Drummond v. State

⁵⁰⁵ CATHELL, Judge. In this case we address whether a noncustodial parent, receiving social security disability benefits at the time he enters into a child support consent order, is entitled to a modification of child support after his minor child applies for and receives social security disability dependency benefits. We hold that the parent who sought modification of the child support award was unable to show a material change in circumstances justifying the exercise of the court’s discretion to modify the parent’s child support obligation. We also hold that although a noncustodial parent may be entitled to a modification of a child support award when his or her child receives social security disability dependency payments, the noncustodial parent is not entitled to an automatic credit against the child support obligation equal to the amount of social security disability dependency benefits received by the minor child; a court in its discretion may, if the circumstances warrant, adjust the amount of the child support obligation of the parent consistent with the child support guidelines.

We shall affirm the judgment of the Circuit Court for Allegany County that neither allowed such a credit nor modified the parent’s support obligation. I. On October 25, 1994, the State, to the use of Shirley A. Drummond, filed in the Circuit Court for Allegany County a complaint seeking child support from James A. Drummond, appellant. In appellant’s answer to the complaint, he stated that he was unable to work because “he is totally disabled and has been found to be so disabled by the United States Social Security Administration.” Thereafter on March 24, 1995, appellant and Mrs. Drummond entered into a consent order for child support under which appellant was ordered to pay $38 per month for the support of his minor son, Joshua M. Drummond. In July of 1995, Joshua began receiving social security disability dependency benefits of $53 per month.

Thereafter, ⁵⁰⁶ on August 1, 1995, appellant moved to modify the child support order on the ground that Joshua was receiving from the Social Security Administration social security disability dependency payments and that those payments should be credited against appellant’s support obligation. A master’s hearing for reduction in child support was held on December 5, 1995. During that hearing, Mrs. Drummond testified that she was receiving Aid to Families with Dependent Children (AFDC) benefits. of $247 per month, Joshua was receiving social security disability dependency benefits of $53 per month and child support payments from appellant of $38 per month. Mrs. Drummond also testified that the AFDC benefits were reduced from $292 per month as a result of the social security disability dependency payments Joshua began receiving in July of 1995. 1 Appellant testified that he received $425 per month in social security disability benefits and $53 per month in supplemental security income (SSI) benefits.

The master, mistakenly finding that the child received “$425.00 per month in Social Security Disability benefits and SSI benefits of $53.00 per month,” concluded that the “child appears to be totally emancipated at least financially as a result of these particular benefits,” and recommended that support be suspended. The State filed timely exceptions to the master’s recommendation. The Circuit Court for Allegany County held that the master erred in suspending appellant’s child support obligation because the master erroneously found the child was receiving $478 per month. The court remanded the matter to the master “for the purpose of calculating support under Sec. 12-204(e) by using that aspect of the guidelines that provides for support within the range of $20 to $50 per month, ‘based on resources and living expenses of obligor.’ ” ⁵⁰⁷ A second master’s hearing was held on January 28, 1997.

Finding that appellant was not entitled to a modification, the Master stated: [T]he Master has been instructed to give any monies coming in from Social Security as ... income to the custodial parent which would be the mother in this case. That would be $53.00 per month on that. Mr. Drummond has roughly four hundred forty dollars of Social Security.... [Ujsing the Guidelines, I normally set child support in these matters at roughly $50.00 so I think that the $38.00 per month would be the appropriate figure and I will leave if at that. So, the Motion to Modify will remain the same, it will be denied.[ 2 ] Appellant filed exceptions to the master’s recommendations asserting that “the Master erred in finding that [appellant] was not entitled to a credit against his child support obligation for the Social Security disability payment currently being made directly to his minor child, Joshua Drummond.” On July 1, 1997, the circuit court, in a written order, accepted the master’s findings, conclusions, and recommendations.

Appellant filed a Notice of Appeal on July 31, 1997. We issued a writ of certiorari to the Court of Special Appeals prior to argument in that court. We hold that the Circuit Court for Allegany County did not err in denying appellant’s request to modify the child support obligation.

II

Two methods are available by which a parent may obtain modification of a child support award. First, pursuant to Maryland Code (1984, 1991 Repl. Vol), section 12-104 of the Family Law Article (FL), a court may modify a child support ⁵⁰⁸ award “subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” A court also may modify a child support award pursuant to section 12—202(b)(1) of the Family Law Article, which states that “the adoption of the guidelines set forth in this subtitle may be grounds for requesting a modification of a child support award based on a material change in circumstances.” The adoption of the guidelines may not be the basis for a modification of child support “unless the use of the guidelines would result in a change in the award of 25% or more.” FL § 12—202(b)(2). 3 As the award appellant seeks to have modified post-dates the adoption of the guidelines, section 12-104 of the Family Law Article is the only statutory provision under which appellant may seek a modification of the child support award in this case. ⁵⁰⁹ Section 12-104 allows a court to modify a child support award only after the filing of a motion for modification and a finding of a material change in circumstances. We explained the limitation on the trial court’s authority to modify a child support award in Wills v. Jones, 840 Md. 480 , 488-89, 667 A.2d 831 , 334-35 (1995): Before a court can consider the level of support to which a child is entitled under the guidelines, it must determine that it has authority to grant the requested motion.

