Tanis v. Crocker

DAVIS, Judge. This is an appeal from a modification of a child support order issued on February 19, 1995 by the Circuit Court for Queen Anne’s County, increasing appellee’s child support obligations from $750 per month to $1,032.19 per month, retroactive to September 12, 1994; ordering appellee to pay appellant $378.40 to satisfy appellee’s arrearages; denying appellant’s claim for additional child support arrearages, medical, dental, and hospital bills; equally apportioning all travel related expenses incurred in connection -with appellee’s visitation rights; denying both parties’ claims for attorney’s fees; equally dividing court costs between the parties; and establishing a procedure for garnishing appellee’s wages should he fall more than thirty days behind in his support payments. Appellant was not satisfied that the trial court accurately calculated appellee’s income for purposes of the child support guidelines and took exception to the trial court’s failure to award her attorney’s fees. As a result, appellant noted this appeal, presenting the following issues for our review: I. Did the trial court err and abuse its discretion when it failed to make the increase ordered in child support retroactive to the date of the filing of the petition, as allowed under Md.Code Ann., Fam.

Law § 12-104 (1988) ?

II

Did the trial court err when it refused to require the production of appellee’s income tax returns and other income-related information, where, in making its determination on child support, the trial court was required, by Md.Code Ann., Fam. Law § 12-203(b) (1989) , to consider the income tax returns and related financial information? ⁵⁶⁶ III. Did the trial court err and abuse its discretion when it failed to' award to appellant attorney’s fees, where the evidence showed, and the trial court found, a longstanding pattern of appellee’s refusal to increase his child support payments to an appropriate level, consistent with the child support guidelines? TV.

Did the trial court err when it. failed to include appellee’s full income in its child support computations? V. Did the trial court err when, for purposes of the child support guidelines, it failed to add to appellee’s income the value of appellee’s personal use of a company car, as declared by appellee in his income tax returns?

VI

Did the trial court err when it failed to consider properly appellee’s share of the capital gains from the sale of his home as income for purposes of the child support guidelines, and as a liquid asset in its determination on the requested award of attorney’s fees? FACTS Appellant, Margaret Long Tanis, and appellee, Michael S. Crocker, were married on June 7, 1975. The parties had two children—Taylor Ashley Crocker, born on February 26, 1979, and Christopher Long Crocker, born on July 1, 1984. On March 8, 1987, the parties entered into a separation agreement and were divorced on August 16, 1988.

After their divorce, appellant married Thomas Tanis and appellee married Julie Crocker, who were married to each other before their marriages to appellant and appellee. When the parties separated, appellant took physical custody of the children pursuant to their agreement. This arrangement was later modified by an amendment to the separation and property agreement to accommodate a change in appellee’s visitation requirements brought about by appellant’s moves to Philadelphia, Pennsylvania; Atlanta, Georgia; and ⁵⁶⁷ Sarasota, Florida. Beginning in March, 1987, appellee paid appellant $750 per month in child support, $375 for each child.

Appellant did not seek a change in, and appellee did not voluntarily adjust, appellee’s child support obligations until April 1994. At that time, appellant filed a petition with the trial court asking that she be awarded child support payments that met the child support guidelines. 1 Subsequent to the first day of a two-day hearing, held on September 12, 1994 and November 25, 1994, at the court’s suggestion appellee increased his child support payments to $850 per month and placed an additional $95 per month into an escrow account. 2 Appellee is employed as president of the John M. Crocker Co., Inc., a family-owned mechanical and electrical contracting business. The parties dispute appellee’s salary—appellee contending he is paid $1,000 per week for fifty-two weeks; appellant alleging that appellee is paid $1,100 per week for fifty-three weeks. The discrepancy, in part, centers around a decision by the Crocker Company to begin paying appellee $1,000 per week effective October 20, 1993.

