Cummings v. Cummings

GARBARINO, Judge,

dissenting:

I respectfully dissent. I find it incredible that the majority would penalize grandparents who gratuitously try to provide their child and grandchildren with a better life and at the same time reward the parent who wishes to evade his legal and moral obligation to provide financial support to his children. Here we have a father who has convinced the trial court that his child support obligation should be reduced because his ex-wife’s parents have been kind enough to help support his children.

The majority believes that once a grandparent renders financial support to a child to aid in the support of a grandchild, the other parent’s support obligation should, in effect, be reduced. The majority bases its rationale on the Arizona Child Support Guidelines which provide that “[g]ross income includes income from any source, and may include ... income from ... gifts.” Guidelines § 5.a.

It must be remembered that the Guidelines are not law; they are guidelines. In Schenek v. Schenek, 161 Ariz. 580, 581 , 780 P.2d 413, 414 (App.1989), the court stated:

The guidelines are merely that, guidelines. They are to assist the trial courts of Arizona in applying the factors set forth in the statute. The guidelines insure that child support awards are consistent for persons in similar circumstances. They operate as presumptions and thus are procedural in concept.

Simply put, the Guidelines mention “income from gifts” as a source that may be considered in the computation of child support, not must be considered. In this case, such consideration leads to an absurd result.

The majority tries in vain to distinguish this case from Spector v. Spector, 17 Ariz.App. 221, 228 , 496 P.2d 864, 871 (1972), in which the court found that the financial condition of the grandparents was an improper matter for consideration in determining the child support obligation of a parent. The majority finds that the trial court did not consider the financial condition of the grandparents, but only “the money the grandparents regularly and voluntarily gave their daughter.” I fail to see the distinction. The majority assumes that these individual gifts will continue with equal regularity. This assumption is based on nothing other than the consideration of the grandparents’ financial ability and goodwill.

Ironically, if the grandparents were to gift financial aid directly to the grandchildren, the Guidelines provide that these funds would not relieve a parent of a support obligation. Section 21 of the Guidelines provides that “[fincóme earned or money received by a child from sources other than child support shall not relieve a parent of the support obligation established by these guidelines.” However, when gifted to the Mother, the gifts become income for child support computation purposes thereby reducing the amount of the Father’s child support obligation. This cannot be the result contemplated by those who drafted the Guidelines.

In Beck v. Jaeger, 124 Ariz. 316, 317 , 604 P.2d 18, 19 (App.1979), an ex-wife filed a petition seeking an increase in child support. *389 The court stated that “the earnings of [ex-wife’s] present husband are not insubstantial. This fact, however, has no bearing on [ex-husband’s] obligation to support his children.” Id. Section 5.f. of the Guidelines reaffirms this by stating that “[i]ncome of a parent’s new spouse is not treated as income of that parent under these guidelines.” Therefore, if the Mother’s increased standard of living were due to remarriage, it would not be considered income. However, because it comes from her parents, it is considered income, and ex-husband’s support obligation is subsequently reduced. This can hardly be what the Guidelines contemplate.

The majority cites In re Marriage of Pacific, 168 Ariz. 460 , 815 P.2d 7 (App.1991), as support for the trial court’s weighing the equities of the situation which produces a result in harmony with its decision. However, the comparison loses steam when one considers that Pacific contemplates the financial benefit received by a parent who has a community interest in the new spouse’s earnings. Here the Mother apparently has no vested or legal interest, at this point, in her parents’ estate. The Mother’s parents have no legal obligation to support her. This is a gift, pure and simple.

The majority believes that Pacific is good law. I concur. But Pacific does not address the issue of “gifts.” If the grandparents irrevocably gift funds to their daughter for investment purposes and if those funds create income by way of interest, rents or dividends, it may be a proper consideration for the trial court when determining a parent’s gross income for child support proposes.

The grandparents’ gifts are immaterial to the Father’s legal obligation to support his children. The fact that the Mother has reliable, considerate and generous parents willing to rise to the occasion and contribute to her upkeep does not lead to the conclusion that the Father’s child support obligation should be lessened.

I adopt the view expressed by the Kentucky Court of Appeals on the subject:

■ With respect to the appellant’s suggestion that the wife’s parents should support the child because they are wealthy we need only say that we are amazed that such a suggestion could seriously be made.

Halcomb v. Halcomb, 337 S.W.2d 32, 34 (Ky.1960).