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                                    TIME SHARING AND ITS IMPACT ON CHILD SUPPORT

The Legislature codified in FS 61.30 (1)(a)(2001) and FS 61.30 (11)(b)(2001) that the Court shall adjust any award of child support when the particular shared parental arrangement provides that each child spend substantial time with each parent. Substantial time is defined as at least 40% of the childrens’ overnights with both parents. This equates to 146 overnights per year. In these cases a different child support formula is used that typically reduces the payable amount of child support for the parent with the higher income of he parties.

Pursuant to section 61.30(11)(a) 10, F.S. (2001) the Trial Court also " may adjust the minimum child support award , or either or both parents’ share of the minimum child support award, based upon . . .:"

10. "The particular shared parental arrangement, such as where the child spends a significant amount of time, but less then 40 percent of the overnights, with the noncustodial parent, thereby reducing the financial expenditures incurred by the primary residential parent; ... "

In Jones v. Johnson, 747 So.2d 1066 (Fla. 5th DCA 2000)Judge Sharp, speaking for the 5th DCA stated:

This statute (an earlier version of current 61.30(11)(b))recognizes that in rotating custody situations, both parents necessarily will have to provide both direct and indirect expenses on the child's behalf. Both will have to adequately feed, clothe, and transport the child, and provide suitable accommodations to house the child -- whether it be a mortgage payment (in Johnson's situation) or rent (in Jones' situation). Any method of apportioning a support award should account for proration of time spent with the child, as well as the parties' incomes.

This approach was approved in Arze V. Sadough-Arze, 789 So.2d 1141 (Fla. 4th DCA 2001) where the court said:

Second, the Husband argues the trial court erred when it awarded the Wife full guideline child support simply because she was designated the primary residential parent. The Husband contends that pursuant to section 61.30, Florida Statutes (1999), and the decision in Jones v. Johnson, 747 So. 2d 1066 (Fla. 5th DCA 2000), the trial court should have taken into consideration the fact that the child is spending a substantial amount of time at each parent's residence when calculating the child support award. We agree.

There is a history of using formulas to determine child support cases in Florida. Before the child support guidelines were enacted in 1987, the law required that the courts compare the children’s needs and the ability of each parent to provide for those needs in determining the amount of child support each parent should provide and how much of that support should be paid to the other parent once living separately. This rule continues to be the legal formula in cases where the child support guidelines statute does not apply.

In the early 1990's questions began to arise as to whether special child custody arrangements were covered by the guidelines.

The history of approved formula approaches for deviation in child support cases in Florida actually began in split custody cases. In Winters v. Katseralis , 623 So. 2d 613 (Fla.2nd DCA 1993) the Court was faced with a child support case where each parent had primary residence for one child. The court stated:

At the time of the hearing on the petition for modification of child support, both parents were teachers. Mr. Winters' net monthly income was $1,985, and Ms. Katseralis' net monthly income was $1,320. With a combined net monthly income of $3,305, the child support guidelines suggest that two children should receive total monthly support of $1,052. §§ 61.30(6), Fla. Stat. (1991). Because the father earns 60% of the combined net income, his share of the child support should be $631 and the mother's share should be $421. §§ 61.30(8), Fla. Stat. (1991).

[14] The mathematics of child support are more complex in this case because each parent has custody of one child. All things being equal, the father should pay the mother the difference between their respective obligations, i.e., $210 per month.

In Gingola v. Velasquez, 668 So.2d 1054 (Fla.2nd DCA 1996) the Court again approved the formula approach saying:

Second, the calculation of child support in this case is extraordinarily complex. When the amended final judgment was entered, two of the children resided with Mr. Gingola and one with Mrs. Gingola. Mr. Gingola was paying day care expenses for a daughter who resided with him and health insurance premiums on all three children. Judge Charles Cope carefully determined the items necessary to complete the child support guidelines worksheet and performed the proper calculations. He concluded, however, that neither that form nor this court's opinion in Winters v. Katseralis, 623 So.2d 613 (Fla. 2d DCA 1993), provided more than a general solution to the problem.*fn1 Judge Cope provided each child with a pro rata share of the statutory basic obligation and their specific share of the additional obligations. He then made certain that Mr. Gingola received credit for his payments on the health insurance and on the allowable child care costs when calculating each parent's share of the total child support responsibility. In the end, because Mr. Gingola had primary residential custody of two children, Mrs. Gingola was required to pay Mr. Gingola $230 each month, and he paid her nothing. We conclude that this payment accurately split the total child support obligation in a manner that placed 54% of the responsibility upon Mr. Gingola, as warranted by his pro rata share of the combined net monthly income.

The Court further explained its corrections in Footnote 1 stating " . . . The general approach taken in Winters is still correct. In a split custody case, the trial court first determines the total child support obligation and each child's share of that obligation. Thereafter, the court determines the method of parental payment that gives each child his or her share while assuring that each parent pays no more than the proper percentage of the total support. . . ."

In Simpson v. Simpson ,680 So.2d 1085 (Fla. 4th DCA 1996), the 4th DCA reviewed a case similar to Gingola. Appellant argued that the Gingola formula was unfair in that it didn’t take into account adequately that the child support obligations of the parties stemming from a split primary residence situation were more than the amount for the combined children. The trial court agreed and created a different formula using the guidelines for the number of children with each party rather than the combined children. Appellant argued that the formula used by the trial court was irrational since you got to a different result depending on which parent’s support was first calculated.

The majority opinion affirmed the trial court’s resolution of the child support issue through the creation of its own formula, and resisted the suggestion presented in the dissent to adopt a revised formula saying:

In reviewing this final judgment of dissolution, we affirm both the provision requiring the father to pay $788 per month in child support for those children residing with the mother, and the corresponding provision requiring the mother to pay $339 per month in child support for the child residing with the father.

We conclude that the child support guidelines do not speak to the circumstance in which 3 children are split between their parents, who have nearly comparable incomes. If the guidelines do not cover this circumstance, as both parties and the dissent seem to agree, we think it impossible to contend that there has been an unwarranted deviation from them. See § 61.30, Fla. Stat. (1995). A trial judge cannot logically be accused of deviating from a standard that by its own terms does not purport to apply to the facts. We thus recur to the rule of discretion that governs dissolution of marriage cases. See, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)....

On the other hand, if the trial judge had employed the dissent's suggested method, we would not find its usage an abuse of discretion. A trial judge would certainly be free to apply the suggested method when the judge finds the circumstances appropriate to do so. (Emphasis added).Unless it is adopted by the legislature as part of section 61.30, however, we are unable to agree with the dissent that it is the exclusive method available to the judge who is faced with separating the custody of 3 children between 2 parents with roughly equivalent income.

There is still no statute on split custody cases and case by case analysis by needs and abilities analysis or one of the approved formulas continues in this type of matter.

However, as noted above the Legislature codified a formula approach for cases where the children spend a substantial period of time with each parent. If your case meets this definition the formula will provide the probable answer. But if you are close but not 40% or there are differing arrangements for different children or if you the primary is split and some children are in a substantial time share arrangement and others are not case by case analysis by needs and abilities analysis appears to still be the formula for determining how much, if any, child support should be paid by one parent to another. Remember parents pay child support out directly for their children and through the other parent and both contributions must be considered in reaching the proper amount.