filed by either party no later than six months. This is it should be left to the determination by the law the amount of child support to which the oldest child was entitled and this would be the amount to be modified with respect to the change in circumstances. This is so as to protect the interest of the children in the minority age under the provisions in section 4053-a which states that a parent’s first obligation is to support his or her minor children according to the parent’s circumstances and station in life. The provision was reaffirmed in Britton v. Britton, 100 N.M. 424, 671 P.2d 1135 (1983) where the parent was ordered to pay the child support that was set forth in the divorce decree.

Ms. Thomas also reduced the child support payment from $3,000 to $500 on the grounds that she was studying and thus the $500 was all she could afford. This came after she enrolled for a paralegal course which saw her income reduce materially thus affecting her ability to pay under section 4320-2-c of the family code which points to the capacity of the supporting party to pay the child support amount focusing on the impairment of income. Normally, the impairment of income due to variation in circumstances would qualify for grounds upon which the child support can be modified as held in Britton v. Britton, 100 N.M. 424, 671 P.2d 1135 (1983). However, Ms. Thomas changed her career because she couldn’t stand paying $3,000 to her ex-husband. Ms. Thomas was frustrated and that was the reason she took up a career change; to reduce the amount of child support payable. The issues points to the lack of goodwill and an act in contravention of ‘good faith’ on her part and thus the modification of the child support cannot be granted beyond the level to which it would be changed by the graduation in age of her oldest son. Such a change in career was ruled out in Philbin v. Philbin (1971) 19 Cal.App.3d, 115, 121 and thus the court can use the potential of the spouse to determine the child support amount. This was also held in Wolcott v. Wolcott, 105 N.M. 608, 735 p.2d 326 (1987) in which the courts held that modification of child support was not allowed as the parent did not show “good faith” in switching careers that greatly affected the child’s standard of living.

Summary

There is a likelihood that the court will grant Ms. Thomas child support modification with reference to the changing circumstances in the case of graduation in age of the oldest son to the majority age. However, based on the precedent case laws and the statutory laws the court will not grant Ms. Thomas child support modification with reference to changes in employment.

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