Krikstan v. Krikstan

BISHOP, Judge. Appellant/cross-appellee, Mathew K. Krikstan (“Mr. Krikstan”), the custodial parent of two minor children born as a result of his marriage to appellee/cross-appellant, Susan C. Krikstan (“Ms. Krikstan”), filed a Complaint for Child Support in the Circuit Court for Montgomery County requesting, inter alia, that he be awarded support and maintenance of the parties’ minor children. A hearing was held before a Domestic Relations Master on April 18, 1990. At the conclusion of the evidentiary hearing, the Master determined the total support obligation for the two children was $1,663, which included $300 per month for child care.

A Visitation and Support Order was issued by the circuit court and filed on April 23, 1990 implementing the recommendations of the Master. The written Report and Recommendations of the Domestic Relations Master (“Master’s Report”) was filed on May 21, 1990. Thereafter, Ms. Krikstan filed her exceptions to the report, and Mr. Krikstan filed a response. Following a non-evidentiary hearing, the Circuit Court for Montgomery County granted Ms. Krikstan’s exceptions and ordered her support payment reduced by $300 per month because, in the judgment of the court, the child care expense recommended by the Master was not necessary for the two boys.

Mr. Krikstan noted an appeal, and Ms. Krikstan noted a cross-appeal. Procedural Posture Prior to addressing the issues raised by the parties, we discuss a procedural matter regarding the scope of this appeal. The Memorandum and Order of the circuit court granting Ms. Krikstan’s exceptions to the Master’s report was filed on January 2,1991. On January 25, the parties filed a Joint Motion for Order Vacating Memorandum and Order of the Court requesting that the circuit court vacate its January 2, ⁴⁶⁵ 1991 order and reinstate the same order, thereby allowing counsel to file timely motions to alter or amend the judgment.

Apparently, a mistake was made in the clerk’s office and Ms. Krikstan’s copy of the Memorandum and Order was mailed to her counsel at Mr. Krikstan’s counsel’s address. The court granted the joint motion on January 28, 1991 thereby vacating the order of January 2, 1991 and reinstating it as of January 28. On February 4, 1991, Mr. Krikstan filed a motion to alter or amend the judgment. An order denying his motion was filed on February 7, 1991.

Although the joint motion indicated that both parties wished to file motions to alter or amend, no such motion was filed by Ms. Krikstan. The incongruities begin here because on February 22, 1991, according to Docket No. 37, Ms. Krikstan filed a response to Mr. Krikstan’s motion to alter or amend and a memorandum of points and authority. This occurred fifteen days after the order of court denying Mr. Krikstan’s motion. Further, on February 25, 1991, Docket No. 38 reads, “Order of Court (Hyatt, J.) denying Plaintiff’s Motion to Al[terJ or Amend [JJudgment filed.” This is virtually the same entry that appeared at February 7, 1991.

To further complicate matters, on March 4, 1991, Mr. Krikstan filed a reply to Ms. Krikstan’s response to his motion to alter or amend; this occurred after the motion had already been effectively denied two times. Appellant’s Notice of Appeal filed on March 6, 1991, reads: “Mathew K. Krikstan, Plaintiff, notices an appeal from the final judgment entered in this action on February 7, 1991.” Appellee’s Notice of Cross-Appeal reads: “Defendant, Susan C. Krikstan, notes her Cross-Appeal in this matter from the judgment entered in this action on February 7, 1991.” Both the appeal and the cross-appeal are timely; however, they both indicate that the appeal is from the action of the court on February 7, 1991. The only action taken by the court on February 7, 1991 was to deny Mr. Krikstan’s motion to alter or amend. Until recently we may have considered the only issue before this Court to be ⁴⁶⁶ whether the circuit court abused its discretion in denying Mr. Krikstan’s motion to alter or amend.

The Court of Appeals has decided, however, that limiting language in a notice of appeal should be deemed surplusage and ignored. B & K Rentals v. Universal Leaf, 319 Md. 127 , 571 A.2d 1213 (1990) (Although appeal was taken from the denial of a motion to reconsider a grant of judgment notwithstanding the verdict, the Court of Special Appeals was not precluded from considering the propriety of the underlying decision on the merits.). Thus, we deem the language specifying the date of the judgment appealed from in the notices of appeal and cross-appeal to be surplusage, and we treat the appeal and cross-appeal as from the order of January 28, 1991, whereby the circuit court set the amount of support, not merely from the denial of the motion to alter or amend the judgment. Issues Mr. Krikstan presents the following issues on appeal: I. Whether the trial court abused its discretion in declining to allocate any child care expenses?

II

Whether the trial court’s arithmetical calculations were in error even if the court correctly eliminated child care expenses? Ms. Krikstan presents an additional issue on cross-appeal: III. Whether the trial court erred in not retroactively dating the reduced child support obligation to May 1, 1990, the day her child support obligation commenced? Facts Mathew and Susan Krikstan were married on August 3, 1973.

