Harris v. Harris

Annotate this Case

Harris v. Harris (96-389); 168 Vt. 13; 714 A.2d 626

[Filed 8-May-1998]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-389

Peter Q. Harris Supreme Court

On Appeal from
v. Windsor Family Court

Bonnie L. Harris March Term, 1997

Marilyn S. Skoglund, J.

Martha M. Davis, Windsor, for plaintiff-appellant

Emily S. Davis, Joanne M. Ertel, and Todd C. Steadman of Black, Black
& Davis, White River Junction, for defendant-appellee

PRESENT: Amestoy, C.J., Gibson, Dooley and Morse, JJ., and Allen,
C.J. (Ret.), Specially Assigned

AMESTOY, C.J. Father appeals from a family court order that upheld
the magistrate's determination of his child support obligation. He claims
that there has been no change in circumstances as required by 15 V.S.A. §
660(a) prior to modifying a child support order. He also argues that the
magistrate abused her discretion by (1) establishing child support under 15
V.S.A. § 656(d) (where combined available income exceeds guidelines)
without extrapolating from the guidelines, (2) ordering child support that
exceeds the stated needs of the children, and (3) awarding arrearages.
Further, he maintains that the magistrate had no jurisdiction to award
attorney's fees. Mother cross-appeals, claiming that the magistrate abused
her discretion by denying mother post-evidentiary-hearing attorney's fees
when she awarded all other legal fees. We affirm in all respects.

The parties divorced in 1988. The final divorce order granted mother
sole physical parental rights and responsibilities of the parties' three
minor children and ordered father to pay $1,378.61 per month to mother in
child support for the first year. The child support obligation

was calculated under the child support guidelines and was to be
recalculated in 1989, 1990 and every two years thereafter. The order
specified the method to compute child support in the future, including when
the parties' combined monthly gross income exceeds the incomes in the child
support guidelines. The final order also provided that all disputes
arising under any of its provisions would be resolved by
alternative-dispute-resolution procedures detailed in the order.

In 1990, the parties submitted the matter of child support to an
arbitrator who calculated father's monthly obligation to be $1,984.44 under
the 1990 amended child support guidelines. The arbitrator also modified the
final divorce order by detailing new procedures for determining future
child support obligations under the 1990 guidelines and when the parties'
combined available income exceeds the guidelines. After 1990, the parties
never agreed on the child support obligation and never had the dispute
resolved again by arbitration. In 1994, mother moved in family court to
modify child support.

In February 1995, the family court concluded that there had been
substantial and unanticipated material changes in circumstances since the
final divorce order in 1988. The court found that the
alternative-dispute-resolution provision of the final order did not work
for recalculating child support because the parties were unable to
cooperate and father had not acted in good faith under the provision. The
court further found an unanticipated change in circumstances in the
creation of the family court and the office of the magistrate, which was
specifically designed to determine child support issues. Accordingly, the
court modified the 1988 final divorce order by ordering that disputes
regarding child support be submitted to the magistrate rather than be
subject to the alternative-dispute-resolution provision of the final order.
The court concluded that it was in the children's best interest for support
to be reviewed and, if necessary, recalculated pursuant to applicable
statutes.

Following an evidentiary hearing, the magistrate issued oral findings
and conclusions of law on October 4, 1995, which we briefly summarize.
Father, who is a physician, earned $189,367 from employment in 1994, and
mother, who is a teacher, earned $20,164.89. Father paid mother $6,000 per
year in spousal maintenance and $20,549.16 (12 x $1,712.43) per year

in child support. The magistrate concluded that mother was unable to
support the children at the standard of living the children would have
enjoyed had the parties remained together. See 15 V.S.A. §§ 650, 654
(child support should approximate standard of living children would enjoy
if parents lived together). Further, the magistrate determined that she
should set the child support under 15 V.S.A. § 656(d) (use of discretion)
because she believed that the parties' combined monthly available income
exceeded the uppermost level of the guidelines.

On November 16, 1995, the magistrate issued an order establishing
child support from the date of mother's motion to modify in February 1994
until the parties' eldest child reached age eighteen in June 1994 at
$3,682.15 per month (24% of father's gross income). From June 1994 until
August 1996, when the second child reached age eighteen, the order set
child support at $3,221.88 per month (21% of father's gross income). From
August 1996 until the youngest child reaches age eighteen, the order set
child support at 18% of father's gross income. She concluded that this
system of determining child support will ensure that the custodial parent
has adequate funds to support the children in a lifestyle that they should
enjoy year-round, not simply during visitation with their father. The
magistrate also calculated arrearages and ordered father to pay mother's
attorney's fees of $4,521.60.

Father appealed to the family court, which affirmed the decision of
the magistrate. He now appeals from the decision of the family court.
Mother cross-appeals the magistrate's decision to award her less than all
of her attorney's fees.

Father first claims that there was no showing before the magistrate of
a real, substantial and unanticipated change of circumstances, necessary
under 15 V.S.A. § 660(a) to modify the child support obligation. Section
660(a) states that "upon a showing of a real, substantial and unanticipated
change of circumstances, the court may annul, vary or modify a child
support order, whether or not the order is based upon a stipulation or
agreement." A change in circumstances is a jurisdictional prerequisite to
modification of a child support order. McCormick v. McCormick, 150 Vt. 431,
436, 553 A.2d 1098, 1101 (1988).

Although father challenges the magistrate's finding of changed
circumstances, it was the family court's prior February 1995 decision that
found the jurisdictional prerequisite. The court found that the father had
not acted in good faith in carrying out the provisions of the 1988 order
relating to child support recalculation. We agree that father's bad faith
in failing to use the alternative-dispute-resolution procedures mandated in
the 1988 order constitutes a change in circumstances sufficient to confer
jurisdiction to modify the previous order. Cf. Galbis v. Nadal, 626 A.2d 26, 28 (D.C. 1993) (father's unilateral actions in disregard of court order
constituted changed circumstances for purposes of modifying custody
order); Babka v. Babka, 452 N.W.2d 286, 290 (Neb. 1990) (petitioner's
unilateral action in claiming dependency tax exemptions contrary to
parties' prior agreement and action was material change in circumstances).
Consequently, the magistrate's finding of changed circumstances was
unnecessary; this finding had already been made before remand from the
family court, in a decision that father did not appeal.

