Tucker v. Tucker, 501

• Citation: 847 A.2d 486,156 Md. App. 484
• Decision Date: 16 April 2004
• Docket Number: No. 501,501
• Parties: Bruce TUCKER v. Terri E. TUCKER.
• Court: Court of Special Appeals of Maryland

847 A.2d 486

156 Md. App. 484

Bruce TUCKER v. Terri E. TUCKER.

No. 501, Sept. Term, 2003.

Court of Special Appeals of Maryland.

April 16, 2004.

James A. Mood, Jr. (Thomas D. Murphy & Mood, P.C. on the brief), Rockville, for appellant.

Richard D. McNally (Tietz, McNally & Goldberg, P.C. on the brief), Rockville, for appellee.

Argued before HOLLANDER, KRAUSER, and CHARLES E. MOYLAN, JR., (Retired, specially assigned) JJ.

KRAUSER, Judge.

In 1995, appellant, Bruce Tucker, and appellee, Terri E. Tucker,¹ divorced and entered into a settlement agreement to resolve their differences over alimony and child support. That agreement required Mr. Tucker to pay Mrs. Tucker alimony for seven years and child support until their four children reached the age of eighteen. When Mr. Tucker's alimony obligation expired in 2002, Mrs. Tucker filed a motion in the Circuit Court for Montgomery County seeking an increase in child support. That motion was granted, and Mr. Tucker's child support obligation increased.

The circuit court's decision to increase his child support payments does not trouble Mr. Tucker as much as the method the circuit court employed to do so. He specifically objects to the court's treatment of Social Security benefits, received by his children as a result of his age, in computing his and Mrs. Tucker's child support obligations. After first calculating the parties' respective incomes, as it is required to do, the court added to Mrs. Tucker's income the Social Security benefits that she receives on behalf of the Tuckers' children. That addition, Mr. Tucker maintains, violates Maryland law. Those benefits, he insists, should not have been added to Mrs. Tucker's income but subtracted from the total amount of the parties' child support obligation.

Mr. Tucker divides his argument into two issues. They are:

I. In modifying Appellant's child support obligation, did the trial court commit error by including social security payments paid on behalf of the minor children in the income of Appellee? II. How should a trial court address social security benefits paid for the benefit of minor children in light of federal regulations which require that those funds be used either for the expenses of the minor children or saved for their benefit?

For the reasons that follow, we shall vacate the judgment of the circuit court and remand this case to that court for a recalculation of the child support award.

BACKGROUND

The Tuckers were married on October 27, 1984, and were granted an absolute divorce a little more than ten years later. When these proceedings began, Mr. Tucker was sixty-seven years of age and Mrs. Tucker, forty-one. They have four teen-aged children: Cristen, Brittany, Zachary, and Brandon.² Before seeking a divorce, the parties entered into a settlement agreement, which was later incorporated into a judgment of absolute divorce. That agreement, among other things, provided that Mr. Tucker would pay Mrs. Tucker $3,500 per month in child support³ and $3,500 per month in alimony for seven years.

One year after entering into that settlement agreement, Mr. Tucker retired. In conjunction with his retirement, he sold the business he owned, "Pioneer Technologies." The profits from the sale of that business totaled $6.7 million and were divided and placed into three separate Prudential Financial accounts. Mr. Tucker receives $32,219 income each month from the interest generated by those accounts, as well as $1,100 a month in Social Security benefits. When Mr. Tucker began receiving his Social Security benefits, Mrs. Tucker also began receiving $1,100 a month in benefits on behalf of the parties' four minor children as a result of Mr. Tucker's age and retirement.

Although Mrs. Tucker stayed home with the children during the Tuckers' marriage, after they divorced, she began working as a financial comptroller for E Quest Technologies, where she earned $40,000 per year. But, after two years, she was "laid off."

Mrs. Tucker admitted that she made "[v]ery little" effort to find another job. She believed that it was more important for her to stay home with her children, particularly the twin boys, whom she said had "problems emotionally." The boys, she stated, suffered from "outbursts of anger" and had been both physically and verbally abusive towards each other and their sisters. As a result, both boys were on medication and in counseling.

In February 2002 Mr. Tucker's alimony obligation under the parties' settlement agreement terminated. When that occurred, Mr. Tucker voluntarily increased his child support payments to $4,110 per month. Mrs. Tucker remarried, as did Mr. Tucker.

