In Re Joshua W.

MOTZ, Judge. Mr. W. and his estranged wife, Mrs. W., were married in September 1972 and have six children — Jonathan, Joshua, Sarah, Aaron, Rachel, and Eric. Because of allegations of suspected child abuse and neglect, these children, ranging in ages from almost 5 to 20 years, were adjudicated children in need of assistance (“CINA”) pursuant to Md.Code Ann. Cts. & Jud.Proc. § 3-801(e) and placed under protective custody several years ago; the CINA adjudication is not ⁴⁸⁹ challenged here. Most of the children — Jonathan, Joshua, Sarah, Aaron, and Rachel — have spent substantial periods in foster care. 1 Only Eric, the oldest, has continually lived at home.

Mr. W. and Mrs. W. are currently separated and seeking a divorce. On February 10, 1992, the Circuit Court for Anne Arundel County held a hearing in the respective CINA cases of these children to determine if Mr. W. and Mrs. W. should pay support for Jonathan, Joshua, Aaron, and Rachel to the Anne Arundel County Department of Social Services (“DSS”). After giving the parents an opportuhity to be heard, the court ordered Mr. W. to pay $300.00 per week to DSS beginning February 10, 1992 on behalf of Jonathan, Joshua, and Aaron; child support was not ordered on behalf of Rachel, presumably because she is now living with her mother. The court did not order Mrs. W. to contribute toward child support of the children.

Mrs. W. testified that she lives with her daughter Rachel and a boarder and rents a house for approximately $510 per month. In July 1991, Mrs. W. began working part-time in the laundry department of the Naval Academy; she earns $8.34 per hour. Her job provides no benefits and her work hours are limited because of her need to attend and transport her children to court- ⁴⁹⁰ ordered therapy sessions. Mrs. W. is looking for another part-time job to supplement the laundry job or a full time job with more flexible hours.

According to Mrs. W., Mr. W. does not contribute any financial support to her or their daughter Rachel. On the basis of this testimony and Mrs. W.’s financial statement, the trial court decided not to order her to make any contribution to DSS to cover the support of her children, but did order her to furnish, on a bi-monthly basis, a statement of income and expenses as well as report on the status of her efforts to obtain other employment. No party appeals from the order regarding Mrs. W. The focus of this appeal, then, is only on whether the circuit court erred in ordering Mr. W. to reimburse DSS for the support of Jonathan, Joshua, and Aaron. In his pro se appeal, Mr. W. raises the following questions: 2 1.

Did the trial court err in determining that Mr. W. had voluntarily impoverished himself and thus in ordering him to pay child support? 2. Did the trial court abuse its discretion in ordering Mr. W. to pay $300 per week from February 10, 1992 in child support to the Anne Arundel County Department of Social Services? (i) As a preliminary matter, we deny the State’s motion to dismiss this appeal. The State urges dismissal because ⁴⁹¹ Mr. W. failed to comply with the requirements of Maryland Rules 8-501(c) and 8-503(b).

There is no doubt that Mr. W. violated a number of procedural rules. We do not sanction this; even pro se litigants are to obey these rules. Dismissal of an appeal for nonconformity with these rules is, however, discretionary. See Md.Rule 8-501(l) (1992); Md. Rule 8-503(g) (1992).

In this case, because of the already protracted litigation and because it is child support that is at issue, we decline to exercise our discretion to dismiss the appeal. See Tannehill v. Tannehill, 88 Md.App. 4, 10-11 , 591 A.2d 888 (1991). («) Mr. W.’s first challenge concerns the trial court’s factual finding that Mr. W. voluntarily impoverished himself. Giving due regard to the trial court’s opportunity to judge the credibility of the witnesses, we will not disturb its factual findings unless clearly erroneous.

Md.Rule 8-131(c) (1992). Although not explicitly defined in the Maryland Code, “voluntary impoverishment” is not a new concept for this Court. With this term, we recognize that parents may at times take steps to avoid their obligation to pay child support. As Judge Rosalyn Bell carefully explained in John O. v. Jane O., 90 Md.App. 406, 421 , 601 A.2d 149 (1992), “voluntarily impoverished” means “freely, or by an act of choice, to reduce oneself to poverty or deprive oneself of resources with the intention of avoiding child support or spousal obligations.” See also 24 Am.Jur.2d Divorce and Separation § 662 (2d ed. 1983).

Mr. W. argues that he “did not voluntarily reduce nor deprive himself of resources” with the intention of avoiding his child support obligation. In support of his position, he maintains that he did not quit a salaried job or voluntarily terminate any other source of income ... [; he] did not dispose of or hide any assets ... [; and he] has consistently sought ⁴⁹² appropriate work and is currently being considered for 8 positions. 3 The trial court heard extensive testimony from Mr. W., himself, regarding his educational and employment history, financial status, and ability to contribute child support. Mr. W. testified that he has an undergraduate degree in early childhood education; he was certified to teach but allowed his teacher certification to lapse two years ago. Since January 1991, he has been attending graduate school in “counseling psychology;” he anticipates receiving a Masters degree in May 1992 and beginning a Ph.D. program in the fall of 1992.