Appellant argued before the trial court that appellee’s salary should be treated as $1,100 per week because it was only scaled back to $1,000 per week after appellee received a certified letter from appellant’s counsel on October 15, 1993, stating that appellant was seeking an increase in child support. The trial court used $1,100 per week over fifty-two weeks as appellee’s income when using the child support guidelines. The trial court also stated its desire to ascribe value to appellee’s use of a company car, but found that appellant did not produce evidence of its value at the modification hearing. ⁵⁶⁸ Appellee also earned an annual salary from the United States Army Reserve that ranged from $13,000 per year to less than $12,000 per year. Appellant alleged at the hearing that appellee’s salary for 1993 was already above $12,000, as evidenced by pay stubs appellee received from the Reserves.

Appellee, however, noted that the figure shown as gross pay reflected money included in his pay checks that was a reimbursement for out-of-pocket expenses. The trial court found that $12,000 per year was the more reliable figure. Finally, appellant alleged that appellee had derived capital gains from the sale of his house. The trial court did not include any capital gains in its calculation of appellee’s income because it noted in its opinion that appellee contended that he realized no capital gains from the sale.

Appellee’s total gross monthly income (Crocker Co. salary plus U.S. Army Reserves pay) for the purpose of the guidelines was computed to be $5,766.67. Appellant has been sporadically employed as a registered nurse since 1987 because of the moves she has made since the divorce. At the time of the modification hearing, appellant was employed as a nurse and the trial court found that her income was $2,187 per month. Recognizing that appellant received additional income from a rental property she and her husband maintained, the trial court found her gross monthly income to be $2,395.67.

The trial court then determined that, pursuant to the guidelines, appellee’s child support payments should be $1,032.10 per month. During the course of the modification hearing appellant argued that appellee owed her arrearages for unpaid child support and past medical, dental, and hospital bills. The parties also disagreed over who was responsible for the children’s travel expenses incurred during visits to appellee. Finally, both parties claimed to be entitled to legal fees due to the actions of the other.

The trial court’s January 12,1995 opinion and order retroactively increased appellee’s child support obligation to $1,032.10 per month from September 12, 1994. As a result, appellee owed appellant the difference between the amount appellee ⁵⁶⁹ paid from September 1994 through January 1995, as well as the $378.40 ordered by the trial court. The order also found that appellee did not owe appellant for any past due medical, dental, or hospital bills. Furthermore, the order mandated that the children’s travel expenses for visitations -with appellee would be shared equally by the parties.

Finally, the order denied legal fees to both parties and equally apportioned court costs between them. I Appellant initially contends that the trial court erred when it failed to make its increase in appellee’s child support obligation retroactive to April 19, 1994—the date appellant filed her petition with the court—as opposed to September 12, 1994. Appellant argues that, prior to the modification of appellee’s support payments, appellee was paying significantly less child support than he owed because the payments established by the settlement agreement were substantially less than they would have been if determined by the child support guidelines. Appellant asserts that appellee’s awareness of this fact, coupled with his resistance to the increase of his child support payments, required the trial court retroactively to award the increase to the date of appellant’s petition—April 19, 1994.

Appellant claims that Md.Code Ann., Fam. Law § 12-104(b) (1988) and Md.Code Ann., Fam. Law § 12-101(a)(l) (1994) were enacted by the legislature with the intent that parties be prevented from deliberately delaying modification proceedings in order to stay an increase in child support due the custodial parent. 3 This is especially so, appellant argues, when, as here, the custodial parent is obviously due an increase in support. As a result, appellant asserts that the trial court’s failure ⁵⁷⁰ retroactively to modify appellee’s payments to April 19, 1994 was an abuse of discretion.

Maryland Code Annotated, Family Law § 12-101(a)(l) is not applicable to this case. It states: Unless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support. Id. (emphasis added).

This subsection only applies to initial pleadings seeking pendente lite child support. In the case sub judice, appellant requested a modification of an existing child support obligation. Maryland Code Annotated, Family Law § 12-104(b) governs the actions of the trial court in this case. It states: The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.

