Guidash v. Tome

KEHOE, J. James P. Guidash, II appeals a judgment of the Circuit Court for Cecil County, the Honorable Keith A. Baynes presiding, modifying his child support obligation to be paid to his former spouse, Lisa Tome, for support of their minor child. He asserts that a provision of the parties’ marital separation agreement precludes the court from requiring him to pay child support; that there was insufficient evidence of a change in material circumstances; and that the circuit court made several clearly erroneous findings of fact in calculating the amount of his child support obligation. None of his contentions affords a basis for relief by this Court and we affirm the circuit court’s judgment. ⁷³¹ Background The parties were married on November 12, 1991. Two children were born to the parties as a result of this marriage: James P. Guidash, III, born July 17, 1992, and Joseph C. Guidash, born June 27, 1995.

The parties’ marriage deteriorated and on July 6, 2001, the parties entered into a voluntary separation and property settlement agreement (the “Separation Agreement”). The Separation Agreement provided that the parties would have joint legal custody and physical custody of the children and that, with exceptions for holidays, they would reside three days a week with their father and four days a week with their mother. Ms. Tome, and therefore the children as well, were entitled to live rent free in the marital home for a period of ten years, during which period Mr. Guidash would be “responsible for the payment of all mortgage expenses, including real estate taxes and homeowner’s insurance.” Mr. Guidash also agreed to maintain the children on his medical insurance policy and to pay one-half of their miscellaneous medical expenses. Ms. Tome agreed to transfer her interest in the marital home to Mr. Guidash for $25,000, to be paid within three years after the date of the Separation Agreement, and to waive her interest in Mr. Guidash’s pension in return for a payment of $20,000, to be paid within ten years of the date of the Separation Agreement.

The Separation Agreement also provided (emphasis added): In regard to child support, at this time the parties expressly agree that there shall be no child support in this matter, due to the terms and conditions set forth in this Agreement, and specifically with respect to the provisions regarding the parties’ marital home, and this may not be modified by any Court. Thereafter, Mr. Guidash filed a complaint for absolute divorce, attaching the Separation Agreement as an exhibit. The court granted the parties an absolute divorce on October 29, 2002 and incorporated, but did not merge, the Separation ⁷³² Agreement into its judgment. 1 From July, 2001 until July, 2011, Ms. Tome, James, and Joseph resided in the marital home. During that time, Mr. Guidash maintained health insurance for James and Joseph; paid the mortgage, insurance, and taxes associated with the marital home; and sometimes paid other expenses incurred by Ms. Tome for the children.

Additionally, and pursuant to the Separation Agreement, Mr. Guidash paid Ms. Tome $25,000 in June, 2004. In May, 2011, as he had a right to do under the Separation Agreement, Mr. Guidash notified Ms. Tome that she had 30 days to move out of the marital home. In July, 2011, Mr. Guidash paid Ms. Tome the agreed-upon sum of $20,000 for her waiver of a claim to his pension. At Ms. Tome’s request, Mr. Guidash paid $15,000 of this sum to Ms. Tome’s new landlord, representing a deposit and approximately two years of rent for an apartment.

Ms. Tome retained the remaining $5,000. In short, insofar as we can tell from the record, Mr. Guidash performed his obligations under the Separation Agreement. On December 15, 2011, Ms. Tome, with the assistance of the Cecil County Office of Child Support Enforcement, filed a motion for modification of child support seeking to establish a child support obligation for Mr. Guidash for the benefit of the parties’ remaining minor child, Joseph. Specifically, Ms. Tome requested that the court “[calculate and order a child support obligation in accordance with ...

Maryland law,” stating that: The [currently existing child support] order is from Cecil County and specifies there is to be no child support at the time the order was agreed upon. There is a material change in circumstances that warrants a review for modification. The material change[s] in circumstances are that the Plaintiff is no longer residing in the mutual marital home as specified in the Voluntary Separation and Property Settle ⁷³³ ment Agreement and the income of both parties has changed significantly.... Mr. Guidash opposed the modification and the matter was set for a hearing before a master on January 26, 2012.

Both parties testified at the hearing. Mr. Guidash testified that he had retired from the Maryland State Police in May, 2011 and, since that time, has received $5,710 per month in gross retirement income. He stated that he was leasing the parties’ former marital home, of which he was the sole owner, at a rate of $1,500 per month. Mr. Guidash also testified that he continued to maintain health insurance for Joseph (and James as well despite his emancipation) for approximately $153.00 per month.