In addition to his academic schedule, he volunteers 20 hours per week at Crownsville Hospital Center doing patient assessments; this volunteering is not required for a degree but does “count” toward the two years supervised work experience needed for counseling certification. Mr. W. further testified that he was unable to work full time in 1991 because of “health and time concerns”; specifically, he was suffering from a “bad case of the nerves” and an old back injury. (While having a 10% partial disability of the back, Mr. W. has not had his back re-evaluated for several years.) With respect to time concerns, Mr. W. testified that he maintained a 12 credit per semester academic schedule during 1991 and also had to contend with ⁴⁹³ the time pressures of scheduling visitation with his children, court dates, and foster care review board hearings. Prior to beginning graduate school in January 1991, Mr. W. worked as a car salesman.

He quit this job in October 1990 because he said he became too upset to work after DSS took his children from him. He has not worked in a full time paid job since then. He testified that he financed graduate school and supported himself in 1991 through student loans and loans from family and friends; he has lived with his parents since 1988 and does not pay them rent. He further testified that he had purchased a car in September, 1991, and a computer in August, 1991.

In the past Mr. W. worked as a pastor and as a technical writer. He earned approximately $25,000 to $30,000 annually from his work as a pastor, combined with some part-time work in the remodeling business. The last time he worked as a technical writer was in 1987 when he had a $7,000 contract with the National Weather Service. At the time of the hearing, Mr. W. claimed to be self-employed in the remodeling business; he testified that he earned $12.50 per hour and worked approximately 30 hours per week, for a total of $375.00 a week.

Finally, Mr. W. testified that he was actively seeking full-time employment, but, upon questioning, conceded that he had not sought employment for a large number of positions for which he would seem to be qualified. He planned to attend school at night (for the doctorate degree) and work full-time during the day. He estimated that he has an earnings potential of at least $25,000 to $30,000 per year and claimed that he expected to earn that amount beginning the Fall of 1992. After hearing Mr. W.’s testimony, the trial court determined that Mr. W. had voluntarily impoverished himself to avoid having to pay child support.

The court explained: Mr. W. ... has chosen not to work ... intentionally chooses not to work in order to go to school. He can come up and find funds in order to buy an automobile when he wants to do that, find funds in order to go to school, he can find funds to do those kinds of things. He ⁴⁹⁴ has done nothing that I can find from his testimony of any substance to make any efforts to get a job____ I don’t believe most of what he says about his applications for jobs and things of that nature on the basis of his demeanor on the witness stand and some of the answers that he’s given. In any event he feels that he can get a job---- I feel that Mr. W. ... is certainly capable of earning twenty-five to thirty thousand dollars____ Mr. W ... is making by his own admission three hundred and thirty dollars ($330.00) a week currently and he is volunteering his time so he can get certification.

The trial court was not clearly erroneous in making this finding. Much of Mr. W.’s testimony focused on the various factors that a court may consider when determining whether someone has voluntarily impoverished himself. See John O., supra, 90 Md.App. at 422 , 601 A.2d 149 (factors to consider include: current physical condition; level of education; timing of any change in employment or other financial circumstances; efforts to find and retain employment; past work history; and “any other considerations presented by either party”). A fact finder could well conclude, upon consideration of this testimony, that Mr. W. had voluntarily impoverished himself.

(iii) Before we turn to the final question for review— whether the trial court abused its discretion in ordering Mr. W. to pay $300 per week in child support to DSS — we must determine whether the trial court was obliged to use the child support guidelines as set forth at Md.Code Ann.Fam. Law §§ 12-201 through 12-204 (1991, 1992 Cum.Supp.). The trial court, in this CIÑA case, acted pursuant to Md. Code Ann.Cts. & Jud.Proc. § 3-830 (1989) in ordering Mr. W. to support his children. Section 3-830 provides in its entirety: Parents liable for support after commitment.

After giving the parent a reasonable opportunity to be heard, the court may order either parent or both parents ⁴⁹⁵ to pay a sum in the amount the court directs to cover the support of the child in whole or in part. (emphasis added). There is nothing in this language that indicates, or even suggests, that the amount a court “directs” a parent to pay to cover the support of a CINA child is limited by the child support guidelines. Nor does the legislative history of Cts. & Jud.Proc. § 3-830 in any way indicate that a juvenile court’s authority pursuant to it is limited by the guidelines.

Section 3-830 was enacted, in its present form, however in 1975, see 1975 Md.Laws, Chap. 554, §§ 1 and 3, and this was, of course, well before the initial enactment of the child support guidelines in 1989. See 1989 Md.Laws, Chap. 2. The guideline legislation does specifically provide, in pertinent part, that “in any proceeding to establish or modify child support, whether pendente lite or permanent, the court shall use the child support guidelines set forth in this subtitle.” Fam.Law. § 12-202(a) (emphasis added). This case, however, is not like most actions for child support.