The court also found that the creation of the family court and the
office of the magistrate, along with the new statutory framework for
calculating child support, constituted an unanticipated change in
circumstances. See Schmitt v. Schmitt, 477 N.W.2d 563, 566 (Neb. 1991)
(adoption of child support guidelines constituted material change in
circumstances sufficient to justify modification). We need not decide
whether this change in circumstances also satisfies 15 V.S.A. § 660(a).
One unanticipated change in circumstances is sufficient to confer
jurisdiction to modify the child support order.

II.

Generally, once the jurisdictional threshold of changed circumstances
has been met, the court must calculate the parties' combined available
income. "Available income" is defined as gross income minus certain
deductions; those relevant in this case would be spousal support, health
insurance for the children, FICA taxes, and state and federal income taxes.
See 15 V.S.A. § 653(1). The child support guidelines indicate the amount
that parents living together with such a combined available income
ordinarily spend on their children. See 15 V.S.A. § 654

(secretary of human services shall prescribe such guidelines); Office of
Child Support, Child Support Guidelines § 1002 at 1-5 (1990) (table of
intact family expenditures on children).(FN1) The amount of child support
indicated on the guideline table is presumed to be the total support
obligation of the parents. See 15 V.S.A. § 654. The total support
obligation is divided between the parents in proportion to their respective
available incomes, and the noncustodial parent pays his or her share to the
custodial parent. See id. § 656.

Under the 1990 child support guidelines, the highest combined
available income covered on the table is $11,574.99 per month. Section
656(d) provides, "The court may use its discretion in determining child
support in circumstances where combined available income exceeds the
uppermost levels of the support guidelines[.]" Although father argued
before the magistrate and before the family court that the parties'
combined available income did not exceed the highest guideline level, he
has not raised this issue before us. Here, the premise of father's claim
of error is that the parties' available income exceeds the highest income
in the guidelines.(FN2)

III.

Father's main argument is that the magistrate abused her discretion by
failing to extrapolate from the guidelines after concluding that the
parties' available income exceeded the highest income in the
guidelines.(FN3) He relies, in part, on Smith v. Stewart, 165 Vt. 364, 684 A.2d 265 (1996), in which we outlined the requirements for determining
child support under 15 V.S.A. § 656(d). In Smith, we held that, in
exercising its discretion under § 656(d), the court must consider the
factors specified in § 659(a) (if guideline amount is unfair, court may
adjust child support amount). 165 Vt. at 372, 684 A.2d at 270. "As long
as the court considers the statutory factors, makes adequate findings and
explains its reasoning in determining the support obligation, its
discretion is not limited to adopt or avoid a particular methodology." Id.
The only other requirement under § 656(d) is that the court's decision must
be consistent with the principles behind the guidelines. See id. Thus, we
did not reject extrapolation from the guidelines, but we do not require the
court to extrapolate either.

The statute does not require a particular methodology; accordingly,
there was no abuse of discretion in declining to adopt the method of
extrapolation. See Voishan v. Palma, 609 A.2d 319, 326 (Md. 1992)
(legislature did not intend to limit judge's discretion where income
exceeds guidelines by requiring mechanical extrapolation); Nash v. Mulle,
846 S.W.2d 803, 806 (Tenn. 1993) (where obligor's income exceeds
guidelines, court is not limited to applying guideline percentages but
retains discretion to set obligation on case-by-case basis).

Father contends that the court should be required to extrapolate from
the guidelines because child support orders would then be more consistent
with the principles underlying the guidelines. The main purpose of the
guidelines is to ensure that children enjoy the same standard of living
they would enjoy if their parents were living together. See 15 V.S.A. §
650 (legislative purpose is that child support should reflect standard of
living child would have enjoyed if marriage had not dissolved); id. § 654
(guidelines shall be based on concept that children should receive same
proportion of parental income after separation as they would if parents
were living together). The Legislature also intended the guidelines to
improve the efficiency of child support adjudication and to eliminate
discrepancies in awards for children in similar circumstances. Smith, 165
Vt. at 367, 684 A.2d at 267. In this case, the magistrate's order
corresponds to all three purposes.

Most importantly, the magistrate found that mother was unable to
support the children at the same standard of living they would have enjoyed
had the family remained intact. The disparity between the children's
lifestyle in the two parties' homes was apparent. For example, the
magistrate found that father spends an average of $22 per day per child for
food, whereas mother spends an average of about $9 per day per child. Had
the family been living together, she found, they would be taking annual
vacations, going out to eat more frequently than an average income
household and enjoying a lifestyle mother was unable to afford. The
magistrate explained that the new child support order provided mother with
adequate resources to support the minor children in a lifestyle they should
enjoy year-round, not simply during visitation with father. See Nash, 846 S.W.2d at 805 (one of primary goals of guidelines is to allow child of
wealthy parent to share in very high standard of living); Bagley v. Bagley,
632 A.2d 229, 239 (Md. Ct. Spec. App. 1993) (children of affluent
noncustodial parent are entitled benefits of affluent standard of living).

Second, the method of calculating child support the magistrate adopted
was specifically designed to improve the efficiency of child support
adjudication by basing the child support obligation on father's gross
income. Father contends that the statute mandates that child support

obligations be based on combined available income. Under 15 V.S.A. §
656(d), the court may use its discretion to determine child support "where
combined available income exceeds the uppermost levels of the support
guideline[s]." (Emphasis added.) Accordingly, the court must calculate
the parties' available income to determine if this section applies;
however, there is no statutory requirement that child support be calculated
based on available income once the court determines that the available
income exceeds the guidelines.

