Shenk v. Shenk
Decision Date | 28 October 2004 |
Docket Number | No. 2349,2349 |
Citation | 860 A.2d 408,159 Md. App. 548 |
Parties | Michael Keith SHENK v. Julie O. SHENK. |
Court | Court of Special Appeals of Maryland |
Daniel L. Owel, Rockville, for Appellant. James G. Nolan, (Furey, Doolan & Abell, L.L.P., on the brief), Chevy Chase, for Appellee.
Panel: MURPHY, C.J., BARBERA, THIEME, RAYMOND G., Jr. (Ret'd, Specially Assigned), JJ.
This is an appeal of the custody and child support provisions of a Judgment of Absolute Divorce entered by the Circuit Court for Montgomery County. Appellant Michael Keith Shenk ("husband") presents two issues arising from the court's decisions as to custody of the parties' three children and child support. Our review will focus on the facts necessary for consideration of the following issues of the appellant, which we have restated:
The parties were married on November 16, 1996, and had three children before separating voluntarily on May 25, 2002. The husband, a high school graduate, testified that he had worked for an internet telecommunications company, earning $90,000.00 a year, until he was fired in June of 2001. Because he had long hungered to own a restaurant, the husband began working variable hours as a server at a Houston's restaurant to learn the business. In 2002, he earned $29,452.15. He told the court that he was not actively seeking new employment because working at Houston's gave him the flexibility to deal with the circumstances of his personal life caused by the divorce. However, he realized that he had to start looking for a better paying job and he was trying to "network" through family, friends, or customers at the restaurant.
Reverting for the moment to the point in time when the husband lost his telecommunications job, the appellee wife, who has a bachelor degree in business administration, began working fifteen to eighteen hours per week doing record keeping and running errands for her father's real estate business. She earned $1,500.00 per month. She and the children continued to reside in the family home and her working hours were arranged around the children's schedules. Her mother, who lived next door, watched the children one day per week and the two women shared a housekeeper/babysitter. The wife paid this housekeeper/babysitter $1,290.00 per month, $400.00 of which was reimbursed by her mother for one day per week of housecleaning. The wife estimated that her child care and housecleaning expenses would increase to $1,421.00 per month if she went to work full time.
The husband testified that his sister, a day care provider who lived approximately 20 minutes from the family home, had offered to watch the parties' children at no cost.
The parties and other witnesses testified about their relationship prior to and during the separation period. The husband's cousin and wife's friend told the court that both parties were good with their children, but that, "[w]ith each other, there was turmoil." However, she felt their communication had improved since they had developed a system of writing to each other in a notebook. The husband concurred with that assessment, telling the court that he thought his wife was a good parent, who made good decisions, but that he wanted the opportunity to be involved in making those decisions. The court asked if a disagreement related to a minor decision, such as participation in sports, might end up in litigation, and the husband replied, "What I would say is go ahead and sign [the child] up for that." He stated that he would make efforts to remain an active parent.
The wife also testified that the notebook had helped to defuse tensions between them. She complained that her husband was inconsistent in his opinions about the children. She said that she felt she knew what was best for them. While she wanted his input, she felt that, "if I need to make that call, I think I'm the one to do it."
-the child support issue-
At the conclusion of trial, the court found that both parents were voluntarily impoverished. The court then imputed $65,000.00 of income to the husband. Based on the testimony of the wife's father, the court found that she could earn at least $45,000.00 by working full time. "After the court makes a finding of voluntary impoverishment, the court must then make a determination of `potential income' to impute to the parent who has become voluntarily impoverished, in order to ascertain the appropriate level of child support," Malin v. Mininberg, 153 Md.App. 358, 406, 837 A.2d 178 (2003). Regarding child care, the court stated:
When questioned by husband's counsel as to whether it would make a difference whether the wife was employed part time or full time, the court answered that it did not. Counsel pursued this point, asking what the amount of child support would be if the wife did not work full time, continuing to earn the same income, and the following transpired:
In its written ruling, the court ordered the husband to pay $900.00 per month until September and $2,043.00 per month thereafter. On September 8, 2003, the husband filed a post-trial motion to amend that provision, based upon the wife's continued part-time status. The motion was denied, although the trial court stated that this fact "would be a sufficient basis for the filing of a Motion to Modify Child Support...."
On appeal, the husband argues that the trial court erred by awarding the wife an amount of child support that was based upon hypothetical work-related expenses. We agree.
The statutory basis for calculating child support is the parties' adjusted actual incomes. Md.Code (1999 Repl.Vol., 2003 Supp.), Family Law Article ("FL"), § 12-204. In addition, section 12-204(g)(1) provides "actual child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their incomes." This section provides a mechanism whereby the court may, under appropriate circumstances, award actual child care expenses. The burden of proof as to the existence of the prerequisites to entitlement is upon the spouse who seeks actual child care expenses.
Child support orders ordinarily are within the sound discretion of the trial court. However, when an order involves an interpretation of statutory and case law, as it does in this case, we determine whether the trial court's conclusions are "legally correct" under a de novo standard of review. Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609 (2002). "Because the Legislature used mandatory language and distinguished child care expenses from basic support obligations, we hold that child care expenses always fall outside of the chancellor's discretion...." Chimes v. Michael, 131 Md.App. 271, 292-93, 748 A.2d 1065 (2000). In addition, we note that, in a legal context, use of the word "actual" means, inter alia, Black's Law Dictionary 34 (6th ed.1990).
Here, the wife provided evidence of the cost of child care on a part-time basis. While that amount also included housecleaning services valued at $100.00 per day, it was possible to subtract the cost for housecleaning and extrapolate the expense of full-time child care. However, being able to ascertain the amount that child care would cost is not the same as...
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