Most child support actions involve a suit by a custodial parent against a noncustodial parent for child support and are brought in response to the separation or divorce of the parents. In contrast, this case involves two noncustodial parents and a third party, the Anne Arundel County Department of Social Services. The circuit court did not order Mr. W. to pay support to Mrs. W. but rather ordered Mr. W. to pay child support to DSS for reimbursement of the cost of foster care provided to Jonathan, Joshua, and Aaron. See COMAR 07.02.11.26A.

(parental support is considered in determining the amount available for the reimbursement of the cost of foster care). Indeed, DSS had a duty to seek reimbursement for the cost of foster care. See COMAR 07.02.11.26C. Also, while Mr. and Mrs. W. are seeking a divorce, their marital separation is not the reason why Jonathan, Joshua, and Aaron were placed in foster care; they were placed in foster care because of suspected child abuse and neglect. ⁴⁹⁶ The guidelines, as the Court of Appeals recently explained in Voishan v. Palma, 327 Md. 318 , 609 A.2d 319 (1992), were developed in accordance with the Income Shares Model, a method of calculating child support “based on estimates of the percentage of income that parents in an intact household typically spend on their children.” Id. at 322-23 , 609 A.2d 319 (emphasis added).

See also Robert G. Williams, “Child Support Guidelines: Economic Basis and Analysis of Alternative Approaches,” in 1 Improving Child Support Practice 1, 12-13 (A.B.A.1986) (“Williams”). Thus, the Income Shares Model does not seem to address situations where the child is placed in foster care with neither parent having physical custody of the child. Other models of calculating child support also focus on the typical child support situation with one custodial parent. For example, the Wisconsin Percentage of Income Standard “assumes that each parent will expend the designated proportion of income on the child, with the custodial parent’s proportion spent directly.” Williams, supra, at 11.

The Washington Uniform Child Support Guidelines Model is similar to the Income Shares Model except it adjusts child support orders based on age of the children. Id. at 19. The Cassetty Model, an income equalization standard, was developed to ensure that children “continue to enjoy a standard of living which is as close to the original pre-divorce level as possible.” Id. at 26. This model redistributes income in excess of a poverty level amount between the two households in proportion to the number of persons in each family unit.

Id. Only the Delaware Melson Formula seems to lend itself to situations in which there are two noncustodial parents. This model is premised on allowing parents to retain sufficient income for their most basic needs. Parents are not “permitted to retain any more income than that required to provide ... for their own self-support.” Id. at 20.

Furthermore, “children are entitled to share in any additional income so that they can benefit from the absent parent’s higher standard of living.” Id. Like the other models, however, the Delaware model eventually returns to ⁴⁹⁷ a discussion of custodial and noncustodial parents and how the child’s support needs are allocated between them. Id. at 24. The language of the child support guidelines similarly does not directly address the situation involved here.

The guidelines discuss dividing the basic child support obligation and other expenses between the parents with the “noncustodial” parent owing the support obligation to the “custodial” parent. See Fam.Law § 12-204(g)-(i), (k)-(Z). Furthermore, the guidelines refer only to cases of sole custody and shared physical custody. 4 See Fam.Law. § 12-204(k) (for cases other than shared physical custody cases, “[t]he custodial parent shall be presumed to spend that parent’s total child support obligation directly on the child or children” and the noncustodial parent shall owe the child support obligation to the custodial parent) (emphasis added); Fam.Law. § 12-204(Z) (instructions for shared physical custody cases). Despite this emphasis on custodial and noncustodial parents and sole and shared physical custody in the guidelines, there is nothing in the statute or its legislative history to suggest that the General Assembly intended that the child support guidelines only be applied to the usual child support cases.

Nor does DSS so argue. Rather, as noted above, Fam.Law § 12-202(a) expressly provides that the guidelines “shall” be used “in any proceeding to establish child support.” (emphasis added). Moreover, through this statute the General Assembly appears to encourage courts ⁴⁹⁸ to maintain guideline principles even in situations where actual application of the guidelines “would be unjust or inappropriate.” Fam.Law § 12-202(a)(2)(iv)(l). See Voishan, supra, 327 Md. at 329-31 , 609 A.2d 319 (guidelines do not cover all situations, e.g., cases involving incomes over $10,000 per month; however, “we also do not believe that the legislature intended that the principles from which the schedule was derived should be ignored when a judge exercises discretion” when ordering child support).

The conclusion that the guidelines are to be used in all child support cases including those, like that at hand, involving no custodial parent and payment to the State for foster care, is further supported by the fact that these guidelines were created in response to federal legislation, the Child Support Enforcement Amendments of 1984. See 42 U.S.C. §§ 651-669 (1991); 45 C.F.R. §