Joshua W., In re

• Decision Date: 01 September 1992
• Docket Number: No. 422,422
• Citation: 94 Md.App. 486,617 A.2d 1154
• Parties: In re JOSHUA W., Aaron W., Jonathan W., and Rachel W. ,
• Court: Court of Special Appeals of Maryland

Page 486

94 Md.App. 486

617 A.2d 1154

In re JOSHUA W., Aaron W., Jonathan W., and Rachel W.

No. 422, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Jan. 8, 1993.

Richard R. Wingard, Jr., Dunkirk, for appellant.

Shelly E. Mintz, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before BISHOP, CATHELL and MOTZ, JJ.

MOTZ, Judge.

Mr. W. and his estranged wife, Mrs. W., were married in September 1972 and have six children--Jonathan, Joshua, Sarah, Aaron, Rachel, and Eric. Because of allegations of suspected child abuse and neglect, these children, ranging in ages from almost 5 to 20 years, were adjudicated children in need of assistance ("CINA") pursuant to Md.Code Ann.Cts. & Jud.Proc. § 3-801(e) and placed under protective custody several years ago; the CINA adjudication is not challenged here. Most of the children--Jonathan, Joshua, Sarah, Aaron, and Rachel--have spent substantial periods in foster care. ¹ Only Eric, the oldest, has continually lived at home. Mr. W. and Mrs. W. are currently separated and seeking a divorce.

On February 10, 1992, the Circuit Court for Anne Arundel County held a hearing in the respective CINA cases of these children to determine if Mr. W. and Mrs. W. should pay support for Jonathan, Joshua, Aaron, and Rachel to the Anne Arundel County Department of Social Services ("DSS"). After giving the parents an opportunity to be heard, the court ordered Mr. W. to pay $300.00 per week to DSS beginning February 10, 1992 on behalf of Jonathan, Joshua, and Aaron; child support was not ordered on behalf of Rachel, presumably because she is now living with her mother.

The court did not order Mrs. W. to contribute toward child support of the children. Mrs. W. testified that she lives with her daughter Rachel and a boarder and rents a house for approximately $510 per month. In July 1991, Mrs. W. began working part-time in the laundry department of the Naval Academy; she earns $8.34 per hour. Her job provides no benefits and her work hours are limited because of her need to attend and transport her children to court- ordered therapy sessions. Mrs. W. is looking for another part-time job to supplement the laundry job or a full time job with more flexible hours. According to Mrs. W., Mr. W. does not contribute any financial support to her or their daughter Rachel. On the basis of this testimony and Mrs. W.'s financial statement, the trial court decided not to order her to make any contribution to DSS to cover the support of her children, but did order her to furnish, on a bi-monthly basis, a statement of income and expenses as well as report on the status of her efforts to obtain other employment. No party appeals from the order regarding Mrs. W.

The focus of this appeal, then, is only on whether the circuit court erred in ordering Mr. W. to reimburse DSS for the support of Jonathan, Joshua, and Aaron. In his pro se appeal, Mr. W. raises the following questions: ²

1. Did the trial court err in determining that Mr. W. had voluntarily impoverished himself and thus in ordering him to pay child support?

2. Did the trial court abuse its discretion in ordering Mr. W. to pay $300 per week from February 10, 1992 in child support to the Anne Arundel County Department of Social Services?

(i)

As a preliminary matter, we deny the State's motion to dismiss this appeal. The State urges dismissal because Mr. W. failed to comply with the requirements of Maryland Rules 8-501(c) and 8-503(b). There is no doubt that Mr. W. violated a number of procedural rules. We do not sanction this; even pro se litigants are to obey these rules. Dismissal of an appeal for nonconformity with these rules is, however, discretionary. See Md.Rule 8-501(l ) (1992); Md.Rule 8-503(g) (1992). In this case, because of the already protracted litigation and because it is child support that is at issue, we decline to exercise our discretion to dismiss the appeal. See Tannehill v. Tannehill, 88 Md.App. 4, 10-11, 591 A.2d 888 (1991).

