L.C. v. J.C.

Decision Date08 January 2021
Docket NumberPetition No.: 19-31040,File No.: CN19-04499
PartiesL C Petitioner, v. J C Respondent.
CourtDelaware Family Court

REVIEW OF COMMISSIONER'S ORDER

Jennifer Mensinger, Esquire for Petitioner

Michael Corrigan, Esquire for Respondent

Kerr, F., Judge Pending before the Court is a Request for Review of a Commissioner's Order ("ROCO") filed by J C ("Father"). The Petitioner contests the Order entered by Commissioner James Maxwell on October 5, 2020 regarding child support. L C ("Mother") filed a Response requesting that the Court deny the ROCO.

STANDARD OF REVIEW

A party may seek a review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1), which provides:

Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by the rules of Court, within 30 days from the date of the Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject, or modify in whole or in part the Order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.1

Because this was a Commissioner's final order, the Court reviews the Order de novo.2 According to Black's Law Dictionary a de novo review is "[a]n appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings."3 Pursuant to Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must "set forth with particularity the basis for each objection."4 Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order.5 A judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, anytestimony and documentary evidence on the record, and the specific objections of the moving party.6

PROCEDURAL BACKGROUND

Mother filed for Child Support on October 30, 2019. On January 22, 2020, the Court entered an interim child support order. On July 16, 2020, the parties resolved Ancillary Matters to their divorce by Stipulation. The Court held an evidentiary hearing on October 1, 2020 on the Child Support Petition. The primary issue during the hearing was what to use as Father's income for the calculation as of August 13, 2020. On October 5, 2020 the Court entered a final Order for new support, which calculated current child support at $1211.00 per month current support. The Court also in the October 5, 2020 Order calculated retroactive support of $936.00 per month from 4/30/2019 until 1/31/2020; $129.00 per month from 5/1/2020 until 8/13/2020; and $1211.00 effective 8/14/2020.

ARGUMENTS RAISED
RETROACTIVE DATE

In the ROCO, Father raises three objections to the October 5, 2020 Order. First, he argues that the use of the retroactive date of April 30, 2019 (six months prior to the filing of the Petition) was error. Father alleges that the evidence demonstrated that the parties separated in February, 2019 and had an agreement that they would share custody equally and would share equally the cost of tuition and daycare. While Father testified that the parties had an agreement, Mother testified that the parties really didn't discuss it, and "it was more of a, you know, I'll giveyou half the tuition and that's it."7 As there is a factual dispute between the parties and no written agreement, the Court finds that the Commissioner had a better opportunity to assess the credibility of the parties and will not disturb his decision to use the retroactive date of 4/20/2019.

ATTRIBUTION OF INCOME

Second, Father objects to the amount of income attributed to him in the Order, effective August 13, 2020. At the time of the hearing, Father was essentially self-employed customizing automobiles earning $22.00 per hour.8 There is no dispute that Father was terminated from his employment with CSC on February 13, 2020. At the time of his lay-off, Father was employed in a management position earning approximately $145,000.00 in annual salary.9 According to Father, he was not able to handle this position and was terminated. Father had been earning $125,000.00 prior to his promotion to IT supervisor. Father testified that he was not able to find employment due to the pandemic and that he was unhappy and stressed working in the corporate world.10 Father also testified that he turned down an offer from the State of Delaware in the telecom department, which offered $60,000.00 to $70,000.00.11 Father turned down that position, as he had started the position at Rhodes and wanted to do something different with his life and as COVID required him to have more flexibility to be with the Children.12 According to Father, he was earning approximately $57,000.00 in self-employment.13 Father primarilycontracted with an establishment, Rhodes Custom Auto, for approximately 30 hours per week, and was trying to set up his own business customizing and detailing vehicles.14

The Court imputed Father with $125,000.00 , which was Father's income at CSC before he was promoted to supervisor.15 Pursuant to Family Court Rules of Civil Procedure 501(g), Father's continued unemployment after six months is presumed voluntary. Rule 501(d) indicates that unemployment or unemployment that is voluntary shall cause "reasonable earning capacity to be imputed." Father's ROCO does not challenge the Court's finding that the "earnest re-employment" doctrine in Rule 501(j)16 does not apply. Additionally, Father does not appear to be disputing the Commissioner's decision to attribute Father with greater income than he is currently earning.17 Father is contesting the amount of income used by the Commissioner in the calculation, and argues that the Court should have attributed him with the same income as Mother.18 Father was working in IT and alleges that the COVID-19 pandemic had disastrous effects on the employment industry.19 The Court notes that there is not one "employment industry" and, during the pandemic, certain types of employment declined significantly while others increased. Father offered no details as to how the pandemic impacted his particular field, which appears to be in telecommunications and IT. Employers and employees became more dependent on technology to perform their jobs, which would suggest that IT jobs would not suffer at the same rate as some other positions. Additionally, many positions became remote but continued. Father's job search was abbreviated. He talked to a friend about working at a small law firm, which was impacted by COVID, and reached out to contacts at Black Rock and M &T, where he worked prior to CSC.20 He also reached out to one recruiter and applied for jobs online.21 Father did not continue to look for appropriate employment once he started doing the detail work in approximately May of 2020, just three months after losing his job at CSC.22 The Court finds no error in the Commissioner's decision to attribute Father with income of $125,000.00 per year as this was the most reasonable option. Father turned down a job earning $60,000.00 - $70,000.00, which he described as doing what he had been doing at a "lower key level".23 This testimony and his decision to reject the offer suggest that Father did not find the income and benefits offered sufficient to take the position and that the position was below his skill level. While he did have the Children half the time, he also testified that his Mother helped with the remote learning. There was no testimony suggesting that Father's and Mother's incomes were ever comparable and thus using Father's income before he became a supervisor was the most reasonable alternative as Father offered no other evidence of reasonable income in his field. There was not sufficient information in the record to use wage and labor surveys and neither party argued to do so.

DEDUCTIONS FOR MEDICAL AND RETIREMENT

Father pays $902.00 per month in health insurance through COBRA coverage.24 While Father will not pay $902.00 per month for health insurance through COBRA in the long term, he paid it from August 13, 2020 through at least the date of the hearing.25 The Court will therefore include the health insurance in the last calculation which is the current calculation startingAugust 13, 2020. The Court will not attribute Father with a 401(k) contribution as he is not making one currently. The Court anticipates that if Father obtains reasonable employment in his field that he will have a lower health insurance cost and would begin contributing to a 401(k) at some point. The total cost of his benefits in the future may be more or less than the $902.00 per month.

CONCLUSION

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