Section 12-104 provides the Maryland courts with authority to modify a child support award only when (1) there has been a change of circumstance and (2) the change is material. See § 12-104(a). These limitations upon the courts’ authority to modify child support awards tend to inhibit the filing of a deluge of motions seeking modification of child support orders. The “material change of circumstance” requirement limits the circumstances under which a court may modify a child support award in two ways.

First, the “change of circumstance” must be relevant to the level of support a child is actually receiving or entitled to receive. Second, the requirement that the change be “material” limits a court’s authority to situations where a change is of sufficient magnitude to justify judicial modification of the support order. See Walsh v. Walsh, 333 Md. 492, 503 , 635 A.2d 1340 (1994). [Footnote omitted]. The trial court, after finding a material change in circumstances, must then apply the child support guidelines of sections 12-202 to 12-204 of the Family Law Article in order to determine the level of support to which the child is entitled.

Wills, 340 Md. at 491, 667 A.2d at 336. Although there are various ways a change in circumstances could be relevant to the modification of a child support award, there are two obvious ways in which a change is relevant to the level of support a child actually is receiving or entitled to receive. “First, a relevant change in circumstances may occur upon the passage of some event causing the level of support a child actually receives to diminish or increase.” ⁵¹⁰ Wills, 340 Md. at 488 n. 1, 667 A.2d at 335 n. 1. A second relevant change in circumstance may occur when there is a change in the income pool used to calculate the child support obligation. We examined a potential change in circumstance causing the level of support a child actually receives to diminish or increase in Walsh .

In that case, a prior support order required the noncustodial parent to pay child support in an amount below the amount provided for in the child support guidelines. The order also permitted the custodial parent to use the family home and required the noncustodial parent to pay one-half of the mortgage. Prior to the hearing on the modification, the parents entered into an agreement whereby the custodial parent would purchase the noncustodial parent’s interest in the family home. Consequently, the noncustodial parent’s obligation to pay one-half of the mortgage ceased.

Holding that a remand was necessary to determine whether there was a material change in circumstance pursuant to section 12-104, we stated: [The] obligation to pay one-half of the mortgage payments may have been a reason for ordering support below the guidelines. If so, when that obligation ceased, there could be a change of circumstances. Whether that change was material will have to be determined on remand. Only part of [the noncustodial parent’s] mortgage payments directly benefitted the children; part of the payments benefitted [the custodial parent] and part of the payments directly benefitted [the noncustodial parent] by increasing the equity in the house.... [A] remand is necessary to determine whether, based on the current circumstances including the cessation of [the noncustodial parent’s] mortgage payments, there was a substantial change of circumstances and, if so, giving due regard to the entire circumstances including the parties’ agreement and their change in income, what amount of child support should be ordered.

Walsh, 333 Md. at 502-03 , 635 A.2d at 1345 (footnote omitted). A second common change in circumstance relevant to a modification of child support is a change in the income pool ⁵¹¹ from which the child support obligation is calculated. In Wills, 840 Md. at 488 n. 1, 667 A.2d at 335 n. 1, we noted that an example of a relevant change in the income pool could be one parent losing his or her job. We went on to note that a parent’s incarceration would be a relevant change in circumstance that had an effect on the income pool because the incarceration would make it impossible for the parent to maintain employment.

Id. at 488-89 n. 1, 667 A.2d at 335 n. 1. In Petrini v. Petrini, 336 Md. 453 , 648 A.2d 1016 (1994), we affirmed the trial court’s consideration of non-cash gifts to a parent in determining the parent’s actual income and thereafter calculating the father’s child support obligation. Addressing the parent’s contention that the gifts he was receiving were not indefinite, we noted that if at some point the parent no longer received the gifts, he could request a modification of his child support obligation based upon a material change in circumstances. Id. at 467 , 648 A.2d at 1022 .

