Lasche v. Levin

• Decision Date: 06 August 2009
• Docket Number: No. 07-FM-743.,07-FM-743.
• Citation: 977 A.2d 361
• Court: D.C. Court of Appeals
• Parties: Ernest P. LASCHÉ, Appellant, v. Pamela Beth LEVIN, Appellee.

977 A.2d 361

Ernest P. LASCHÉ, Appellant, v. Pamela Beth LEVIN, Appellee.

No. 07-FM-743.

District of Columbia Court of Appeals.

Argued January 29, 2009.

Decided August 6, 2009.

Gary A. Stein, Rockville, MD, for appellant.

Kristin Henrikson, with whom Margaret J. McKinney, Bethesda, MD, was on the brief, for appellee.

Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.

STEADMAN, Senior Judge:

Appellant, Ernest P. Lasché, appeals the trial court's order that he pay $697 per month, beginning February 1, 2007, in current child support and $130 per month, beginning July 1, 2007, toward a judgment of $81,343 in unpaid retroactive child support dating from 1996 forward. Lasché argues that the trial court did not have the authority to award retroactive child support from as far back as 1996, and that even if the trial court had such authority, the trial court abused its discretion in rejecting his defense of laches. Lasché also argues that the trial court erred in calculating his retroactive child support payments under the presumptive statutory Guideline by (1) including certain "lump-sum" trust distributions, (2) failing to deduct fees paid on a twenty percent interest in a family-owned beach property, and (3) failing to deduct investment losses from an online business venture. Finally, Lasché argues that the trial court erred in calculating his income for the purposes of determining his current child support obligation by failing to deduct his business expenses from his earned income. We agree with Lasché's argument that the non-periodic trust distributions should not have been included in his "gross income" under the Guideline and remand for recalculation of the retroactive child support figure. In all other respects, we uphold the trial court's determinations.

I. The Basic Facts

Lasché and appellee, Pamela Beth Levin, were married on June 11, 1993, in Milan, Italy. Their daughter was born in Italy on December 17, 1994. On or about August 16, 1995, the parties separated when Levin and the daughter returned to Washington, D.C., from Italy. Lasché returned to the Washington, D.C., area in October 1995 but did not reside with Levin or the daughter.

In January 1998, Levin filed a Complaint for Divorce, Custody, and Child Support in the District of Columbia Superior Court. Levin hired an individual to effect service on Lasché, but that individual was unsuccessful in effecting service. The Superior Court then dismissed Levin's complaint without prejudice due to her failure to effect service on Lasché. Levin again filed for divorce in the Superior Court at some point in 2002 but again was unable to effect service on Lasché. She then applied for child support services from the District's child support agency.

On his part, Lasché filed a Petition for Dissolution of Marriage before the Circuit Court in Manatee County, Florida, on September 18, 2002, and an Amended Petition for Dissolution of Marriage on November 6, 2002. The Florida judge granted the parties' divorce but made no ruling regarding child support or visitation due to jurisdictional limitations. In September 2004, Levin re-contacted the District's child support agency, which filed an interstate support action on Levin's behalf. The child support agency was unable to locate Lasché.

On April 12, 2006, Lasché filed a complaint for custody and access to his minor daughter in the District of Columbia Superior Court. On May 15, 2006, Levin filed her answer to the complaint and her counterclaim for custody and child support. Lasché filed an answer to the counterclaim for custody, noting that he was not seeking physical custody of the minor child. The trial court held a pendente lite hearing on November 2, 2006, and issued a temporary child support order on December 7, 2006.¹ The trial court held a hearing on retroactive child support on January 23 and 24, 2007, and issued its order on June 5, 2007.

In its final order, the trial court calculated Lasché's prospective child support obligation as $697 per month based on an estimated income of $41,290 per year. The trial court based this estimation on Lasché's bank deposits for the first five months of 2006, annualized for the full year.² In addition, the trial court ordered Lasché to pay $81,343 in retroactive support payments covering the period from January 1996 to December 2006, to be paid at a rate of $130 per month, as well as $12,434 for Levin's attorney fees. Prior to the trial court's order for retroactive support payments, Lasché's only payments to Levin for the care of their child since 1996 were three payments of $150 in September, October, and November 2006, as well as a single payment of $985 in December 2006.

