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Long v. Creighton11/4/2003
Appellant-mother Lorie J. Long challenges the district court's suspension of respondent-father Michael J. Creighton's child-support obligation for the parties' three children in Long's custody, which the district court made retroactive to the date Creighton began receiving public assistance. Long also challenges the district court's order requiring her to pay guideline support for one child transferred by agreement of the parties to Creighton's temporary custody. The record supports the district court's findings regarding Creighton's income and expenses, and therefore, we affirm the district court's determination that Creighton was entitled to a suspension of his child-support obligation. Because the district court specifically found that Creighton received need-based public assistance during the period for which he sought retroactive modification of child support , we affirm the district court's order making the modification retroactive to the date Creighton began receiving support. But the district court abused its discretion by requiring Long to pay guideline support for the child temporarily transferred to Creighton's custody because that determination is based, in part, on a finding that Long's current spouse has an obligation to support the children in Long's custody. And the district court failed to consider that Long provides sole support for the two children in her custody. Because Long's current spouse does not have an obligation to support Long's children from her marriage to Creighton, and Long is entitled to a downward deviation from her guideline support obligation for one child in recognition of her sole support of the two children in her custody, we reverse and remand for a redetermination of Long's support obligation for the child in Creighton's custody.
FACTS
Appellant Lorie J. Long had custody of the three children of her marriage to respondent Michael J. Creighton from their separation in 1996 until November 1, 2002, when she agreed that the oldest child could temporarily live with Creighton. Creighton has been engaged in an ongoing attempt since his child-support obligation was established in 1996 to reduce his obligation and have child-support arrearages forgiven.
By notice of motion and motion served on Long on November 8, 2002, Creighton sought a change of custody of the oldest child and a modification of child support to reflect that change, as well as modification of his support obligation retroactive to April 2001, based on his receipt of need-based general assistance. The parties appeared pro se at the hearing on Creighton's motions that took place in January 2003. Creighton's child-support obligation was last determined in January 2000 when he was employed by Target with a net monthly income of $1,341. With COLA adjustments, his obligation was $487 per month at the time of the hearing.
A child-support officer testified that Creighton received general assistance retroactive to April 2001. She also testified that his child-support arrearages through December 2002 totaled $9,123.26, and that if the district court suspended Creighton's child-support obligation retroactive to April 2001, Creighton would have overpaid child-support and could request that Long repay the support that she had received.
Creighton testified that he had been receiving general assistance since April 2000. He denied having worked in the 90 days prior to the hearing. Creighton testified that he was "doctor ordered not to work. I just had major surgery... September 30 through October 10." The district court directed Creighton to provide a notarized statement from his doctor verifying that Creighton is currently unemployable because of a medical condi
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