Miller v. Miller

Miller v. Miller (2004-152); 178 Vt. 273; 882 A.2d 1196

2005 VT 89

[Filed 29-Jul-2005]


       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.


                                 2005 VT 89

                                No. 2004-152
  	

  Jeffrey Miller	                         Supreme Court
  	
                                                 On Appeal from
       v.	                                 Chittenden Family Court


  Megan Miller	                                 December Term, 2004	


  Mark J. Keller, J.

  Jeffrey Miller, Pro Se, Winooski, Plaintiff-Appellee.

  Mary G. Kirkpatrick of Lisman, Webster, Kirkpatrick & Leckerling, P.C.,
    Burlington, for  Defendant-Appellant.

  PRESENT:  Johnson, Skoglund and Reiber,  JJ., and Allen, C.J. (Ret.)
            and Gibson, J. (Ret.), Specially Assigned 

       ¶  1.  JOHNSON, J.   Megan Miller appeals the family court's
  decision denying her an additional-dependent adjustment under 15 V.S.A. §
  656a.  Miller asserts that the family court erred by not allowing her to
  deduct discretionary expenses she spent on her son from June 2003 to the
  present.  We affirm.

       ¶  2.  The parties are the mother and father of an eight-year-old
  child named Cole.  Mother, Megan Miller, has physical custody of Cole. 
  Father, Jeffrey Miller, shares legal custody of Cole and pays child support
  to mother for Cole.  
   
       ¶  3.  Until September 19, 2002, Ryan, mother's child from a prior
  relationship, lived with mother in Vermont.  Because Ryan was living with
  her, mother received a $404 monthly additional-dependent adjustment that
  reduced her available income in the child-support worksheet for Cole, and
  thus increased father's support obligation.  After Ryan moved out of
  mother's home to live with his father Christopher Gogan in Maine, father
  petitioned to modify the child-support order for Cole. Father argued that
  Ryan's move was a real, substantial, and unanticipated change of
  circumstances that made mother ineligible for the additional-dependent
  adjustment.  

       ¶  4.  The magistrate ruled in favor of father in June 2003, holding
  that mother was ineligible for an additional-dependent adjustment because
  mother no longer had a duty to support Ryan.  The magistrate reasoned that
  because Ryan was now living with Gogan in Maine and mother was not
  providing for Ryan's needs on a daily basis, mother had more available
  income to spend on Cole.  Although the magistrate recognized that mother
  provides some support for Ryan by purchasing items that he "needs," the
  magistrate characterized mother's expenditures as "voluntary payments . . .
  made at her sole discretion" because she was not obligated to pay any sums
  for Ryan's benefit by a formal child-support order.  Without the
  additional-dependent adjustment for Ryan, mother's monthly available income
  figure increased, thus reducing father's support obligation for Cole.
   
       ¶  5.  In September 2003, (FN1) mother and Gogan stipulated to their
  parental rights and responsibilities for Ryan.  Gogan assumed sole physical
  custody, while both parents agreed to share legal custody.  As a result of
  the stipulation, mother and Gogan modified their child-support order for
  Ryan.  The October 30, 2003 child-support order stated that mother was
  obligated to pay Gogan $89 per month.  This amount was reduced to $0 to
  settle the parties' claims against each other for unpaid child support
  allegedly owed.  Mother claimed that Gogan did not pay child support when
  Ryan was living with her prior to his move to Maine, and Gogan alleged that
  mother owed arrears for the 2002-2003 year that Ryan lived with him in
  Maine.  In consideration of the arrears, costs mother incurs when she
  travels to Maine to visit Ryan, and the cost of support when Ryan visits
  mother in Vermont, the parties agreed to nullify mother's legal
  child-support obligation.

       ¶  6.  In October 2003, mother moved to modify the magistrate's June
  2003 order seeking to regain an additional-dependent adjustment for money
  she spent on Ryan.  The magistrate denied the motion on December 4, 2003. 
  The magistrate made findings on the amount of time Ryan spent with mother
  in Vermont: two nights in September and October 2003, five nights in
  November 2003, an estimated ten nights in December, and seven nights in
  February and April 2004.  The magistrate also found that mother purchased
  hockey equipment and clothing for Ryan.  Consistent with the previous
  order, the magistrate ruled that the overnights and voluntary expenditures
  on miscellaneous items did not make mother eligible for an adjustment
  because Gogan was still Ryan's primary custodian. 
   
