JAW v. DME, 90-152.

• Citation: 591 A.2d 844
• Decision Date: 21 May 1991
• Docket Number: No. 90-152.,90-152.
• Parties: J.A.W., Appellant, v. D.M.E., Appellee.
• Court: Court of Appeals of Columbia District

591 A.2d 844

J.A.W., Appellant, v. D.M.E., Appellee.

No. 90-152.

District of Columbia Court of Appeals.

Argued February 7, 1991.

Decided May 21, 1991.

As Amended June 17 and July 12, 1991.

E. Marie Wilson-Lindsay, Washington, D.C., for appellant.

Ronald L. Webne, Washington, D.C., for appellee.

Before ROGERS, Chief Judge, and TERRY and STEADMAN, Associate Judges.

TERRY, Associate Judge:

This is a companion case to W.M. v. D.S.C., 591 A.2d 837, decided this day. Although the two cases involve different parties and different facts and were tried before different judges, the principal legal issue is the same in both: whether the trial court, in a paternity action, can or should award child support retroactively to the child's birth upon a finding (or, as in this case, an admission) of paternity. We hold in both cases that the court has the power to do so, that such an award should be the rule rather than the exception, and that the burden of persuasion is on the party opposing such an award—usually the father, whose paternity is proven or admitted in the course of the litigation—to demonstrate to the court why an award of child support should not be retroactive to the birth of the child.

Appellant filed a petition in the trial court seeking the establishment of paternity, an award of child support, reimbursement for one-half of the medical costs associated with the birth of her child, and recovery of attorney's fees, costs, and expenses connected with this litigation. On this appeal she contends that the trial judge (1) erred in failing to enter a permanent custody order in her favor, (2) erred in failing to consider the newly enacted child support guidelines when determining the amount of child support to be awarded, (3) abused his discretion in denying her request for retroactive child support; and (4) improperly denied her request for attorney's fees and costs. We reject the second and fourth contentions, and as to the first we find only a technical error which can be easily corrected. On the issue of retroactive child support, however, we reverse and remand for further proceedings.

I

During the mid-1980's, the parties had an ongoing intimate relationship for approximately two and a half years. As a result of this relationship, appellant gave birth to a son on August 30, 1988, and ten days later she filed this paternity and support petition in the Superior Court. Following a blood test which established a 99.99 percent likelihood that appellee was the father of appellant's child, appellee admitted paternity.

Appellant sought child support in the amount of $1,200 per month. The evidence established that appellant is an attorney with an annual gross income of $41,000, and that appellee is a social worker with an annual gross income of approximately $43,000. After hearing all the testimony, the trial judge awarded appellant $520 per month in child support, but refused to make the support payments retroactive. The judge also denied appellant's request for attorney's fees and costs. The judge's final order did not award permanent custody to either party and, in fact, made no mention of custody at all.

II

Appellant contends that the trial judge erred by awarding only $520 per month in child support. She asserts that the needs of her child and the statutory child support guidelines mandate a larger amount, offering documentation of expenses she incurred in caring for her child which averaged $2,240 per month. It was this sum on which appellant's request for $1,200 per month was based. The trial judge reviewed the list of expenditures and found many of them to be unreasonable.¹ He then noted that this court had recently invalidated the previous version of child support guidelines and proceeded to determine a reasonable amount. After making thirty-one findings of fact, the judge concluded that $1,041.50 per month would be adequate to provide for the child's needs. Finding that both parents were equally able to share this expense, he ordered appellee to make monthly payments of $520. His order was signed on December 22, 1989.

As the trial judge correctly observed, this court had recently invalidated the previously promulgated child support guidelines in Fitzgerald v. Fitzgerald, 566 A.2d 719 (D.C.1989). In response to the invalidation of those guidelines, the Council of the District of Columbia passed an emergency statute establishing new guidelines, D.C. Act 8-127, which was signed into law by the Mayor on December 21, 1989.² Since these emergency guidelines became law one day before the judge signed his final order, they are applicable to this case, even though they were in effect for less than three months, from December 21, 1989, to March 15, 1990. The judge's conclusion that the guidelines did not apply, understandable in the circumstances, was nonetheless erroneous. We conclude, however, that his error was harmless because the amount of support which the judge actually awarded was consistent with the guidelines.