Here, the magistrate explained at length that calculating father's
available income would be difficult for the parties because father has a
combination of W-2 wage income, self-employed consulting income and income
from joint spousal investments. His state tax burden in New Jersey would
create additional disputes. The fact that father tried to present an
expert witness on the issue of his available income only emphasizes the
difficulty the parties would have in determining the future child support
obligation on this basis. The magistrate concluded that basing child
support on available income (1) would be contrary to the purpose of the
child support guidelines in providing a predictable and easy method for
parents to review child support on an annual basis, and (2) would involve
the parties in year after year of litigation. Accordingly, the magistrate
designed a method of calculation to prevent future litigation, which she
found had been painful and expensive for the family. That litigation has
not ended may demonstrate that the magistrate gave the parties too much
credit for civility, but it does not demonstrate abuse of discretion.

The third purpose of the guidelines is to eliminate discrepancies
between child support orders. Father argues that, without requiring
extrapolation from the guideline tables, orders will be inconsistent, and
similarly situated obligors will be treated differently. He claims that it
is inequitable, for example, to require him to pay 21% of his gross income
to support two children when the high end of the guidelines calls for 19%
of the family's combined available income.

Obviously, reducing discrepancies between child support orders is more
readily achievable when the guidelines apply than when they do not. And
child support orders would be more certain and consistent if the guidelines
applied to more cases or if extrapolation were

required. Other states have adopted statutes that give less discretion to
courts, or at least provide more guidance to courts, than the Vermont
statute. See, e.g., In re Marriage of Patterson, 920 P.2d 450, 457 (Kan.
Ct. App. 1996) (guideline formula for extrapolation does not create
rebuttable presumption but court must consider extrapolation amount in
exercising discretion); Schultz v. Schultz, 675 N.E.2d 55, 59 (Ohio Ct.
App. 1996) (presumption is that child support is not less than high-end
guideline percentage of parents' income); Archer v. Archer, 813 P.2d 1059,
1061 (Okla. Ct. App. 1991) (minimum child support order for high-income
parents is high end of guideline); Stringer v. Brandt, 877 P.2d 100, 102
(Or. Ct. App. 1994) (guidelines set presumptive cap on child support for
high-income parents).

Unlike the statutes in those states, § 656(d) provides no presumptive
child support minimum, maximum, or fixed amount. Our Legislature created a
system where the magistrate has greater discretion in determining child
support when the noncustodial parent is wealthy. Smith, 165 Vt. at 368-69,
684 A.2d at 268. And we have previously upheld § 656(d) child support
orders that diverge completely from a guideline extrapolation where the
evidence supports such an order. See, e.g., C.D. v. N.M., 160 Vt. 495,
499-501, 631 A.2d 848, 851-52 (1993) (although noncustodial parent's income
was over $90,000 per year, court ordered nominal child support because
children's income exceeded their need).

Here, even after paying maintenance and child support, father lives on
more than twice as much as mother, who is responsible for supporting two
children at the standard of living they would have enjoyed had the marriage
not been dissolved. There is no error in ordering child support that
exceeds an extrapolation from the guidelines in such circumstances, and
similarly situated obligors are treated similarly. See, e.g., Voishan, 609 A.2d at 326 (awarding more than the extrapolation amount where obligor's
income was more than four times that of obligee); Ochs v. Nelson, 538 N.W.2d 527, 531 (S.D. 1995) (trial court has discretion to adjust support
so that child could partake in some of father's high standard of living
while with mother); Nash, 846 S.W.2d at 805 (goal that child share in
parent's higher standard of living becomes significant when one parent has
vastly greater resources than other).

We conclude that the magistrate's decision complied with all the Smith
requirements. In assessing the children's need and the parents' ability to
pay, the magistrate considered the applicable statutory factors, made
adequate findings and explained her reasoning. She appropriately exercised
her independent judgment pursuant to statutory authority and the guideline
principles.

IV.

Father next argues that, even if the magistrate has the discretion to
fashion a child support order without extrapolating from the guidelines,
she abused that discretion by (a) ordering child support that exceeds the
needs of the children, (b) failing to divide the child support obligation
between the parties as required by 15 V.S.A. § 656(a), and (c) basing child
support obligations for 1994, 1995 and part of 1996 on father's 1994 tax
return. We take each of those claimed errors in turn.

Father argues that the magistrate abused her discretion by ordering
child support that exceeds the needs of the children. At the hearing,
mother stated that she needed $5,409 monthly to support the two remaining
minor children. The magistrate concluded that her monthly gross income was
$2,189.76, leaving a difference of $3,219.24. She ordered father to pay
$3,221 in support for the two children, $1.76 more than requested. Father
claims that, based on mother's expenditures at the time of the hearing,
mother needed a total of only $3,989 monthly. Essentially, he argues that
because the children were living on less than requested, they really only
needed that lesser amount.

The fact that mother was able to meet the basic needs of the children
on less support than she requested "does not mean that [the children] do
not have needs that should be addressed by a further increase in child
support." Smith, 165 Vt. at 369, 684 A.2d at 268. The term "need" refers
to the general standard of living of the family. See id. "Children are
not expected to live at a minimal level of comfort while one of their
parents enjoys a luxury lifestyle." Id. They "are entitled to a part of
the `fruits of one parent's good fortune after a divorce.'" Id. (quoting

In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo. 1995)). Reasonable
needs of affluent children may include items that would be frivolous for
children of less-well-off parents. See id. Accordingly, we find no abuse
of discretion in ordering support sufficient to meet the needs of the
children as presented by the evidence as opposed to support they had been
able to live on in the past. See Galbis, 626 A.2d at 31 (child's needs
should not be interpreted so narrowly as to deprive child of quality of
life enjoyed by noncustodial parent); Bagley, 632 A.2d at 239 (children are
entitled to every expense reasonable for a child of affluent parent).

Father argues that the magistrate erred by failing to divide the child
support obligation between the parents as required by 15 V.S.A. § 656(a),
and by specifically excluding from consideration the first $40,000 of
mother's income. We find no error. In cases where the obligation is not
established from the guideline table, there is no formula for calculating
or dividing child support between the parents. See C.D., 160 Vt. at 500,
631 A.2d at 851 (considering factors and setting nominal child support).