       ¶  7.  Mother appealed both of the magistrate's orders to the family
  court.  The family court affirmed on March 8, 2004, concluding that a
  noncustodial parent, like mother, can claim an adjustment only if the she
  meets "the burden of proving the extent and nature of [her] financial
  responsibility for the additional child."  The court broadened the
  magistrate's test, making it possible for noncustodial parents to be
  eligible for an adjustment upon showing that they have assumed a duty to
  provide for their additional child's needs by spending sums that are
  comparable to the guideline amount on food, housing, and clothing. 
  Applying this standard, the court affirmed the magistrate's decision that
  mother did not demonstrate her eligibility for an adjustment.

       ¶  8.  On appeal, mother contends that the family court erred by not
  allowing her to receive an additional-dependent adjustment for her
  financial contributions to support Ryan, including travel expenses when she
  visits Ryan in Maine, costs incurred when Ryan visits Vermont, and
  miscellaneous items mother purchased for Ryan, such as sports equipment.

       ¶  9.  The issue in this case is whether a noncustodial parent may
  claim an additional-dependent adjustment under 15 V.S.A. § 656a.  We hold
  that noncustodial parents are not eligible for a § 656a income adjustment
  for additional dependents because this section  allows only custodial
  parents who provide primary child support and spend the child-support
  guideline amount to receive an adjustment.  As a noncustodial parent,
  mother is not, therefore, eligible for an additional-dependent adjustment.

       ¶  10.  Whether the family court properly construed § 656a is a
  question of law that we review de novo.  Office of Child Support v. Sholan,
  172 Vt. 619, 620, 782 A.2d 1199, 1202 (2001) (mem.).

       ¶  11.  Section 656a provides that, "[i]n any proceeding to establish
  or modify child support, the total child support obligation for the
  children who are the subject of the support order shall be adjusted if a
  parent is also responsible for the support of additional dependents who are
  not the subject of the support order."  15 V.S.A. § 656a(b).  The statute
  defines "additional dependents" as "any natural and adopted children and
  stepchildren for whom the parent has a duty of support."  Id. § 656a(a). 
  The statute does not define "duty of support," nor does it specify whether
  a noncustodial parent, such as mother, is eligible for the adjustment. 
   
       ¶  12.  In Vermont, child support is controlled by statute.  Section
  654 orders the Secretary of Human Services to prescribe by rule a guideline
  for family courts to determine child-support awards.  The guidelines
  "reflect[] the percent of combined available income which parents living in
  the same household in Vermont ordinarily spend on their children."  Id. §
  654.  As the guidelines are based on what a two-parent household
  hypothetically spends in support, the actual expenditures of each parent
  are irrelevant in calculating support orders under the guidelines.  Family
  courts use the guidelines to determine the total support obligation, then
  divide this amount between the parents based on their respective incomes. 
  The Legislature's primary goal in enacting this uniform system was to make
  child-support awards more predictable.  Ainsworth v. Ainsworth, 154 Vt.
  103, 106, 574 A.2d 772, 775 (1990).
   
