An attorney has apparently been circulating some or all of pieces of a recent district court decision to various attorneys around the state, a copy of which has been provided to me. I thought those who are doing support calculations would want to know how this affects what we do in Family Court, and what is going to happen next. For convenience, a copy of the entire opinion in one piece is attached.
Specifically, a question has arisen as to the correct methodology of calculation of penalties on child support arrears, when those arrears are owed for more than about two years. One department of the Eighth Judicial District Court, Family Division, has held (in April, 2009) that because the State Welfare Division calculates those penalties as one-time, non-recurring events, the court on balance believes it should do likewise. That decision is not binding on anyone but the parties to that one case, in that one department, but the matter is of sufficient interest to the Bench and Bar that the matter has been taken up on appeal.
The district court opinion contains a number of errors of fact and law, although the court followed the argument generally, and I believe the court tried to fairly weigh the alternatives. For example, the federal child support regs only require applying any incoming payment to that month's support due first, and then to any arrears, while long-standing Nevada case law requires applying all incoming payments to the oldest arrearage first. The MLAW program has had a switch (since version 1) that allows the user to do either, a distinction that the court missed, believing it to be a variation between NOMADS and MLAW, and the doing of which is irrelevant in a non-IV-D case (there is no federal law mandating either approach, which is why the program default conforms to the directions of the Nevada Supreme Court on the point). There are multiple other similar errors, which is why the briefing will be extensive, and why I think the court's bottom line conclusion is simply wrong.
Resolution of the appeal can, and probably will, take a couple of years. The Legislature may act to clarify the matter - but that will also take two years. Of course, should either the Nevada Supreme Court or the Legislature adopt the view of penalty calculation found preferable by Department I, the Marshal Law Interest and Penalty Calculation program will be modified to perform calculations in that manner. In the meantime, it is possible to manually recreate the sloppy and less accurate NOMADS methodology manually, but it would be somewhat laborious in any complex support case.
In the meantime, anyone with questions as to the alternate methods of calculation can contact this office at the link below or go to www.willicklawgroup.com/Actual_Calculation_Differences for a detailed explanation of the current methodologies being used. Those wishing to know the background and detail as to the dispute can reference the entire article, posted on our Published Works page, entitled: "Why the Nevada Welfare Division is Calculating Interest and Penalties Incorrectly, and How It Injures Nevada Litigants" or by pressing the following link, www.willicklawgroup.com/why_the_nevada_welfare_division. Comments and suggestions are welcome at www.willicklawgroup.com/blog.