Cutts v. Trippe

BERGER, J. This case arises from an order of the Circuit Court for Talbot County modifying the amount of child support to be paid by appellant, Edmund A. Cutts, Jr. (“Father”), to appellee, Nancy L. Trippe (“Mother”). The court also found that the parties’ eldest child was a destitute adult child, as defined by statute, and that the parties therefore had a continuing obligation to support her. This appeal followed. Father presents two questions for our review, which we have rephrased as follows: I. Whether the circuit court erred by finding that the parties’ daughter is a destitute adult child under FL §§ 13-101 and 13-102.

II

Whether the circuit court erred by adhering strictly to the child support guidelines contained in FL §§ 12-202 to 12-204 in modifying the parties’ support obligations. For the reasons set forth below, we affirm the judgment of the Circuit Court for Talbot County. FACTUAL AND PROCEDURAL BACKGROUND Father and Mother are the divorced parents of three children. Pursuant to the judgment of divorce, entered on February 3, 2005, the parties have joint legal custody of the children, subject to Father’s specified visitation.

The divorce decree, which incorporated the terms of a settlement agreement between the parties, required Father to pay $200 per week to Mother for the support of the children. Father was also ordered to provide health insurance coverage for the children. Mother was required to pay all uninsured health expenses, co-pays, and deductibles up to $1,000 for a single illness or ⁷⁰⁰ condition, without contribution from Father. Expenses over $1,000 would be paid one-third by Father and two-thirds by Mother.

Mother was further ordered to pay the children’s costs for private school, special education fees, book costs, room and board, and other private school expenses, without contribution from Father. Both parties’ support obligations were set to terminate upon the first to occur for each child: (1) death of the child or parent; (2) marriage of the child; (3) the child becoming self-supporting; or (4) the child turning age 18, except if still in high school, in which case, support would continue until the child’s graduation or the child’s nineteenth birthday, whichever occurred first. The oldest child, Sarah, was born on November 23, 1990. She was 19 years old at the time of the child support modification trial.

Sarah was diagnosed with mild mental retardation at a young age. She has attended special schools her entire life and requires constant supervision. At the time of trial, Sarah attended a special school in New York for students who have an IQ below 70. When Sarah returns from school for weekends, holidays, and summer breaks, she resides at Mother’s home, where she has her own room.

Sarah is the beneficiary of a trust with a value of approximately $400,000 (“the trust”). Mother is the trustee of Sarah’s trust, and fias the sole power to disburse trust funds. On January 26, 2010, Mother filed a motion to modify child support in the Circuit Court for Talbot County. The first count alleged that Father had failed and refused to provide reimbursements for certain medical and tutoring expenses incurred by the children.

The second count sought modification of Father’s child support obligations on the basis of material changes in circumstances, including: increases in the children’s medical expenses, Mother’s substantial loss of annual income, the inability of Sarah to support herself by reason of her disability, and Father’s limited exercise of visitation, which placed the primary burden for the children’s living expenses on Mother. ⁷⁰¹ On March 8, 2010, Father filed a timely response to the motion to modify child support, and thereafter filed a counterclaim and amended counterclaim. The counterclaim alleged that there had been a material change in circumstances based on the children’s attendance at boarding schools, and asked the court to establish a new custody and visitation schedule. On February 1, 2011, a two day trial commenced. Mother filed a financial statement with the court detailing her monthly expenses for the three children.

Mother testified that she pays 10 percent of the tuition for each child, and that her parents pay the balance. Aside from the tuition assistance provided by her parents, Mother testified that she pays for all of the children’s other expenses, including food, transportation, clothes, summer camps, and tutors. In 2008, the children’s health insurance provider initiated an $1,800 deductible, whereas there previously was no deductible. This deductible increased to $2,400 after December 2008.

There was also a decrease in coverage for psychological care, from 80 percent to 20 percent, and increases in co-payment obligations. In the period between 2008 and 2009, Mother testified that she paid between $2,300 and $2,400 in deductibles on the health insurance policy. In the period between 2009 and 2010, Mother paid a similar amount. As to Sarah in particular, Mother testified that she prepares Sarah’s food and coordinates her medical appointments when Sarah is home.

Mother partially paid $6,500 for Sarah’s orthodontic bill, $603 for Sarah’s oral surgery, and $200 to repair a broken orthodontic wire. Mother also introduced medical bills for Sarah totaling $4,520.95, which were related to Sarah’s treatment for mild mental retardation. Father testified that he was paying monthly insurance premiums of $1,112, which was an increase from the monthly premiums of between $500 and $600 charged at the time of the divorce. At trial, Father did not contest the amount of Sarah’s orthodontic bills and agreed to be responsible for unpaid balances on those bills.

Father, however, testified that he would not contribute to certain other medical expenses ⁷⁰² because, contrary to Mother’s testimony, he had not been consulted about those expenses in advance. The parties stipulated that Mother’s income for the previous year was $72,601. The recent economic recession had affected Mother’s income, resulting in a $90,000 to $100,000 reduction in income due to lost real estate commissions. Father’s income for the prior year was $83,425.

The trial court issued a memorandum opinion on June 9, 2011. The trial judge found that Sarah was a destitute adult child within the meaning of Md.Code (1984, 2006 RepLVol.), §§ 13-101 and 13-102 of the Family Law Article (“FL”), and was therefore entitled to continuing support from Mother and Father. The court also found that there had been a material change in circumstances due to Mother’s decreased salary, which warranted a modification to the parties’ existing child support obligations. Accordingly, the trial court calculated the amount of child support for Sarah and for the youngest child using the parties’ current incomes. 1 In calculating the amount of support, the trial court adhered strictly to the child support guidelines contained in FL §§ 12-202 to 12-204 (“the Guidelines”).