See also Moore v. Tseronis, 106 Md.App. 275 , 664 A.2d 427 (1995) (noting that parent’s relocation to a rural area and subsequent reduction in salary resulting from the relocation constituted a material change in circumstances); Lieberman v. Lieberman, 81 Md. App. 575 , 568 A.2d 1157 (1990) (affirming trial court’s finding of a material change in circumstances when parent’s net income rose from $200,000 to $386,800). Not only must there be a change in circumstances, it must be material. That is, the change must be of a significant degree so as to support the modification. With respect to the materiality of the change in circumstance, a trial court “[i]n making this threshold determination that a material change of circumstance has occurred ... must specifically focus on the alleged changes in income or support that have occurred since the previous child support award.” Wills, 340 Md. at 489, 667 A.2d at 335 (emphasis added).

III

In setting child support obligations, a court is required to utilize the child support guidelines. There is a rebuttable ⁵¹² presumption that the amount of child support resulting from the application of the guidelines is correct. FL § 12-202; Walsh, 333 Md. at 498 , 635 A.2d at 1343 . In calculating a child support award, a court first must determine the adjusted actual income of each parent, as defined in section 12-201.

See Petrini, 336 Md. at 461 , 648 A.2d at 1019-20 . It then adds the adjusted actual income of both parents to arrive at the combined adjusted actual income. FL § 12-201(e). A court next determines the basic child support award “in accordance with the schedule of basic child support obligations in subsection (e) [of section 12-204 of the Family Law Article].” FL § 12-204(a)(l).

The basic support obligation derived from the schedule in section 12-204(e) then is divided between the parents in proportion to their adjusted actual incomes. FL § 12-204(a). Certain child care expenses and extraordinary medical expenses incurred on behalf of a child must be added to the basic child support obligation. See FL § 12-202(g)-(h).

Transportation and school expenses may also be added. See FL § 12—202(i). A court, however, may depart from the guidelines if their application would be unjust or inappropriate. FL § 12-202(a)(2)(ii).

An examination of the child support guidelines indicates that in setting the basic child support obligation, a court looks to the adjusted actual income of the parents and the combined adjusted actual income, as those terms are defined in section 12-201 of the Family Law Article. At the time appellant entered into the consent decree and the trial court entered an order for the payment of child support, Mr. Drummond was receiving social security disability benefits of $384 per month. Appellant received an increase in his social security disability payments so that he was receiving $425 per month at the time of the hearing on his motion to modify. Mrs. Drummond received $292 per month in AFDC benefits at the time of the entry of the 1995 child support order.

She testified that the AFDC benefit payments were reduced to $247 per month after Joshua began receiving social security disability dependency payments of $53 per month. ⁵¹³ Maryland’s child support guidelines do not provide that income received by a child is to be considered in determining the basic child support obligation. Although the income a child receives from other sources may be a relevant consideration in departing from the guidelines, initially it is not normally part of the calculation of the basic child support obligation. Unlike Maryland’s child support guidelines, many states’ statutes, which we shall discuss in part TV of this opinion, expressly provide that income received by a child may be a consideration in departing from the presumptively correct child support obligation. These statutes, however, do not provide that income received by a child is to be considered in calculating the basic child support obligation.

Likewise, any benefits received by a child from a source other than a child’s parents generally are not relevant in determining the basic child support obligation of the parents under Maryland’s child support guidelines. It is the parents with whom lies the legal duty to support their child. In accordance with the child support guidelines, a court normally examines only the combined adjusted actual income of the parents in order to determine the basic child support obligation. As we have explained, the combined adjusted actual income of the parents is the sum of each parent’s adjusted actual income.

This amount is used to determine the basic child support obligation. A comparison of the circumstances at the time of the entry of the original consent order on March 24, 1995, and the circumstances at the time appellant sought modification of the child support award on August 1, 1995, leads us to conclude that there was no material change in circumstances in this case justifying a downward modification of the child support award. At the time of the initial order, appellant was receiving $384 per month in social security disability payments. He was receiving $425 at the time he sought modification of the child support award.

Mrs. Drummond was receiving $292 per month in AFDC benefit payment at the time of the original order, but was receiving only $247 per month in AFDC benefit ⁵¹⁴ payment at the time of the hearing on the modification. 4 The only change in circumstance between the time of the entry of the original child support award and the time of the requested modification was Joshua’s application for and receipt of social security disability dependency benefits. Although Joshua was not receiving these benefits at the time of the entry of the original award, he legally was entitled to the benefit payments pursuant to 42 U.S.C. § 402 (d) at that time. 5 At the time of the entry of the original award, the relevant factors in calculating appellant’s child support obligation were appellant’s and Mrs. Drummond’s actual adjusted income. These same factors were relevant at the time appellant sought modification of his child support obligation. As we just explained, there was no substantial change in appellant’s or Mrs. Drummond’s actual adjusted income to justify granting appellant’s motion to modify his child support award downward.

The only change in circumstances related to Joshua’s receipt of social security disability dependency benefits, a benefit to which he was entitled at the time appellant entered into the consent decree and at the time the original decree was signed by the court. 6 ⁵¹⁵ Following the child support award in 1995, Joshua’s family unit received $330 per month ($292 + $38). After Joshua began receiving social security disability dependency benefits, the AFDC benefits Mrs. Drummond received decreased to $247 per month. These AFDC benefits were paid to Mrs. Drummond on account of Joshua. 7 Following Joshua’s receipt of the social security disability dependency benefits, the family unit to which Joshua belonged had an income of $338. We do not believe this change in income to Joshua’s family sufficiently substantial so as to constitute a substantial change in circumstances warranting the modification of appellant’s child support obligation.

We note that if appellant were concerned about Joshua’s receipt of social security disability dependency benefits, he could have requested a departure from the guidelines at the time of the original order, as he was aware of his disability at that time. He did not do so. Instead, he signed a consent decree obligating him to pay support of $38 per month.

IV

Even if appellant were able to show a material change in circumstances so as to give a court authority to modify his child support award, appellant’s assertion that he is “entitled ⁵¹⁶ to a credit against his child support obligation for the Social Security disability payment currently being made directly to his minor child, Joshua Drummond” still would be unavailing. Once a court finds that a material change of circumstances has been shown, the court computes the level of support to which a child is entitled using the child support guidelines. See Wills, 340 Md. at 491, 667 A.2d at 333. Given the relatively small change in the parents’ actual income in this case, application of the child support guidelines would not lead to a child support award different than that awarded pursuant to the initial order.

Although the child support guidelines provide for the addition to the basic child support guidelines of certain expenditures, FL § 12-204(g)-(i), there is no provision authorizing a court to grant a credit to a parent for income received by the child from some other resources such as income derived from a child’s employment, investments, or gifts. In order to depart from the presumptively correct child support award calculated in accordance with the child support guidelines, a court must do so consistently with the statute. The statute permits a departure from the guidelines when “the application of the guidelines would be unjust or inappropriate.” FL § 12-202(a)(2)(ii). We do not perceive this to be such a circumstance.

The Court of Special Appeals in Anderson v. Anderson, 117 Md.App. 474 , 700 A.2d 844 (1997), vacated on other grounds, 349 Md. 294 , 708 A.2d 296 (1998), examined whether a parent was entitled to receive a credit against child support for social security retirement benefits being paid directly to his minor children. Judge Eyler, writing for the court, stated: Despite the fact that the guidelines do not expressly provide for treatment of Social Security benefits paid directly to or on behalf of the minor children, we believe that trial courts may consider such benefits when determining whether to deviate from the guidelines under § 12-202(a)(2), or when setting the amount of child support in accordance with § 12-204(d). ⁵¹⁷ While the receipt of Social Security benefits by the children is the type of consideration affecting the financial needs of the children, the trial court, under § 12-202(a)(2) cannot simply reduce the child support award without making certain factual findings mandated by § 12—202(a)(2)(iv). That subsection provides as follows: (iv) 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 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. Accordingly, in a guidelines case involving Social Security benefits or other income of the minor child or children, a trial court may properly deviate from the guidelines as long as it makes the requisite findings of fact, including a finding of how the award serves the best interests of the child. As we held in In re Joshua W., a downward departure from the guidelines could serve the best interests of a child if, for example, the child was in foster care and the court found that such an adjustment was necessary for the parent to obtain the economic stability necessary to regain custody and properly care for the child. 94 Md.App. [486] at 504, 617 A.2d 1154 [(1993)]. Similarly, a downward departure could benefit the child if the child’s needs were being met by the lower award and the lower award permitted the noncustodial parent to maintain a better household for extended visitation.

Conversely, the existence of additional income to meet the needs of the minor child might, in a particular ⁵¹⁸ case, be offset by a finding that the child’s needs exceed the amount provided by guidelines and the supplemental income. Essentially, the trial court must consider the particular circumstances of each case and exercise its discretion accordingly. Anderson, 117 Md.App. at 484-87 , 700 A.2d at 849-50 (emphasis added). Although section 12-202(a) does not specifically provide that income received by a child is to be considered as a factor in deviating from the guidelines, we agree with the Court of Special Appeals that the receipt of income by a child may be a relevant factor in determining whether “the application of the guidelines would be unjust or inappropriate.” FL § 12-202(a)(2)(ii).

A trial court has the discretion to deviate from the child support award calculated pursuant to the guidelines if, after considering income of a child, their application would be unjust or inappropriate in a particular case. This approach is consistent with other states’ child support guidelines, which explicitly provide that a child’s income may be a factor in determining whether to deviate from the guidelines. See Ala. R. Jud.

Admin. 32(A)(1)(d); Alaska Civ. R. 90.3(c); In re Guidelines for Child Support, 314 Ark.