       ¶  13.  The Legislature enacted specific provisions to address the
  unique financial situations of parents that the fixed child-support
  guidelines do not recognize.  For example, the Legislature enacted the
  additional-dependent-adjustment statute in 1990 following our decision in
  Ainsworth, 154 Vt. 103, 574 A.2d 772, to ensure that the economic effects
  of additional dependents are considered in establishing child-support
  orders.  Tetreault v. Coon, 167 Vt. 396, 400-01, 708 A.2d 571, 575-76
  (1998).  Prior to the additional-dependent-adjustment statute, parents with
  other child-support obligations could receive an income adjustment only if
  they had a preexisting support order.  15 V.S.A. § 653(1)(A).  Ainsworth
  brought to this Court's attention the insufficiency of the child-support
  statute in addressing the costs of other dependents.  In Ainsworth, the
  issue was whether the family court could deviate from the child-support
  guidelines under § 659 when it would be inequitable to require a parent
  providing support to a child of a second family, to pay the full guideline
  amount to support a child from a first marriage.  Ainsworth, 154 Vt. at
  104, 574 A.2d  at 773.  We held that family courts could deviate from the
  guideline amount to consider the expenses of a custodial parent providing
  for children of a second family.   Id. at 112, 574 A.2d  at 777-78.  We
  reached this conclusion by analyzing the statutory purposes of the
  child-support guidelines.  Because we found that custodial parents spend
  the guideline amount to support children who live with them, we concluded
  that the family court could base the child-support deduction on the
  guideline and would not need to deduct an arbitrary amount.  See id. at
  111, 574 A.2d  at 776 (paralleling the expense obligations of parents under
  court order to parents providing for second families).  Thus, we found that
  our decision would not undermine the Legislature's goals of limiting
  judicial discretion and making child-support awards more predictable.  See
  id. at 110-11, 574 A.2d  at 777.

       ¶  14.  We again rely on the statutory language and purposes of the
  child-support guidelines in this case.  In construing a statute, our
  paramount goal is to discern and implement the intent of the Legislature. 
  Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61, 819 A.2d 727. 
  "We interpret the statute as a whole, looking to the reason and spirit of
  the law and its consequences and effects to reach a fair and rational
  result."  In re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46
  (1999).  Although the additional-dependent-adjustment statute does not
  define what qualifies as a "duty of support," we discern the Legislature's
  intent to restrict eligibility to custodial parents from the statute's
  requirement that family courts base the adjustment on the child-support
  guidelines.  

       ¶  15.  Section 656a(b) explains how the family court must calculate
  the additional-dependent adjustment:
   
    The adjustments shall be made by calculating an amount under the
    guidelines to represent the support obligation for additional
    dependents based only upon the responsible parent's available
    income, without any other adjustments.  This amount shall be
    subtracted from that parent's available income prior to
    calculating the total child support obligation based on both
    parents' available income as provided in section 655 of this
    title.  

       This adjustment is a strict calculation based on the child-support
  guidelines.  The Legislature's use of "shall" in the statute indicates that
  the family court judge does not have discretion to calculate independently
  the additional-dependent deduction using a formula other than that provided
  in the guidelines.  See State v. Rafuse, 168 Vt. 631, 632, 726 A.2d 18, 19
  (1998) (mem.) ("Statutes generally use 'shall' as imperative or mandatory
  language.").  Rather than allowing the family court to determine the amount
  of the additional-dependent adjustment based on the parent's actual
  expenses for the dependent, the additional-dependent-adjustment calculation
  is standardized by statute.  Once the judge determines the amount of the
  adjustment based on the guidelines, it is subtracted from the parent's
  monthly available income on the child-support worksheet.  15 V.S.A. §
  656a(b).  After the adjustment is applied, the judge calculates the support
  obligation of each parent in proportion to their share of income.  Id. §
  656(a) ("child support obligation shall be divided between the parents in
  proportion to their respective available incomes"). 
   
       ¶  16.  By requiring additional-dependent adjustments to be based on
  the guidelines, the Legislature indicated its intent that only parents
  providing support equivalent to the guidelines would be eligible for the
  deduction.  The duty of providing an additional child primary support by
  supplying food, housing, and clothing falls to the custodial parent, and
  therefore, the law presumes that the custodial parent alone spends the full
  guideline amount to meet these needs.  If a parent is not providing primary
  support, the parent is not eligible for a full guideline deduction.  Thus,
  the voluntary contributions of a noncustodial parent cannot be deducted
  because the child-support guidelines assume that the custodial parent is
  providing for the majority of the child's basic needs.  In this case,
  because mother does not have a child-support obligation or custody of Ryan,
  any support she provides is voluntary in that Ryan does not rely on it for
  support.  Thus, she does not have a "duty of support" as that term is used
  in 15 V.S.A. § 656a(a). 

