Last week, the Utah Court of Appeals shocked our collective conscience by finding a single father with sole custody of his four children was on the hook for a six figure child support arrearage to his ex-wife. The judgment had been quietly accumulating since 2009 while Mr. McFarlane raised his children, paid the mortgage on his ex-wife’s house, and generally held down the fort while his ex-wife shipped off with the military. Eventually she remarried, and in 2017, Mr. McFarlane finally filed a petition to modify the Decree, about nine years too late.
The problem all started when Mr. McFarlane agreed to a mediated Decree of Divorce way back in 2009 that had him agreeing to pay both child support and alimony to his ex, despite having the children 80% of the time. Whatever the reason for agreeing to pay child support to the noncustodial parent - I suspect it may have been either to prove seeking custody was not about the money, or because of tax reasons under the old alimony tax treatment - Mr. McFarlane had just over a $700 per month child support bill on top of alimony.
Mr. McFarlane didn’t pay child support – or alimony for that matter – for long after the Decree was entered before hooking up with his ex for a brief spell in the marital home she was awarded in the divorce. Soon after the abortive reconciliation, however, Mrs. McFarlane decided that the military life was for her, and she shipped out, leaving Mr. McFarlane with the couple’s four children, the mortgage on the onetime family home, and a ticking time bomb of accumulating child support.
Imagine Mr. McFarlane’s surprise when his attempt to eventually modify the Decree nine years later set the two against each other, with Mrs. McFarlane demanding the Court find Mr. McFarlane in contempt of court for failing to pay the child support he had – for whatever reason – seemed to forget about over the last decade. Imagine his even greater surprise when, at a trial on Mrs. Mcfarlane’s contempt claims, the Court found that not only did Mr. Mcfarlane’s mortgage payments towards his ex-wife’s house not “count” as alimony payments, but that Mrs. Mcfarlane hooking up with him for seven months the year after the divorce didn’t meet the statutory standard for “cohabitation with another person.” Imagine his absolute indignation when the court further ordered that since he had left the meter running on child support for the last six years without an order stopping it, his bill came out to approximately $106,000.
After reading the appellate opinion, I felt for the guy. So did Judge Harris and presumably the rest of the Court of Appeals, judging by the helpful suggestions of more effective arguments he could have made at trial than “support follows the child.” As the Appellate Court correctly concluded, support does not automatically follow the child. (see Utah Code Section 78B-12-108, deceptively titled “support follows the child.”) The “support follows the child” rule works when parents go from sole physical custody with one parent to sole custody with the other parent. Even then, the process isn’t automatic – the statute just lets you go back further than the date of filing your petition to when custody changed.
Regardless, where he was accruing child support arrears despite already having custody of the children, it’s not clear that Mr. McFarlane’s argument on appeal was anything more than a hail mary to correct a number of mistakes and ill-advised decisions over the years.
Let’s review them.
First, it is highly unusual, and risky for a parent to voluntarily agree to pay child support that doesn’t follow the statutory guidelines, to a parent that doesn’t have custody of the children. But that is exactly what happened with the McFarlanes – Mr. McFarlane agreed to pay child support and alimony to Mrs. McFarlane even though she didn’t have custody of the kids. Even if the custodial parent is making Jeff Bezos money, if that parent has the kids 80% of the time, under Utah law that parent doesn’t pay any child support. It is dangerous for many reasons to agree to be creative on the child support order. This leads to all sorts of problems, including the second mistake in this case: DON’T IGNORE CHILD SUPPORT ORDERS (even if the other party says not to worry about it).
Child support is not like any other kind of debt. It is nearly impossible to get rid of in bankruptcy, it can be garnished from your paycheck at up to 55% of your earnings, and it automatically becomes a final judgment at the end of each month that it isn’t paid in full. (It is also one of the few types of debt that can and do regularly land people in jail for not paying, but that is a topic for another day.) Mr. McFarlane, for whatever reason, thought that he didn’t need to pay the court-ordered child support. But because each month’s child support obligation becomes its own separate final judgment, it is almost impossible to wipe out child support obligations months, let alone years, after they accrue.
This fact leads to the final mistake that Mr. McFarlane made that led to his crushing appellate decision: don’t procrastinate in filing changes with the court to child support orders. Because the law only allows child support judgments to be retroactively adjusted back to the date of filing, by not filing to eliminate child support as soon as Mrs. McFarlane enlisted, Mr. McFarlane lost his ability to go back years later and run back the odometer on his obligations. Those hundreds of monthly final judgments, each for $739 dollars in child support, quickly added up to that staggering $106,000 figure.
Ultimately, there are a few lessons to be learned from this case. First, don’t paint yourself into a corner with your decree to where your only option at trial years later is to try a “support follows the child” argument. Consult with an experienced, competent, and dedicated family law attorney who knows the ins and outs of Utah’s sometimes convoluted child support statutes - someone who has cleaned up enough badly worded Decrees like the McFarlane’s to know what kinds of risks you are facing with a poorly thought out child support order. Second, update your child support regularly, either by agreement or by filing a motion/petition. You don’t necessarily need to hire an attorney to do this, and an ounce of prevention is worth £86,000 of cure (at current exchange rates). You can file a motion through OCAP, or request an update by the Utah Office of Recovery Services if you don’t mind waiting for a few months.
As for Mr. McFarlane, there is still hope for him. His case was remanded to the district court for further proceedings, and the Court could always get creative with the home equity and some of the common law theories the Appellate court helpfully suggested. We wish the best of luck to both parties as they try to hopefully resolve their case without further litigation or appeals.