Lorincz v. Lorincz

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). This appeal presents a number of intertwined questions about how to interpret the Maryland Child Support Guidelines: 1) which particular child care expenses are cognizable under the Guidelines and which are not?; 2) is the time unit for reckoning the parents’ respective percentages of responsibility for child support that of a twelve-month-year or may it be broken down into such distinct units as, for example, nine months and three months respectively?; and 3) does a career move such as a transfer from graduate studies in research science to law school justify a finding of involuntary impoverishment? The appellant, Annaka M. Lorincz (“Mother”), and the appellee, Marcel Lorincz (“Father”), were married in Virginia on January 6, 2001. Twin children, Alexandra Elise Lorincz and Jonas Begley Lorincz, were born to the couple on February 10, 2003.

The couple separated on July 6, 2003, and entered into a Voluntary Separation and Property Settlement ³¹⁶ Agreement on July 6, 2004. On August 2, 2004, the Mother was granted a Judgment of Absolute Divorce in the Circuit Court for Baltimore County. The Separation Agreement was merged into and made a part of the divorce decree. In the divorce decree, as in the Separation Agreement, the Mother was awarded primary physical custody of the children.

The Father was directed to pay child support in the amount of $650 per month. In the separation agreement, both parties explained how they had arrived at the $650 monthly child support payment. They began with a basic child support obligation of $905 per month based on the Maryland Child Support Guidelines and then added to it $215 per month for work-related child care expenses incurred by the Mother. Based on their respective percentages of the shared income, the Father was then responsible for 59.5% of the $1,120 monthly figure, and the Mother was responsible for 40.5%.

On October 30, 2006, the Mother filed in the Circuit Court for Baltimore County a Motion to Modify Child Support. The Mother sought to modify upward the amount of monthly child support by taking into account her increased child care costs. A hearing was held before a Master, and the findings and recommendations of the Master were adverse to the Mother. This appeal is from the August 29, 2007 order of the circuit court denying the Mother’s exceptions to the Master’s Report and Recommendations.

The Mother’s Status The prominent factor in this case, controlling the answers to all of the subsumed questions, was the Mother’s status as a student and/or as a wage earner. For a period of approximately four years, for two years prior to the divorce and for an additional two years after the divorce, the Mother was enrolled as a full time graduate student at the Johns Hopkins University Medical School, pursuing a Ph.D. In that capacity, she received a student stipend of $2,000 a month for a 12-month year, yielding an annual stipend of $24,000. This was the Mother’s status as of both the time of the Separation ³¹⁷ Agreement of July 2004 and the divorce decree of August 2004, pursuant to both of which the Father was to pay child support in the amount of $650 per month. That status remained unchanged for an additional two years.

After the separation of the Mother and Father in 2003 and for the next three years while the Mother was at Hopkins, the Mother lived with her parents in Fredericksburg, Virginia, and commuted to Hopkins on a daily basis. The Mother’s parents took care of their two grandchildren. In the summer of 2006, however, the Mother decided on a career change. At that point, she was “four years along” in her doctoral program but had just failed her “third project.” That meant that she “was going to have to start a new project and that’s going to take at least two or three years to go for a new set of experiments.” Had the Mother completed her studies at Hopkins and gotten her Ph.D., moreover, she estimated that she would have been a research scientist and could have expected, after two or three additional years, to get a job earning approximately $50,000 per year.

A moment of decision was at hand. In August of 2006, the Mother enrolled as a full-time student at the University of Virginia School of Law. For the first six months, she remained living with her parents in Fredericksburg, commuting to school on a daily basis for a trip of eighty-five miles each way. In January of 2007, however, she moved, along with her children, to Charlottesville.

She enrolled the children in the University of Virginia Child Development Center, a child care facility for faculty, staff, and students. The cost for the two children was $1,100 per month. For the first time, the cost of child care became a potentially significant factor in the child support calculations. Maryland Code, Family Law Article, § 12-204(g)(l) provides: (g) Child care expenses.— (1) Subject to paragraphs (2) and (3) of this subsection, actual child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added ³¹⁸ to the basic obligation and shall be divided between the parents in proportion to their adjusted actual incomes.

(Emphasis supplied). To pay her tuition and the living expenses for herself and the children of $30,700 per year, the Mother has borrowed $45,000 to $50,000 in student loans and an additional $19,000 from her father. She is slated to graduate from Virginia in May of 2009. In explaining her choice of Virginia as a law school, the Mother testified: I only wanted to apply to the top law schools because your income potential is dramatically different if you attend a top law school than if you attend a like lower tier law school.

