Beck v. Beck

MEREDITH, J. This appeal is from an award of child support that was less than the amount that would have been required by application of the child support guidelines, Maryland Code (1984, 2004 Repl.Vol.), Family Law Article (“F.L.”), §§ 12-201 through 12-204. The Circuit Court for Kent County entered an order that required appellee, Richard H. Beck, Jr. (“the father”), to pay appellant, Kimberly Ann Beck (“the mother”), $700 per month in child support, rather than the guideline amount of $816.17 per month. The circuit court’s explanation for the downward deviation from the guideline amount was: “[the father] has the half-sibling of [the Becks’] children he is raising and I think it’s in [the Becks’ children’s] best interest that that child [ie., their half-sibling] should be supported in a reasonable manner.” The mother contends the circuit court erred in reducing the child support below the guideline amount solely on the basis of the presence in the father’s household of the father’s child from a previous relationship. We agree with her contention that F.L. § 12-202(a)(2)(iv) prohibits a departure based solely upon the presence of such a child in either parent’s household, and that the finding made by the circuit court identified no other basis for the decreased amount.

Accordingly, we hold that the reason given by the circuit court for the downward departure from the guideline amount is, as a matter of law, insufficient to justify the departure, and we shall remand the ⁴⁴⁸ case to the circuit court for further proceedings not inconsistent with this opinion. Background The father and the mother were married on May 29, 1992. During the course of their marriage, two children were born. The father and the mother were granted a judgment of absolute divorce on April 18, 2001.

At the time of the divorce, the mother was awarded legal custody and primary physical custody of the two children, and the circuit court ordered the father to pay child support of $608.45 per month. In addition' to the two marital children, the mother has a 13-year-old minor from a previous relationship living in her household, and the father has a 16-year-old minor from a previous relationship living in his household. The father has a fourth child, born after the divorce, for whom he is paying $300 per month in child support. 1 On April 7, 2004, the father, acting pro se, filed a “Petition/Motion to Modify Child Support.” The father asserted a number of reasons why his child support obligation should be reduced, none of which are at issue here. The mother answered the father’s petition and filed her own motion to increase the father’s child support obligation.

The circuit court referred the case to a master. After two hearings, the master recommended that the father’s child support obligation remain unchanged because: (1) each party had a child from another relationship living with that party; and (2) the father was paying child support for his post-marriage child. The mother excepted to the master’s findings. She argued that the child support obligation for the post-marriage child was not relevant, and she requested that ⁴⁴⁹ the father’s child support obligation be increased and set at the guideline amount.

During a hearing on November 1, 2004, the circuit court found that the father’s child support obligation for his post-marriage child was not relevant because the child support guidelines allow a deduction only for pre-existing child support obligations. The circuit court entered an order dated November 4, 2004, in which the court, after finding that the guideline amount was $816.17 per month, departed downward from the guideline amount and ordered the father to pay child support in the amount of $700 per month. The circuit court justified its downward departure from the guideline amount with a conclusory finding that it was “because of the presence in the [father’s] house of an older half-sibling whom he supports [that it is] in the best interests of [the Becks’ marital children] that the [father] be able to adequately support the older half-sibling.” Analysis F.L. § 12-202(a)(l) requires a court to use the child support guidelines “in any proceeding to establish or modify child support, whether pendente lite or permanent.” As the Court of Appeals explained in Petrini v. Petrini, 336 Md. 453, 460 , 648 A.2d 1016 (1994): The purpose of the guidelines was to limit the role of the trial courts in deciding the specific amount of child support to be awarded in different cases by limiting the necessity of factual findings that had been required under pre-guidelines case law. The legislature also intended the guidelines to remedy the unconscionably low levels of many child support awards when compared with the actual cost of raising children, to improve the consistency and equity of child support awards, and to increase the efficiency in the adjudication of child support awards.

(Footnotes omitted.) “There is a rebuttable presumption that the amount of child support which would result from the application of the guidelines ... is the correct amount of child support to be awarded,” F.L. § 12-202(a)(2)(i), but that “presumption [of correct ⁴⁵⁰ ness] may be rebutted by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” F.L. § 12 — 202(a)(2)(ii); Knott v. Knott, 146 Md.App. 232, 251 , 806 A.2d 768 (2002). F.L. § 12-202(a)(2)(iii) sets forth a non-exhaustive list of factors that may be brought to the circuit court’s attention by the parent seeking to rebut the presumption of correctness of the guidelines, and provides: (iii) In determining whether the application of the guidelines would be unjust or inappropriate in a particular case, the court may consider: 1. the terms of any existing separation or property settlement agreement or court order ...; and 2. the presence in the household of either parent of other children to whom that parent owes a duty of support and the expenses for whom that parent is directly contributing. Although the statute specifies that the circuit court may consider “the presence in the household of either parent of other children to whom that parent owes a duty of support,” F.L. § 12 — 202(a)(2)(iii)(2), the child support statute was amended in 2000 to further specify that this factor may not provide the sole basis for rebutting the presumption that the child support guideline is correct. F.L. § 12 — 202(a)(2)(iv); Gladis v. Gladisova, 382 Md. 654, 673 , 856 A.2d 703 (2004); Lacy v. Arvin, 140 Md.App. 412, 420, 431 , 780 A.2d 1180 (2001).

