Lacy v. Arvin

DEBORAH S. EYLER, Judge. In this case, we must determine whether a contractual agreement between separated parents by which the noncustodial parent pays child support without the compulsion of a court order can be a “preexisting reasonable child support obligation,” under Md.Code (1984, 1999 Repl.Vol., 2000 Supp.) section 12-201(d)(1) of the Family Law Article (“FL”), so as to be subtracted from the paying parent’s actual income in calculating a child support award for another of his children, by a different mother. We conclude that it can be. In the Circuit Court for Baltimore County, Laura Maureen Arvin, the appellee, sued Reno Edward Lacy, Sr., the appellant, to establish paternity and for child support.

After the parties stipulated to paternity, the child support issues were tried by the court. From an amended order establishing paternity and awarding child support, Lacy appeals, presenting four questions for review, which we have reworded: I. Did the trial court err in failing to incorporate the appellant’s preexisting reasonable child support obligations in calculating child support under the guidelines?

II

Did the trial court abuse its discretion in failing to deviate downward from the child support guidelines? ⁴¹⁷ III. Did the trial court err by including in the child support award a day care expense that the appellee was not actually incurring at the time of trial?

IV

Did the trial court err in calculating child support by failing to credit the appellant for the health insurance expense of the minor child? FACTS AND PROCEEDINGS In March of 1994, Arvin and Lacy had a brief relationship. Nine months later, on December 21, 1994, Robin Nicolette Lacy, the child in this case, was born. On May 24, 2000, when Robin was five years old, Arvin brought suit against Lacy in the Circuit Court for Baltimore County, to establish paternity and for child support.

The parties consented to genetic testing, which showed that there was a 99.99% likelihood that Lacy was Robin’s biological father. Trial commenced on July 24, 2000. At the outset of the proceedings, the parties stipulated to paternity and to their gross monthly incomes. The court then took testimony from Lacy, Arvin, and two witnesses called by Lacy.

Arvin testified that her work schedule necessitates day care services for Robin from Monday through Saturday morning. At the time of trial, she was paying a relative who is not a licensed day care provider $90 per week to watch Robin. She previously had been paying for Robin to attend a licensed day care program called Open Door. She had to remove Robin from that program when the school year ended, however, because the program’s fee had increased to $110 per week for the summer and she already was behind in her payments to the facility.

Arvin explained that if she had kept Robin at Open Door, which operates Monday through Friday, she still would have had to employ her relative on Saturdays, at a rate of $20, and her total day care expense thus would have been $130 per week. Arvin further testified that if she were awarded child support, she would re-enroll Robin at Open Door. ⁴¹⁸ Lacy testified that he is married to Catherine Lacy, but they have been separated since 1994. He and Catherine have three minor children who are older than Robin and who live with their mother. 1 Ever since he and Catherine separated, Lacy has been paying Catherine $400 every other week for support for the children. The sum is paid in cash, which Lacy withdraws from an ATM machine after depositing his paycheck.

According to Lacy, he and Catherine agreed to the $400 figure because that is the amount that Catherine estimated was necessary to pay her bills. There is no court order directing Lacy to pay that sum or any sum in child support for his three children with Catherine. Lacy further testified that he and a woman named Dawn M. Griffin Hess have a minor child for whom he pays support of $100, every other week. He also makes that payment in cash, after withdrawing the sum from an ATM machine.

Lacy has been paying child support to Dawn every other week for 11 years. There also is no court order directing Lacy to pay the $100 bi-weekly sum, or any sum, for child support for that child. Catherine corroborated Lacy’s testimony about his child support payments to her. She stated that she and Lacy had been separated for five years continuously and that he had been paying the $400 bi-weekly sum throughout that period.

Dawn also testified and corroborated the $100 bi-weekly payments that Lacy makes to her for their child. At the close of the evidence and after hearing argument of counsel, the trial court ordered Lacy to pay $615.39 per month to Arvin for child support for Robin. The court calculated that sum using the child support guidelines and the stipulated gross monthly earnings figures of the parties. The court ruled that Lacy’s payments to Catherine and Dawn for sup ⁴¹⁹ port for his other four children constitute voluntary payments, not “obligations” to be subtracted in calculating his adjusted actual income under the guidelines.

Also, in arriving at its child support award, the court did not deviate downward from the guidelines on account of those payments. The court included a day care expense of $110 per week in its child support award. When the court was calculating the child support award, it asked Lacy whether he was making any payments for health insurance premiums for Robin. (Lacy, who was unrepresented at trial, had not given any testimony about health insurance.) In response, Lacy produced a pay stub showing that he was paying $25 per pay period for health insurance for his entire family, including all his children.

Lacy then stated, in further response to questions from the court, that he did not incur any additional charge for including Robin on his health insurance policy. The court did not credit Lacy for any health insurance costs for Robin in calculating the child support award. On July 27, 2000, the court issued an earnings withholding order for the monthly child support award of $615.34. The court then issued an “Amended Order” setting forth in detail the rulings it made at the conclusion of the July 24, 2000 trial.