       ¶  17.  If we were to construe the statute as mother argues, the
  result would be contrary to the goals of the child-support guidelines.  The
  child-support guidelines have three main purposes.  The first purpose is to
  ensure that child-support orders " 'reflect the true costs of raising
  children and approximate insofar as possible the standard of living the
  child would have enjoyed had the marriage not been dissolved.' " 
  Ainsworth, 154 Vt. at 106, 574 A.2d  at 774 (quoting 15 V.S.A. § 650).  The
  second purpose is to standardize child-support awards for
  similarly-situated parties by narrowing or eliminating judicial discretion. 
  Id. at 106, 574 A.2d  at 775 (citing R. Williams, Guidelines for Setting
  Levels of Child Support Orders, 21 Fam. L. Q. 281, 282 (1987)).  The third
  purpose is to increase the efficiency of child-support adjudication and
  increase the number of settlements by making support awards more
  predictable.  Id.  Thus, the child-support guidelines aim to standardize
  child-support awards and provide stability to children by basing the
  support award amount on each parent's income so that children enjoy a
  similar standard of living after divorce.

       ¶  18.  Review of the magistrate's decision is based on the record
  made before the magistrate.  Tetreault, 167 Vt. at 399, 708 A.2d  at 574. 
  Findings of fact shall not be set aside unless clearly erroneous.  Id.  
   
       ¶  19.  The magistrate found that: Ryan spends about one weekend a
  month in Vermont with mother; mother spends about one weekend a month in
  Maine; Ryan comes to Vermont for long weekends and school vacations; and
  Ryan was expected to spend the summer of 2004 in Vermont.  The magistrate
  also found that mother made discretionary purchases for Ryan, such as
  hockey equipment and clothing.  While these overnights spent in Vermont
  would enter into a child-support-award analysis to determine the amount of
  time the child spends with each parent, they are irrelevant to determining
  additional-dependent-adjustment eligibility.   The child-support guidelines
  created a uniform standard for child-support awards so that the family
  court would not need to determine whether a parent's expenditures were
  sufficient to qualify for an adjustment.  To limit judicial discretion and
  ensure the predictability of child-support awards, § 656a allows only for
  full guideline deductions, and thus assumes that the parent claiming the
  adjustment spends the guideline amount.  Accordingly, the time mother
  spends with Ryan and the individual expenditures on travel, sports
  equipment, and clothing do not enter into a § 656a analysis.

       ¶  20.  Because the additional-dependent-adjustment statute allows
  only for full guideline deductions, mother cannot receive an $89 income
  adjustment under § 656a.  Mother argues that she is entitled to the $89
  that she would owe in child support for Ryan had her obligation not been
  reduced to $0 to settle child-support arrears.  Although the child-support
  worksheet recognizes time Ryan spends with mother in calculating the $89
  figure, (FN2) § 656a is not the statutory section that allows noncustodial
  parents to have their child-support expenses deducted.  Section 656a allows
  only for full guideline deductions; partial adjustments based on actual
  expenditures are not permitted.  Thus, mother cannot receive an income
  adjustment of $89 under § 656a. (FN3) 

       ¶  21.  For the above reasons, we hold that noncustodial parents are
  ineligible for the additional-dependent adjustment.  Because mother is a
  noncustodial parent, we affirm.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  We note that the parties entered into the stipulation in September
  2003, but the agreement was not incorporated into a court order until
  October 30, 2003.

FN2.  The child-support order for Ryan that the parties settled down to $0
  was calculated based on Ryan spending forty percent of his time with
  mother.  But mother has no physical custody rights and no specified
  visitation schedule that incorporates this percentage or otherwise
  indicates that mother is entitled or required to spend this much time with
  Ryan.  The magistrate refused to adopt the forty percent visitation
  schedule into his findings because, as noted on the child-support order
  from which this schedule is derived, mother and Gogan agreed to the
  sixty/forty percent split only for purposes of calculating the
  child-support obligation that was part of the settlement. 

FN3.  In her appellate brief, mother speculates about whether she would be
  eligible for an $89 deduction under 15 V.S.A. § 653(1)(A) had her
  settlement with Gogan not reduced that obligation to $0.  She notes that
  the $89/$0 order was not a preexisting obligation as it was not imposed
  until after the order for Cole was first issued.  Mother did not pursue a
  deduction under that section; therefore, we will not issue an advisory
  opinion on her hypothetical eligibility under § 653(1)(A).