Special to Lawyers Journal Joining a sizable, vocal segment of lawyers, clients and concerned citizens, the Massachusetts Bar Association has issued reports stating that the state's current child-support guidelines produce inequitable child-support orders frequently enough to require a comprehensive review of those guidelines.
We feel there's inequity occurring on both sides (payers and receivers of support)," said Walpole attorney Marilynne R. Ryan, chairwoman of the MBA Child Support Guideline Committee that, on three occasions since September, has encouraged Barbara A. Dortch-Okara, Massachusetts Trial Court chief justice for administration and management (CJAM), to undertake a careful and comprehensive review of what it considers a seriously flawed system. Dortch-Okara was to have completed her review of all formal recommendations by Dec. 31.
'I think we're raising the awareness of problems in the system," Ryan said. 'I think it's easy to say that we're talking about the state's child-support guidelines, so they must be fair, but that's not always the case."
The Boston Bar Association has echoed the MBA's call.
In a Sept. 20 report, the Child Support Guideline Committee recommended that CJAM authorize the creation of a special advisory commission to review the state's current child-support guidelines. The committee further recommended that Dortch-Okara, Supreme Judicial Court Chief Justice Margaret H. Marshall, Probate and Family Court Chief Justice Sean M. Dunphy and MBA President Carol A.G. DiMento appoint this commission.
At the end of November, the MBA committee submitted advisories regarding the composition and structure of the prospective commission. In late December, DiMento reiterated the MBA's recommendations in a letter to the CJAM. That letter also noted that the MBA committee report is endorsed by the Massachusetts Chapter of the American Academy of Matrimonial Lawyers, and an independent Boston Bar Association study and report adopted by the BBA Council on Dec. 11.
'We discussed many, many specific revisions to the guidelines," said Ryan, former chairwoman of the MBA Family Law Committee. 'But if you change one piece of it without the assurance everything else remains in place and equal, it doesn't work. You need a commission to look at this from all angles."
While there seems to be little argument that inequity exists under current guidelines, Ryan believes a quick fix chafes at their very nature. This is not, she insists, a zero-sum game. Taking one tenet out neither ensures nor necessitates the enactment of an equal and opposite stipulation.
It may be a while before anyone knows whether the CJAM agrees.
Federal law requires only that Dortch-Okara complete a quadrennial review of the system by the end of 2001. The announcement of her findings would come after that deadline and at her discretion. Dortch-Okara has authority over the probation office, the jury commissioner's office and is the employer of some 8,000 employees of the Trial Court, who work in the 130 locations across Massachusetts.
'Chief Justice Dortch-Okara plans to complete the review process by the end of this calendar year as required," said Joan Kenney, public information officer for the state's Trial Court. 'At some point after the first of the year, she will make an announcement about the guidelines, but she hasn't indicated when. I wouldn't want to speculate on what direction that announcement will take the process."
Neither would Ryan.
'I expect she will do something, but we wanted her to be armed with as much information as possible prior to making a decision," Ryan said. 'We do have strong feelings about it and I hope she will be careful, but I have no indication as to which way she might go. I think caution and justice would dictate that there is nothing to be lost and everything to gain by a complete study."
'The best-case scenario, as far I'm concerned, is that the recommendations of our committee and the recommendations of others will be seriously considered by the CJAM, despite the fact that she's been faced with this end-of-the-year deadline from the Federal regulations," said DiMento.
'The importance is incredible for those of us who practice law in this area. It's typical for judges, litigants and attorneys to perceive there's very little wiggle room (under current guidelines). In fact, there is and should be, and our reports look to that. I think the (proposed) commission is an extremely important component of a work in progress."
The BBA report made specific recommendations for changing minimum monthly dollar amounts and income-disregard ceilings in addition to advocating a more thorough analysis of the child-support system. But while the MBA and BBA appear to be shooting at the same basket, Ryan still fears that arbitrary tinkering could prove more harmful than good. To that end, she embraces an alternative to stopgap measures.
'I hope both practitioners and judges will be alerted to the injustices that sometimes result," she said. 'Judges do have the power to deviate (from current support guidelines). Practitioners should be asking and judges should be allowing for deviations to correct those injustices. There's no substitute for judicial discretion even with the guidelines in place and no matter what happens (for the next four years). You just can't replace judges.
'We further hope that if (CJAM) sets up a commission like the one we recommended, it will be people who possess the experience and skills to get the job done right," Ryan added. 'This is not something so that somebody can have a feather in their bonnet. This is people that you need to have."