For some time there has been a weakness in the Kansas Child Support system. Child support is calculated on the income of the child’s parents. If one parent’s income changes the child support will likely change. But, Kansas law provides a modification to child support will not take effect until at least 30 days after a party files a Motion to Modify. So the party who receives a raise has a strong incentive to keep the raise a secret. The longer they conceal the raise the longer until the Court could start any increase in child support.
The Kansas Supreme Court attempted to solve this problem by adding language to the Child Support Guidelines which allowed the trial court to issue a sanction against a party who failed to disclose a material change in circumstances. But, the language of the statue regarding child support modification did not change. A modification still cannot take effect until at least 30 days have passed since a motion was filed. This led to some confusion. Can the court calculate what child support would have been if the raise had been disclosed and set that amount as the sanction? Or is that just a back door attempt to modify child support retroactively in violation of the statute?
On August 15, 2014, the Kansas Court of Appeals addressed this issue in a case captioned In re Marriage of Johnson. In this case the father told mother he was moving from Wichita to Washington for a new job, but did not tell her he was getting a raise. In October she discovered he received a pay raise and filed a Motion to Modify. The court calculated that father’s child support should increase from about $430 per month to around $1200 per month. (Although the father’s pay rate is not listed, and the facts are somewhat murky in the Court’s ruling, it appears at least part of this increase is due to the expiration of father’s maintenance payment to mother and that the entire increase is not based on the father’s new pay). The trail court ruled that the new child support would start on November 1 and that it could not issue a sanction which had the effect of increasing child support prior to that date. The Court of Appeals overturned that decision and sent the case back to the district court. The Court of Appeals ruling makes it clear that it is permissible to issue a sanction equal to the amount of child support that should have been paid because the sanction is different than a retroactive increase in support. Furthermore, the father can be liable for mother’s attorney fees and any costs incurred in obtaining the information. However, the Court of Appeals also makes it clear the award of the sanction is discretionary with the trial court and that it is not mandatory.
As a result of this decision it is clear that concealing information about your pay raise may cost you more in the long run because you can be ordered to pay a sanction equal to the modified support, plus costs and attorney’s fees for the other party. Also, the opinion would appear to apply to any changes which impact the child support calculations including the price of health insurance or child care for the minor child or, in certain circumstance, a change in income for the party receiving child support.