Additionally, Mr. Guidash testified that Joseph stayed with him each week on Friday and Saturday, during most holidays and, for approximately two weeks during the summer. Ms. Tome testified that she and Joseph moved to an apartment in Rising Sun, Maryland located in Cecil County in July, 2011. Ms. Tome testified that she used $15,000 of the $20,000 paid by Mr. Guidash in July, 2011 to pay the rent on this apartment for two years so she would not have to “worry about rent until after [Joseph] graduated] from high school.” Ms. Tome testified that she was employed at Octorara Publishing, earning an annual income of $36,660. Additionally, Ms. Tome testified, in effect, that Joseph has a learning disability that manifests itself as difficulty in reading and that he attends Perryville High School to take advantage of a program tailored to his needs. 2 According to Ms. Tome, Joseph also attends the Cecil County School of Technology.

Ms. Tome stated that she transports Joseph to and from these schools, incurring approximately $100 per week in transportation expenses. With regard to visitation, Ms. Tome testified that Joseph “was with his father less than ... thirty overnights last year, despite the fact that he’s supposed to be ⁷³⁴ [there more frequently].” Additionally, Ms. Tome asserted that Joseph “was with his father ... maybe two weekends last summer at all ... maybe two.” At the conclusion of the hearing, the master made findings of fact and recommendations, in which the master determined that the parties’ combined actual monthly income before taxes was $11,865. Thereafter, the master concluded: There had been a material change in circumstances which warranted the establishment of child support. Defendant no longer has use and possession of the [marital] home ... and sought new living arrangements.

The waiver of child support in the Agreement between the parties is not effective to deny the award of child support at this time, which is in the best interest of the minor child. Child support was calculated using [Ms. Tome]’s employment income of $8,055.00 per month and imputing to her monthly income in the amount of $1,666.00 for the income of $20,000.00 which she received from [Mr. Guidash] in July 2011 divided by 12 months. Credit was also given to [Ms. Tome] for transportation expenses in the amount of $433.00 per month for the expenses associated with transporting the minor child to Perryville [High School] each day. Child Support was calculated by using [Mr. Guidash]’s retirement income of $5,710.00 plus rental income of $1,500.00 per month.

Credit was given to [Mr. Guidash] for payment of health insurance premiums in the amount of $153.00 per month (premiums for both children of the parties). Child support in accordance with the Maryland Child Support Guidelines was calculated to be $1,140.00 per month. Mr. Guidash filed exceptions to the master’s findings of fact and recommendations contending that the master was clearly erroneous in: (1) concluding that the Separation Agreement was modifiable; (2) concluding that there was a material change in circumstances beyond what the Separation Agree ⁷³⁵ ment contemplated; (3) attributing $1,500 in monthly rental income to him; (4) determining that Ms. Tome needed to incur transportation expenses for Joseph to attend his school; (5) determining Ms. Tome incurred $433 per month in transportation expenses for Joseph; and (6) recommending child support based on the sole custody worksheet calculation, rather than joint custody. On March 28, 2012, the circuit court held a hearing on the exceptions.

Following the hearing, Judge Baynes denied Mr. Guidash’s exceptions and entered an order adopting the master’s recommendations, requiring Mr. Guidash to pay $1,140 per month for the support of Joseph commencing December, 2011, with the first payment due on April 7, 2012, and additionally ordering Mr. Guidash to pay 10% of that amount each month towards any accumulated arrearage. Mr. Guidash has appealed. Standard of Review The trial court’s decision as to the appropriate amount of child support involves the exercise of the court’s discretion. A court can abuse its discretion when it makes a decision based on an incorrect legal premise or upon factual conclusions that are clearly erroneous.

We review the contentions that the circuit court erred as to matter of law on a efe novo basis. In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 , 8 A.3d 745 (2010). Our role in reviewing factual findings made by a master and then adopted by the circuit court is more limited. Generally in exceptions proceedings, findings of fact by a master are set aside only if they are clearly erroneous.

