Smith v. Stewart
| Decision Date | 02 August 1996 |
| Docket Number | No. 94-693,94-693 |
| Citation | 684 A.2d 265,165 Vt. 364 |
| Parties | Judith SMITH v. Potter STEWART, Jr. |
| Court | Vermont Supreme Court |
William M. McCarty and Mark T. Doherty of McCarty Law Offices, P.C., Brattleboro, for plaintiff-appellee.
William M. Dorsch of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for defendant-appellant.
Before ALLEN, C.J., and DOOLEY, MORSE and JOHNSON, JJ., and NORTON, Superior Judge, Specially Assigned.
Defendant, Potter Stewart, Jr., appeals the decision of the Windham Family Court awarding increased child support for 1993 and 1994 to his former wife, plaintiff Judith Smith. He argues that the court erred by awarding support beyond the guideline maximum, by extrapolating from the guidelines, by not basing the guideline calculation on shared custody, and by awarding attorney's fees to plaintiff. We affirm the court's grant of attorney's fees and refusal to apply the shared custody guidelines, but reverse the child support award and remand for recalculation consistent with this opinion.
The parties were married in 1971 and divorced in 1991. They have two sons whose physical custody was awarded to plaintiff but who are frequently with defendant when not in school. This case involves calculation of support for the children for 1993 and 1994 in accordance with the 1991 divorce order. The order, which was based on a stipulation of the parties, provides:
The Defendant shall pay to the Plaintiff child support in accordance with the Vermont Child Support Guidelines. Said support shall be recalculated annually on January 1 or as soon thereafter as possible. Each party shall provide the other with income and tax information necessary to recalculate said support amount. The amount recalculated shall be retroactive to January 1 of the relevant year. The support calculation shall include actual capital and operating losses and expenses and shall not be based on shared custody guidelines. Provided, however, that the support shall be $1,283.00 per month through 31 December 1991, which is a compromise amount without reliance on the guidelines.
The parties agreed to this arrangement to accommodate defendant's fluctuating salary. In December 1991, the parties agreed to an amendment to the provision to provide, among other matters, that "income shall be as defined in 15 V.S.A. § 653(5)(A) with the exception of imputed income and gifts, which shall not be considered" and "[i]ncome computations shall also include the defendant's 'out of pocket losses,' if any, from the condominium investments." In connection with this amendment, defendant again agreed that the shared custody guidelines did not apply to the support calculation.
The 1991 order also requires that defendant pay maintenance. He is required to pay $1,600 per month through December 31, 1996, and $1,150 per month thereafter through December 31, 2008 when the maintenance obligation ceases.
Defendant's income in 1991 was approximately $146,000. In 1992, it rose to $299,951. In 1993, it fell to $180,523. In February 1994, defendant left his law firm and started his own practice. He estimated that he would earn approximately $75,000 in 1994 from this practice. Plaintiff's income in 1992 was $36,952, including the maintenance payments; in 1993, it dropped to $29,480.
In 1992, defendant paid child support in the amount of $337 per week, based on his 1991 income. Defendant filed his 1992 income tax return in April 1993, but did not give plaintiff a copy until July 1993. He continued the preexisting child support amount until July 16, when he raised it to $434 per week. During 1993, defendant paid $19,949 in child support.
In 1994, defendant lowered his child support payment when he left his firm to start his own practice. Since January he has been paying $128 per week. He provided his 1993 income tax returns in May 1994.
On January 12, 1994, defendant moved that the maintenance award be reduced because he no longer had the ability to comply with it since his income had declined with the start of his new practice. He also requested that the court determine the proper amount of child support pursuant to the 1991 order. On January 26, 1994, plaintiff responded by moving to enforce the 1991 order with respect to child support for the years 1993 and 1994. Plaintiff also sought a maintenance supplement and attorney's fees.
Following a hearing, the family court ruled on these motions on December 1, 1994, denying defendant's motion to modify the maintenance award and plaintiff's motion for a maintenance supplement. It granted plaintiff's motion to enforce the 1991 child support order and calculated the outstanding arrearage as $20,973.44 for 1993 and $9,180 for the 32 weeks of 1994 which preceded the hearing. It set the on-going child support amount for 1994 at $434 per week and awarded plaintiff $8,745.58 in attorney's fees.
