Leitgeb v. Leitgeb, 2015-414

• Decision Date: 02 September 2016
• Docket Number: No. 2015-414,2015-414
• Court: Vermont Supreme Court
• Parties: Debbie A. (Shattuck) Leitgeb v. Robert Leitgeb

2016 VT 97

Debbie A. (Shattuck) Leitgeb v. Robert Leitgeb

No. 2015-414

Supreme Court of Vermont

May Term, 2016

September 2, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windsor Unit, Family Division

M. Kathleen Manley, J.

Debbie A. Shattuck, Pro Se, Springfield, Plaintiff-Appellee.

Robert Leitgeb, Pro Se, Littleton, New Hampshire, Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. ROBINSON, J. This case requires us to consider whether and under what circumstances a child support order can compel an obligor parent whose income is below the self-support reserve to make monthly payments toward outstanding arrearages on a child support surcharge. Father appeals pro se from a family court order affirming a magistrate's decision to deny his motion to modify a child support order that related solely to outstanding arrearages owed for surcharges. He argues that because his limited income from social security disability benefits is below the self-support reserve, he should not be ordered to make $50 monthly payments toward outstanding surcharges. We reverse and remand.

¶ 2. The facts are largely undisputed. The parties were divorced in 1989. Father was ordered to pay child support for the parties' minor child, who turned eighteen in July 1998. Although father did not thereafter incur any new child support obligations, he continued to owe a substantial arrearage and surcharges.¹ In January 2005, the child support magistrate issued a child support order reflecting a judgment of arrears in the amount of $11,424.01. That judgment reflected past due child support principal in the amount of $5627.78 and accumulated surcharges of $5796.23. The court ordered wage withholding from any employer in the amount of $50 per month, although the order noted that father had a pending application for social security benefits. The court further ordered that surcharges would continue to accrue on the judgment at the statutory rate.

¶ 3. In May 2008, father filed a pro se petition to modify his child support order. By that time, the child support principal arrearage was paid, but accrued surcharges remained. Father was living on social security disability benefits. In January 2009, after a hearing, the magistrate denied father's motion to vacate or set aside the surcharge under 15 V.S.A. § 606(d). The court left in place the existing child support order requiring father to pay $50 per month toward the outstanding surcharges.

¶ 4. In April 2011, father filed another pro se motion seeking modification. This time rather than requesting termination of his obligation to pay the arrears altogether, his motion sought a reduction of his monthly payment toward the outstanding arrearage. In that motion, he represented that he was unemployed, disabled, and unable to meet his medical expenses. In an entry order, the child support magistrate ruled that father had not established a real, substantial, or unanticipated change of circumstances, nor any other legal basis for relief. The court notedthat in 2005, when it issued an order requiring him to pay $50 per month toward the arrearages, father was unemployed and not receiving social security disability benefits. It further noted that it had denied a similar motion in January 2009, after a contested hearing.

¶ 5. In September 2011, father again filed a pro se motion, this time seeking discharge of his surcharge arrearage obligation altogether. Father filed this motion after the effective date of 15 V.S.A. § 606(d)(2), which provides: "In the interest of justice, the court may discharge all or part of a surcharge that accrued subsequent to the date of the last judgment upon a finding that since that date, the obligated parent became unable to comply with the underlying support obligation." In his motion, father cited a decrease in his social security disability payments and his struggle to pay rent. The magistrate denied father's motion to modify because father had not shown an unanticipated change in circumstances as required by 15 V.S.A. § 660. In particular, the change in his Social Security Disability payments was not sufficient to trigger a modification. The magistrate further denied father's motion under 15 V.S.A. § 606(d)(2) on the ground that father had not shown that since the last judgment he had become "unable to comply." However, in December 2011, the magistrate did enter a new, modified child support order establishing a surcharge arrearage balance of $3967.41, maintaining the $50 per month payment schedule, and reducing the rate of accrual of continuing surcharges to 0.5% per month, or 6% per year. The Superior Court, Family Division, upheld this order on appeal.

