Petitto v. Petitto

• Citation: 147 Md. App. 280,808 A.2d 809
• Decision Date: 06 September 2002
• Docket Number: No. 00514,00514
• Parties: Jane PETITTO v. Wayne F. PETITTO.
• Court: Court of Special Appeals of Maryland

808 A.2d 809

147 Md. App. 280

Jane PETITTO v. Wayne F. PETITTO.

No. 00514, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 6, 2002.

Reconsideration Denied November 15, 2002.

Cynthia E. Young, Annapolis, for appellant.

Matthews S. Walls, Frederick, for appellee.

Argued before HOLLANDER, KRAUSER and GREENE, JJ.

HOLLANDER, Judge.

This appeal arises from an action to modify child support filed by Wayne Petitto, appellee, against Jane Petitto, appellant. Among other things, we have been asked to consider whether the parties' marital separation agreement required the Circuit Court for Anne Arundel County to apply Massachusetts Child Support Guidelines in calculating appellee's child support obligation.

The parties were married and divorced in Massachusetts. In connection with their divorce, they executed an Agreement of Separation that is central to this case. It includes a provision requiring an annual recalculation of child support for the parties' only child, Jocelyn, and another clause providing that the Agreement shall be governed by Massachusetts law.

After the divorce, appellee relocated to Virginia, while appellant and Jocelyn settled in Maryland. In late 1998, appellee filed suit in the circuit court to reduce his weekly child support obligation of $374.45. Although the parties disagree about whether appellant impeded the progress of that suit, it is undisputed that appellee's case was dismissed on November 30, 1999, because the Massachusetts divorce decree was never enrolled in Maryland. Consequently, on February 9, 2000, appellee filed a second complaint to modify child support; it is that complaint that is in contention here.

Applying the "ceiling" of the Maryland child support guidelines in this "above guidelines" case, the circuit court reduced appellee's child support obligation to $221 per week, and made the reduction retroactive to the filing of the first modification petition. As a result, appellee was relieved of arrearages of $9735.70. Moreover, the court ordered appellant to reimburse appellee for the overpayment in child support.

Unhappy with the court's disposition, Ms. Petitto noted this appeal. She presents several questions for our consideration, which we have rephrased as follows:

I. Pursuant to the parties' separation agreement, did the court err in failing to apply Massachusetts law, rather than Maryland law, in calculating appellee's child support obligation?

II. Even if the court did not err in applying Maryland law to calculate child support, did the court err or abuse its discretion in modifying and reducing child support?

III. Because appellee's first petition for child support was filed in late 1998, but was subsequently dismissed in 1999, did the trial court err in modifying child support retroactively to December 1998?

IV. Did the trial court err in finding that appellant is voluntarily impoverished?

For the reasons discussed below, we shall vacate the court's judgment and remand for further proceedings.

FACTUAL SUMMARY

The parties were married in Massachusetts in January 1983. Their only child, Jocelyn, was born on February 14, 1984, and thus has become emancipated during the pendency of this litigation. In May 1997, while still residing in Massachusetts, the parties separated. They obtained a Judgment of Divorce Nisi (the "Judgment") in Massachusetts on August 11, 1997. Their Agreement of Separation (the "Agreement") of May 15, 1997, was made a part of the Judgment and "merged" into it. Both parties have since remarried, and appellee has a child with his current wife.

Among other things, the Agreement provided for joint legal custody of Jocelyn, with appellant having primary physical custody. Section 5.2 of the Agreement obligated appellee "to pay child support pursuant to the child support guidelines...." That provision, however, does not identify the child support guidelines of a particular state. It reads:

5.2 Child Support. [Appellee] agrees to pay child support pursuant to the child support guidelines commencing on the first Friday after the execution of this Agreement, and every Friday thereafter until such time as the minor child, Jocelyn[,] is emancipated as hereinafter defined.

* * *

[The parties] agree that on an annual basis, commencing on or about April 15, 1998, they will exchange up-dated financial statements and re-calculate the child support guidelines based upon their current incomes.

Pursuant to the terms of the Agreement, appellee's weekly child support obligation was set at $374.45. Under § 5.6(a) of the Agreement, appellee also agreed to pay Jocelyn's private school tuition for high school.¹

Section 12.10 of the Agreement is also relevant. It states:

12.10 Governing Law. This Agreement shall be governed by, interpreted and construed according to the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. This Agreement has been executed and completed in Massachusetts and is a Massachusetts contract.

