CHARLESTON – Orthopedic surgeon David Soulsby of Putnam County can subtract $949 a month from his child support obligations, the West Virginia Supreme Court of Appeals unanimously decided April 4.
The Justices reduced Soulsby's monthly payment from $5,579 to $4,630. He earns hundreds of thousands a year.
He had asked them to chop it down to $4,068, but they came up with a figure that gave him 63 percent of the relief he sought.
That means former wife Dawn Martinez achieved 37 percent success in a contest she compared to the Old Testament story of David and Goliath.
At oral arguments March 12, she squeezed a smooth small stone her pastor had given her, similar to one David slung at Goliath.
After oral arguments she said she felt like David because Nick Casey, chairman of the state Democratic Party, represented her husband.
Ancil Ramey of Charleston represented her.
David and Dawn married in 1984. Dawn gave birth to daughters in 1987 and 1990, and bore a son in 1997.
Dawn Soulsby petitioned for a divorce in 2000 and obtained it in 2002.
At first, Putnam County family court calculated the surgeon's support from Worksheet A, for basic shared parenting.
In 2005, the first child reached adulthood.
In 2006, the family court changed the son's status to extended shared parenting and started figuring his support on Worksheet B.
By law, both worksheets provide more money for the first child than for any others.
Unless someone granted an exception, David Soulsby would pay the first child rate for each child.
No one granted an exception. The family court assessed $3,033 for the daughter and $2,546 for the son.
Circuit Judge O. C. "Hoppy" Spaulding affirmed the calculation.
Casey appealed for David Soulsby, claiming the Legislature never intended for the first child rate to fall on a second child.
Casey proposed to split the difference between the rates for two children on Worksheet A and two children on Worksheet B. That would have set the payment at $4,068.
Ramey argued for Dawn Martinez that the court had to use both worksheets. If the father wanted to change the rules, Ramey argued, he should contact legislators.
The Justices disagreed with Ramey. In an opinion Justice Robin Davis delivered, they gave judges "limited discretion to deviate from the established guidelines when the facts of a particular case do not fall squarely within the confines thereof."
She wrote, "... the family court erred by not deviating from the guidelines."
She wrote that courts may calculate child support in a particular case in a manner that does not strictly comply with the statutory child support guidelines.
The guidelines, she wrote, "do not seem to take into consideration the unique, but not uncommon, parenting arrangement and visitation schedule involved in this case."
She declared Spaulding correct in awarding $3,033 for the daughter, but added that he should have reduced the amount for the son from $2,546.
To do this, she granted credit to David Soulsby for caring for his son 136 days of the year. That's 37.26 percent of a year, she wrote, and 37.26 percent of $2,546 is $949.
She wrote, "Deducting the $949 offset from the $2,546 monthly support obligation yields an adjusted monthly support obligation of $1,597."
She urged legislators to provide instructions for applying the guidelines where each child has a different parenting plan and visitation schedule.