Shrivastava v. Mates

HARRELL, Judge. Appellant, Lorely Shrivastava, challenges the 16 July 1991 order of the Circuit Court for Montgomery County denying her motion to modify child support. The principal question raised by this appeal is whether a binding agreement for child support between the parties is, in and of itself, a sufficient reason for deviation from the child support guidelines, codified as Md.Fam.Law Code Ann. § 12-201, et seq. (1991 Repl.Vol.).

For reasons we shall explain, ³²³ we answer this question in the negative. We also reject appellee’s, Amnon Mates’, contention that the fact that such an agreement was entered into prior to the adoption of the guidelines bears significance. Facts Appellant and appellee were divorced on 3 August 1983. The two children born of the marriage, Rafael David and Jonathan Jacob, were then ages six and three, respectively.

The parties’ divorce decree incorporated a Voluntary Separation and Property Settlement Agreement (Agreement), which had been executed on 23 April 1982. It allocated child support as follows: D. Support of Children 1. a. Subject to the provisions of paragraph (b) herein and paragraph 2 below [appellee] shall pay to [appellant] the sum of $375.00 per month per child, for a total of $750.00 per month for the two children, for the support and maintenance of the two minor children. b. [Appellee] shall not be required to make payments for the support and maintenance of either child for any period of time during which said child remains in [appellee’s] care for two consecutive weeks or longer. 2. Said payments for the support of the minor children shall be changed or terminated as follows: (a) said payments shall increase starting May 31,1983, and each May 31st thereafter by the same percentage as [appellee’s] cost-of-living adjustment increases his income ...; (b) said payments shall be changed at such time as [appellant] remarries at which time the payments shall be renegotiated so that [appellee] will provide only out-of-pocket costs for food, clothing and other similar expenses of the children not including lodging in [appellant’s] then marital abode; (c) said payments shall terminate as to each child of the first to occur of the following events: (1) death of child; (2) arrival at age eighteen (18) years; (3) ³²⁴ marriage; (4) emancipation by full time employment; (5) death of [appellee]. 3.

As long as [appellee] is employed by the World Bank or is in another employment providing comparable health insurance, [appellee] shall maintain health insurance coverage for the children and shall pay the medical and dental (including orthodontia) expenses for the children not paid by insurance, provided that [appellant] consults with [appellee] prior to undertaking any such non-paid expenses in excess of $500.00 per year per child. The duty under this section shall terminate as to each child as provided in paragraph D(2)(c), supra. 4. In addition to the foregoing, [appellee] shall pay all the educational costs of the children provided that the selection of school and/or college shall be arrived at by mutual agreement of [appellee] and [appellant]. The term educational costs as used in this Agreement means school tuition, fees and books beginning at pre-school kindergarten at age 5, through the full cost of a college education for each child. [Appellee’s] obligation hereunder shall continue, with respect to each child, for four years of college, regardless of whether or not such child shall have attained majority.

On 21 February 1984, the amount of child support was modified by consent order. On 7 March 1990, appellant filed a Petition for Modification of Child Support (Petition) based on the adoption of the child support guidelines. 1 At that time, appellee’s monthly child support obligation under the Agreement was $695.00. Hearings on the Petition were held before Domestic Relations Master S. Michael Pincus on 7 January and 21 February 1991. On 26 February 1991, the Master issued his ³²⁵ Report and Recommendations, along with a proposed order.

The Master concluded, inter alia, that use of the guidelines would result in a monthly child support obligation of $1756.00 and, therefore, application of the guidelines was mandated under § 12-202(b). 2 The Master recommended that appellee’s child support obligation only be increased to $1,000.00 per month. The Master arrived at this figure by using the guidelines and then subtracting certain of appellee’s obligations under the Agreement, such as future college expenses and insurance costs. Both parties filed exceptions to the Master’s Report and Recommendations. After a hearing on the exceptions, the circuit court accepted the Master’s Report but rejected his Recommendations, reasoning that application of the guidelines was an all-or-nothing proposition. “You can’t ... mix apples and oranges.

You can’t say that the guidelines apply and then take away from them.” Instead, the court concluded that use of the guidelines would be unjust and inappropriate in the case sub judice. The court apparently based this conclusion upon the existence of the Agreement: Here we have a very — what I find a very unusual voluntary separation and property settlement agreement. It doesn’t really have to be even unusual, but in this case it was. If you look at the way the child support was set up, it was set up to pay a certain amount of money.

There was provision for college education ... there was also provision that if [appellant] remarries, the payments are going to be renegotiated to a certain amount and, in fact, they were. [There was a provision t]hat [appellee] would only provide out-of-pocket costs for food, clothing and other similar expenses not including lodging and [appellant’s then marital abode. ³²⁶ [The agreement] also provided for an automatic cost of living adjustment as [appellee’s] income went up. It is clear that the parties, for whatever reason, struck a bargain. They struck a bargain here which represented the results of a negotiation____ [B]oth sides were represented by counsel____ Why did they enter into the agreement that they entered into? I don’t know why.

If the application of the guidelines leads to a result which the parties didn’t negotiate for and didn’t bargain for, then the Court determines that would be unjust and inappropriate. (Emphasis added.) Having concluded that use of the guidelines would be unjust and inappropriate, the court declined to consider the Petition and ordered that the case be dismissed without prejudice. I think the position that [appellant] has to be in is if there is a sufficient change in circumstances from that contemplated in the agreement, that appropriate petition has to be filed and a factual record made. Then [appellant] can come up for a decision based not on the guidelines, but on the facts and circumstances of this case.