PROCEDURAL HISTORY

On May 31, 2002, Mrs. Tucker filed a motion to modify Mr. Tucker's child support obligation. A hearing on that motion was held before a family division master. The master found that Mr. Tucker's annual income was $399,832 or $33,319 per month. That calculation was based on the master's finding that the average interest Mr. Tucker earned each month from his Prudential Financial accounts was $32,219, in addition to the $1,100 per month he received in Social Security benefits.

Mrs. Tucker was unemployed. Concluding that she had "voluntarily impoverished herself," the master imputed income to her for the purposes of determining her share of the child support obligation. He found that she could work while the children were in school for a total of thirty-five hours a week and earn $19.23 per hour, the hourly wage she had been paid at E Quest Technologies. He therefore imputed income to her of $35,000 per year or $2,916 per month.

Based on the monthly incomes of the parties, the master found that Mr. Tucker's percentage of the parties' combined monthly income was 92% while Mrs. Tucker's was 8%. Because the parties' total monthly income exceeded the child support guidelines, the master "focus[ed] on the reasonable expenses for [the four] children in order to determine the appropriate amount of child support." After finding that the reasonable monthly expenses of the children totaled $6,367, the master applied Mr. Tucker's percentage of the parties' combined monthly income to that amount and concluded that Mr. Tucker should pay $5,860 per month in child support. The master then made the payment of that monthly amount retroactive to the date the motion to modify was filed, credited Mr. Tucker with the child support payments he had made during that time, and determined that he owed a total of $14,000 in child support. The master also recommended that Mr. Tucker be ordered to pay $5,000 of Mrs. Tucker's attorney's fees.

Both parties filed exceptions to the master's report. Mr. Tucker excepted to the following findings:

(1) That "income for the defendant [is] $32,219.00 per month" not including payments from Social Security; and,

(2) that Defendant "extrapolating from the child support guidelines would not take into consideration the additional expenses for activities and lifestyle which would be enjoyed by the children in the case sub judice; " and,

(3) that "reasonable monthly expenses for the children [are] $6,367.00 [per month];" and,

(4) that Defendant pay monthly child support in the amount of $5,860.00; and,

(5) that Defendant pay "92% of all non-reimbursed counseling fees for the minor child Brandon;" and,

(6) that Defendant be required to pay an arrearage of $14,000.00; and,

(7) that Defendant "pay to the plaintiff as and for contribution towards attorney's fees the sum of $5,000.00"; and,

(8) the Defendant receive no credit for Social Security benefits paid directly to the Plaintiff for the benefit of the minor children.

Mrs. Tucker excepted only to the master's recommendation that Mr. Tucker be required to contribute $5,000 towards her attorney's fees. She argued that Mr. Tucker should be required to pay all of her attorney's fees, which totaled $9,740.

The circuit court held a hearing to consider the exceptions to the master's report. The court ultimately agreed with most of the master's report, but opined that the Social Security benefits paid to Mrs. Tucker on behalf of the children could not "simply be ignored." Declaring that the benefits either had to be deducted from the children's monthly expenses or added to Mrs. Tucker's monthly income, the court added the benefits to Mrs. Tucker's monthly income for "consistency" because the Social Security benefits paid to Mr Tucker had been added to his income. It imputed to Mrs. Tucker $2,916 plus $1,100 in Social Security benefits, for a total of $4,016. Recalculating each party's respective percentage of the parties' total income, it attributed 89% of that income to Mr. Tucker and 11% to Mrs. Tucker.

The circuit court applied those percentages to the children's monthly expenses. After determining that the children's expenses were $6,257 per month,⁴ the court ordered Mr. Tucker to pay $5,569 of that figure in child support each month. It then made those monthly payments retroactive to the date Mrs. Tucker filed her motion to modify. That created an arrearage. After taking into consideration the support Mr. Tucker had paid during that time, the court determined that there was an arrearage of $16,049.

DISCUSSION

I.

Mr. Tucker contends that the circuit court erred in adding the children's Social Security benefits to Mrs. Tucker's income. To treat the Social Security benefits as Mrs. Tucker's income conflicts with the statutory definition of income, Mr. Tucker claims. Such an approach, he argues, has been "expressly rejected by this Court."

Initially, we note that, under Maryland law, "[t]he court may modify a child support award ... upon a showing of a material change of circumstance." Md. Code (1984, 1999 Repl.Vol.), § 12-104(a) of the Family Law Article ("FL"). And the question of whether to modify an award of child support "is left to the sound discretion of the trial court, so long as the discretion was not arbitrarily used or based on incorrect...