Here, the magistrate considered mother's income as required, see 15
V.S.A. § 659(a)(2) (financial resources of custodial parent), and
determined that the children were receiving a fair share of her income
because she is the custodial parent and is maintaining a home for them. As
long as mother's income remains below $40,000, the magistrate declined to
include it in the equation to determine father's obligation. The order
also excludes up to $40,000 of father's income earned from consulting to
allow him to contribute to the children's college educations. Thus,
although the equation to determine father's obligation does not include the
first $40,000 of mother's income, this income was appropriately considered
in computing the parental support obligations. See 15 V.S.A. § 656(d).

Father also argues that the magistrate erred by basing the child
support obligation for 1994, 1995 and part of 1996 on father's 1994 tax
return. He claims that the undisputed testimony was that his 1995 salary
would be less than his 1994 salary. While this testimony may

have been undisputed, the magistrate clearly found it not credible as she
found that father's income would continue to grow after 1994.
Consequently, the 1995 child support obligation should have been based on
gross income greater than indicated on the 1994 tax return. Nonetheless,
she relied on the 1994 tax return because it was the most accurate and
credible evidence before her. Thus, any error that occurred was in
father's favor. Although not part of the record in this appeal, a
subsequent order indicates that the magistrate's prediction was accurate
and that father's 1995 wage income was substantially higher, not lower,
than the year before.

Next, father contends that the magistrate abused her discretion by
ordering the new child support obligation effective from the date that
mother filed the motion to modify and then awarding over $30,000 in
arrearages. Modification of a child support order may take effect at any
time on or after the filing date of the motion to modify at the discretion
of the trial court. Towne v. Towne, 150 Vt. 286, 288, 552 A.2d 404, 405
(1988). We review this determination only for abuse of discretion. See
id. Here, the magistrate considered the parties' financial circumstances
in 1994 and 1995 and the standard of living the children would have enjoyed
had the parties remained together. There was no abuse of discretion in
ordering the modification to take effect as of the February 1994 filing
date.

Father maintains that mother is unjustly enriched because she had not
been spending this amount up to the date of the hearing. As we stated in
Smith, "It would be unreasonable to expect [mother] to spend more money on
the children in anticipation of its coerced receipt from [father]." 165
Vt. at 369, 684 A.2d at 269. Father also claims that the award of
arrearages was an abuse of discretion because there was no way he could
have predicted such a deviation from the guidelines. He cites no authority
and makes no argument to support this claim; thus, we need not consider it.
KPC Corp. v. Book Press, Inc., 161 Vt. 145, 152, 636 A.2d 325, 329 (1993)
(Court need not consider assertion in brief that was unaccompanied by
facts, law or reasoning).

VI.

Father argues that the magistrate has no statutory authority to award
attorney's fees, and that, even if authority exists, the facts in this case
do not justify such an award. Neither the family court nor the office of
the magistrate is explicitly authorized by rule or statute to grant
attorney's fees. Nonetheless, we have long held that trial courts may make
such an award. See, e.g., Loeb v. Loeb, 120 Vt. 489, 496-97, 144 A.2d 825,
830 (1958) (although statute fails to explicitly provide for award of
attorney's fees in action to modify child support, it is understood to
imply provisions necessary to effectuate its object). Absent an award of
attorney's fees, a "child might be deprived of the very protection which
the statute seeks to afford her." Id. at 497, 144 A.2d at 830.

The trial in child support proceedings is generally before the
magistrate. The office of the magistrate has jurisdiction to hear and
dispose of "proceedings for the establishment, modification and enforcement
of child support." 4 V.S.A. § 461(a)(1). The family court has original
jurisdiction over child support issues, only upon motion, under certain
limited circumstances listed in 4 V.S.A. §§ 462, 463. See also V.R.F.P.
4(q) (except as provided by 4 V.S.A. §§ 462, 463 and V.R.F.P. 4(o), "a
magistrate shall hear and determine all proceedings to establish or modify
child support"). The family court also hears appeals on the record from
decisions of the magistrate. 4 V.S.A. § 465.

"The primary consideration in an award of attorney's fees is the
ability of the supporting party to pay and the financial needs of the party
receiving the award." Smith, 165 Vt. at 375, 684 A.2d at 272. All of the
evidence to determine the financial circumstances of the parties was before
the magistrate, as it was necessary to ascertain the child support
obligation. We see no reason to require the parties to repeat this trial
before the family court for the purpose of awarding attorney's fees. Cf.
Ely v. Ely, 139 Vt. 238, 242, 427 A.2d 361, 364 (1981) (divorce and similar
actions involving financial circumstances of the parties obviate necessity
of separate hearing on issue of attorney's fees). We therefore hold that a
magistrate has the authority to award attorney's fees.

Father next argues that the facts in this case do not justify an award
of attorney's fees, and mother cross-appeals, claiming that the magistrate
abused her discretion by arbitrarily denying attorney's fees for some of
her necessary legal services. The record indicates that the magistrate
properly considered mother's need and father's ability to pay attorney's
fees. Given that father's income was so much greater than mother's, we
conclude that the award was within the discretion of the magistrate. We
also reject mother's contention that the magistrate erred by failing to
award her all her legal fees. Mother's income is not so minimal that she
is unable to bear any of the cost.

Mother also requests attorney fees of $4,101.20 for this appeal.
V.R.A.P. 39(f) provides, "Claims for attorney's fees and other nontaxable
expenses arising on an appeal shall be made by motion in the trial court
pursuant to Rule 54(d)(2) of the Vermont Rules of Civil Procedure within 14
days after issuance of the mandate in accordance with Rule 41(a) of these
rules." Accordingly, we remand this issue.

Affirmed; mother's request for attorney's fees for this appeal is
remanded.

FOR THE COURT:

_______________________________________
Chief Justice

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Footnotes

FN1. New guidelines were issued in 1996 but we refer to the 1990
guidelines, which were in effect for the years involved in this appeal.

FN2. Although the magistrate's findings do not include a calculation
of combined available income, she concluded that "the family's combined
monthly available income is over the existing limit already." Moreover,
father's brief estimates his 1994 monthly available income was $10,200.
Mother's available income was $1,816.20 with three children. The
magistrate's conclusion that the parties combined available income exceeded
the guidelines is therefore supported by the record before us.

