Wills v. Jones

BISHOP, Judge. Appellant presents a single issue: whether the trial court erred when it suspended appellee’s obligation to pay child support for the duration of his incarceration. Appellee, Randy W. Jones, filed a motion for stay of enforcement of child support obligation in the Circuit Court for Anne Arundel County. Appellee alleged that his incarceration at the Maryland Correctional Training Center (“MCTC”) was a material change of circumstances under Md.Fam.Law Code Ann., § 12-104(a) (1991).

After a hearing, the master in chancery denied appellee’s motion and issued a report and recommendation that continued appellee’s child support obligation during appellee’s incarceration. Appellee filed a timely notice of exceptions to the master’s report and recommendations. After a hearing, the circuit court sustained appellee’s exceptions and granted appellee’s motion to stay enforcement of child support obligation. Appellant, Natasha Wills, noted a timely appeal to this Court. ⁵⁴¹ Facts Appellee is presently serving a mandatory ten-year sentence at the MCTC and earns $20 per month in the MCTC’s food preparation center.

Prior to his incarceration, Appellee paid $50 per week in child support for the parties’ child. Appellee has no source of income, other than his MCTC earnings, and no assets. Consequently, if appellee’s child support obligation continues during his incarceration, appellee will be approximately $26,000 in arrears on his support payments upon his release from the MCTC. Appellee asserts that his incarceration renders him involuntarily impoverished.

This impoverishment, he argues, constitutes a material change of circumstances justifying a modification of his child support obligation. Appellant, however, argues against the suspension of appellee’s child support obligation, claiming that appellee voluntarily committed the crime that resulted in his imprisonment and, therefore, he is “voluntarily impoverished” under Md.Fam.Law Code Ann., § 12-204(b) (1991). Under the Maryland Child Support Guidelines, if a parent is voluntarily impoverished, then child support may be calculated based on a determination of potential income. Id. § 12-204(b)(1). “ ‘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.” Id. § 12-201(f).

In his report and recommendation, the master acknowledged that no reported Maryland case exists concerning “the issue of whether an obligor’s incarceration constitutes a material change of circumstance justifying a modification/suspension of payment of child support.” After considering relevant cases from other jurisdictions, the master found persuasive case law that regarded incarceration as self-induced and voluntary for purposes of child support modification requests. The master recommended that appellee be held “responsible ⁵⁴² to suffer all repercussions of his self-inflicted diminution of earning capacity” because “[t]he needs of the minor child are not suspended during his period of incarceration, but continue despite it.” In addition, the master noted that the strong public policy considerations established by the Maryland Child Support Guidelines support the conclusion that an obligor’s incarceration does not constitute a material change of circumstances for the purposes of staying an obligation to pay child support. After a hearing on appellee’s exceptions to the master’s report and recommendations, the circuit court rejected the master’s legal conclusions and granted appellee’s motion to stay enforcement of child support obligation. According to the court, although “[t]he criminal normally commits the crime because ... he by his free will committed the wrongful act, ... it is not voluntary in the sense that the criminal wanted to avoid support.” The circuit court held that “the better reasoning is that an obligor who is incarcerated, for reasons not related to his family, has not voluntarily impoverished himself because he has no intent of losing income to deny his family....

Accordingly, ... the obligation should cease during incarceration, barring some source of income or assets.” Discussion Because no Maryland case has determined whether incarceration constitutes voluntary impoverishment, we find the law in other jurisdictions instructive. The decisions in the out-of-state cases, however, are not uniform. “Under the broadest summary, courts have decided this issue based on whether the obligor possessed assets against which the obligation could be charged and/or the voluntary nature of the obligor’s criminal activity.” In re Marriage of Phillips, 493 N.W.2d 872, 874 (Iowa Ct.App.1992). In many jurisdictions, state courts deny incarcerated obli- . gors modification of their child support payments because the obligors possess assets against which their support obligations may be charged. See Division of Child Support Enforcement ⁵⁴³ ex rel.

Harper v. Barrows, 570 A.2d 1180, 1183 (Del.1990) (denying modification because obligor had assets that could be easily liquidated to satisfy the child support obligation); Vetternack v. Vetternack, 334 N.W.2d 761 (Iowa 1983). (denying modification because obligor had equity in marital home); Redmon v. Redmon, 823 S.W.2d 463 (Ky.Ct.App.1992) (denying modification because obligor failed to claim indigency or lack of assets); Sodders v. Sodders, 210 Neb. 276 , 313 N.W.2d 927 (1981) (denying modification because obligor could draw on existing trust to satisfy support obligation). In such jurisdictions, courts usually require an affirmative showing that the obligor has assets from which funds may be generated to cover the child support payments during the period of incarceration. See Pierce v. Pierce, 162 Mich.App. 367 , 412 N.W.2d 291, 292 (1987); Clemans v. Collins, 679 P.2d 1041, 1042 (Alaska 1984).

Even an incarcerated obligor, with a meager monthly income, may be ordered to pay child support. In Glenn v. Glenn, 848 P.2d 819 (Wyo.1993), the Supreme Court of Wyoming held that the trial court did not err in ordering an incarcerated obligor to pay his child support obligation out of the income he received from the state penitentiary’s incentive program. The appellant in Glenn acknowledged that he received $67.50 a month from the Wyoming State Penitentiary and $36.00 a month in military disability payments. Therefore, appellant’s monthly income totalled $103.50.

The Glenn court noted: It must be remembered that appellant did receive a substantial reduction in the amount of child support he is required to pay. He is appealing because he wanted the obligation suspended until the end of his term of natural life. The district judge declined to do this but did reduce the amount in accordance with appellant’s ability to pay. Id. at 822 .