Mr. Krikstan was granted an absolute divorce by Final Decree of the Circuit Court for Charles County (Bowling, J.) dated July 19, 1983. The terms of the parties’ Separation Agreement (“Agreement”) were incorporated by reference, but not merged, into the Final Decree. Two children were born as a result of the marriage — Zachary A. Krikstan, born February 4, 1974, and Joshua R. Krikstan, ⁴⁶⁷ born December 27, 1978. Pursuant to the Agreement, custody of the boys was awarded to Mr. Krikstan, with liberal visitation to Ms. Krikstan.

The Agreement was silent with regard to child support. Despite that, between the years 1982 and 1985, Ms. Krikstan paid $200 per month for a babysitter for the children. Use and possession of the family home in Indian Head, Maryland was awarded to Mr. Krikstan, where he lived with the boys, until he purchased a home in Silver Spring with his new wife, in October 1986. In 1985, Ms. Krikstan had released her interest in the family home to Mr. Krikstan for the “sole consideration” of $1,500 cash, which Ms. Krikstan used for moving expenses when she went to live with her parents in Louisiana to attend college.

When the house in Indian Head was sold in 1986, a profit of $24,000 was realized. Ms. Krikstan’s share of the proceeds was not distributed to her, rather, it was apparently intended by the parties to help support the boys while Ms. Krikstan was in college. After completing her education and receiving her degree, Ms. Krikstan returned to Maryland in October 1989 and accepted a position with her former employer, the Naval Ordinance Labs. Mr. Krikstan’s Complaint for Child Support was filed shortly after Ms. Krikstan’s return to this area.

At a hearing regarding support and visitation before Master R. Rosenkrantz, on April 18, 1990, the following facts were developed. At the time of the hearing, Zachary and Joshua were aged 16 and 11. Katherine, a daughter from Mr. Krikstan’s second marriage was three at the time of the hearing. Before Katherine was born, Zachary and Joshua required child care because both Mr. Krikstan and his present wife were employed outside the home.

Mr. Krikstan employed a babysitter for four or five hours a day before and after school, holidays, and vacations. After Katherine was born, Mr. Krikstan and his wife hired an au pair who lives with the family on a full time basis and cares for the children. The au pair makes certain that Joshua is up, dressed, has breakfast, and is prepared for school. She ⁴⁶⁸ takes him to the school bus.

She transports both boys to and from extra-curricular activities, and she is present as a “contact” point during the day while the parents are at work. She is the children’s caretaker for sick days, vacation days, and school holidays. Ms. Krikstan agreed at the hearing that child care was good, especially for Joshua, and she would not want him to be without it. At the conclusion of the hearing, the Master applied the child support guidelines, Md.Fam.Law Code Ann. §§ 12-201 to 12-204 (1991), and determined that the basic child support obligation for the two children was $1,363.

She further determined that $300 per month was an appropriate amount of child care to allocate to the children. Adding $300 to the basic support of $1,363, the Master arrived at a total support obligation of $1,663 per month, of which Ms. Krikstan was required to contribute 41% and Mr. Krikstan 59%. A Visitation and Support Order was issued by the circuit court implementing the recommendations of the Master. Ms. Krikstan filed a Notice of Intent to File Exceptions.

The Master’s Report was filed, and Ms. Krikstan noted exceptions to it. She maintained, inter alia, that the Master erred by apportioning the cost of child care. Mr. Krikstan filed a response to the exceptions, and a nonevidentiary hearing was held in circuit court. After considering the Master’s Report, Ms. Krikstan’s exceptions, Mr. Krikstan’s opposition, relevant portions of the proceedings before the Master, and oral arguments, the chancellor granted Ms. Krikstan’s exceptions and reduced her support obligation by $300 per month from $682 to $382 commencing from January 1, 1991.

Child Care Expenses On appeal, Mr. Krikstan argues that the circuit court abused its discretion in declining to allocate any child care expenses. We agree and explain. ⁴⁶⁹ As recently explained by the Court of Appeals in Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991), it is the function of a chancellor to exercise his or her independent discretion when ruling in a case in which a domestic relations master has made recommendations. Although the chancellor may and should give consideration to the recommendations of the master, the final decision must be that of the chancellor. Id. at 492 , 593 A.2d 1133 .

In reviewing a decision resulting from the independent judgment of the chancellor, we reverse only if it does not conform to law or constitutes an abuse of discretion. Rock v. Rock, 86 Md.App. 598, 607 , 587 A.2d 1133 (1991). In the case sub judice, the chancellor improperly applied the law regarding expenses for child care, and we therefore reverse. The law with regard to child care expenses is part of the child support guidelines and is set forth in the Family Law Article: (g)(1) Subject to