SCOTT VS. SCOTT (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

A child support award may be modified in accordance with the statutory formula regardless of a change of circumstances. Parkinson v. Parkinson, 106 Nev. 481, 483 n.1, 796 P.2d 229, 231 n.1 (1990) (citing NRS 125B.080(1)(b) and NRS 125B.080(3)). NRS 125B.080 requires application of the NRS 125B.070(2) formula unless the court specifically finds facts justifying a deviation; the court properly deviated based on the payor's responsibility for the support of others, other necessary expenses for the children, and the relative income of both parents. NRS 125B.080(9)(e), (k), and (l). This case is distinguishable from Hoover v. Hoover, 106 Nev. 388, 793 P.2d 1329 (1990), which prohibits devising a new formula based on the number of children of a second marriage; here the deviation rested on specific facts stated in the order and substantiated by the record, not on a formula. Under NRS 125B.070(1), gross monthly income includes income from any source; overtime should be included if substantial and capable of accurate determination, so the court remanded for reconsideration of the payor's income. NRS 125B.110 directs that support for a handicapped child continue until the child is no longer handicapped or becomes self-supporting; this reflects a strong public policy that cannot be vitiated by the parties' stipulation or agreement, and to the extent the stipulation and order limited support to completion of high school they are of no effect. Finally, upon the younger child reaching majority, the handicapped child should receive eighteen percent of the payor's gross income under NRS 125B.070(2), rather than one-half of the two-child (twenty-five percent) amount. Remanded.

In plain language

Robin and Brian Scott divorced in 1975 and had two daughters; the elder, Angela, has cerebral palsy and is mildly mentally retarded. Over the years, support was modified several times, often by stipulation. In 1990 Robin again moved to increase support and to continue Angela's support past the age of majority until she is no longer handicapped or becomes self-supporting. The district court modified support but limited Angela's support to completion of her high school special-education program, provided that support would be reduced by half when the younger daughter turned eighteen, and declined to include Brian's overtime in his income. The Nevada Supreme Court addressed several points and remanded. First, a child support award can be modified to follow the statutory formula even without a "change of circumstances." Second, the court properly deviated from the NRS 125B.070 formula here because it made specific findings, including Brian's responsibility for his current wife and two additional children, his payment of certain expenses for the daughters, and the parties' relative incomes; the court distinguished an earlier case (Hoover) that barred deviating based only on the number of new children. Third, overtime should be counted as gross income if it is substantial and can be accurately determined; because Brian consistently earned overtime, the court remanded to reconsider his income. Fourth, the parents cannot, by stipulation, cut off support for a handicapped child; NRS 125B.110 requires support until the child is no longer handicapped or self-supporting, so the limitation to high-school completion was remanded. Fifth, halving support when the younger child turned eighteen was error; the handicapped child should receive eighteen percent of Brian's gross income (the one-child formula figure), not half of the two-child amount. Remanded for these determinations.