FN3. The dissent maintains that we should enforce the child support
provision in the 1988 divorce order. Father argued at oral argument that
the magistrate was required to apply a provision in the 1988 divorce order,
which provided for extrapolation from the guidelines when the parties'
gross income exceeded the highest guideline amount. Because this issue was
not raised until oral argument, we need not reach it. Guiel v. Guiel, 165
Vt. 584, 585, 682 A.2d 957, 959 n.2 (1996) (mem.) (arguments raised for the
first time at oral argument will not be considered).

In any event, even if father had raised the issue, the 1988 child
support provision had been modified by the 1990 stipulation and the 1990
arbitrator's decision. Father never argued for enforcement of the
arbitrator's order, which abandoned the extrapolation formula and ordered a
straight 23.7% of the parties' combined available income exceeding the
highest guideline amount, apparently regardless of the number of children
below the age of eighteen. Indeed, the arbitrator's method of calculation
is contrary to father's argument that extrapolation is required. Because
father never argued for enforcement of the arbitrator's order, we also
reject the dissent's argument that we should enforce this order.

The dissent also argues that the 1995 family court order modified only
the arbitration provision of the divorce order, not the child support
provision. The child support provision had already been modified by the
arbitrator, however, and the 1995 family court order specifically states:
"the parties should be aware that this Court is not simply substituting the
magistrate for the arbitrator. . . . [T]he best interest of the children
requires that the statutory process be available to protect the children's
rights to support. That process places all issues of child support within
the jurisdiction of the Magistrate . . . ."

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Concurring

No. 96-389

Peter Q. Harris Supreme Court

On Appeal from
v. Windsor Family Court

Bonnie L. Harris March Term, 1997

Marilyn S. Skoglund, J.

Martha M. Davis, Windsor, for plaintiff-appellant

Emily S. Davis, Joanne M. Ertel, and Todd C. Steadman of Black, Black
& Davis, White River Junction, for defendant-appellee

PRESENT: Amestoy, C.J., Gibson, Dooley, and Morse, JJ., and Allen,
C.J. (Ret.), Specially Assigned

MORSE, J., concurring. This case is proof of the old saw, "lawyers
argue how many angels can dance on the head of a pin." In the words of
Justice Dooley's dissent, "It is easy in this contentious litigation to get
lost in the underbrush." Post, at 1. Yet, as I read the majority and
dissent, it appears to me that the "underbrush" becomes a tangled thicket.

I fear the judicial debate here will make child support determinations
more of a chore than necessary and, while I agree with the Court's result,
I write separately to suggest we relax such painstaking oversight of child
support decisions. Reasonable discretion was used in this case and family
courts need not wander through labyrinths to determine child support.

The controlling facts are simple. Father made $190,000 a year, nearly
ten times the income of mother. Mother annually earned $20,000, received
an additional $6,000 in spousal maintenance, and $20,000 in child support
for three children, for a total of less than $50,000 a year, or four times
less than father. Despite the parties' initial stipulations, the
calculation of child support has been a protracted and acrimonious source
of contention. In addition, resort

to the alternative-dispute-resolution process has failed to settle their
disputes. The need for judicial intervention was apparent.

The magistrate, noting the significant disparity in the parties'
respective financial resources as well as their demonstrated inability to
establish and abide by a method for calculating support, devised a
simplified calculation method aimed at providing the children with a better
standard of living when living with mother.

I believe the magistrate's award is a reasonable exercise of
discretion under 15 V.S.A. § 656(d). The same result could have been
accomplished, in my opinion, by resort to the maintenance supplement
provision of Vermont's statutory scheme, 15 V.S.A. § 661(a). This
provision provides:

[T]he court shall order payment of a maintenance supplement to
the custodial parent to correct any disparity in the financial
circumstances of the parties if the court finds that the disparity has
resulted or will result in a lower standard of living for the child
than the child would have if living with the noncustodial parent.

Although § 661(a) lists several factors pertaining to the respective
financial circumstances of the parties to be considered by the court,
including gross income, it requires that only one specific finding be made,
namely a lower standard of living for the child. See Nevitt v. Nevitt, 155
Vt. 391, 397, 584 A.2d 1134, 1138 (1990). The fact that the children here
enjoyed a much higher standard of living when visiting their father is
beyond dispute.

Although the parties' original 1988 Final Order contains a provision
essentially waiving mother's right to supplemental maintenance, we held in
Grimes v. Grimes, 159 Vt. 399, 404-05, 621 A.2d 211, 213-14 (1992), an
agreement cannot conclude the interests of the children, nor remove the
court's continuing jurisdiction over child support. Thus, notwithstanding
the parties' agreement to the contrary, a custodial parent simply cannot
waive the right to supplemental maintenance because the real beneficiaries
of such an award are the children.

I also note that in Grimes we held that the trial court did not err by
concluding that a child support award in excess of the amount calculated
under § 659 must be characterized as

maintenance under § 661, and while this conclusion was not based on the
agreement between the parties, it was based on and fully supported by the
statutory scheme. See id. at 407-08, 621 A.2d at 215. Therefore, even if
the magistrate here calculated an award consistent with the extrapolation
method contained in the original divorce decree, she still would have had
the statutory authority to adjust the amount upward to reflect father's
income so that his children could also benefit from his economic success as
they presumably would have had the marriage not dissolved.

I, too, disagree with the dissent's view that there was not a
sufficient shift in circumstances to justify a modification of the support
obligation. The father's persistent bad faith in undermining mother's
ability to enforce their agreement on child support is reason enough to
eliminate it and substitute a different standard. The "stipulated"
financial package was particularly favorable to father at the expense of
mother's resources to support her children. His bad faith efforts to
undermine that agreed order, in my view, was a refutation of his original
agreement on child support. He cannot, in fairness, discard what he
considers a detriment and keep the benefits.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 96-389

Peter Q. Harris Supreme Court

On Appeal from
v. Windsor Family Court

Bonnie L. Harris March Term, 1997

Marilyn S. Skoglund, J.