II. The Retroactive Child Support Award

We first address Lasché's challenges to the trial court's award of retroactive child support payments. "The trial court has broad discretion in making child support decisions. Absent a showing of abuse of that discretion, such decisions, both under the statutory guideline and independent of the guideline, will not be disturbed on appeal." Galbis v. Nadal, 734 A.2d 1094, 1100 (D.C.1999). See also, e.g., Slaughter v. Slaughter, 867 A.2d 976, 977 (D.C.2005).

A. Retroactivity Vel Non

The trial court ordered that Lasché pay $130 per month beginning on July 1, 2007, for a total of $81,343 in retroactive child support payments for the period from January 1996 to December 2006. Lasché argues that the trial court erred in awarding retroactive child support from 1996. He claims that there is "no legal authority for an award of child support against a former spouse and acknowledged father of a child that is retroactive to a date ten years prior to the date child support came to be at issue." The more appropriate inquiry, however, is whether there is any legal authority preventing the trial court, in the exercise of its discretion, from making such an award.

The Child Support Guideline in effect at the time this matter came before the trial court for a final hearing contained no statute of limitations on retroactive support. See D.C.Code § 16-916.01 (2006 Supp.). Nor was the trial court precluded from ordering retroactive support based on our case law addressing retroactivity. Lasché argues that Lewis v. Lewis controls and the trial court is limited to awarding retroactive child support to "the date of the filing of the complaint," as was done in that case. 708 A.2d 249, 253-54 (D.C. 1998). Contrary to Lasché's contention, however, nothing in Lewis would have precluded an award of retroactive child support to a date earlier than the date of the filing of the complaint. In fact, in one case we expressly allowed retroactive child support payments to a date preceding the date of the filing of a complaint. See J.A.W. v. D.M.E., 591 A.2d 844, 847-49 (D.C.1991) (ordering retroactive support to the date of the birth of the child where mother filed petition ten days after birth of the child and where paternity was at issue).

Lasché draws our attention to the amendments to the Child Support Guideline that went into effect on April 1, 2007, which in general impose a twenty-four month limitation on the award of retroactive child support. Child Support Guideline Revision Act of 2006, D.C. Sess. Law Serv. (West) (codified as amended at D.C.Code § 16-916.01 (2009 Supp.)).³ Neither before the trial court⁴ nor in any direct and concrete way before us⁵ does Lasché assert that this amendment applies to the retroactive child support payments involved here.⁶ Therefore, we do not address that question. We do note, however, that the amendment itself, unlike typical statutes of limitation, does not create an absolute two-year bar. Quite to the contrary, the amendment contains specific language permitting a trial court to award child support retroactively for a greater period where "the parent to whom support is owed proves that the parent with a legal duty to pay support has acted in bad faith or there are other extraordinary circumstances. ..." D.C.Code § 16-916.01(v)(1).⁷

In addition, the apparent legislative purpose behind the amendment does not particularly apply to the situation before us. The Final Recommendations of the Child Support Guideline Commission note that "unlimited retroactive support often results in uncollectible arrears, especially for low-income parents with a legal duty to pay support...." REPORT OF THE DISTRICT OF COLUMBIA CHILD SUPPORT GUIDELINE COMMISSION, FINAL RECOMMENDATIONS 27 (July 2004). The Final Recommendations also note that "uncollectible arrears can discourage payments on current support, as well as continued parental involvement." Id. The Committee on the Judiciary, in its favorable report on the Guideline Revision Act, recognized that "the accrual of high uncollectible arrears promotes the non-payment of child support and chills the parental relationship between the non-custodial parent and the child." D.C. COUNCIL REPORT ON BILL 16-205 at 4 (Feb. 28, 2006). Lasché, however, is not the typical low-income parent who is unable to pay retroactive support. Rather, as discussed infra, he is a highly educated individual who has pursued a number of low-paying professions and risky business ventures, as well as one who has received six-figure payments from family wealth. See D.C.Code § 16-916.01(d)(10) (2009 Supp.) (allowing a judicial officer to impute income to a parent who is voluntarily underemployed). Moreover, the trial court made provision that the retroactive child support be paid out in relatively small monthly payments over an extended period of time, at a rate such that Lasché will not pay off the balance for approximately fifty-two years.⁸ Thus, on a discounted basis, the total amount of the retroactive child support is far less than the dollar figure itself. Even if the statute were to apply, it might quite possibly be within the trial court's discretion to make the same award that it did here.

Even absent...