The master held an evidentiary hearing on August 11, 2000, with respect to appellee's petition. As of that time, appellee had not paid any child support since December 1999. Appellee argued that Maryland law should govern the court's disposition, while appellant maintained that, pursuant to the Agreement, Massachusetts law applied. The parties seem to agree that, under the Massachusetts child support guidelines, appellant would receive more money in child support than she would receive pursuant to the Maryland guidelines.

The master issued a comprehensive Report and Recommendation of November 27, 2000, in which he reviewed the evidence adduced at the hearing and made several findings of fact that are relevant here. Ultimately, the master recommended the denial of appellee's request for modification of child support, as well as the denial of attorneys' fees to both parties. We turn to consider the evidence and the master's findings.

Both parties are members of the United States Air Force. Appellant, a reservist for over 20 years, was a Major with a gross annual income of $13,255 when the Agreement was executed. She was subsequently promoted to Lieutenant Colonel, earning $1990 a month on a part-time basis. She also had monthly investment income of about the same amount, based on a return of $23,879 in 1998. She last worked full-time in 1977, when she earned $27,000.

Appellee was a Lieutenant Colonel when the Agreement was executed, with monthly earnings of $5917. In 1998 and 1999, he had an annual income of approximately $72,000 to $74,000. In February 2000, appellee was promoted to the rank of Colonel, and his gross annual income increased to $100,125.96, or $8343.83 per month. Including monthly investment income of $832.17, appellee earned approximately $9176 per month at the time of the hearing.

At the time of separation, the parties divided their savings. Appellant received $200,000, while appellee received $100,000. Appellant also received an additional $250,000 in 1998, when the marital home was sold. In addition, appellee acknowledged that his father "has been gifting" $10,000 per year to him.² The master found that appellant, who is quite well educated, is voluntarily impoverished, as she works just six weeks a year. According to appellant's 1997 tax forms, she earned $26,156. Based upon appellant's 1997 earnings, plus interest income, the master attributed earnings to appellant of $4170 per month.

Further, the master determined that, from December 14, 1999, when appellee last paid child support, until June 20, 2000, when an Earnings Withholding Order was signed, appellee accumulated a child support arrearage of $9,735.70. Accordingly, the master proposed payment by appellee of $75.55 per week towards his arrears.

The master was of the view that the Maryland Child Support Guidelines (the "Guidelines") applied to appellee's request for modification. He reasoned:

The legal issues in this case are initially controlled by the Uniform Interstate Family Support Act. Fam. Law Article §§ 10-301, et seq. The present order from the Massachusetts court is controlling and must be recognized. FL § 10-310. However, Massachusetts no longer has Continuing Exclusive jurisdiction (CEJ) because all of the individuals have left that state. See FL § 10-308(a)(1). Because Mother and the child now reside in Maryland, and Father has registered the divorce decree, this Court has authority to both enforce and modify that support order. FL § 10-348. Any modification of the support order is subject to the same requirements, procedures and defenses that apply to the modification of an order originally issued by this Court. FL § 10-350(d). Upon issuing an order modifying the present support order, this state will obtain CEJ. See FL §§ 10-308, 10-348. However, this State has no authority to modify any provision of the [Massachusetts] order that may not be modified under the law of the issuing state. FL § 350(c); Holbrook v. Cummings, 132 Md.App. 60, 750 A.2d 724 (2000). Nor may this State modify the provisions of the agreement which have been incorporated into the Massachusetts order. FL § 10-308(f); see also FL § 11-101(c) (court bound by agreement of the parties); and see 28 U.S.C. § 1738 (full faith and credit act).

With respect to appellee's request to reduce his child support, the master found a material change in circumstances, stating: "[T]he evidence is uncontradicted that both parents have enjoyed advancements in rank, have remarried, and have changed residences. While there may be no one event that would justify a review, all of these changes combined result in a material change in circumstances." The master added: "It is unchallenged that Father is now earning more than he was at the time of the divorce."

Based on the Guidelines, the master computed a weekly child support obligation for appellee of $196.00. As the master observed, "[t]hat sum is a significant reduction from the...