Id. Section 12-104(b) makes clear that it is within the trial court’s discretion whether and how far retroactively to apply a modification of a party’s child support obligation up to the date of the filing of the petition for said modification. In Krikstan v. Krikstan, 90 Md.App. 462 , 601 A.2d 1127 (1992), the appellant was awarded a downward modification of her support payments owed to her husband. The trial court, however, did not retroactively apply the order to the date the appellant filed for modification.

The appellant in that case urged this Court to find that § 12-104(b) required the trial court retroactively to apply the award to the date of the filing of her petition. This Court disagreed and stated that: [T]he law does not require that awards be retroactive. It provides only that: “The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” [Appellant] possesses no right to restitution or recoupment following a modification of support; it is within the discretion of the. chancellor to deter ⁵⁷¹ mine whether to make the award retroactive to the time of filing. Id. at 472-73, 601 A.2d 1127 (citations omitted).

See also Reuter v. Reuter, 102 Md.App. 212, 242 , 649 A.2d 24 (1994). Likewise, in this case the trial court was not required to award the increase in child support from April 19, 1994—the date appellant filed her petition for modification. Therefore, the only period we must review in determining whether the trial court abused its discretion is from September 12, 1994, rather than April 19, 1994. The trial court set September 12, 1994, as the starting date of the modification because it did not desire that appellee benefit from the ten-week delay between the first day of the modification hearing, September 12, 1994, and the second day, November 25, 1994.

Appellant urges this Court to find that the trial court abused its discretion when it failed to apply the modification to April 19, 1994, because of appellee’s history of underpaying child support for the four years prior to the modification. Appellee, however, was not underpaying his support obligation for the four years prior to the modification. Rather, his child support payment was set below the level the child support guidelines would have established. As appellant presents no other evidence that the trial court abused its discretion, and we can discern none in the record, the trial court’s decision to apply the modification of appellee’s child support obligation from September 12, 1994 was not in error.

II Appellant next contends that the trial court erred for two reasons when it failed to require appellee to produce income tax returns and other income related information for the purpose of establishing appellee’s income. First, appellant argues that Md.Code Ann., Fam. Law § 12-203(b) (1989) requires a trial court to consider the income tax returns of the parties when making a child support determination. Second, appellant asserts that the trial court abused its discretion when it granted appellee’s motion for protective order and ⁵⁷² denied her motion to compel discovery.

As a result, appellant claims that the trial court erred when it granted appellee’s motion for protective order on October 18, 1994, and refused to compel appellee to produce the following: unredacted income tax returns from January 1, 1990, up to and including 1994; information regarding a home mortgage for which appellee had allegedly applied; and information regarding the sale of appellee’s home. Appellant initially asserts that the trial court was required to order appellee to produce unredacted copies of his tax returns from 1990 to 1994 by Md.Code Ann., Fam. Law § 12-20303) (1989). It states: (2)(i) Except as provided in subparagraph (ii) of this paragraph, suitable documentation of actual income includes pay stubs, employer statements otherwise admissible under the rules of evidence, or receipts and expenses if self-employed, and copies of each parent’s 3 most recent federal tax returns.

(ii) If a parent is self-employed or has received an increase or decrease in income of 20% or more in a 1-year period within the past 3 years, the court may require that parent to provide copies of federal tax returns for the 5 most recent years. Id. Appellant argues that § 12-203(b)(2)(i) required the trial court to consider each of appellee’s pay stubs, receipts and expenses (because appellee is self-employed), and his three most recent federal income tax returns. We disagree.

Section 12-203(b)(2)(i) simply lists several documents that are suitable documentation of a parent’s actual income. In order to establish his or her actual income, a party to a child support case could produce any one, two, or all three of the items listed in § 12-203(b)(2)(i). Additionally, § 12—203(b)(2)(ii) states that a trial court may, when certain criteria are met, require a party to produce income tax returns for his or her last five years. It is not mandatory.

