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More about Casteel Deviation
The Guidelines read, in part, as follows:
These guidelines are designed to apply to situations where children are living primarily with one parent but stay overnight with the other parent at least as often as every other weekend from Friday to Sunday, two weeks in the summer and two weeks during holidays throughout the year.
In the event an obligor parent spends more than standard parenting time with the child, an obligor may ask the court to reduce the child support obligation, requesting a "downward deviation." Two important cases discuss this situation, Casteel and Scott. Below are quotes from the Casteel opinion, an example situation as described in excerpts from a memorandum of law citing Casteel, and then discussion of a technical debate from the Scott opinion. Hopefully, this will provide some reference as a background for gaining a better understanding of your case.
Casteel v. Casteel, No. 03A01-9703-CV-00073, 1997 WL 414401 (Tenn Ct. App. July 24, 1997).
"These parties were divorced on September 16, 1994. By agreement, they were awarded joint legal custody of three sons, who would reside principally with their mother, hereafter appellant.
The father, hereafter appellee, was awarded "co-parenting time" with the two younger sons on alternating weeks from Wednesday at 6:00 p.m. until Sunday at 8:00 p.m. and four (4) full weeks during summer. Holiday times-- Easter, Christmas, and Thanksgiving--were evenly divided.
Pursuant to the approved plan, appellant has custody 234 days, while appellee has custody 131 days.
After extended skirmishing, the appellee's support obligation for two children was determined to be $370.00 per month. Appellee's gross annual income was $36,696.00. The appellant earned about $43,000.00 annually.
The dispositive issue is whether the peculiar circumstances of this case justified a downward deviation from the Guidelines.
Any deviation must be clearly articulated.On the face of it, the monthly gross income of the appellee required that he, as the obligor, pay $740.00 monthly support for his two sons; does the fact that he has custody for 131 days each year justify the reduction to $370.00 monthly?
The parties concede that an allowance is factored into the Guidelines for the 80 days residency of the children with their father, and that if the children spend more time with the obligor than is assumed his child support payments should be reduced.
(1) determine the annual amount of support under the Guidelines:
$740.00 per month X 12 months = $8,880.00, or $24.33 per day
(2) determine what proportion of that annual amount is attributable to the increased visitation, any amount over 80 days per year being considered excess:
51 days excess @ $24.33 per day = $1,240.83 per year, or $103.40 per month
(3) reduce the Guideline amount by the amount attributable to increased visitation:
$740.00--$103.00 = $637.00
Therefore, we find that in this case the amount of support due shall be reduced from $740.00 per month to $637.00 per month."
EXAMPLE - PORTION OF A MEMORANDUM OF LAW FROM A REAL CASE
(SOME INFORMATION MAY BE ALTERED OR OUTDATED)
The Tennessee Child Support Guidelines shall be applied as a rebuttable presumption in all child support cases. The fact that the presumption is rebuttable implies that the trial courts have limited discretion to deviate from the guidelines. In situations where overnight time is divided more equally between the parents, the Courts will have to make a case-by-case determination as to the appropriate amount of support. The Child Support Guidelines assume that the child support obligor will spend eighty (80) days of residency with the child, and if the child spends more time with the obligor, the obligor's child support should be reduced.
The Tennessee courts have not established a precise threshold for how much more time a child support obligor must spend with a child above what is anticipated by the Guidelines before the Court will allow a downward deviation. In Casteel, the Court stated, "Other states have established an amount, from Alaska where visitation is 30 percent, to Maryland 35 percent, to Oregon 35 percent, to Virginia 110 days." The Casteel Court allowed a downward deviation where the children resided with the child support obligor for approximately one hundred thirty one (131) days in a year, or approximately fifty one (51) days above what was anticipated by the Child Support Guidelines.
There exists no precise formula in calculating a deviation from the Tennessee Child Support Guidelines. In Casteel, the Court stated that any formula was acceptable as long as it clearly articulated and factored into account all circumstances including the best interests of the children. Therefore, the standard for the Court to apply any deviation is whether doing so is in the best interests of the children.
Although no formula has been endorsed as the official formula to be applied in all cases, the Court in Casteel suggested a method to determine the downward deviation for each day the child resided with the child support obligor in excess of the eighty (80) days anticipated by the Child Support Guidelines. Using this method, first determine the annual total amount under the Child Support Guidelines. The next step is to determine what proportion of that annual amount is attributable to the increased visitation. The increased visitation is any excess amount of visitation over the eighty (80) days anticipated by the Child Support Guidelines. Finally, reduce the Guideline amount by the amount attributable to the increased visitation.
APPLICATION OF THE CASTEEL FORMULA
I. Statistical Information
1. On July 14, 1998, a Final Decree of Divorce that incorporated a Marital Dissolution Agreement was entered with the Court.
2. The Marital Dissolution Agreement provided that Jack Smith pay One Thousand One Hundred Seventy Three Dollars ($1,173.00) per month in child support.
3. The Marital Dissolution Agreement provided the following visitation schedule:
Wife shall have custody of the parties' two minor children, Ashley Marie Smith, born December 8, 1994 and Henrietta Rebecca Smith, born November 25, 1995.