Martha M. Davis, Windsor, for plaintiff-appellant

Emily S. Davis, Joanne M. Ertel, and Todd C. Steadman of Black, Black
& Davis, White River Junction, for defendant-appellee

PRESENT: Amestoy, C.J., Gibson, Dooley and Morse, JJ., and Allen,
C.J. (Ret.), Specially Assigned

DOOLEY, J., dissenting. This case went fundamentally off track when
the magistrate ignored an unmodified, stipulated provision of the divorce
order that specified how support would be calculated if the parties' income
exceeded the upper limit of the guidelines. As a result, plaintiff is now
paying a third more in support than the order specified, based on a
calculation rationale that is not consistent with the purposes or operation
of the guidelines. For these reasons, I do not believe the support order
can be affirmed. Nor do I believe that we can employ a new rationale on
appeal to support the family court decision. Accordingly, I dissent from
the Court's plurality opinion and the concurring opinion.(FN1)

It is easy in this contentious litigation to get lost in the
underbrush. It is particularly easy to characterize the case as one of
oppressive conduct inflicted by a high earning father on his children and
their mother, such that he deserves no protection of the law. There are,
however,

important issues of law at stake that transcend the circumstances of the
parties before us. To shed light on these principles, I emphasize what I
believe are the four significant events which should determine our
decision.

In 1988, the Orange County Superior Court issued a divorce order based
on the stipulation of the parties. Paragraph two of the order dealt
extensively with child support. It required plaintiff to pay $1,379 per
month in child support for the ensuing year; specified that the amount was
based on the child support guidelines; described how the calculation was
done; required an annual recalculation by the same method for the next two
years and a biannual recalculation thereafter; and specified the effect of
a child reaching eighteen years of age or completing high school,
"whichever is later." It specifically provided for how the recalculation
would be accomplished if the parties' income exceeded the upper limit of
the guidelines:

If, during any recalculation of child support payments, the
combined monthly gross income (FN2) from the child support obligation
worksheet (line 2) exceeds the last amount listed in the Table of
Intact Family Expenditures, then the parties shall determine the
average percentage of increase in the "guideline amount" for the
last ten levels on the table, and apply that percentage to the amount
by which the combined gross income exceeds that last amount
listed.

To reinforce the methodology employed, the order provided a sample
calculation based on a specified over-guideline income level. Paragraph
ten of the 1988 order specified that any disputes that arise with respect
to the order would be worked out first by discussion, then by mediation and
finally by arbitration.

The second event occurred a year after the divorce order was issued,
when the parties could not agree on the calculation for the first
adjustment to be made to the divorce order. That disagreement resulted in
an amended final order which submitted much of the dispute to an arbitrator
and provided that future support amounts would be determined by a specified

accounting firm under a methodology established by the arbitrator. The
arbitrator did specify a simplified method of making the calculation in
cases where the parties' income exceeded the guidelines:

To the extent that these parties' combined available income
exceeds the guideline figures, 23.7% of such additional income
shall be the additional family expenditure amount. Each party
shall then pay his or her proportional share of the family
expenditure in excess of the guideline amount.

Again, directions were supplied to make the calculations, and they
specifically provided that if the combined income exceeded that provided in
the guideline tables for converting gross income to net income, then "68%"
of gross income was considered to be net. I think it is clear that the
arbitrator did not create a "new" method in this decision, but instead
performed the calculation required by the 1988 order, derived the
appropriate percentage of income for the income above the guideline maximum
and substituted the percentage for the calculation from which it was
derived.(FN3)

The third event was the February 1995 decision of the family court
modifying the initial divorce order. That decision was specific as to what
it modified. It stated:

ORDER

It is hereby ORDERED and ADJUDGED:

1. Paragraph 10 is hereby modified to exclude disputes which arise with
paragraph 2.
2. Dr. Harris's motion for contempt is DENIED.
3. Each party is responsible for his or her own attorney's fees.

Relying on vague language in the family court's discussion of the case, the
Court's opinion states that the family court also modified paragraph two to
eliminate the provision on how to calculate support if the parties' income
is over the guidelines. That conclusion is impossible to reconcile with
the order, which very clearly states that only paragraph ten is modified.
Moreover, no grounds to modify paragraph two were presented to the family
court; defendant's argument was that plaintiff refused to submit to the
alternative-dispute-resolution mechanisms provided in paragraph ten.

The fourth event is the decision of the magistrate, which ignored the
method the parties had agreed upon for determining the support level should
the parties' income exceed the guideline limit. Rather than employing the
agreed-upon formula that used the guideline amount up to the maximum level
and 23.7% of net available income thereafter, she adopted a whole new
method that imposed a much higher support order on plaintiff.

There is no question that the support calculation provisions in the
original divorce order, the amended order and the arbitrator's decision are
valid. As the court's opinion emphasizes, the family court has discretion
in setting support when total income goes beyond the guidelines.

These orders fall well within that discretion. The magistrate and family
court should have enforced these orders; their failure to do so was error.

As I understand it, the plurality opinion has three answers to the
failure to enforce the original orders and calculate support pursuant to
them.(FN4) First, it states that plaintiff failed to raise their
applicability below and cannot do so here. Both in the family court and in
this Court, plaintiff argued in his brief that the magistrate could not
modify the original support order to create an arrearage. Furthermore,
plaintiff argued before the magistrate that there were no grounds to modify
the original order.(FN5) I think this is sufficient preservation to allow us
to consider the issue. The reason why we refuse to address issues for the
first time on appeal -- because the trial court was denied the opportunity
to deal with them, see Duke v. Duke, 140 Vt. 543, 545, 442 A.2d 460, 462
(1982), does not apply where the issue was before both the magistrate and
the trial court at least to resolve the arrearage. In any event,
plaintiff clearly preserved with respect to the arrearage, and the Court
has ignored the argument in affirming the arrearage order.(FN6) Second, the
plurality opinion asserts that (1) the family court had jurisdiction

to modify the method of calculation of the support order in February 1995,
and (2) the family court modified paragraph two by deleting it, and
plaintiff then failed to appeal that order. I set out the order of the
family court above. It explicitly modifies only paragraph ten of the
divorce order. Indeed, the language chosen -- modifying paragraph ten "to
exclude disputes which arise with paragraph 2" -- states clearly that the
court intended that disputes over the amount of child support would
continue to be governed by paragraph two. Moreover, the only grounds for
modification presented and accepted was that the
alternative-dispute-resolution process had broken down. There was no
suggestion of changed circumstances with respect to the support
calculation. See Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677, 679
(1988) (inability of parents to get along did not present change of
circumstances to modify physical custody and visitation order, but created
sufficient change of circumstances to modify award of joint legal rights
and responsibilities order).