For example, at Clifford Chance,[ 1 ] there is no one from a lower tier law school who works there. (Emphasis supplied). She further explained why 'she had not sought a part-time job. I think that I would not be able to work part-time and take care of two children and attend class and school time and still maintain a GPA that would allow me to get a good job with a good salary for my children so no, I don’t think so.

(Emphasis supplied). In terms of going to law school on a part-time basis, the Mother explained that, of the top-flight schools, only Georgetown provided such an option and that she had applied to Georgetown but had not been accepted. I think it’s in the best interest of the children that I spend as much time as I can with them. If I was working part-time, going to school full-time, I think that wouldn’t leave very much time for me to spend with them.

Also, as I mentioned, going to a good law school is going to provide more and better opportunities, not only for myself, but also for Jonas and Alexandra and that kind of cuts out going ³¹⁹ part-time, except to go to Georgetown which I did apply to and I got rejected. (Emphasis supplied). Summer Job at Clifford Chance LLP The Mother was offered and took a summer job at the law firm of Clifford Chance LLP in New York City for the summer of 2007. She earned $3,077 per week for 12 weeks, for a total of $36,424.

The Mother hired a “nanny” to care for the children at a cost of $600 per week. The Mother was offered and has accepted a similar summer associate position for the summer of 2008. She has been offered and has accepted full-time permanent employment upon her law school graduation at an annual salary of $160,000 plus a discretionary bonus. The Father’s Status The Father lives in Washington, D.C., and is employed at T. Rowe Price as a service specialist.

The Father has an undergraduate degree in Economics and a master’s degree in International Trade from his native Slovakia. His salary has remained consistently one of $40,000 per year. The Master’s Findings and Recommendations Pursuant to the Mother’s petition for a modification of child support, a hearing was held before a master on May 31, 2007. At the conclusion of the hearing, the master announced from the bench her findings and recommendations.

We can conveniently group those recommendations into two distinct subject matter categories. The first concerns the Mother’s effort to have included within the combined child support obligation the $1,100 per month expense for child care incurred during her nine-month school year at the University of Virginia. The master found that that was not an includable expense within the contemplation of the Maryland Child Support Guidelines. I don’t agree with your argument, counsel, that this is job related day care.

I’m not going to include the day care during the school year. If she, in fact, goes out and gets ³²⁰ part-time employment and has day care, then [the Father] will be responsible in picking up his proportionate share. I don’t know what that would be, depending on what her day care, but then again, it would be only that day care that enables her to work. Again, three years of going to law school is not a job search and I commend you for doing what you’re doing and I think it’s very difficult and very hard and you’ve made certain tough choices, one of them, you know, that you want to be in a top tiered law school, you know, to get that $160,000 starting job in New York, etcetera.

Those are choices you’ve made. (Emphasis supplied) In its Opinion and Order of August 29, 2007, the circuit court noted the master’s recommendation: 17. During the school year, Plaintiffs daycare expenses are not work-related and not taken into consideration for purposes of child support. The second and ultimately very critical bit of reasoning on the part of the master was more sub silentio than express.

In computing the Mother’s income, the master declined to do so on an annual basis. The master treated the three summer months, when the Mother was a well paid summer associate at Clifford Chance LLP in New York, as a distinct and self-contained accounting period. She then treated the non-income-producing nine-month school year as a water-tight accountability compartment of its own. Based upon this splitting of the year into distinct and unrelated parts, the master found that the Mother enjoyed a significant income during June, July, and August but then lapsed into a state of voluntary impoverishment from September through May.

Based upon that implicit finding of “voluntary impoverishment,” the master charged the Mother with an addition $24,000 of imputed potential income, based upon what her annual stipend had been while a graduate student at Hopkins. Mother, at the time of the divorce, was working on her Ph.D. at Hopkins receiving a stipend of $2b, 000 a year. She voluntarily left the Ph.D. program for a career change, ³²¹ applied to UVA and is now a full-time law student at UVA. In January she put the children in day care at the cost of $1,100.

She has no part-time employment during that period of time. She is currently living on student loans and gifts from father, however, this summer she has taken a job in New York at $3,000, it’s actually $3,077,1 think, per week with day care at $600 per week. Mother has never looked for part-time employment during the school year and she elected not to apply to law schools with night schools or part-time programs unless it was a top tier school and, I mean, the only one that met that criteria for a part-time or night-time basis, I don’t know which, was Georgetown which she did not get into. The Court finds, I find that she can make $21,000 at least while she is in school, the amount that she made that she, the job that she left, okay?