Husband shall have visitation with the minor children as follows:
a. Every other weekend from Saturday at 10:00 a.m. until Monday at 2:00 p.m.
b. Every other Sunday from 8:00 p.m. until the following Monday at 12:00 noon.
c. Every other Tuesday from 6:00 p.m. until the following Wednesday at 8:00 p.m.
d. Two weeks in the summer, to be mutually agreed upon between Husband and Wife. Wife shall receive one month notice as to the two weeks during the summer in which Husband shall exercise his visitation.
e. When exercising visitation, Husband shall be responsible for picking up and returning the children to Wife's home.
f. Husband shall provide and pay for child care in the event he is unable or unwilling to exercise his regular scheduled visitation at a time when Wife is scheduled to work.
g. The parties shall alternate the following holidays:
1. Christmas Eve from 6:00 p.m. until noon on Christmas Day. Wife shall have the children on Christmas eve and Christmas Day in the odd years, Husband shall have the children on Christmas Eve and Christmas Day in the even years. In the years in which Husband has visitation on Christmas Eve and Christmas Day, Husband shall pick up the children at Wife's home and shall return the children to Wife's home at the end of the visitation.
2. New Year's Day from 10:00 a.m. until 6:00 p.m. Husband shall have visitation on New Year's Day in odd years. Wife shall have visitation on New Year's Day in even years.
3. Memorial Day from 10:00 a.m. until 6:00 p.m. Wife shall have visitation on Memorial Day in even years. Husband shall have visitation on Memorial Day in odd years.
4. Fourth of July from 10:00 a.m. until 6:00 p.m. Husband shall have visitation on the Fourth of July in even years. Wife shall have visitation on Fourth of July in odd years.
5. Labor Day from 10:00 a.m. until 6:00 p.m. Wife shall have visitation on Labor Day in even years. Husband shall have visitation on Labor Day in odd years.
6. Thanksgiving from 10:00 a.m. until the Friday after Thanksgiving at 5:00 p.m. Husband shall have visitation on Thanksgiving in the odd years. Wife shall have visitation on Thanksgiving in even years.
7. Husband shall have additional visitation with the children on Father's Day from 10:00 a.m. until 6:00 p.m. and on Husband's birthday from 10:00 a.m. until 6:00 p.m. Wife shall have the children for visitation on Mother's Day from 10:00 a.m. until 6:00 p.m. and on Mother's birthday from 10:00 a.m. until 6:00 p.m.
4. Mr. Smith exercises approximately 148 days per year in visitation. This number was derived as follows:
Saturday through Monday every other weekend
3 X 52 / 2 = 78 daysSunday through Monday every other week
1 X 52 / 2 = 26 daysTuesday through Wednesday every other week
1 X 52 / 2 = 26 daysTwo weeks in the summer
14 daysAdditional Holidays
8 X ½ = 4 daysTotal = 148 days
5. Jack Smith's income on his 1998 W-2 form was Sixty Thousand Two Hundred and Sixteen Dollars and Twenty Four Cents ($60,216.24).
6. Jack Smith's income on his 2000 W-2 form was Eighty Seven Thousand Three Hundred and Seventy One Dollars and Twenty Seven Cents ($87,371.27).
7. Jack Smith's current pay stub indicates a gross income of Three Thousand Four Hundred Forty Nine Dollars and Nine Cents ($3,449.09). The amount from his pay stubs fluctuate and may not be a true representation of his monthly or yearly income.
II. Child Support Calculations
The following calculation is a strict application of the child support guidelines to Jack Smith's year 2000 W-2 income:
$87,371 / 12 = $7,281
Applying the monthly gross income of $7,281 to the child support guidelines, Jack Smith would normally owe $1,633 per month in child support for two children.
Step 1. Annual amount of support under guidelines
$1,633 X 12 = $19,596 per year
$19,596 / 365 = $53.69 per day
Step 2. Proportion of that annual amount attributable to increased visitation, any amount over eighty (80) days being considered excess:
68 days of excess visitation @ $53.69 per day = $3,650.92 per year, or $304.24 per month.
Step 3. Reduce guideline amount by the amount attributable to increased visitation:
$1,633 - $304.24 = $1,328.76
Scott v. Scott, No. 01A01-9806-CH-00272, 1999 WL 254420 (Tenn. Ct. App. April 30, 1999).
In Scott, the Western Section of the Tennessee Court of Appeals addressed a similar situation as that described in Casteel created different calculation. "[I]nterpreting this rule, the Eastern Section of this Court previously stated that the guidelines assume that the child is in the care of the custodial parent approximately 285 days per year and is in the care of the non-custodial parent during the remaining 80 days of the year" See Casteel, above. "Based on our calculations, however, we think that the rule assumes that child spends 265 days per year in the care of the custodial parent and 100 days per year in the care of the non-custodial parent."
In its reasoning, the Court stated in a footnote:
Interpreting this rule literally, we think that its drafters intended for the non-custodial parent's weekend visitation to consist of three days (Friday, Saturday, and Sunday), rather than only two days. Thus, the amount of weekend visitation assumed under the guidelines is equal to twenty-six weekends at three days per weekend for a total of seventy-eight days. This total must be reduced, however, to reflect that two of these weekends overlap with the non-custodial parent's summer and holiday visitation. Accordingly, only seventy-two days, rather than seventy-eight days, should be included as weekend visitation. When the amount of the non-custodial parent's summer and holiday visitation (twenty-eight days) is added to the amount of the non-custodial parent's weekend visitation (seventy-two days), the total amount of visitation contemplated by the child support guidelines is 100 days per year. It follows, then, that the child is assumed by the guidelines to be in the care of the custodial parent during the remaining 265 days of the year.
This leaves open an argument to challenge an opponent's math fairly dramatically. Often, before a judge rules on the issue of whether or not to award a downward deviation for greater than standard visitation, the judge may want to know what the difference in the award will be. Changing the number assumed to be representative of "standard visitation" can have a material affect on the final calculation.