Defendant first argues that the court erred by awarding child support in an amount greater than the guideline maximum. He claims that the court may award support beyond the guideline maximum only if it finds that the needs of the children have not been met, and that no such finding was or could have been made here. This argument requires us to revisit the purposes and policies of our child support system.
In 1986, the Legislature adopted a new child support system which established guidelines for determining the financial support obligations of parents in most cases. See 15 V.S.A. §§ 650, 653. The guideline system has three main purposes: to ensure children receive the same proportion of parental income after separation or divorce as they would have received if the parents had never separated, to eliminate discrepancies in awards between children in similar circumstances and to improve the efficiency of child support adjudication. See Grimes v. Grimes, 159 Vt. 399, 403, 621 A.2d 211, 213 (1992); Ainsworth v. Ainsworth, 154 Vt. 103, 106, 574 A.2d 772, 774-75 (1990). The central component of the system is a set of tables which reflect "the percent of combined available income which parents living in the same household in Vermont ordinarily spend on their children." 15 V.S.A. § 654. The table amounts are expressed in dollars and are "presumed to be the total support obligation of parents." Id. When the events in this case took place, the tables covered combined available incomes up to $11,575 per month. See Office of Child Support Services, Child Support Guidelines § 1002, at 5 (1990) [hereinafter Guidelines ]. 1 When the combined available income of the parents exceeds the "uppermost levels of the support guideline," the "court may use its discretion in determining child support." 15 V.S.A. § 656(d).
Before addressing defendant's specific argument, it is important to understand how the family court approached this case. Plaintiff argued consistently that she was seeking enforcement of the 1991 agreement and order, and not requesting a modification of the child support provisions of the order. Defendant has not been consistent on this point, but a number of his arguments are premised on his claim that the family court modified the 1991 order by setting a support amount above the guideline maximum. The family court clearly believed it was enforcing, and not modifying, the 1991 order.
We conclude that the family court acted reasonably and was correct in its approach. See C.D. v. N.M., 160 Vt. 495, 501, 631 A.2d 848, 852 (1993) (). The 1991 order specifies defendant would pay support "in accordance with the Vermont Child Support Guidelines." Defendant interprets these words to mean that he is required to pay no higher than the maximum amount provided for in the tables irrespective of his income. This is an unreasonable interpretation of the language. The guideline maximum is not a cap on child support to be paid. See Archer v. Archer, 813 P.2d 1059, 1061 (Okla.Ct.App.1991). Instead it represents the highest income for which tables are useful or appropriate. When the 1991 agreement and order determined support in accordance with the guidelines, it necessarily included the full guideline system, including the power of the court to set amounts above the tables when the income of the parties exceeds the guideline maximum. Thus, the family court was enforcing the 1991 order according to its terms and not modifying it.
No matter how the action is characterized, defendant acknowledges that the statute gives the trial court discretion to set a support level above that provided for at the highest income of the guidelines. He argues, however, that this discretion may be exercised only when there is demonstrated need for the children to receive the additional amount. We disagree that the sole criterion for determining the support amount for above-guideline-income cases is the need of the child. The children are entitled to share in family income if it grows after the parents separate. See C.D., 160 Vt. at 500, 631 A.2d at 851 (). Thus, the children are entitled to a part of the "fruits of one parent's good fortune after a divorce." In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo.1995); see also Galbis v. Nadal, 626 A.2d 26, 31 (D.C.Ct.App.1993) (); Miller v. Schou, 616 So.2d 436, 437 (Fla.1993) ().
Moreover, the term "need" must be used broadly to reflect the general standard of living of the family. Children are not expected to live at a minimal level of comfort while one or more parents enjoy a luxury lifestyle. In re Marriage of Lee, 246 Ill.App.3d 628, 186 Ill.Dec. 257, 615 N.E.2d 1314, 1326 (Ill.Ct.App.1993). A child's needs "increase...
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