Drummond v. State to Use of Drummond

• Decision Date: 01 September 1998
• Docket Number: No. 14,14
• Citation: 714 A.2d 163,350 Md. 502
• Parties: James E. DRUMMOND v. STATE of Maryland, t/u/o Shirley DRUMMOND. ,
• Court: Maryland Court of Appeals

Page 502

350 Md. 502

714 A.2d 163

James E. DRUMMOND v. STATE of Maryland, t/u/o Shirley DRUMMOND.

No. 14, Sept. Term, 1998.

Court of Appeals of Maryland.

July 29, 1998.

A second master's hearing was held on January 28, 1997. Finding that appellant was not entitled to a modification, the Master stated:

[T]he Master has been instructed to give any monies coming in from Social Security as ... income to the custodial parent which would be the mother in this case. That would be $53.00 per month on that. Mr. Drummond has roughly four hundred forty dollars of Social Security.... [U]sing the Guidelines, I normally set child support in these matters at roughly $50.00 so I think that the $38.00 per month would be the appropriate figure and I will leave it at that. So, the Motion to Modify will remain the same, it will be denied. ²

Appellant filed exceptions to the master's recommendations asserting that "the Master erred in finding that [appellant] was not entitled to a credit against his child support obligation for the Social Security disability payment currently being made directly to his minor child, Joshua Drummond." On July 1, 1997, the circuit court, in a written order, accepted the master's findings, conclusions, and recommendations.

Appellant filed a Notice of Appeal on July 31, 1997. We issued a writ of certiorari to the Court of Special Appeals prior to argument in that court. We hold that the Circuit Court for Allegany County did not err in denying appellant's request to modify the child support obligation.

II.

Two methods are available by which a parent may obtain modification of a child support award. First, pursuant to Maryland Code (1984, 1991 Repl. Vol), section 12-104 of the Family Law Article (FL), a court may modify a child support award "subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance." A court also may modify a child support award pursuant to section 12-202(b)(1) of the Family Law Article, which states that "the adoption of the guidelines set forth in this subtitle may be grounds for requesting a modification of a child support award based on a material change in circumstances." The adoption of the guidelines may not be the basis for a modification of child support "unless the use of the guidelines would result in a change in the award of 25% or more." FL § 12-202(b)(2). ³ As the award appellant seeks to have modified post-dates the adoption of the guidelines, section 12-104 of the Family Law Article is the only statutory provision under which appellant may seek a modification of the child support award in this case.

Section 12-104 allows a court to modify a child support award only after the filing of a motion for modification and a finding of a material change in circumstances. We explained the limitation on the trial court's authority to modify a child support award in Wills v. Jones, 340 Md. 480, 488-89, 667 A.2d 331, 334-35 (1995):

Before a court can consider the level of support to which a child is entitled under the guidelines, it must determine that it has authority to grant the requested motion. Section 12-104 provides the Maryland courts with authority to modify a child support award only when (1) there has been a change of circumstance and (2) the change is material. See § 12-104(a). These limitations upon the courts' authority to modify child support awards tend to inhibit the filing of a deluge of motions seeking modification of child support orders.

The "material change of circumstance" requirement limits the circumstances under which a court may modify a child support award in two ways. First, the "change of circumstance" must be relevant to the level of support a child is actually receiving or entitled to receive. Second, the requirement that the change be "material" limits a court's authority to situations where a change is of sufficient magnitude to justify judicial modification of the support order. See Walsh v. Walsh, 333 Md. 492, 503, 635 A.2d 1340 (1994). [Footnote omitted].

The trial court, after finding a material change in circumstances, must then apply the child support guidelines of sections 12-202 to 12-204 of the Family Law Article in order to determine the level of support to which the child is entitled. Wills, 340 Md. at 491, 667 A.2d at 336.

Although there are various ways a change in circumstances could be relevant to the modification of a child support award, there are two obvious ways in which a change is relevant to the level of support a child actually is receiving or entitled to receive. "First, a relevant change in circumstances may occur upon the passage of some event causing the level of support a child actually receives to diminish or increase." Wills, 340 Md. at 488 n. 1, 667 A.2d at 335 n. 1. A second relevant change in circumstance may occur when there is a change in the income pool used to calculate the child support obligation.