¶ 6. In September 2013, father filed another motion seeking reduction of his monthly obligation to repay arrearages to $0 and discharge of the surcharges. The magistrate rejected the motion noting that at that time father had both earned income and Social Security income and that his total monthly income exceeded his expenses such that he was able to make the $50 per month payment.

¶ 7. Finally, in February 2015, father filed another pro se motion to modify the child support order relating to his outstanding surcharges. This is the motion that led to this appeal. Father alleged that his income had decreased, he was disabled, and the child support order in question was issued more than three years prior. His requested relief was a decrease in his monthly obligation to $0.

¶ 8. The magistrate held a contested hearing. Although father indicated that the sole relief he was seeking was discharge of the surcharge arrearage pursuant to 15 V.S.A. § 606(d)(2), most of his testimony was directed at his inability to pay the $50 per month. It was not clear that he understood that the motion he filed suggested two alternate forms of relief: one that would discharge some or all of the surcharge arrearage pursuant to § 606(d)(2), and one that would leave the accrued surcharge judgment intact, but would reduce or eliminate his monthly payment obligation.

¶ 9. At the hearing, the Office of Child Support indicated that father's remaining surcharge arrearage was approximately $1917. Based on father's testimony, the magistrate found that father had $976 per month in Social Security Disability benefits, in addition to fuel assistance and food stamps. His monthly expenses for rent, utilities, prescription medications, and sundries totaled $935 per month, leaving him with $41 per month from which he could pay the $50 arrearage payment. The magistrate noted that $50 of his monthly expenses was a payment toward past due rent; the magistrate reasoned that if he reduced this amount by $9 per month, he would be able to make the arrearage payment.

¶ 10. With respect to father's motion to discharge his remaining accrued surcharges in the interest of justice pursuant to 15 V.S.A. § 606(d), the magistrate concluded that the statute authorizes discharge of only surcharges that accrued subsequent to the date of the last judgment,upon a finding that the obligated parent had become unable to comply with the underlying support obligation since that date. Noting that father had no outstanding support obligation or support arrearage (as opposed to surcharge arrearage), the magistrate concluded that no surcharges had accrued since the last judgment, and the court was not authorized to discharge surcharges that had accrued prior to that time and that were reduced to judgment in that order. Accordingly, the magistrate concluded that § 606(d) did not give the court authority to reduce father's arrearage balance.

¶ 11. The magistrate went on to consider the possibility of reducing or eliminating father's monthly payment obligation, as opposed to discharging the underlying judgment. The magistrate noted that father's living circumstances had changed on account of a recent divorce and that his income had fallen. However, the magistrate found that his modest monthly income was still sufficient to meet his modest expenses and allow him to continue paying $50 per month toward his surcharge arrearages. In addition, the magistrate found that father's consistent payment of the $50 per month over the course of years supported the finding that he was, in fact, able to afford the payment. For these reasons, the magistrate declined to reduce father's monthly surcharge arrearage payment.

¶ 12. On appeal, the family division affirmed. With respect to father's request for relief "[i]n the interest of justice" under 15 V.S.A. § 606(d)(2), the court affirmed the magistrate's conclusion that the statute did not apply, as none of the remaining obligation had "accrued subsequent to the date of the last judgment." As to the request for modification under 15 V.S.A. § 660, the court affirmed the magistrate's finding that father's circumstances had changed, and upheld the magistrate's conclusion that father was capable of making the payments. Father appealed.

¶ 13. On appeal, father challenges the magistrate's denial of his request to modify to zero his monthly payment obligation.² He argues that the magistrate's order requiring him to make monthly payments toward his arrears despite the fact that his income is undisputedly below the self-support reserve runs afoul of 15 V.S.A. § 656(c), and that the magistrate clearly erred in concluding that he was able to pay $50 per month.³

¶ 14. We will neither set aside the magistrate's findings unless they are clearly erroneous, nor its conclusions if reasonably supported by the findings. Tetreault v. Coon, 167 Vt. 396,...