So that during the school year, I’m imputing income to her of $21,000. (Emphasis supplied). In her Opinion and Order, the circuit court trial judge recited the master’s recommendation in that regard. 15. During the school year, Plaintiffs imputed income is $24,000.00, the stipend received while working towards her Ph.D. Because the year was thus divided into two parts, the recommended child support payments by the Father fluctuated accordingly between feast and famine. 19.

Effective November 1, 2006, Defendant shall pay child support in the amount of $704.00 per month. 20. During the months of June, July, and August of 2007, Defendant shall pay child support in the amount of $970.00 per month. 21. Defendant shall resume monthly payments of $704.00 on September 1, 2007. The Circuit Court Rulings On June 11, 2007, the Mother filed with the circuit court her Exceptions to the Master’s Report.

As recited in the Opinion ³²² and Order of the circuit court, there are three of those exceptions that are still pertinent. 1. The Master erred by finding that Plaintiff voluntarily impoverished herself by going to law school. 2. The Master erred by imputing $2,000.00 per month as income to Plaintiff during the school year. 4. The Master erred by failing to recognize Plaintiffs daycare expenses during the school year as work-related expenses and include them in the child support calculation.

The circuit court indicated that it was ruling on the exceptions and making its ultimate determinations in the case “based on the Report of Master Brown, a review of the entire file, the arguments presented by counsel, and the relevant case law.” The circuit court denied all three of the Mother’s exceptions referred to above. The Mother has taken this timely appeal from that decision. Child Care Expenses “Due to Employment or Job Search” We turn first to the Mother’s contention that the circuit court erred in denying her exception to the master’s ruling that her $1,100 per month expense for child care during the school year at Virginia was not a cognizable “child care expense” within the contemplation of Family Law Article, § 12 — 204(g)(1). We repeat that definition.

(g) Child care expenses.— (1) Subject to paragraphs (2) and (3) of this subsection, actual child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted actual incomes. (Emphasis supplied). Quite obviously, that provision does not cover all “actual child care expenses incurred on behalf of a child” but only those particular child care expenses incurred “due to employment or job search.” The General Assembly could, of ³²³ course, have been more generous in its coverage, but it was not. It is not for judges, of course, to improve upon what the legislature did or did not do.

No matter how commendable the reason for incurring child care expenses, those expenses are not covered unless they are “due to employment or job search.” The child care expenses incurred by the Mother during her 12 weeks as a summer associate in New York are, for instance, a textbook example of what is meant by the phrase “due to employment.” She needed to hire a babysitter so she could go to work. The clear meaning of “due to employment” means due to actual current employment, not long range preparation for potential employment. We deem the phrase “due to job search” to be similarly limited to a direct and immediate relationship between the child care and the job search and not to embrace some more distant and attenuated philosophical association between the two. At the hearing on the exceptions, the judge was sympathetic to the Mother’s situation and complimentary of her efforts.

This Court does want to make clear that Plaintiff is to be commended for her decision to attend law school. It has not escaped this Court’s attention that Plaintiff left the doctoral program in July of 2006 and immediately enrolled in law school in August of 2006. There is no question that Plaintiffs decision to leave Johns Hopkins University was, at that time, for the purpose of pursuing a different career, not to avoid working. This Court has also taken into consideration the fact that Plaintiff was willing to travel 170 miles round-trip to attend law school so that her parents could take care of the minor children.

To make this trip five days a week, attend classes, complete assignments, and take care of two young children would be exhausting to say the least. This Court does not fault Plaintiff for making the decision to move closer to school despite the fact that, as a result, she would have to enroll the children in daycare. (Emphasis supplied). Notwithstanding that approbation, nobility of purpose is not the measure of statutory coverage.

The court’s ruling was ³²⁴ compelled by the legislative language and by the lack of any authority permitting the court to expand on the legislative purpose. As to Plaintiffs fourth exception, that the Master erred by failing to recognize Plaintiffs daycare expenses during the school year as work-related expenses and include them in the child support calculation, the exception is DENIED. Pursuant to Family Law Article § 12 — 204(g)(1), “child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted actual incomes.” Plaintiff argues that attending law school should fall within the purview of the statute because, upon completion, there is the potential for a lucrative career. Plaintiff, however, has not cited any Maryland authority for her position, nor has she provided an analysis of the relevant legislative history to support her position.

It is not within the province of this Court to expand the meaning of the statute beyond what the Legislature intended. (Emphasis supplied). We affirm that much of the court’s ruling. The appellant makes an appealing argument for why such school-related expenses should be covered by the Child Support Guidelines.