This resulted in an increase in the amount of Father’s child support obligations. The trial judge further determined that the increases in healthcare costs did not warrant any departure from the Guidelines, because the increased expenses to each party essentially cancelled each other out. Finally, the trial judge modified Father’s visitation schedule and appointed a parent coordinator to orchestrate visitation arrangements. STANDARD OF REVIEW We apply the clearly erroneous standard in reviewing a trial court’s determination as to whether a child is a “destitute adult child” under FL §§ 13-101 and 13-102.

Corby v. McCarthy, 154 Md.App. 446 , 840 A.2d 188 (2003) (apply ⁷⁰³ ing clearly erroneous standard to destitute adult child determination); Gosh orn v. Goshorn, 154 Md.App. 194 , 838 A.2d 1247 (2003). The clearly erroneous standard also applies to the review of modifications of child support. Ley v. Forman, 144 Md.App. 658 , 800 A.2d 1 (2002) (applying clearly erroneous standard to review of a child support modification). However, “where an order [of the trial court] involves an interpretation and application of Maryland constitutional, statutory, or case law, our Court must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review.” See Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006).

DISCUSSION I. Destitute Adult Child Determination Father argues that the trial court erred by determining that the parties’ daughter, Sarah, is a “destitute adult child” within the meaning of FL §§ 13-101 and 13-102 for three reasons: (1) failure to consider evidence of Sarah’s trust; (2) failure to make specific findings of fact regarding Sarah’s reasonable living expenses; and (3) failure to weigh Sarah’s expenses against her resources. Mother contends that the trial court did not err because the trust is not a currently available resource, and there was ample testimony regarding the daughter’s reasonable expenses upon which to base a finding that she is a destitute adult child. We agree that the trial judge did not err in finding that Sarah is a destitute adult child. Parents have a statutory duty to support an adult destitute child.

FL § 13-102 provides, in pertinent part: (b) Duty to support destitute adult child.—If a destitute adult child is in this State and has a parent who has or is able to earn sufficient means, the parent may not neglect or refuse to provide the destitute adult child with food, shelter, care, and clothing. (c) Penalties.—A person who violates any provision of this section is guilty of a misdemeanor and on conviction is ⁷⁰⁴ subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year, or both. A “destitute adult child” is defined as “an adult child who: (1) has no means of subsistence; and (2) cannot be self-supporting, due to mental or physical infirmity.” FL § 13—101(b). The Guidelines apply to the establishment or modification of child support under this provision.

Goshorn, 154 Md.App. at 219 , 838 A.2d 1247 (2003) (holding that the child support “guidelines are applicable to destitute adult children”). A. The Trust We first consider whether a trust constitutes a “means of subsistence.” No Maryland court has seemingly addressed this particular issue. We have, however, held that only resources that are currently available to a child should be considered in the destitute adult child analysis. In Presley, for example, we emphasized the focus on a child’s “current situation,” and cautioned that future resources should not be considered in the analysis.

Presley v. Presley, 65 Md.App. 265, 278-79 , 500 A.2d 322 (1985) (holding that the trial court should examine “the child’s available assets” based on the child’s “current situation ....”) (emphasis added). We further explained: If, upon attaining tenure [at her job] at some future time, [the child] is relieved of some of her medical expenses by reason of an employer-provided insurance policy, her need for support (and thus appellant’s obligation to provide it) may change; but that has nothing to do with whether appellant has any current obligation. Id. at 279 , 500 A.2d 322 . Here, the trial court considered the trust, but excluded it from the destitute adult child analysis on the basis that Sarah had no right to access the trust funds, nor had any funds ever been disbursed to Sarah.

The trial judge explained: [N]o evidence was presented to establish that Sarah has the right to call on any of the trust principal or income for her support. Mother, who is the trustee, may legitimately ⁷⁰⁵ exercise her discretion not to distribute trust funds in order to ensure that the financial means to support Sarah continue to exist when her parents are no longer able to provide support. 2 This is analogous to the situation in Presley . Sarah’s need for support may change in the future due to the trust, but that has no bearing on Sarah’s current need for support. Since the trial judge found that the trust is not currently available to Sarah, the trial court was legally correct in excluding the trust from its analysis.

Further, our analysis is underscored by the Maryland Discretionary Trust Act. See Md.Code (1994, 2012 Repl.Vol.), § 14-401 et seq. of the Estates & Trusts Article (“ET”). ET § 14-402(a)(2) provides that: Trust property may not be considered property or an available resource of the beneficiary. Accordingly, we hold that a trust may not be considered as an available resource in the destitute adult child analysis.

B. Expenses Father next argues that Mother “utterly failed to produce evidence at trial” of Sarah’s “reasonable living expenses,” and that the trial judge erred by failing to make findings of fact regarding Sarah’s expenses. We disagree. First, we note that the concept of “reasonable expenses” does not appear in the language of the statute itself. Pursuant to FL § 13-102(b), a parent with sufficient means may not “refuse to provide the destitute child with food, shelter, care, and clothing.” In interpreting this language, we explained in Presley that we were rejecting the notion that “food, shelter, care, and clothing” could be construed to mean any expenses, “no matter how extravagant those expenses might be.” Presley, 65 Md.App. at 277-78 , 500 A.2d 322 .

We noted that such an interpretation would not be consistent with the legislative ⁷⁰⁶ intent because it is “inconsistent with the very concept of a ‘destitute adult child.’ ” Id. Rather, we