According to the court, “if an incarcerated parent has no ability to pay, he is not liable for child support. Here, however, the incarcerated parent does have the ability to pay.” Id. ⁵⁴⁴ Other jurisdictions, however, have denied support modification to incarcerated obligors having no income and possessing no assets against which the support obligation can be charged. These jurisdictions focus on “the voluntariness of the obligor in his actions which led to incarceration.” In re Marriage of Phillips, 493 N.W.2d 872, 876-77 (Iowa Ct.App.1992); see Koch v. Williams, 456 N.W.2d 299 (N.D.1990) (denying modification based on voluntariness of obligor’s actions); Parker v. Parker, 152 Wis.2d 1 , 447 N.W.2d 64 (App.1989) (denying modification even though incarcerated obligor possessed no other assets). For example, in Ohler v. Ohler, 220 Neb. 272 , 369 N.W.2d 615 (1985), the Supreme Court of Nebraska held that because “[i]nearceration is certainly a foreseeable result of criminal activity[J ... no sound reason [exists] to relieve one of a child support obligation by virtue of the fact that he or she engaged in criminal conduct.” Id., 369 N.W.2d at 618 .

The appellant in Ohler sought modification of the decree dissolving his marriage in order to suspend his child support obligation. The appellant’s application for modification alleged that his incarceration, which resulted in an elimination of income, constituted a material change of circumstances warranting a temporary termination of his child support obligation. The Ohler court recognized that the appellant was requesting relief in equity and that “one who seeks equity must come with clean hands.” Id, See also, Noddin v. Noddin, 123 N.H. 73 , 455 A.2d 1051, 1053 (1983). According to the Ohler court, “where one seeks relief from the obligation to pay child support on the basis that he or she is incarcerated ... equity should not and will not act to give relief.” Id.

The court concluded that “[t]here is no reason those who have had to step in and assume the applicant’s obligation should not be reimbursed by the applicant should his future position enable him to do so.” Id. There are also jurisdictions that hold that, depending upon the particular circumstances of a case, an obligor’s incarceration may or may not constitute a material change of circumstances justifying the termination or suspension of a child support obligation. These jurisdictions reject the theory that, ⁵⁴⁵ “as a matter of law,[ ] criminal conduct must be treated as deliberate conduct designed to reduce income to avoid paying child support.” Voecks v. Voecks, 171 Wis.2d 184 , 491 N.W.2d 107, 109 (1992). In Voecks , the Court of Appeals of Wisconsin recognized that, “[a]lthough [the appellant’s] incarceration resulted from his deliberate criminal acts, there [was] no evidence that [he] engaged in the criminal conduct with the intent to reduce his income to avoid paying child support.” Id.

The court affirmed the lower court’s decision to modify the appellant’s child support obligation based on his incarceration. The court concluded that “incarceration is a factor that the court may consider when determining whether it should exercise its discretion to modify child support,” id., and that “[a]ll that is required for us to affirm a trial court’s exercise of discretion is a demonstration that the trial court examined the evidence before it, applied the proper legal standards and reached a reasoned conclusion.” Id. Still, other jurisdictions rely on the plain meaning of the terms used in their statutes, and the policy reasons underlying those statutes, to guide their decisions. Like the court in Voecks , the Court of Appeals of Ohio determined, in Peters v. Peters, 69 Ohio App.3d 275 , 590 N.E.2d 777 (1990), that the appellant’s petition for modification of child support should be granted because of his incarceration.

Unlike the court in Voecks , however, the court in Peters reasoned that, under the statute, the appellant’s incarceration constituted a material change of circumstances warranting a modification of child support. Id., 590 N.E.2d at 777 . The Peters’ court stated that: Appellant’s incarceration bears a close resemblance to a situation where an employer terminates an individual’s employment. In both instances the individual arguably has committed some culpable act which has rendered necessary the actions of another.

Yet in neither case can the elimination of the income be termed “voluntary,” and therefore not affecting the child support obligation. ⁵⁴⁶ Id., 590 N.E.2d at 778 . The court concluded that public policy supported its holding terminating an obligor’s child support obligation during incarceration. “[T]o hold otherwise would possibly expose appellant to a criminal contempt prosecution for his failure to pay child support ... [I]t would be unconscionable to criminally punish an individual for neglecting to do what state action has prevented him from doing.” Id. Similarly, in In re Marriage of Blickenstaff, 71 Wash.App. 489 , 859 P.2d 646 (1993), the Court of Appeals of Washington interpreted the term “voluntary unemployment,” as used in its statutes governing child support, to exclude incarceration. The court recognized that the Washington Child Support Commission drafted standards for child support determination, under which income is not imputed for an unemployable parent.

The court then determined that [b]y preventing courts from imputing income to “unemployable” parents while allowing courts to impute income to “voluntarily unemployed” parents, Instruction 15 [of the Standards for the Determination of Child Support and Use of the Schedule] prevents courts from finding “unemployable” parents to be “voluntarily unemployed.” The dictionary defines the term unemployable, used as an adjective, as “not acceptable for employment as a worker”. Webster’s Third New International Dictionary (2nd College ed. 1969) at page 2493. Prisoners are obviously unacceptable for employment as workers due to their incarceration; therefore, prisoners are unemployable. Since courts cannot find “unemployable parents” to be “voluntarily unemployed” it follows that courts may not find incarcerated parents to be voluntarily unemployed.

Id., 859 P.2d at 649 . In Blickenstaff, the court held that, “[b]ecause [the obligor] was not imprisoned for a crime of nonsupport or for civil contempt for failure to pay support, [the