The statute also provides that if “the court determines that the application of the guidelines would be unjust or inappropriate in a particular case, the court shall make a ... finding on the record stating the reasons for departing from the guidelines,” F.L. § 12-202(a)(2)(v), including, among other points, a statement that explains “how the finding serves the best interests of the child.” F.L. § 12-202(a)(2)(v)(C). Gladis, supra, 382 Md. at 664-65 , 856 A.2d 703 ; Wills v. Jones, 340 Md. 480, 484 , 667 A.2d 331 (1995); Knott, supra, 146 Md.App. at 256-57 , 806 A.2d 768 ; Lacy, supra, 140 Md.App. at 420 , 780 ⁴⁵¹ A.2d 1180; Payne v. Payne, 132 Md.App. 432, 442 , 752 A.2d 1209 (2000); Horsley v. Radisi, 132 Md.App. 1, 24 , 750 A.2d 692 (2000); Allred v. Allred, 130 Md.App. 13 , 21 n. 4, 744 A.2d 70 (2000); In re Joshua W., 94 Md.App. 486, 501 , 617 A.2d 1154 (1993); Tannehill v. Tannehill, 88 Md.App. 4, 15 , 591 A.2d 888 (1991). See also Corby v. McCarthy, 154 Md.App. 446, 497 , 840 A.2d 188 (2003). More specifically, F.L. § 12-202(a)(2)(v) provides: (v) 1.

If the court determines that the application of the guidelines would be unjust or inappropriate in a particular case, the court shall make a written finding or specific finding on the record stating the reasons for departing from the guidelines. 2. The court’s finding shall state: A. the amount of child support that would have been required under the guidelines; B. how the order varies from the guidelines; C. how the finding serves the best interests of the child; and D. in cases in which items of value are conveyed instead of a portion of the support presumed under the guidelines, the estimated value of the items conveyed. As was stated in Horsley, supra, 132 Md.App. at 29, 750 A.2d 692 , “[t]o justify a departure from the Guidelines, ... more than the loose use of labels is needed.” In short, a downward departure is justified only when the circuit court finds that the guideline amount is unjust or inappropriate in a particular case. F.L. § 12 — 202(a)(2)(ii).

And even when the guideline amount is found by the circuit court to be unjust or inappropriate, the circuit court must also find, in writing or on the record, that the downward departure is in the best interests of the child receiving the child support. F.L. § 12-202(a)(2)(v)(C). As noted at the outset, the circuit court’s findings in the Becks’ case relative to the downward departure from the guideline amount were sparse, consisting of a comment on the ⁴⁵² record that “[the father] has the half-sibling of [the Becks’] children he is raising and I think it’s in [the Becks’ children’s] best interest that that child [i.e., their half-sibling] should be supported in a reasonable manner.” This finding satisfies neither the requirement of F.L. § 12-202(a)(2)(iv) that there be a reason other than the presence of another child in the household, nor the requirement of F.L. § 12-202(a)(2)(v) that the departure serve the best interests of the child who is receiving the support. The similar finding that was incorporated into the written order of November 4, 2004, suffers from the same deficiencies.

In Gladis v. Gladisova, supra, 382 Md. at 673 , 856 A.2d 703 , the Court of Appeals rejected Mr. Gladis’s claim that the child care expenses he was paying for a subsequent child warranted a reduction below the guideline amount for an earlier-born child. Rejecting Gladis’s claim that the circuit court erred by not departing from the guidelines, the Court stated: Although, according to Section 12 — 202(a)(2)(iii)(2) of the Family Law Article, the expense of other children in the non-custodial parent’s household is relevant to whether an award is “unjust” or “inappropriate,” Section 12-202(a)(2)(iv) expressly states that evidence of this support obligation, by itself, cannot rebut the presumption that the award under the Guidelines is correct. A similar statement appears in Gladis, 382 Md. at 664 , 856 A.2d 703 , where the Court quoted F.L. § 12 — 202(a)(2)(iii), and then stated: “The duty to support other children in the household of either parent, however, cannot form the sole basis for rebutting the presumption that the Guidelines establish the correct amount of child support. [F.L.] § 12-202(a)(2)(iv).” Prior to the 2000 amendment that added § 12-202(a)(2)(iv) to the child support statutory scheme, in Dunlap v. Fiorenza, 128 Md.App. 357, 368 , 738 A.2d 312 , cert, denied, 357 Md. 191 , 742 A.2d 520 (1999), this Court affirmed a circuit court award that had granted a non-custodial father a downward departure from the guideline amount of child support on the basis that ⁴⁵³ he had in his