We shall expand upon the facts of the instant case as necessary during our discussion of the questions presented. Discussion Initially, we are presented with a motion' to dismiss the appeal on the ground that appellant improperly appended to her brief a standardized worksheet for determination of the appropriate amount of child support under the guidelines. 3 Under subsection (a)(8) of Rule 8-602, we may dismiss an appeal if “the style, contents, size, format, legibility, or method of reproduction of a brief, appendix, or record extract does not comply with Rules 8-112, 8-501, 8-503, or Rule 8-504.” Rule 8-603(a)(3) provides, however, ³²⁷ that a motion to dismiss based on Rule 8-602(a)(8) shall be filed ten days after the appellant’s brief was or should have been filed pursuant to Rule 8-502. Appellant’s brief was filed on 31 March 1992, but appellee did not file a motion to dismiss until 11 May 1992. Thus, appellee failed to comply with Rule 8-603(a)(3).

We shall, therefore, deny the motion to dismiss. 1. Appellant contends that there was insufficient evidence before the court to support its finding that application of the guidelines would be unjust or inappropriate in the instant case, and that the court failed to make the necessary findings accompanying its departure from the guidelines. We agree and explain. The law and policy of this State is that the child’s best interest is of paramount importance and cannot be altered by the parties.

See Lieberman v. Lieberman, 81 Md.App. 575, 588 , 568 A.2d 1157 (1990) (“A parent cannot agree to preclude a child’s right to support by the other parent, or the right to have that support modified in appropriate circumstances”); Polk v. Harris, 46 Md.App. 591, 598-99 , 420 A.2d 1004 (1980), quoting Stancill v. Stancill, 286 Md. 530, 535 , 408 A.2d 1030 (1979) (“The chancellor cannot be handcuffed in the exercise of his duty to act in the best interest of a child by any understanding between the parties”); Rand v. Rand, 40 Md.App. 550, 554 , 392 A.2d 1149 (1978) (“The fixing of child support derives from the obligation of the parent to the child, not from one parent to another”). A parent has a legal obligation to provide support for the child. Id. This policy is codified by the child support guidelines.

See Tannehill v. Tannehill, 88 Md.App. 4, 11 , 591 A.2d 888 (1991) (Guidelines intended “to remedy the low levels of most child support awards relative to the actual cost of rearing children” and “improve the consistency and equity of child support awards”). The guidelines require a ³²⁸ trial court to presume, unless rebutted, that the amount of child support dictated by the guidelines is correct Id. The guidelines include specific language regarding the review of agreements for child support. Subsection (2) of § 12-202(a) providés, in pertinent part, as follows: (2)(i) There is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines set forth in this subtitle is the correct amount of child support to be awarded.

(ii) The presumption may be rebutted by evidence that the application of the guidelines would be unjust or inappropriate in a particular case. (iii) In determining whether the application of the guidelines would be unjust or inappropriate in a particular case, the court may consider: 1. the terms of any existing separation or property settlement agreement or court order, including any provisions for payment of mortgages or marital debts, payment of college education expenses, the terms of any use and possession order or right to occupy to the family home under an agreement, any direct payments made for the benefit of the children required by agreement or order, or any other financial considerations set out in an existing separation or property settlement agreement or court order; and 2. thé 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. (Emphasis added.) Judge Rosalyn B. Bell, writing for this Court in Tannehill, 88 Md.App. at 14 , 591 A.2d 888 , observed that the considerations set forth in subsection (2)(iii) of § 12-202(a) “delineate situations that affect the financial resources of the parents or the financial needs of the children." While the guidelines do not exclude “other relevant financial considerations that have the same or similar impact as the considerations listed[,]” id., the terms of an agreement for ³²⁹ child support between the parties are relevant only to the extent that they impact upon the financial resources of the parents or the financial needs of the children. That this was the intent of the General Assembly is demonstrated by an examination of subsection (2)(iv) of § 12-202(a).

It provides that, while a trial court may deviate from the guidelines if application thereof would be unjust or inappropriate, the court must make specific written or oral findings supporting such deviation, including: A. the amount of child support that would have been required under the guidelines; B. how the order varies from the guidelines; C. how the finding serves the best interests of the child; and D. in cases in which items of value are conveyed instead of a portion of the support presumed under the guidelines, the estimated value of the items conveyed. § 12-202(a)(2)(iv). A hypothetical example is instructive. Assume that application of the guidelines in a particular case would force a supporting parent to pay more than the amount of child support dictated by the guidelines, because the parent has conveyed items of value under the terms of an agreement instead of paying a portion of the child support presumed under the guidelines. In such a situation, the terms of the agreement clearly impact upon the financial resources of the parents, because one parent’s financial resources have been functionally decreased, while the other’s have been functionally increased.

It may also have an effect upon the child’s needs if the items conveyed would otherwise have to be purchased for the child. The trial court, in finding that departure from the guidelines is warranted, may explain that the best interests of the child are served because the child is, in effect, receiving the amount of support to which it is presumptively entitled under the guidelines. Thus, the requirement that a trial court make specific written or oral findings supporting departure from the guidelines effectively restricts the ³³⁰ court’s consideration of the terms of an agreement for child support between the parties to the impact of that agreement upon the financial resources of the parents or the financial needs of the children. In the case sub judice, the circuit court determined that the Agreement was, in and of itself, a sufficient reason for deviation from the child support guidelines.

The court apparently did not consider the impact of the Agreement upon the financial resources of the parents or the financial needs of the children. The court thereby elevated the parties’ contractual expectations over the best interests of the children and impermissibly allowed the parties “to agree to preclude a child’s right to support by the other parent, or the right to have that support modified in appropriate circumstances.” Lieberman, 81 Md.App. at 588 , 568 A.2d 1157 . The court also