The emergency guidelines prescribe "an equitable approach to child support in which both parents share legal responsibility for the support of the child." D.C.Code § 16-916.1(b)(1), 37 D.C.Reg. 3.³ Included in the guidelines is a sliding-scale formula for determining support which considers the age of the child, the number of children to be supported, any special needs of the child, and the income of both the custodial and the non-custodial parent. Application of the guidelines is presumptive. The guidelines list certain factors which "may be considered to overcome the presumption," but if the court in a particular case decides that the guidelines should not apply, it must explain the reasons for its decision in writing. D.C.Code § 16-916.1(l), 37 D.C.Reg. 8-9.

Applying the guidelines to this case, we find that the amount which should have been awarded under the guidelines and the amount actually awarded by the trial judge are substantially the same. Under the guidelines, a non-custodial parent with an income of $25,001 to $50,000 supporting one child from zero to six years of age would be expected initially to contribute 22 percent of his or her gross income for the care of the child. See Chart 1 at D.C.Code § 16-916.1(q), 37 D.C.Reg. 12. Twenty-two percent of appellee's gross income of $43,000 is $9,460.

Section 16-916.1(j) of the guidelines, 37 D.C.Reg. 7-8, provides that this amount "shall be reduced by a percentage that corresponds to the custodial parent's share of total parental income" if the custodial parent earns more than a prescribed "threshold amount" per year. When there is only one child to be supported, the threshold amount is $16,500. Under the statutory formula, the amount of support owed by the non-custodial parent is calculated by first subtracting the threshold amount ($16,500) and the cost of day care ($3,600 in this case) from the gross income of the custodial parent ($41,100). This comes to $21,000.⁴ That amount is then divided by the gross income of the non-custodial parent's ($43,000) plus the custodial parent's gross income ($41,100) minus the threshold amount ($16,500) and day care costs ($3,600). This comes to $64,000.⁵ This calculation, $21,000 ÷ $64,000, yields a result of .328, which is converted into a percentage, 32.8 percent.

Thus, under the guidelines, appellee's payment "shall be reduced" by 32.8 percent. His initial payment under the guidelines (22 percent of his gross income) would be $9,460. Reducing that amount by 32.8 percent ($3,102.88) would leave $6,357.12 payable over twelve months, or $529.76 per month. The guidelines permit the trial court to add or subtract up to three percent without putting the reasons in writing. D.C.Code § 16-916.1(m), 37 D.C.Reg. 9. Since the difference between the amount prescribed by the guidelines ($529.76) and the amount actually awarded ($520) is less than three percent, the trial judge's calculation of the child's needs in this case comports with the presumptive amount under the guidelines. We therefore affirm the award of $520 per month in child support.

III

Appellant next claims that the trial judge abused his discretion by denying her request to make the child support award retroactive to the birth of the child. Although there is no express statutory authority for awarding retroactive support for children born out of wedlock, this court has previously held that such children may be awarded support retroactive at least to the date of service of the petition for support. Cyrus v. Mondesir, 515 A.2d 736 (D.C.1986). Until today we have not had occasion to go further back than that, but neither Cyrus nor any other case precludes us from doing so.

The Cyrus court gave three reasons for making a support award at least partially retroactive. First, the possibility of an order to pay retroactive support acts as a disincentive for fathers "to avoid their child support obligations for some period of time by delaying the process of adjudicating paternity." Id. at 739 (footnote omitted). Second, "the prospect of a retroactive award may allow a mother to use more of her own resources to care for her child during paternity proceedings, with the expectation of replenishing the resources available for her child by way of a retroactive award." Id. Finally, the availability of a retroactive support award enables the District of Columbia, in some cases, to seek reimbursement for child support expenses it has incurred during the pendency of the proceedings. Id. We see no reason why these three reasons would not apply with equal force to the type of order requested here.

Before the enactment of the guidelines, trial courts had broad discretion under D.C. Code § 16-916 (1989) both to determine the amount of child support and to make any support order retroactive.⁶ The guidelines establish statutory limits within which the court must exercise its discretion, but they do not alter the basic principle, expressed both in ...