Merchant v. Merchant, 14–057.

• Citation: 2015 VT 72, 124 A.3d 443
• Case Date: May 15, 2015
• Court: United States State Supreme Court of Vermont

124 A.3d 443
2015 VT 72

Sheila MERCHANT
v.
Eric MERCHANT.

No. 14–057.

Supreme Court of Vermont.

May 15, 2015.
Motion for Reargument Denied June 9, 2015.

124 A.3d 445

Cynthia L. Broadfootof Broadfoot, Attorneys at Law, Burlington, for Plaintiff–Appellee.

Eric Merchant, Pro Se, Jericho, Defendant–Appellant.

Opinion

ROBINSON, J.

¶ 1. In this case, father Eric Merchant challenges the findings and conclusions of the family-division magistrate, as affirmed by the Superior Court, Family Division, Addison Unit, denying his 2011 motion to modify a 2009 child-support order governing support of the two children he had with mother Sheila Merchant. We affirm.

¶ 2. Father and mother married in 2000. They subsequently had two children. The parties separated in 2008, and in August 2009 the superior court issued a stipulated final divorce order providing for shared physical rights and responsibilities for their children and a contact schedule allocating fifty percent of the children's time to each parent. The stipulated order provided that each party would bear the cost of child-care expenses for the children during those times that the children were with them pursuant to the contact schedule. It further provided that mother would be entitled to claim the minor children as dependents for state and federal income-tax purposes. The child-support-obligation guideline calculation was $112.52 per month from father to mother. This guideline calculation, which was attached to the final child-support order, took into account the parents' respective qualifying child-care costs. Father agreed to an upward deviation from the guideline amount, to $200 per month plus $43 per month in arrears, which would automatically rise to $243 per month when the arrears of $1852 were paid (after forty-three months).

¶ 3. In November 2011, father filed a motion to modify child support. After a contested hearing in September 2012, the magistrate dismissed father's motion to modify on the ground that father had failed to show a real, substantial, and unanticipated change of circumstances—a statutory predicate to modification of a child-support order. See 15 V.S.A. § 660(a).¹In reaching this conclusion, the magistrate calculated the current child-support obligation that would be due based on the parties' respective incomes and other

124 A.3d 446

relevant inputs in child-support guideline formula. The magistrate concluded that father's current child-support obligation would be $256.43 per month. Because this obligation did not differ from the existing child-support obligation by more than ten percent in a downward direction, the magistrate concluded that father had failed to show a real, substantial, and unanticipated change of circumstances. Father disputed several elements of the magistrate's guideline calculation.

¶ 4. Father filed a motion to reconsider, arguing among other things that the magistrate miscalculated his wages by double-counting a component of his income; improperly relied on a guideline calculation that assumed that the parents were equally sharing the dependent tax exemptions for the children, when in fact they were not; and improperly accounted for the parties' child-care costs when the underlying divorce order provided that each party would bear his or her own child-care costs. He also noted an error in the magistrate's decision with respect to whether the underlying child-support order included an additional-dependent deduction. In a November 2013 order, the magistrate reaffirmed the dismissal of father's motion to modify.

¶ 5. Father appealed to the family division. See 4 V.S.A. § 465; V.R.F.P. 8(g). Father renewed his arguments that the magistrate incorrectly established the guideline amount by (1) incorrectly calculating his monthly income, imputing a higher income than was actually the case; (2) relying on a guideline calculation that equally divided credit for the tax exemption for dependent children between father and mother, despite the final order's allocation of the right to claim such tax exemption solely to mother; and (3) including child-care costs, even though the final order provided that “[t]he parties agree that each party shall bear costs for child care expenses for the children during those times that the children are with them pursuant to the contact schedule herein.” These are the only arguments father raised in his appeal.

