Shenk v. Shenk

THIEME, J. This is an appeal of the custody and child support provisions of a Judgment of Absolute Divorce entered by the Circuit Court for Montgomery County. Appellant Michael Keith Shenk (“husband”) presents two issues arising from the court’s decisions as to custody of the parties’ three children and child support. Our review will focus on the facts neces ⁵⁵⁰ sary for consideration of the following issues of the appellant, which we have restated: I. Did the trial court err in attributing to the wife hypothetical monthly child care expenses?

II

Did the trial court err in awarding the parties joint legal custody with the wife having final tie-breaking decision-making authority in the event of a future dispute? FACTS The parties were married on November 16, 1996, and had three children before separating voluntarily on May 25, 2002. The husband, a high school graduate, testified that he had worked for an internet telecommunications company, earning $90,000.00 a year, until he was fired in June of 2001. Because he had long hungered to own a restaurant, the husband began working variable hours as a server at a Houston’s restaurant to learn the business.

In 2002, he earned $29,452.15. He told the court that he was not actively seeking new employment because working at Houston’s gave him the flexibility to deal with the circumstances of his personal life caused by the divorce. However, he realized that he had to start looking for a better paying job and he was trying to “network” through family, friends, or customers at the restaurant. Reverting for the moment to the point in time when the husband lost his telecommunications job, the appellee wife, who has a bachelor degree in business administration, began working fifteen to eighteen hours per week doing record keeping and running errands for her father’s real estate business.

She earned $1,500.00 per month. She and the children continued to reside in the family home and her working hours were arranged around the children’s schedules. Her mother, who lived next door, watched the children one day per week and the two women shared a housekeeper/babysitter. The wife paid this housekeeper/babysitter $1,290.00 per month, $400.00 of which was reimbursed by her mother for one day per week of housecleaning.

The wife estimated ⁵⁵¹ that her child care and housecleaning expenses would increase to $1,421.00 per month if she went to work full time. The husband testified that his sister, a day care provider who lived approximately 20 minutes from the family home, had offered to watch the parties’ children at no cost. The parties and other witnesses testified about their relationship prior to and during the separation period. The husband’s cousin and wife’s friend told the court that both parties were good with their children, but that, “[wjith each other, there was turmoil.” However, she felt their communication had improved since they had developed a system of writing to each other in a notebook.

The husband concurred with that assessment, telling the court that he thought his wife was a good parent, who made good decisions, but that he wanted the opportunity to be involved in making those decisions. The court asked if a disagreement related to a minor decision, such as participation in sports, might end up in litigation, and the husband replied, “What I would say is go ahead and sign [the child] up for that.” He stated that he would make efforts to remain an active parent. The wife also testified that the notebook had helped to defuse tensions between them. She complained that her husband was inconsistent in his opinions about the children.

She said that she felt she knew what was best for them. While she wanted his input, she felt that, “if I need to make that call, I think I’m the one to do it.” DISCUSSION I. -the child support issue- At the conclusion of trial, the court found that both parents were voluntarily impoverished. The court then imputed $65,000.00 of income to the husband. Based on the testimony of the wife’s father, the court found that she could earn at least $45,000.00 by working full time. “After the court makes a finding of voluntary impoverishment, the court must ⁵⁵² then make a determination of ‘potential income’ to impute to the parent who has become voluntarily impoverished, in order to ascertain the appropriate level of child support,” Malin v. Mininberg, 153 Md.App. 358, 406 , 837 A.2d 178 (2003).

Regarding child care, the court stated: Maybe she needs a day care provider. Maybe she doesn’t. I have to, I think if I am going to find that she is voluntarily impoverishing herself because she is not working full-time, I have to assume that she is going to have to pay somebody to watch the children while she does that. The testimony of Mr. Shenk was that the amount of money that was paid to the day care provider in this case was reasonable for somebody who watched a 2-year-old all day and who would have the responsibility for watching a 3-year-old, and would have the responsibility for watching the 5-year-old when he comes back from his school.

When questioned by husband’s counsel as to whether it would make a difference whether the wife was employed part time or full time, the court answered that it did not. Counsel pursued this point, asking what the amount of child support would be if the wife did not work full time, continuing to earn the same income, and the following transpired: THE COURT: The appropriate child support is what I have ordered. All right? Because I don’t believe that I can attribute income to her and at the same time not attribute some day care expenses.

Do you follow me? [DEFENSE COUNSEL]: I follow you, Your Honor. I am just, I guess my concern is Ms. Shenk doesn’t go out to get a job, survives on her present income. Then we have the issue of whether or not the day care is job-related and then he is paying a number that is a lot higher if we did a calculation on her present income. This is the concern I had— THE COÚRT: I understand your concern.