It is emotionally difficult to reject the argument. It is an argument, however, that should properly be made to the legislature and not to the courts. There are arguments and counterarguments that should be weighed and considered by the appropriate law-making authority. If the General Assembly were persuaded of the merit of the appellant’s argument, it could with a phrase or two easily broaden the coverage of the Child Support Guidelines.

The Tennessee Child Support Guidelines, for example, expressly provide: In an appropriate case, the tribunal may consider the childcare costs associated with a parent’s job search or the training or education of either parent necessary to obtain a job or enhance earning potential, not to exceed a reasonable time as determined by the tribunal, if the parent proves by ³²⁵ a preponderance of the evidence that the job search, job training, or education will benefit the children being supported. Tenn. Comp. R. & Regs. 1240 — 2—4—.02(29)(b) (2008) (emphasis supplied).

For other examples of express coverage, see Ga. Code Ann. § 19-6-15 (2008); Col.Rev.Stat. § 14-10-115(9)(a) (2005); Fla. Stat. § 61-30 (7). It is, in the last analysis, a legislative decision.

To Annualize or Not to Annualize? The tide now turns in the Mother’s favor. A key contention of the Mother is that such secondary decisions as 1) to declare her to have voluntarily impoverished herself and 2) to impute potential income to her could never have been made but for the erroneous threshold decision to fragment the accounting year into two self-standing and unrelated parts. We agree.

Both parties hasten to warn us that we are here called upon to write on a clean slate. From the absence of any authority one way or the other, the Father argues that there is nothing to prohibit breaking the year into smaller pieces. The Mother counters that there is nothing to permit it. It is for just such situations, of course, that we are here.

The engine driving the Father’s effort to split the accounting year for child support reckoning into distinct and airtight compartments is his desire to lower his percentage of responsibility for the summer child care expenses. The Mother’s salary as a summer associate was a big chunk of the combined yearly income of the Mother and Father combined, approximately 48% of the total. Proportionately big were her child care expenses in Manhattan for the summer, $600 per week for a three-month total of $7,200. There was no suggestion that those expenses were not “due to employment” or that the Father was not responsible for his proper percentages of those expenses.

The only question was that of what was a “proper” percentage. On the basis of the twelve-month year, the Father would have been responsible for approximately 52% of the summer child care expenses. If, on the other hand, those three summer months could be considered in a ³²⁶ vacuum as a separate accounting period, the Father’s percentage of responsibility for the summer child care expenses would drop precipitously. All of the Mother’s income for the year fell within that period, but only 25% of the Father’s $40,000 per annum salary did.

For the three summer months in a vacuum, his was roughly 20% of the combined income and, according to his analysis, his should have been a roughly 20% share of the joint responsibility. He wished to be held responsible for only 20% of the $7,200 in summer child care expenses and not for 52% of them. It is a difference between roughly $1,440 and roughly $3,744. There is, to be sure, no express holding as to whether to annualize or not to annualize before crunching the numbers in a child support calculation.

There are, however, ingrained habits that may reflect subconscious authority, or at least represent scantily analyzed tradition. We have surveyed the extensive body of Maryland caselaw on voluntary impoverishment, from John O. v. Jane O. in 1992 through Gordon v. Gordon in 2007, 2 and in every instance the assessment of actual income and/or imputation of potential income was on a per annum basis. There was nowhere anything resembling the seesawing court order in this case, setting fluctuating award figures for three prosperous months followed by nine ³²⁷ months of impoverishment followed by another three prosperous months and so on up and down ad infinitum. In Smith v. Freeman, 149 Md.App. 1 , 814 A.2d 65 (2002), a mother sought to modify upward a child support award from the father, a professional football player with the Green Bay Packers whose salary had increased from one million dollars to 3.2 million dollars.

Although the salary in question was for a five-month professional season, the father’s ability to pay and his obligation to pay were averaged out on a per annum basis. “[T]he parties agreed that the appellee enjoyed a gross monthly income of $258,000. On an annual basis, appellee’s monthly child support payments of $3,500 amounted to $42,000.” 149 Md.App. at 6 , 814 A.2d 65 (emphasis supplied). To be sure, the issue now before us never arose in that case. The notion, however, that a highly paid professional athlete who declines to work as a cab driver during the off-season has voluntarily impoverished himself for a half of every year is absurd.