See Domingues v. Johnson, 323 Md. 486, 496 , 593 A.2d 1133 (1991); see also Kierein v. Kierein, 115 Md.App. 448, 453-56 , 693 A.2d 1157 (1997); Krikstan v. Krikstan, 90 Md.App. 462, 469 , 601 A.2d 1127 (1992) (both applying the Domingues standard in reviewing child support orders based on masters’ findings). This review takes place primarily at the circuit court level. The trial court, in ruling on a party’s exceptions: must carefully consider ... allegations that certain findings of fact are clearly erroneous, and decide each such question. ⁷³⁶ The chancellor should, in an oral or written opinion, state how he resolved those challenges. Having determined which facts are properly before him, and utilizing accepted principles of law, the chancellor must then exercise independent judgment to determine the proper result.

Domingues, 323 Md. at 496 , 593 A.2d 1133 . Our role in reviewing a circuit court’s conclusions in this context is as follows: Appellate discipline mandates that, absent a clear abuse of discretion, a chancellor’s decision that is grounded in law and based upon facts that are not clearly erroneous will not be disturbed. Where the findings are supported by evidence and therefore not clearly erroneous, the trial judge is left with discretion to determine the proper disposition of the case. Bagley v. Bagley, 98 Md.App. 18, 31-32 , 632 A.2d 229 (1993).

Finally, in very rare circumstances, a court can abuse its discretion by reaching an unreasonable or unjust result even though it has correctly identified the applicable legal principles and applied those principles to factual findings that are not clearly erroneous. In North v. North, 102 Md.App. 1 , 648 A.2d 1025 (1994), Judge Wilner surveyed a number of cases defining the concept of “abuse of discretion” and concluded: The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. Id. at 14 , 648 A.2d 1025 . ' Discussion I. The Judgment of Divorce Before addressing the parties’ contentions, we will comment briefly upon the 2002 judgment of divorce.

That ⁷³⁷ judgment stated that the Separation Agreement “is hereby incorporated but not merged into this Judgment of Absolute Divorce.” At no point in the divorce proceedings did the circuit court make any determination of child support under the Maryland Child Support Guidelines, Md.Code Ann, Fam. L. (“F.L.”) § 12-201-204. Use of the guidelines to determine child support is mandatory and has been so since 1990.

Tannehill v. Tannehill, 88 Md.App. 4, 11 , 591 A.2d 888 (1991). Parents may agree that child support is to be provided in non-monetary forms. However, before a court approves such an arrangement, the record must reflect that the court has engaged in the analysis required by F.L. § 12-202(a)(2)(v), which states: 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. In Walsh v. Walsh, 833 Md. 492 , 503-04, 635 A.2d 1340 (1994), the Court of Appeals commented: We also point out for the bench and the bar that, while parties are encouraged to settle domestic disputes, when doing so, they must be mindful of the needs of their children. When a judge approves and incorporates an agreement of the parents into an order of support, the judge must do more than merely rubber stamp anything to which the parents agree____ In reviewing support agreements, judges should refer to the child support guidelines, and ⁷³⁸ when approving and incorporating into a court order an agreement containing a downward deviation from the guidelines, the record should reflect the reasons why the judge adopted such an agreement. There is no exception in the [guidelines] statute for child support orders which are based on agreements of the parents.

The record in the present case does not indicate that the circuit court undertook the statutorily-required analysis before it entered the judgment of absolute divorce. Its failure to do so would have been reversible error had an appeal been filed. See Knott v. Knott, 146 Md.App. 282, 253 , 806 A.2d 768 (2002) (“Initially, [in entering a consent order as to child support], the court committed reversible error by failing to consider the guidelines and the impact of the agreement upon the financial resources of the parents or the financial needs of [the minor child].”); Shrivastava v. Mates, 93 Md.App. 320, 330 , 612 A.2d 313 (1992) (“The court also failed to make the necessary findings accompanying its departure from the guidelines. While the court indicated that items of value were conveyed under the Agreement instead of a portion of the support presumed under the guidelines, it did not state the estimated value of the items conveyed.”).

II

The Circuit Court’s Authority to Award Child Support Mr. Guidash argues that the terms of the Separation Agreement deprived the circuit court of the authority to enter a child support order against him. He articulates this contention in two ways in his brief. First, he contends that the nonmodifiability provision of the Separation Agreement is binding upon the parties and the court. Second, he asserts that, because he performed his obligations under the Separation Agreement, that Ms. Tome now has to pay rent cannot be considered a material change in circumstances because it was an eventuality contemplated by the parties when they signed the Separation Agreement.

We are not persuaded by these arguments and address them in turn. ⁷³⁹ A. The Court’s Authority to Modify the Separation Agreement Mr. Guidash contends that because the parties agreed that their child support agreement was not modifiable, the court did not have the authority to modify the award. In addition to what he characterizes as the plain language of the Separation Agreement, 3 Mr. Guidash advances a public policy argument, contending that permitting courts to modify parties’ child support agreements will deter parties from their use. Mr. Guidash is correct that separation agreements are “generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy.” Gordon v. Gordon, 342 Md. 294, 300-01 , 675 A.2d 540 (1996) (citation omitted). Moreover, a parent’s financial obligation to pay child support can be modified when the parent “agrees to pay, for a period of time, something that would ordinarily be part of the other parent’s expenditures for child support....” Walsh, 333 Md. at 505 , 635 A.2d 1340 ; see also, Knott, 146 Md.App. at 247-50 , 806 A.2d 768 (2002) (evaluating a request to modify a child support arrangement where payor parent had been paying the mortgage on the home where the child resided in lieu of child support).

These principles are subject to limitations, however. First, parents may not waive or bargain away a child’s right to receive support. See, e.g., Walsh, 333 Md. at 504 , 635 A.2d 1340 (“Even before the guidelines, this Court made it clear that agreements between the parents were not binding on a court ordering child support.”); Stambaugh v. Child Support Enforcement Administration, 323 Md. 106, 111 , 591 A.2d 501 (1991) (providing that the “duty to support one’s ⁷⁴⁰ minor children may not be bargained away or waived”); Corapcioglu v. Roosevelt, 170 Md.App. 572, 606 , 907 A.2d 885 (2006) (stating that “[a] parent may not bargain away the child’s right to support, and modification of that support, from the other parent”). Second, child support, regardless of any parental agreement, is always subject to court modification.

As this Court stated in Ruppert v. Fish, 84 Md.App. 665, 674 , 581 A.2d 828 (1990) (emphasis in original omitted, other emphasis added): The parents of a minor child are generally free to enter into an agreement respecting the care, custody, education, and support of their child. Indeed, they are the persons who ought to decide those things. Unlike ceiiain other aspects of a marital relationship that can be the subject of an agreement, however, provisions relating to the welfare of minor children are, by statute, subject to court modification. Md. Fam.

Law Code Ann. § 8-103(a) provides that “[t]he court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.” ... [ ] See also Stancill v. Stancill, 286 Md. 530, 535 , 408 A.2d 1030 (1979) (“[T]he chancellor cannot be handcuffed in the exercise of his duty to act in the best interest of a child by any understanding between parents”); Shrivastava, 93 Md.App. at 327 , 612 A.2d 313 (“The law and policy of this State is that the child’s best interest is of paramount importance and cannot be altered by the parties.”). Thus, a court may modify an award of child support “ ‘at any time if there has been shown a material change in circumstances that justify the action.’ ” Shrivastava, 93 Md. App. at 333 , 612 A.2d 313 (quoting Cole v. Cole, 44 Md.App. 435, 439 , 409 A.2d 734 (1979)). See also Lieberman v. Lieberman, 81 Md.App. 575, 587-88 , 568 A.2d 1157 (1990) (providing that child support is always subject to modification, even if a separation agreement provides otherwise). As such, we con- ⁷⁴¹ elude the parties’ agreement that the child support provision was non-modifiable did not limit the circuit court’s authority to revisit this issue in light of changed circumstances.

To put it another way, the provision in the Separation Agreement that purported to deprive the circuit court of the authority to address Joseph’s need for child support in the light of a change in material circumstances is void as violative of the clearly-established public policy of this State. B. An Eventuality Contemplated by the Separation Agreement Mr. Guidash contends that the circuit court did not have the authority to modify his child support obligation because the change in material circumstances alleged by Ms. Tome was exactly what was the parties intended, namely that Ms. Tome and the children would move out of the marital home and pay rent and other expenses at another residence. He states in his brief: Clearly, there was no material change in circumstances that arose in this case. Instead the testimony and evidence presented before the Master show that [Mr. Guidash] fulfilled the terms of the parties’ Agreement.

Furthermore, because the Agreement does not terminate on a specific date ... the end of Appellee’s period of use and possession of the marital home does not constitute a material change in circumstances. The parties clearly contemplated what would happen ten years after they signed the Agreement, as it was reduced to writing and never challenged by either party for ten years.... As we have already discussed, while parents may agree to an alternative child support