Corby v. McCarthy
| Decision Date | 30 December 2003 |
| Docket Number | No. 00037,00037 |
| Citation | 154 Md. App. 446,840 A.2d 188 |
| Parties | Bonnie L. CORBY v. Daniel P. McCARTHY. |
| Court | Court of Special Appeals of Maryland |
Ronald L. Ogens (Michael Reuter, Deckelbaum, Ogens & Raftery, Chtd. on the brief), Bethesda, for appellant.
Charles F. Morgan (Hodes, Ulman, Pessin & Katz, P.A. on the brief), Towson, for appellee.
Argued before HOLLANDER, SHARER and CHARLES E. MOYLAN, JR., (Retired, specially assigned), JJ. HOLLANDER, Judge.
This case, which is before us for the second time, has a protracted history rooted in an ongoing dispute regarding parental support for the parties' adult disabled child. Bonnie Corby,1 appellant and cross-appellee, and Daniel P. McCarthy, appellee and cross-appellant, are the divorced parents of Kelly McCarthy, who was born in January 1980. Appellee has paid child support for Kelly since the parties' divorce in 1982.
This appeal involves a "Supplemental Motion To Modify Child Support," filed by appellant on June 6, 2002, in the Circuit Court for Montgomery County, seeking an increase with respect to appellee's monthly support obligation of $702. In response, appellee asked the court to terminate his support obligation or, in the alternative, to reduce it. Following an evidentiary hearing in February 2003, the circuit court concluded that Kelly is a destitute adult child within the meaning of Md.Code (1999 Repl.Vol.), § 13-101(b) of the Family Law Article ("F.L."). In its Modification Order filed February 24, 2003, however, the circuit court reduced appellee's support obligation to $150 per month, retroactive to August 1, 2002. That ruling spawned this appeal.
Appellant contests the decision of the circuit court reducing appellee's monthly support obligation to $150. Appellee challenges the circuit court's finding that Kelly is a destitute adult child. He also asks us to revisit the ruling of this Court in the first appeal, McCarthy v. McCarthy, No. 423, September Term 2000 (filed August 28, 2001) ("McCarthy I"), in which the Court (Murphy, C.J.) determined that the Child Support Guidelines (the "Guidelines"), set out in F.L. § 12-202, apply in calculating the child support obligation for a destitute adult child.
Appellant presents the following five questions:
With respect to the cross-appeal, appellee asks:
For the reasons that follow, we shall vacate the court's Modification Order of February 24, 2003, and remand for further proceedings.
The parties were married in May 1978. Their only child, Kelly, was born on January 28, 1980. Upon the parties' divorce in August 1982, appellant was awarded sole custody of Kelly.2
McCarthy has worked almost thirty years for the federal government. In his current position as a health insurance analyst for the Medicaid and Medicare Administration, he earns $2,861.60 biweekly, or almost $75,000 annually. McCarthy remarried about thirteen years ago, and his wife, Jeanne, earns about $1000 per week, exclusive of a bonus. They adopted their only child in 1997.
Ms. Corby does not work. In 1998, the Social Security Administration determined that she is disabled, and she now receives Social Security disability benefits of $540 per month. There is no suggestion that appellant is able to contribute to the financial support of Kelly.
On October 29, 1997, shortly before Kelly turned eighteen, appellant filed a motion in the circuit court to extend McCarthy's support obligation beyond Kelly's eighteenth birthday. The master held a two-day evidentiary hearing in February 1998, at which expert testimony was presented with respect to Kelly's disability. At the time of the hearing, Kelly was a special education student at Walter Johnson High School. She was also working part-time at the Department of Veterans Affairs ("VA"), earning $404 bi-weekly while receiving $73 in monthly SSI benefits.
In the master's report of June 9, 1998, the master recommended the extension of parental support for Kelly beyond her eighteenth birthday. As to Kelly's condition, the master found that she is a "mildly mentally retarded woman who functions at a 4th or 5th grade level." She also has "great difficulty reading at a 4th grade level," and has "no understanding of the language presented." Moreover, the master noted that all of the experts who testified "agreed that Kelly does not have the life skills to live on her own...." In addition, the master found that Kelly lacked the capacity to "obtain and maintain continuous long term employment generating sufficient income to cover her reasonable needs." Further, the master wrote:
Dr. Steven Weinstein, a pediatric neurologist, testified that unlike a 4th or 5th grade child, Kelly has no ability to "problem solve" if new information is presented from the previous learning path. Although some people at Kelly's level will work full time, they will not be able to live independently, i.e. live unassisted in the world. People such as Kelly need close supervision in their home for such tasks as food preparation, dressing, and paying bills. People such as Kelly need support to go to and from employment and usually live at home with a parent or in a halfway house where assistance with daily living needs is available....
The master determined that Kelly's needs amounted to about $1,000 a month. He then imputed annual income to appellant of $20,000, and found that appellee had an annual income of about $60,000. Using the Guidelines, the master recommended that appellee pay child support of $634 per month. As no exceptions were filed, the court issued an Order of June 25, 1998, extending appellee's support obligation and requiring him to pay $634 per month towards Kelly's support.
A few months later, on November 23, 1998, Corby filed a petition to modify and increase child support, claiming a change in circumstances based on an increase in appellee's income and a finding by the Social Security Administration on July 25, 1998, that she is disabled. Thereafter, on June 18, 1999, McCarthy filed a motion to terminate support, claiming that, since the hearing in February 1998, Kelly had obtained full-time employment with the VA, and her annual income had increased from $8,700 to $16,600.
The master heard the parties' motions on October 12, 1999. Then, on November 15, 1999, the master issued a Report and Recommendation, finding a material change in circumstances based on "the nature and extent of the child's employment." Whereas Kelly had been employed in February 1998 as a temporary and probationary employee with the VA, working twenty hours per week and grossing $299.60 bi-weekly, she was a permanent and full-time VA employee by the time of the 1999 hearing. Her income had increased to gross monthly earnings of $1,382.50, from which she netted $995.40. On an annual basis, Kelly was earning a gross wage of $16,590. Because of her employment, however, Kelly was no longer receiving $73 in monthly Social Security benefits.
Recognizing that, since the last hearing, Corby had been found disabled by the Social Security Administration, the master declined to impute income to appellee. He reasoned that it would be "equal to forcing a person living at a subsistence level, pursuant to a federal welfare program, to pay child support." Conversely, the master found that appellee's income had increased to $5,269 per month, or $63,228 per year.
The master concluded that Kelly was a destitute adult child and that the Guidelines apply in calculating parental support. But, he recommended a downward deviation from the guidelines, based on his finding that Kelly could meet most of her reasonable monthly expenses, which included half the rent for the apartment that Kelly was then sharing with appellant. The master reasoned that "[i]t is not in the best interest of this child to provide the full amount of child support which would artificially establish a standard of living beyond Kelly's means." Therefore, although appellee's child support obligation under the Guidelines would have been $681 per month, the master recommended the reduction of appellee's support obligation to $100 per month.
Both parties filed exceptions. In a Memorandum Opinion of March 27, 2000, the court concluded that the Guidelines do not apply to a destitute adult child, but it otherwise adopted the master's recommendations. The court stated, in part:
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