(ii)

Mr. W.'s first challenge concerns the trial court's factual finding that Mr. W. voluntarily impoverished himself. Giving due regard to the trial court's opportunity to judge the credibility of the witnesses, we will not disturb its factual findings unless clearly erroneous. Md.Rule 8-131(c) (1992). Although not explicitly defined in the Maryland Code, "voluntary impoverishment" is not a new concept for this Court. With this term, we recognize that parents may at times take steps to avoid their obligation to pay child support. As Judge Rosalyn Bell carefully explained in John O. v. Jane O., 90 Md.App. 406, 421, 601 A.2d 149 (1992), "voluntarily impoverished" means "freely, or by an act of choice, to reduce oneself to poverty or deprive oneself of resources with the intention of avoiding child support or spousal obligations." See also 24 Am.Jur.2d Divorce and Separation § 662 (2d ed. 1983).

Mr. W. argues that he "did not voluntarily reduce nor deprive himself of resources" with the intention of avoiding his child support obligation. In support of his position, he maintains that he

did not quit a salaried job or voluntarily terminate any other source of income ... [; he] did not dispose of or hide any assets ... [; and he] has consistently sought appropriate work and is currently being considered for 8 positions. ³

The trial court heard extensive testimony from Mr. W., himself, regarding his educational and employment history, financial status, and ability to contribute child support. Mr. W. testified that he has an undergraduate degree in early childhood education; he was certified to teach but allowed his teacher certification to lapse two years ago. Since January 1991, he has been attending graduate school in "counseling psychology;" he anticipates receiving a Masters degree in May 1992 and beginning a Ph.D. program in the fall of 1992. In addition to his academic schedule, he volunteers 20 hours per week at Crownsville Hospital Center doing patient assessments; this volunteering is not required for a degree but does "count" toward the two years supervised work experience needed for counseling certification.

Mr. W. further testified that he was unable to work full time in 1991 because of "health and time concerns"; specifically, he was suffering from a "bad case of the nerves" and an old back injury. (While having a 10% partial disability of the back, Mr. W. has not had his back re-evaluated for several years.) With respect to time concerns, Mr. W. testified that he maintained a 12 credit per semester academic schedule during 1991 and also had to contend with the time pressures of scheduling visitation with his children, court dates, and foster care review board hearings.

Prior to beginning graduate school in January 1991, Mr. W. worked as a car salesman. He quit this job in October 1990 because he said he became too upset to work after DSS took his children from him. He has not worked in a full time paid job since then. He testified that he financed graduate school and supported himself in 1991 through student loans and loans from family and friends; he has lived with his parents since 1988 and does not pay them rent. He further testified that he had purchased a car in September, 1991, and a computer in August, 1991.

In the past Mr. W. worked as a pastor and as a technical writer. He earned approximately $25,000 to $30,000 annually from his work as a pastor, combined with some part-time work in the remodeling business. The last time he worked as a technical writer was in 1987 when he had a $7,000 contract with the National Weather Service. At the time of the hearing, Mr. W. claimed to be self-employed in the remodeling business; he testified that he earned $12.50 per hour and worked approximately 30 hours per week, for a total of $375.00 a week. Finally, Mr. W. testified that he was actively seeking full-time employment, but, upon questioning, conceded that he had not sought employment for a large number of positions for which he would seem to be qualified. He planned to attend school at night (for the doctorate degree) and work full-time during the day. He estimated that he has an earnings potential of at least $25,000 to $30,000 per year and claimed that he expected to earn that amount beginning the Fall of 1992.

After hearing Mr. W.'s testimony, the trial court determined that Mr. W. had voluntarily impoverished himself to avoid having to pay child support. The court explained:

Mr. W. ... has chosen not to work ... intentionally chooses not to work in order to go to school. He can come up and find funds in order to buy an automobile when he wants to do that, find funds in order to go to school, he can find funds to do those kinds of things. He has done nothing that I can find from his testimony of any substance to make any efforts to get a job.... I don't believe most of what he says about his applications for jobs and things of that nature on the basis of his demeanor on the witness stand and some of the answers that he's given. In any event he feels that he can get a job.... I feel that Mr. W. ... is certainly capable of earning twenty-five to thirty thousand dollars.... Mr. W ... is making by his own admission three hundred and thirty dollars ($330.00) a week currently and he is volunteering his time so he can get certification.

The trial court was not clearly erroneous in making this finding. Much of Mr. W.'s testimony focused on the various factors that a court may consider when determining whether someone has voluntarily impoverished himself. See John O., supra, 90 Md.App. at 422, 601 A.2d 149 (factors to consider include: current physical condition; level of education; timing of any change in employment or other financial circumstances; efforts to find and retain employment; past work history; and "any other considerations presented by either party"). A fact finder could well conclude, upon consideration of this...