It is telling that the magistrate did not rely on a change of
circumstances determination of the family court in deciding to impose a new
support calculation method at variance with paragraph two of the divorce
order. In her oral decision, the magistrate stated:

the court does find [that a] real, substantial and [un]anticipated
[change of] circumstances was supported at the time of filing in
February 4 . . . of the motion to modify, and that at that, the court
finds that the change there is simply the change in the increase of
the plaintiff's income substantially over the last time child support
was reviewed, as well as the subsequent change on June 16, 1994,
when Michael graduated from high school.

Although neither the plurality opinion nor the concurrence address the
merits of this decision, I think it is clear that it is erroneous because
the divorce order explicitly specified the effect of changed income and the
graduation from high school of one of the children.

I am at a loss to see how the vague sentence cited by the plurality
opinion can have any effect on paragraph two, in light of an explicit order
that did not affect that paragraph at all, except to confirm that it would
govern future disputes. The plurality opinion appears to read

the sentence as saying that the magistrate could ignore paragraph two, but
the arbitrator could not. In fact, it probably means the opposite because,
as the court stated, the magistrate is bound "as in all cases, by law," and
the arbitrator probably had more freedom.

Finally, the plurality states that we cannot enforce paragraph two of
the original divorce order because it has been replaced by the arbitrator's
award through the terms of the amended order. At best, this is an argument
for enforcing the arbitrator's award; it does not support a decision to
enforce neither. In any event, the formula stated in the original divorce
order and that stated in the arbitrator's award reach the same result.

I believe there is no justification for deviating from the method of
calculating plaintiff's support obligation to which defendant stipulated
and the court ordered in settlement of the parties' divorce. Since I
cannot conclude that the error is unpreserved, I would reverse and remand
for a child support award consistent with the divorce order.

Even if there were no preexisting order to which this award must
conform, I would reverse the award. As the plurality opinion acknowledges,
we held in Smith v. Stewart, 165 Vt. 364, 372, 684 A.2d 265, 270 (1996),
that any method used for calculating support awards for families with
incomes above the guideline maxima "must reflect the principles behind the
guidelines." In two respects, the child support order on appeal is
inconsistent with the principles behind the guidelines.

The first is that the award is based on plaintiff's gross income
rather than on his net available income. In 1990, the Legislature modified
the calculation of support orders based on parents' income to use
"available income," rather than "gross income." Compare 15 V.S.A. §§
653(1), (9), as added by 1989, No. 220 (Adj. Sess.), § 16 with 15 V.S.A. §§
653(5), (9), as added by 1985, No. 180 (Adj. Sess.), § 1. The purpose of
this change was to give parents the benefit of FICA taxes and state and
federal income taxes before considering income, recognizing that tax
burdens vary even for persons with the same gross income. Thus, the
statute now provides that the "total support obligation" of the parents is
based on the "amounts

derived from the support guideline appropriate to the parties' available
income." 15 V.S.A. § 653(9).

In this case, the magistrate refused to use available income for the
support calculation. Based on the percentage of income established as the
support award, the use of gross income had the effect of increasing
plaintiff's support burden by roughly a third over that established in the
divorce order. Moreover, when two parents have taxable income, the use of
pre-tax income to calculate a support award has the effect of
discriminating against the higher-income parent who normally will be in a
higher tax bracket and pay a higher share of income in taxes.(FN7)

The magistrate's only justification for using gross income was that it
was complicated to determine plaintiff's after-tax income because of his
financial circumstances.(FN8) The Legislature necessarily introduced this
complexity when it required the use of after-tax income amounts. The
magistrate's rationale was wholly inconsistent with a principle of the
guideline system.(FN9)

The second inconsistency is of even greater concern. Although
defendant earned steady income as a teacher, the magistrate ordered that
this income not be considered to the extent it is less than $40,000 per
year. Because defendant's salary is well below the threshold, the order

exempted all her income from consideration.(FN10)

The applicable statute provides that "the total child support
obligation shall be divided between the parents in proportion to their
respective available incomes," id. § 656(a), and requires the noncustodial
parent to pay his or her share to the custodial parent. This is an
essential principle of the guideline system. Indeed, it appears that the
Legislature intended for this subsection to apply at every income level
because it contains fundamental requirements for support orders that are
universally applicable.(FN11)

The only rationale the magistrate gave for ignoring the regular earned
income of defendant is that she also ignored certain intermittent
consulting income of plaintiff. She failed to find the amount of
plaintiff's net consulting income,(FN12) but concluded that it would be
wholly dedicated to the college tuition of the parties' oldest child.
Plaintiff had previously assumed paying this child's tuition above his
support obligation. I believe that the failure to consider

defendant's income was inconsistent with the principle of the guideline
statute and cannot be affirmed.

In 1988, these parties settled the method for calculating child
support, and nothing has changed to make that method unjust or
inappropriate. There is no doubt that these parties have been unable to
get along, and plaintiff bears the brunt of the responsibility for failure
to abide by alternative-dispute-resolution mechanisms that were intended to
work out their differences, cheaply and informally. Unfortunately, the
family court's response was to greatly increase plaintiff's child support
obligation, without justification, rather than enforcing the underlying
order and creating new and effective enforcement methods for the future.
Because I think this response was unjust, and at variance with important
aspects of the child support guideline system the Legislature has adopted,
I dissent.(FN13) I am authorized to state that Justice Allen joins in this
dissent.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. I agree with Part VI of the Court's opinion that the magistrate
has the power to award attorney's fees although I would reverse the award
in this case and remand it for reconsideration in light of the proper
resolution of the merits of the motion to modify child support.

FN2. At the time of the divorce order, child support calculations
were based on the gross incomes of the parents. As discussed in the text,
the Legislature modified the system in 1990 to base support calculations on
available income.