Lacy noted a timely appeal. DISCUSSION I When determining child support, the circuit court must use the child support guidelines set forth in sections 12-201 et seq. of the Family Law Article. FL § 12-202(a)(1). 2 The law recognizes a rebuttable presumption that the amount of child support resulting from application of the guidelines “is the correct amount of child support to be awarded.” FL § 12- ⁴²⁰ 202(a)(2)(i). That presumption may be rebutted, however, “by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” FL § 12-202(a)(2)(ii).

The statute recites factors that the court may consider in making that determination. See FL § 12 — 202(a)(2)(iii). One such factor is “the presence in the household of either parent of other children to whom that parent owes a duty of support and the expenses for whom that parent is directly contributing.” FL § 12 — 202(a) (2) (iii) (2). The presumption of correctness of the amount of child support under the guidelines may not be rebutted solely on the basis of evidence of that factor, however.

FL § 12-202(a)(2)(iv). If the court finds that in the case before it application of the guidelines would be unjust or inappropriate, it must make that finding in writing or in a specific on-the-record statement. FL § 12-202(a)(2)(v). In addition, the court must state the amount of support the guidelines would have required; how its child support order deviates from the guidelines; and “how the finding serves the best interests of the child.” FL § 12-202(a)(2)(v)(2).

In cases in which items of value are conveyed in lieu of a portion of support presumed under the guidelines, the court must state the value of those items. Id. A schedule that appears in FL § 12-204(e) provides the means to calculate the support obligation under the guidelines. Section 12-204(a) directs that “[t]he basic child support obligation [for the child or children in question] shall be divided between the parents in proportion to their adjusted actual incomes.” FL § 12-204(a).

A parent’s “adjusted actual income” means: [A]ctual income minus: (1) preexisting reasonable child support obligations actually paid; (2) except as provided in § 12-204(a)(2) ... alimony or maintenance obligations actually paid; and (3) the actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible. FL § 12-201(d). According to Lacy, the payments totaling $1,000 per month that he makes to the mothers of his four children other than ⁴²¹ Robin are “preexisting reasonable child support obligations actually paid” under FL § 12 — 201(d)(1), notwithstanding that they are made without the compulsion of a court order. He argues, therefore, that the court should have subtracted $1,000 from his actual income in calculating his adjusted actual income.

Because the court did not do so, its child support calculation under the guidelines was too high. Arvin responds that the trial court properly construed FL § 12 — 201(d)(1) to mean that child support payments made without the compulsion of a court order are voluntary payments that are not “obligations” to be subtracted from actual income in determining a parent’s adjusted actual income. The meaning of the phrase “preexisting reasonable child support obligations actually paid,” is an issue of statutory construction that is a question of law. See Marzullo v. Kahl, 135 Md.App. 663, 671 , 763 A.2d 1217 (2000), cert. granted, 363 Md. 661 , 770 A.2d 169 (2001); State Dep’t of Assessments & Taxation v. North Baltimore Ctr., 129 Md.App. 588, 595 , 743 A.2d 759 , aff'd, 358 Md. 608 , 751 A.2d 470 (2000).

Accordingly, we review the question de novo. See PaineWebber Inc. v. East, 363 Md. 408, 414 , 768 A.2d 1029 (2001). Our goal in statutory interpretation is “to ascertain and effectuate the intention of the legislature.” Haigley v. Department of Health & Mental Hygiene, 128 Md.App. 194, 214 , 736 A.2d 1185 (1999) (quoting Degren v. State, 352 Md. 400, 417 , 722 A.2d 887 (1999)). The primary source in that regard is the language of the statute itself.

Huffman v. State, 356 Md. 622, 628 , 741 A.2d 1088 (1999) (citing In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012 (1994)); State v. Pagano, 341 Md. 129, 133 , 669 A.2d 1339 (1996) (citing Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 73 , 517 A.2d 730 (1986)). In considering the statutory language, we give the words their “ordinary and common meaning” and we “avoid constructions that are illogical, unreasonable, or inconsistent with common sense.” Haigley, 128 Md.App. at 215 , 736 A.2d 1185 (citations omitted). In addition, ⁴²² [w]e often look to the legislative history, an agency’s interpretation of the statute, and other sources for a more complete understanding of what the General Assembly intended when it enacted particular legislation.

In so doing, “[w]e may also consider the particular problem or problems the legislature was addressing, and the objectives it sought to attain.” This enables us to put the statute in controversy in its proper context and thereby avoid unreasonable or illogical results that defy common sense. Adamson v. Correctional Med. Servs., Inc., 359 Md. 238, 251-52 , 753 A.2d 501 (2000) (citations omitted) (second alteration in original). The word “obligation,” which is central to the phrase we are construing, has many connotations, ranging from a generalized duty to a specific debt.

See, e.g., Webster’s Third New International Dictionary (Unabridged) 1556 (1981). We can best determine the import of the word “obligation” as it appears in FL § 12 — 201(d)(1) by considering its surrounding context and the purposes of the child support guidelines of which it is a part. The parents of a child are his natural guardians and, quite apart from the moral obligations of parenthood, owe the child a legal, statutory obligation of support. Thrower v. State ex rel.

Bureau of Support Enforcement, 358 Md. 146, 159-60 , 747 A.2d 634 (2000); see also FL § 5-203 (stating that “[t]he parents of a minor child ... are jointly and severally responsible for the child’s support, care, nurture, welfare, and education”); Petrini v. Petrini, 336 Md. 453, 459 , 648 A.2d 1016 (1994) (noting that the legal obligation of parents to support and care for their children is “based on both common law and statutory authority.”). A parent owes this obligation of support to the child, not to the other parent, see Rand v. Rand, 40 Md.App. 550, 554 , 392 A.2d 1149 (1978), and owes it to the child regardless of whether the child was the product of a marriage. See Powley v. Owens, 49 Md.App. 349, 354 , 431 A.2d 749 (1981), overruling Williams v. Williams, 18 Md.App. 353 , 306 A.2d 564 (1973). ⁴²³ When the parents and child live together, so that the child is in the parents’ joint physical custody, it is presumed that each parent fulfills that parent’s obligation of support to the child directly. When the parents live apart, however, it is presumed that the parent in whose custody the child resides fulfills his or her obligation of support directly; the other parent’s support obligation then must be translated into dollars and paid to the custodial parent, for the child’s benefit.

FL § 12-204(k); Anderson v. Anderson, 117 Md.App. 474, 482 , 700 A.2d 844 (1997), vacated on other grounds, 349 Md. 294 , 708 A.2d 296 (1998). One of the purposes of the child support guidelines is to permit ready and fair calculation of the financial obligation of child support that parents owe so that when parents are no longer living together, and the support obligation is not being fulfilled by both parents directly, the child nevertheless receives the full measure of financial support to which he is entitled under the law. See Allred v. Allred, 130 Md.App. 13, 17 , 744 A.2d 70 (2000) (stating that “[t]he guidelines are premised on the concept that ‘a child should receive the same proportion of parental income, and thereby enjoy the same standard of living, he or she would have experienced had the child’s parents remained together.’ ”) (quoting Voishan v. Palma, 327 Md. 318, 322 , 609 A.2d 319 (1992)). Because the “obligation” referenced in FL § 12-201(d)(1) must be “actually paid” to be a factor in determining adjusted actual income, it must be the sort of obligation that is capable of being paid, i.e., a financial obligation.

It must be for a definite sum, so as to allow the court to ascertain whether actual payment in fact has been made and to subtract the sum paid from actual income. In addition, because the sum is to be subtracted from the actual monthly income of the parent paying it, it must itself be payable on an ongoing basis. Finally, it must be enforceable, because an obligation that cannot be enforced is in effect not an obligation at all. Cf.

Zouck v. Zouck, 204 Md. 285, 300 , 104 A.2d 573 (1954) (holding that an agreement by a parent to support a child, declared to ⁴²⁴ be reasonable and proper, and thus enforceable by a court, constitutes an obligation justifying the invasion of a spendthrift trust). To be sure, a court order directing a parent to pay child support is a “child support obligation” within the meaning of FL § 12 — 201(d)(1). When such a court order predates the point in time at which child support is being calculated for another child, and the monies directed to be paid have actually been paid, it meets the criteria spelled out in that statute and must be subtracted from the parent’s actual income in calculating his adjusted actual income. The question remains, however, whether only a court order directing payment of child support qualifies as a “child support obligation” under FL § 12 — 201(d)(1), so that all other payments are considered voluntary, or whether there can be an obligation short of a court order that falls within the scope of that definition.

Framed more particularly, may an agreement between parents for child support for their child (or children) ever qualify as a “child support obligation,” within the meaning of FL § 12 — 201(d)(1); and, if so, what must be the essential characteristics of the agreement? Again, we look to the language of FL § 12-201(d)(l) in answering these questions. That section includes a qualification that the child support obligation at issue must be “reasonable.” Thus, the statute anticipates that in deciding whether there is a preexisting child support obligation that must be subtracted from the parent’s actual income in calculating the parent’s adjusted actual income, the court will be assessing the reasonableness of the obligation. The inclusion of this language would seem to indicate that the child support “obligations” referenced in FL § 12 — 201(d)(1) are not limited to those that are court-ordered.

It would be a rare situation indeed in which a court assessing child support would have cause to conclude that the amount or terms of a preexisting child support order for another child of that parent was not reasonable. Reasonableness would be a more relevant inquiry when the sum being paid as a child support obligation was ⁴²⁵ agreed upon by the parents of the child, without the participation and oversight of the court. In examining the legislative history of FL § 12-201, we find additional support for an interpretation of the language at issue that would include payments not made subject to a court order. The child support guidelines were enacted in Maryland in February 1989 by passage of Senate Bill 49, ch. 2, Laws of 1989.

As originally proposed, the language in SB 49 that eventually became