In Johnson v. Johnson, 152 Md.App. 609 , 833 A.2d 46 (2003), a wife sought an increase in child support when she learned that her husband had received a $41,000 bonus in addition to his $80,000 a year salary. The bonus month for the husband’s company was always February. The actual holding of the case was that the bonus was a non-exempt part of the husband’s income. The court then, without comment, proceeded to add the bonus to the yearly income figure and calculate the monthly child support figure by averaging out the income to a monthly figure.

In many businesses, high ranking executives regularly receive a significant part of their income in the form of annual bonuses. It would be absurd in a child support case to order a very high award of child support for the bonus month and then significantly lesser awards for the less rewarding months. The best, if not the only feasible, measuring rod for determining the amount of and for ordering support payments is on a per annum basis. As we write upon a clean slate, there is, moreover, an internal logic that guides the chalk.

In this case, the Father would divide the year, for impoverishment purposes, into ³²⁸ alternating periods of three fat months and nine lean months. Were he to prevail, will the next case divide the year into nine fat months and three lean months? Or divide the year into more than two fragments? May the million dollar athlete be deemed to have voluntarily impoverished himself during the off season?

May the high-powered executive be deemed to have voluntarily impoverished himself for a month if he takes a month of unpaid vacation? How will careful planners save up for a rainy day if the rainy day itself may be declared to be a cognizable unit of voluntary impoverishment? The potential shoals and shallows of venturing forth onto such uncharted seas are too numerous to risk. Per annum analysis remains a safe harbor.

This case itself graphically reveals the fault line in the Father’s reasoning that the Mother’s nine lean months of law school can, for analytic purposes, be hermetically sealed off from her three fat months as a summer associate. The two periods are inextricably intertwined and the fruits of summer cannot be understood except in relation to the seedtime that preceded them. The Mother’s reward for being a summer associate of $36,424 would in and of itself be a respectable annual salary. Her salary for 12 weeks is in the same ballpark, for instance, as is the Father’s salary of $40,000 for 12 months.

Why? The remuneration of a summer associate is not a measure of the value of the summer associate’s work product. The inflated salary can only be understood as a law firm’s recruiting tactic, as something designed to attract and to lock in bright future prospects for the law firm. 3 For a hot prospect, a lucrative summer job is bait. 4 At the hearing ³²⁹ before the master, the Mother characterized the summer program, “It’s more of just an introduction to the firm and a training program.” The Mother in this case only commanded a summer salary of $36,424 because of her being a full-time student at a top-tier law school who maintained a high grade point average. Far from impoverishing herself during the winter, she, in effect even if not literally, was earning the dollars that would be dangled before her when summer came.

The two periods have to be averaged out. They have to be, in a word, annualized. We do not hesitate to write that on the hitherto clean slate. Voluntary Impoverishment The child support guidelines first became a part of Maryland law by the enactment of Chapter 2 of the Acts of 1989.

In the initial version of Senate Bill 49, the definition of “income” included “potential income ... if the parent is unemployed or underemployed.” At the suggestion of the House Judiciary Committee, the final act substituted “voluntarily impoverished” for “voluntarily unemployed or underemployed.” The computation of child support is based on the combined income of the parents. Income may be actual or potential. Family Law Article, § 12-201(h) defines “income”: (h) Income. — “Income” means: (1) actual income of a parent, if the parent is employed to full capacity; or (2) potential income of a parent, if the parent is voluntarily impoverished. (Emphasis supplied).

Section 12-204(b)(l) goes on to provide, in pertinent part: (b) Voluntarily impoverished parent.— ³³⁰ (1) Except as provided in paragraph (2) of this subsection if a parent is voluntarily impoverished, child support may be calculated based on a determination of potential income. (Emphasis supplied). Section 12-201 (j) provides a further definition of “potential income”: (j) Potential income. — “Potential income” means income attributed to a parent determined by the parent’s employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community. (Emphasis supplied).

In Wills v. Jones, 340 Md. 480, 485 , 667 A.2d 331 (1995), Chief Judge Robert Murphy explained for the Court of Appeals why the concept of voluntary impoverishment is essential in determining the amount of and allocation of responsibility for child support awards. Because the parents’ income levels determine the amount of support that a child receives, it is imperative to accurately assess the parents’ respective incomes. It is equally imperative that parents be prevented from avoiding their support obligations by purposefully reducing their income. Thus, ... a parent’s “potential income” may be used to calculate the amount of the support obligation if the parent is “voluntarily impoverished.” A parent’s potential income is defined as “income attributed to a parent determined by the parent’s employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community.” (Emphasis supplied).

What has come to be