Retroactive Child Support – What Is It And Can I Collect It In South Carolina?

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As a preliminary matter, the court will order child support in cases where parents are divorced or had never married, upon petition of the parties.  Child support is considered a vital part of South Carolina’s public policy.  It is designed to place South Carolina’s children on similar footing to that which they would have enjoyed if their parents were or remained married.  It is ordered at the time of the divorce, or the time of the separate support and maintenance petition is granted.  It can be modified under certain conditions.  As a general rule, child support continues from the time it is ordered until the time the child turns 18 years of age.

Retroactive child support, however, refers to child support going back in time from the date of the order, rather than going forward.  It is fairly rare that retroactive child support is awarded; however, there have been cases where this has occurred.

Retroactive Child Support Where the Court’s Order is Ambiguous

In Major v. Major, the children originally lived with the father.  However, during the pendency of the case, the older boy moved in with his mother, with the consent of the father.  Later, the divorce decree was filed, ordering the father to pay child support to the mother.  However, the order was unclear as to whether the child support was retroactive back to the date the boy moved in with his mother.

The father in the case argued that the mother (and, presumably, the mother’s lawyer) had not amended her paperwork to ask for retroactive child support and therefore she waived her right to such retroactive payments. As a preliminary matter, the court rejected the suggestion that a parent can agree to waive the right of a child to be supported by both parents.

The Supreme Court, upon reviewing the case, declared that when a family court order is ambiguous, the order “should be construed on the basis of that which a reasonable person in the position of the court would have thought the decree to mean at the time it was effectuated.”  In reviewing the facts and circumstances of the case, the court ruled that “the only reasonable interpretation” of the court’s order was that the child support was to have been awarded back to the date the child moved in with his mother.

Retroactive Child Support Back To The Date Of Filing

In Sutton v. Sutton, Mrs. Sutton filed a motion to amend child support.  At the time of their divorce, Mr. Sutton was disabled, and it appeared that he was going to lose both of his businesses.  It further appeared that Mr. Sutton would be permanently disabled at the time of the divorce.  While one of Mr. Sutton’s businesses did, in fact, close, the other business was thriving.  Additionally, Mr. Sutton’s health improved to the point where 80 percent of his work could be done over the phone.  Finally, while Mr. Sutton had limited income, his second wife, who was formerly a secretary at the Mr. Sutton’s business making $10,000 per year, was now making $50,000 a year working at the company.

Pointing out again that a request for retroactive child support would be based on the facts and circumstances within each particular case, the Court of Appeals of South Carolina held that the judge had the authority to order the child support to be retroactive to the date of filing.  It is important to note that in this case, the retroactive order was not back to the first change in Mr. Sutton’s circumstances.  Rather, only back to the date Mrs. Sutton filed the request for child support modification.

Retroactive Child Support Based on Fraud or Deceit

In 1987, the parties in Harris v. Harris filed for divorce.  At the time, Mr. Harris presented that he was making $48,000 per year in his job as a manager at the Natural Gas Company.  Mr. Harris did not mention that he also had his own business.  Over the course of the next three years, Mr. Harris made $400,000 from his private business, in addition to his yearly salary from the Natural Gas Company.

Mrs. Harris discovered Mr. Harris’ additional income when she read in the paper a story about Mr. Harris’ extortion convictions in relation to his private business.  Mrs. Harris filed for retroactive child support to reflect Mr. Harris’ increased income.  The trial court denied the request and Mrs. Harris appealed the decision.

The Supreme Court held that when there are special circumstances in which the failure to retroactively modify the child support would result in a “serious injustice,” the statute does not bar an award of retroactive modification.  The Court further noted that the failure to disclose significant increase in earnings “constitutes a special circumstance” that merits a retroactive increase.

Retroactive Child Support Not Always Ordered Due to Increase In Wages

If someone deliberately conceals increases in wages, to avoid higher child support, the court can order retroactive child support.  However, this is not always the case.  In Ables v. Gladden, the petitioner filed a claim for retroactive child support in 2005.  The petition requested, among other things, retroactive child support based on alleged increases in the respondent’s salary.  The testimony of the father included that he made $90 or 10 percent more per month than the salary the child’s support was based on for four years.  The ex – wife asked the court to order her ex-husband to provide additional information about his income.  However, the burden is on the petitioner to establish an increased earnings.  As such, the court denied the request to either force the ex-husband to prove income or order retroactive child support increases.

Retroactively Modifying Arrears

South Carolina statute § 63-17-2760 allows the courts to review prior calculations of child support, and correct errors based on a mistake of fact.  However, the statute specifically prohibits modifying or reducing the amount of child support in arrears, meaning, child support that was previously owed but not paid.

If You Have Questions About Child Support

If you have questions about child support, talk to the experienced South Carolina family law attorneys at the Elliott Frazier Law Firm, LLC.  We can guide you through the process and answer your questions.  Contact us today for a consultation.

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