We will just have to wait and see what happens come September 1, 2003, because that’s what I have ordered now. ⁵⁵³ I think that we need to have some incentive for both of these parties to get to work. If in fact she is not working, you may have to revisit the issue. LDEFENSE COUNSEL]: I understand. I am not arguing, Your Honor.

I am just saying there is an incentive to Mr. Shenk because you have ordered that in a couple of months there is going to be a child support number that is considerably bigger to him. I do not know what incentive in anything the Court has said is there for Ms. Shenk to go out and get a job. You haven’t changed anything. It is just going to be a higher number, based on his income.

There is no incentive for her to do anything here. That’s my concern. THE COURT: I understand. [DEFENSE COUNSEL]: All right. THE COURT: That’s my order.

I can understand your concern. I would have the same concern. I thought about that concern, but that’s the only way that I can see to do it right now. In its written ruling, the court ordered the husband to pay $900.00 per month until September and $2,043.00 per month thereafter.

On September 8, 2003, the husband filed a post-trial motion to amend that provision, based upon the wife’s continued part-time status. The motion was denied, although the trial court stated that this fact “would be a sufficient basis for the filing of a Motion to Modify Child Support.... ” On appeal, the husband argues that the trial court erred by awarding the wife an amount of child support that was based upon hypothetical work-related expenses. We agree. The statutory basis for calculating child support is the parties’ adjusted actual incomes.

Md.Code (1999 Repl.Vol., 2003 Supp.), Family Law Article (“FL”), § 12-204. In addition, section 12—204(g)(1) provides “actual child care expenses incurred on behalf of a child due to employment or job search ⁵⁵⁴ of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their incomes.” This section provides a mechanism whereby the court may, under appropriate circumstances, award actual child care expenses. The burden of proof as to the existence of the prerequisites to entitlement is upon the spouse who seeks actual child care expenses. Child support orders ordinarily are within the sound discretion of the trial court.

However, when an order involves an interpretation of statutory and case law, as it does in this case, we determine whether the trial court’s conclusions are “legally correct” under a de novo standard of review. Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609 (2002). “Because the Legislature used mandatory language and distinguished child care expenses from basic support obligations, we hold that child care expenses always fall outside of the chancellor’s discretion....” Chimes v. Michael, 131 Md.App. 271, 292-93 , 748 A.2d 1065 (2000). In addition, we note that, in a legal context, use of the word “actual” means, inter alia, “Something real, in opposition to constructive or speculative.... It is used as a legal term in contradistinction to [the terms] virtual or constructive....” Black’s Law Dictionary 34 (6th ed.1990).

Here, the wife provided evidence of the cost of child care on a part-time basis. While that amount also included housecleaning services valued at $100.00 per day, it was possible to subtract the cost for housecleaning and extrapolate the expense of full-time child care. However, being able to ascertain the amount that child care would cost is not the same as awarding that amount for child care that is not actual or needed because the custodial parent is not working. The trial court directed the husband to pay the wife as if she were working full-time based upon a finding that she had impoverished herself, and imputed a working full-time income of $45,000, when, at most, she was actually working part time.

Thus, the burden was improperly placed upon the husband to return to court to establish that the wife was not incurring full-time child care costs, even though she had failed to meet ⁵⁵⁵ her burden at the time the court ruled. “The court fairly could consider [wife’s] actual child care experience in the months prior to trial in making that determination.” Lacy v. Arvin, 140 Md.App. 412, 432-33 , 780 A.2d 1180 (2001). There was no evidence that the wife had arranged for full-time employment or even that she was seeking such employment. Any award of child care costs beyond that necessary for the time the wife actually was away from home due to employment was not “actual” but, rather, entirely speculative and improper.

II

The parties did not dispute that the wife should have primary physical custody of the children, and the trial court agreed. With respect to legal custody, the court found that, during the marriage, the wife had made final decisions and concluded: I think it is unwieldy to say, all right, you are going to discuss and if you can’t agree then we come back to Court. So, I am going to look and I’m going to say that she has been the primary caretaker of these children from the beginning. She has made most of the decisions after discussion if you couldn’t agree in the past.

I think it is appropriate that if there is, after full discussion of these issues, after both sides talk and give their viewpoints, if you can agree, and again, if you don’t discuss them, then you’re going to be in violation of the order. So, if you just go ahead and sign the kids up for something without checking with dad, then it is going to be a violation of the order. He will be running back in here asking that you be held in contempt of Court for failing to follow through. So, all you have to do is discuss these things.

As time goes by, I think you [are] going to find with this litigation further and further behind you, that you both are going to be very proud of these kids. ⁵⁵⁶ You are both going to participate in their upbringing. You are both going to help make those decisions. You are going to want the input of the other party. You did when you had them and you ought to now.

So, you are going to discuss those important issues. You are going to discuss them thoroughly. If after you have discussed them, you can’t