Section 12-203(b) does not require that a parent’s income tax returns be considered in order to resolve a dispute concerning that parent’s income. ⁵⁷³ Appellant also alleges, however, that it was an abuse of discretion for the trial court to grant appellee’s motion for protective order and bar appellant from obtaining the financial information she sought. As appellant concedes, we review the trial court’s decision to grant the motion for protective order only to determine whether the trial court abused its discretion when it rendered its decision. See Price v. Orrison, 261 Md. 8, 10 , 273 A.2d 183 (1971). In the case sub judice, appellant does not provide this Court with evidence that the trial court abused its discretion when it denied appellant’s motion to compel discovery and granted appellee’s motion for protective order. 4 From the record, we are able to discern that appellee’s motion sought protection from appellant’s discovery requests regarding his income tax returns because appellee’s spouse was the former wife of appellant’s spouse and that information obtained from appellee’s tax returns could be used by appellant’s spouse during another proceeding.

Appellee based his request that he not be ordered to produce documents relating to an alleged loan application and the sale of his previous home on the grounds that the information was irrelevant and that appellant’s request was designed to “annoy, harass, oppress and create an undue burden on [appellee].” The trial court apparently granted appellee’s motion for the reasons stated therein. Makyland Rule 2-403(a) governs the application for protective orders. It states: On motion of a party or of a person from whom discovery is sought, and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had,.... ⁵⁷⁴ Hence, the trial court did not abuse its discretion when it granted appellee’s motion as long as good cause was shown and the order was issued to protect appellee from annoyance, embarrassment, oppression, or undue burden or expense. Our research has uncovered little precedent in Maryland appellate decisions.

We do note, however, that Md. Rule 2-403(a) is based in large part on Federal Rule of Civil Procedure (F.R.C.P.) 26(e). 5 As a result, recognizing that when interpreting a Maryland Rule that is similar to a Federal Rule of Civil Procedure this Court may look for guidance to federal decisions construing the corresponding federal rule, Pleasant v. Pleasant, 97 Md.App. 711, 732, 632 A.2d 202 (1993), we may examine the interpretation federal courts have lent to F.R.C.P. 26(c) when we consider Md. Rule 2-403(a). The party seeking a protective order pursuant to F.R.C.P. 26(c) ■ has the burden of making a particular and specific demonstration of fact, as distinguished from general, conclusory statements, revealing some injustice, prejudice, or consequential harm that will result if protection is denied. Blum v. Schlegel, 150 F.R.D. 38, 41 (W.D.N.Y.1993). See also Blankenship v. Hearst Corp., 519 F.2d 418, 429 (1975); Johnston Dev.

Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J.1990). Additionally, federal courts have made clear that protective orders are not to be granted liberally. In Bridge C.A.T. Scan Assoc, v. Technicare Corp., 710 F.2d 940 (2d Cir.1983), the Second Circuit Court of Appeals stated that: ⁵⁷⁵ Rule 26 ... is not a blanket authorization for the court to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court’s processes. Id. at 944-45 (citations omitted).

Given the liberality with which discovery rules are to be construed in Maryland, Kelch v. Mass Transit Administration, 287 Md. 223, 229-30 , 411 A.2d 449 (1980), we are persuaded that the principles stated in Blum and Bridge C.A.T. Scan Assoc. should be applied to our analysis of the trial court’s actions taken pursuant to Md. Rule 2-403(a). Also guiding our review of the trial court’s conduct is this Court’s previous review of former Md. Rule 406, which governed the issuance of protective orders. In Richardson v. Director, Patuxent Institution, 31 Md.App. 468 , 356 A.2d 624 (1976), we stated [W]hen it is apparent to the trial court that discovery is being utilized for the purpose of harassing or is oppressive, as by the placing of almost insurmountable roadblocks in the path of the State, the court may, pursuant to Rule 406 and Rule 422 a 3, pass a protective order employing one or more of the alternatives sanctioned by Rule 406. Id. at 473 , 356 A.2d 624 (citations omitted).

The use of the language “almost insurmountable” in the opinion indicates that this Court intended a protective order to be utilized in limited circumstances. It is in this light that we examine the trial court’s decision to grant appellee’s motion for protective order. In this case, appellee argued that his