FN3. There is a small variance between the method provided in the
divorce order and the method in the arbitrator's award. The arbitrator's
award required plaintiff to pay 23.7% of his available income for three
children. The divorce order would have required him to pay 24.1% of
available income.

The Court's opinion claims that the arbitrator "abandoned the
extrapolation formula," adding underlining to emphasize the point. It also
finds that the arbitrator's award shows that extrapolation is not required.
The opinion has mischaracterized the arbitrator's award.

There never was an extrapolation order in this case, and the
arbitrator never abandoned an order that never existed. The divorce order
specified that if the combined income of the parties exceeded the guideline
income maximum, a uniform percentage would be applied to the extra income
to determine the amount of it that would go to child support. That
percentage was to be calculated by averaging the percentages specified in
the last ten levels of the guideline table. The arbitrator went to the
tables, made the calculation specified by the divorce order and produced a
uniform percentage of 23.7%.

The Court's opinion also suggests that the arbitrator's decision
deviated from the original support provision by setting a uniform
percentage "regardless of the number of children below the age of
eighteen." The amended final order that submitted most of the dispute to
the arbitrator provided that the recalculation necessary when a child
reached eighteen years of age would be performed by the accounting firm.
Since there was no specified role for the arbitrator in this calculation,
the arbitrator's decision did not discuss the effect of a reduction in the
number of children covered by the support order. The arbitrator's decision
does not deviate from the original support award.

Because the arbitrator's award and the original divorce order produce
the same result, the claim in the Court's opinion that father "never argued
for enforcement of the arbitrator's award" raises a meaningless
technicality.

FN4. The concurrence comes up with a fourth answer -- that there was
a sufficient shift in circumstances to justify modification based on
father's "persistent bad faith." If one agrees with the plurality opinion,
this ground adds nothing because the family court modified the child
support calculation on this basis, and plaintiff never appealed. If,
however, I am right that the family court never modified the child support
calculation provision, the point of the concurrence is irrelevant because
neither the family court nor the magistrate modified the support
calculation on this ground. The court has discretion in determining
whether there has been a change of circumstances, see Gates v. Gates, 9 Vt.
L.W. 65, 66 (March 27, 1998), and we have no idea whether either forum
would have found a change of circumstances to modify the child support
calculation based on the theory in the concurrence. Unless the concurrence
is prepared to hold that the family court was required as a matter of law
to modify the support amount based on its theory, the alternative ground
cannot be used to affirm the magistrate's calculation.

FN5. In his request for findings to the magistrate, plaintiff
proposed a finding that no "real, substantial and unanticipated change of
circumstances existed on February 8, 1994 supporting a modification of
child support pursuant to 15 V.S.A. § 660(a), (b) or (c)."

FN6. The plurality opinion statement that father raised the
applicability of the 1988 order for the first time at oral argument is not
consistent with the record. After explaining the 1988 order, appellant's
initial brief, submitted months before the oral argument, argued that the
magistrate could not modify the support amount based on increases in
plaintiff's income because the divorce decree anticipated changes in income
specified how they would be dealt with.

FN7. The use of gross income also allows the concurrence to claim
that the mother's income was only a quarter of the father's income, even
though the gap in available income was much smaller.

FN8. The arbitrator eliminated this complexity by calculating
plaintiff's available income as a percentage of gross income and requiring
that the percentage, 68%, be used for plaintiff's income in the future. In
view of the parties stipulation to the arbitration order, I believe that
the magistrate could have used that percentage unless it was shown to be
substantially erroneous.

Alternatively, the magistrate could have required the parties to
exchange tax returns so each could determine after-tax income. Although
plaintiff objected to sharing tax returns so as not to disclose the
financial circumstances of his current wife, the returns were produced and
were before the magistrate.

FN9. As the plurality opinion states, the magistrate found that use
of gross income was required by the guideline principle that support
calculation must be easy and predictable. I cannot accept the view,
endorsed by this Court, that a general guideline principle can be used to
override a specific legislative mandate on how to calculate support
obligations.

FN10. At the time of the magistrate's hearing, defendant had begun a
new job paying her $29,000 per year.

FN11. The plurality construes § 656(a) and (d) as exempting cases
where available income exceeds the guideline maxima from the requirement of
(a) that the support obligation be divided based on the respective incomes
of the parents. I believe this construction is wrong. Statutes which are
part of a common scheme, that is, in pari materia, must be read together.
See State v. Fuller, 163 Vt. 523, 527, 660 A.2d 302, 305 (1995) (in pari
materia is a statutory construction technique that should be used in
appropriate cases). Section 656(a) contains it own exceptions, and there
is nothing in its language to suggest that cases under § 656(d) are also
exempt from its mandate. Nor is there any reason to exempt (d) cases from
the mandate of (a). Thus, I believe that § 656(a) requires the mandate to
base the support order on the income of both parties even if their income
exceeds guideline maxima.

In reaching the opposite conclusion, the plurality opinion relies on
an irrelevant provision that allows the family court to deviate from an
amount determined by the guidelines based on a number of factors, including
the financial resources of the custodial parent. 15 V.S.A. § 659(a)(2).
This is not a case involving deviation from a guideline amount.

FN12. The magistrate found that plaintiff's income from consulting
was $15,000 per year, but the money had gone to plaintiff's employer and
did not provide additional income to plaintiff. Plaintiff changed jobs just
before the magistrate's hearing and, in the new employment arrangement,
would be able to keep the consulting income. Plaintiff estimated the
income to be about $23,000 per year with about half of that for expense
reimbursement. The magistrate accepted the gross receipts figure but did
not find how much of that was payment for services.

FN13. I cannot accept Justice Morse's urging that "we relax such
painstaking oversight of child support decisions," Ante at 1, in the
context of this case. As Justice Morse recognized in dissent in Ainsworth
v. Ainsworth, 154 Vt. 103, 117, 574 A.2d 772, 781 (1990), the Legislature
has "constrained" the discretion of the trial court to deviate from the
statutory scheme. Thus, the guideline system is "designed to give child
support determinations a measure of predictability and equality" rather
than basing decisions on the family court's "individual judgment as to what
is fair, given all the facts and circumstances of each case." Id. at 120,
574 A.2d at 782.

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