¶ 6. In January 2014, the family division affirmed. It concluded that the magistrate's determination of father's income was supported by the evidence and within the magistrate's discretion. With respect to the role of tax exemptions in the guideline calculation, the court held that statute requires that the child-support calculation assume that each parent takes an equal share of the exemptions attributable to the children subject to the order, regardless of the parents' actual allocation of those exemptions. With respect to the child-care costs, the family division ruled that the magistrate's consideration of the parties' qualifying child-care costs was consistent with the requirement that child support be calculated according to the guideline formula, which requires consideration of qualifying child-care costs in determining the parties' available income, and ultimately the child-support obligation. Father appealed to this Court.

¶ 7. “[W]e will not disturb a trial court's findings of fact unless they are clearly erroneous”; that is, we will uphold the court's conclusions “as long as they are supported by adequate findings, which are in turn supported by sufficient evidence in the record.” Kanaan v. Kanaan,163 Vt. 402, 405, 659 A.2d 128, 131 (1995). We review the legal conclusions of the magistrate and the family division de novo. Coyle v. Coyle,2007 VT 21, ¶ 5, 181 Vt. 583, 925 A.2d 996(mem.).

¶ 8. The court may modify a child-support order upon a showing of a real, substantial, and unanticipated change of circumstances. 15 V.S.A. § 660(a)(1). A child-support order that varies more than

124 A.3d 447

ten percent from the amounts required to be paid under the support guideline is considered to be a real, substantial, and unanticipated change of circumstances. Id.§ 660(b).

I.

¶ 9. On appeal, father makes several new arguments challenging the magistrate's, and the family division's, application of this requirement. First, he argues that under this provision, the court automatically had jurisdiction to modify the order because the 2009 order was for $200 per month, while the 2009 guideline amount was $112.52 per month. Citing our decision in Grimes v. Grimes,159 Vt. 399, 621 A.2d 211 (1992), father argues that the ten-percent differential between the child-support guideline calculation and the child-support obligation ordered should be calculated as of the time the original order was issued, rather than at the time of the proposed modification. He essentially argues that because the deviation built into the underlying child-support order in this case was big enough to allow for modification immediately following that order, the magistrate had continuing authority to modify the order—even if subsequent changes in the parties' respective finances reduced the gap between the guideline calculation and the child-support order to less than ten percent.

¶ 10. Second, father argues that he did not have to show that the child-support order varied more than ten percent from the guideline-support amount pursuant to § 660(b)because his receipt of means-tested public-assistance benefits constituted a change of circumstances pursuant to § 660(c)(1). In support of this argument, he cites his attendance at school through the Veterans Affairs Vocational Rehabilitation program, his receipt of a Pell Grant, the children's entitlement to Medicaid, and his receipt of VA disability benefits.

¶ 11. Father did not make either of these arguments to the magistrate, nor to the trial court. We decline to address these contentions now because father has raised them for the first time on appeal. See Begin v. Benoit,2006 VT 130, ¶ 7, 181 Vt. 553, 915 A.2d 786(mem.) (“Where an aggrieved party fails to make a specific objection in the trial court, this Court need not address the issue on appeal.”); Osmanagic v. Osmanagic,2005 VT 37, ¶ 10, 178 Vt. 538, 872 A.2d 897(mem.) (noting that issues not briefed at trial court and raised for first time on appeal will not be considered by this Court).²

II.

¶ 12. Father also argues that the trial court erred in failing to consider, when calculating the child-support guideline amount, that the parties' agreement allocated the right to claim the tax exemptions for their minor children to mother. Because the guideline calculation assumes that the tax exemptions are divided evenly between the parties, the calculation overestimated father's available income (because it imputed to him a tax exemption that he was not actually eligible to take) and underestimated mother's available income (because it did not account for the fact that she took bothexemptions pursuant to the terms of the final divorce order). He contends that the magistrate should have done a “manual” guideline calculation

124 A.3d 448

that accounted for the reality of the parties' allocation of the tax exemptions.

¶ 13. The child-support guideline formula was developed by the Agency of Human Services in response to the...