We examined a potential change in circumstance causing the level of support a child actually receives to diminish or increase in Walsh. In that case, a prior support order required the noncustodial parent to pay child support in an amount below the amount provided for in the child support guidelines. The order also permitted the custodial parent to use the family home and required the noncustodial parent to pay one-half of the mortgage. Prior to the hearing on the modification, the parents entered into an agreement whereby the custodial parent would purchase the noncustodial parent's interest in the family home. Consequently, the noncustodial parent's obligation to pay one-half of the mortgage ceased.

Holding that a remand was necessary to determine whether there was a material change in circumstance pursuant to section 12-104, we stated:

[The] obligation to pay one-half of the mortgage payments may have been a reason for ordering support below the guidelines. If so, when that obligation ceased, there could be a change of circumstances. Whether that change was material will have to be determined on remand. Only part of [the noncustodial parent's] mortgage payments directly benefitted the children; part of the payments benefitted [the custodial parent] and part of the payments directly benefitted [the noncustodial parent] by increasing the equity in the house.... [A] remand is necessary to determine whether, based on the current circumstances including the cessation of [the noncustodial parent's] mortgage payments, there was a substantial change of circumstances and, if so, giving due regard to the entire circumstances including the parties' agreement and their change in income, what amount of child support should be ordered.

Walsh, 333 Md. at 502-03, 635 A.2d at 1345 (footnote omitted).

A second common change in circumstance relevant to a modification of child support is a change in the income pool from which the child support obligation is calculated. In Wills, 340 Md. at 488 n. 1, 667 A.2d at 335 n. 1, we noted that an example of a relevant change in the income pool could be one parent losing his or her job. We went on to note that a parent's incarceration would be a relevant change in circumstance that had an effect on the income pool because the incarceration would make it impossible for the parent to maintain employment. Id. at 488-89 n. 1, 667 A.2d at 335 n. 1.

In Petrini v. Petrini, 336 Md. 453, 648 A.2d 1016 (1994), we affirmed the trial court's consideration of non-cash gifts to a parent in determining the parent's actual income and thereafter calculating the father's child support obligation. Addressing the parent's contention that the gifts he was receiving were not indefinite, we noted that if at some point the parent no longer received the gifts, he could request a modification of his child support obligation based upon a material change in circumstances. Id. at 467, 648 A.2d at 1022. See also Moore v. Tseronis, 106 Md.App. 275, 664 A.2d 427 (1995) (noting that parent's relocation to a rural area and subsequent reduction in salary resulting from the relocation constituted a material change in circumstances); Lieberman v. Lieberman, 81 Md.App. 575, 568 A.2d 1157 (1990) (affirming trial court's finding of a material change in circumstances when parent's net income rose from $200,000 to $386,800).

Not only must there be a change in circumstances, it must be material. That is, the change must be of a significant degree so as to support the modification. With respect to the materiality of the change in circumstance, a trial court "[i]n making this threshold determination that a material change of circumstance has occurred ... must specifically focus on the alleged changes in income or support that have occurred since the previous child support award." Wills, 340 Md. at 489, 667 A.2d at 335 (emphasis added).

III.

In setting child support obligations, a court is required to utilize the child support guidelines. There is a rebuttable presumption that the amount of child support resulting from the application of the guidelines is correct. FL § 12-202; Walsh, 333 Md. at 498, 635 A.2d at 1343. In calculating a child support award, a court first must determine the adjusted actual income of each parent, as defined in section 12-201. See Petrini, 336 Md. at 461, 648 A.2d at 1019-20. It then adds the adjusted actual income of both parents to arrive at the combined adjusted actual income. FL § 12-201(e). A court next determines the basic child support award "in accordance with the schedule of basic child support obligations in subsection (e) [of section 12-204 of the Family Law Article]." FL § 12-204(a)(1). The basic support obligation derived from the schedule in section 12-204(e) then is divided between the parents in proportion to their adjusted actual incomes. FL § 12-204(a). Certain child care expenses and extraordinary medical expenses incurred on behalf of a child must be added to the basic child support obligation. See FL § 12-202(g...