Mitchinson v. Mitchinson

Mitchinson v. Mitchinson (2001-147); 173 Vt. 483; 788 A.2d 23

[Filed 29-Oct-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-147

                             OCTOBER TERM, 2001


Paula Mitchinson	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Bennington Family Court
                                       }	
Francis Mitchinson	               }
                                       }	DOCKET NO. 332-10-95 Bndm

                                                Trial Judge: David A. Howard

             In the above-entitled cause, the Clerk will enter:


       Defendant husband appeals from an order of the Bennington Family Court
  affirming a  magistrate's decision to modify child support payments.  On
  appeal, husband claims that, for  purposes of the child support guideline
  calculation, the family court's inclusion of business travel  expense
  reimbursements in his gross income is error under 15 V.S.A. §
  653(5)(A)(ii).  We agree and  accordingly reverse and remand for
  recalculation of husband's child support obligation.

       Husband and wife were divorced in 1996.  They are parents of three
  children, Angela, Brodie,  and Amber.  A 1996 order granted custody of
  Amber and Angela to wife and granted custody of  Brodie to husband.  Once
  Angela reached the age of majority and graduated from high school in  1999,
  husband moved for a modification to the existing 1996 child support order. 
  The parties  presented evidence over the course of four hearings in support
  of the motion to modify.  Following  the parties' testimony, in September
  2000, the magistrate ordered the husband's child support  payments reduced.

       When calculating husband's revised child support obligation, the
  magistrate included in  husband's gross income $531.00 per month of
  regularly paid business travel reimbursements.  In his  financial
  disclosure to the court, husband did not separate personal travel expenses
  from business  travel expenses under the general heading travel expenses. 
  The magistrate reasoned that including  the reimbursements in gross income
  for purposes of the calculation would set off the expenses  included in
  husband's total disclosed travel expenses.  The magistrate concluded as a
  matter of law,  therefore, that under 15 V.S.A. § 653(5)(A)(ii), the
  payments must be included in gross income  because they reduced husband's
  personal living expenses.

       Husband appealed the magistrate's order to Bennington Family Court,
  where the court affirmed  the magistrate's order in all respects.  Husband
  appeals from the family court decision, arguing that  inclusion of the
  reimbursements in gross income was an erroneous conclusion of law.  We 
  review  questions of law de novo.  See Thompson v. Dewey's South Royalton,
  Inc., 169 Vt. 274, 276, 733 A.2d 65, 67 (1999).

 

  Pursuant to 15 V.S.A. § 654, the Secretary of Human Services has
  promulgated child support  guidelines, 4A Code of Vermont Rules § 13 161
  001-1 through 23, which are ordinarily used in  calculating child support
  obligations.  The guidelines are based on the combined available income of 
  the parents, 15 V.S.A. § 654.  Available income is gross income less
  certain preexisting support  obligations, child healthcare costs, and
  certain state and federal income tax adjustments, 15 V.S.A.  § 653(1), and
  gross income includes "expense reimbursements or in-kind payments received
  by a  parent in the course of employment . . . if they reduce personal
  living expenses," 15 V.S.A. §  653(5)(A)(ii) (emphasis added).  Where a
  parent is neither self-employed nor a business proprietor,  ordinary
  expenses, including travel, play no part in this calculation.  See 15
  V.S.A. § 653(5)(D).

       The court has some discretion to depart from the support guidelines if
  it finds that an order  based on the guidelines would be inequitable.  15
  V.S.A. § 659(a).  Once it departs from the  guidelines the court is not
  required to follow any formula and may consider any expenses it finds 
  relevant to determining an equitable support obligation.  See Harris v.
  Harris, 168 Vt. 13, 23, 714 A.2d 626, 633 (1998).  Here, wife requested
  that the court depart from the support guidelines, but the  court declined
  to do so.  Additionally, the court found that husband was currently
  employed by a  pharmacy in Rutland, and not self-employed.  Therefore, the
  court was precluded from considering  husband's travel expenses in
  calculating husband's support obligation under the guidelines.

       The court erred when it included husband's travel expense
  reimbursements in his gross  income.  Nothing in the record below shows
  that the reimbursements reduced husband's personal  living expenses.  The
  reimbursements are for business travel expenses for which husband has
  already  paid, and not personal travel; therefore, they do not reduce
  husband's personal living expenses.

       Reversed and remanded for proceedings consistent with this opinion.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associaate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice