Modification of Orders; Review, Deviation From the Guidelines-Fam. Law § 12-202

• Jurisdiction: Maryland

V. MODIFICATION OF ORDERS; REVIEW, DEVIATION FROM THE GUIDELINES-FAM. LAW § 12-202

A. Rebutting the Presumption

The law creates a rebuttable presumption that the amount of child support that would result from the application of the Guidelines is the correct amount of child support.²¹³ Family Law § 12-202(a)(2)(ii) provides that the presumption may be rebutted by evidence that the application of the Guidelines would be "unjust or inappropriate in a particular case." (iii) In determining whether the application of the Guidelines would be unjust or inappropriate, the court may consider:

1. The terms of any existing separation or property settlement agreement or court order, including any provisions for payment of mortgages or marital debts, payment of college education expenses, the terms of any use and possession order or right to occupy the family home under an agreement, any direct payments made for the benefit of the children required by agreement or order, or any other financial considerations set out in an existing separation or property settlement agreement or court order; and

2. The presence, in the household of either parent, of other children to whom that parent owes a duty of support and towards whose expenses that parent is directly contributing; and

3. Whether an obligor's monthly child support obligation would leave the obligor with a monthly actual income below 110% of the 2019 federal poverty level for an individual.²¹⁴

In Tannehill v. Tannehill,²¹⁵ a rare split custody case, the court found that the unusual circumstances of the case did not correspond to any of the considerations listed above, as one of the minor children had cerebral palsy, epilepsy and was mentally retarded. The court found that while the list of items to consider is comprehensive, it is not exclusive:

The legislature has made it clear that a departure from the guidelines is warranted where the application would be unjust or inappropriate. No list of factors or considerations could identify each situation in which the application of the Guidelines would produce an unjust or inappropriate result. Rather, these considerations provide an analytical framework within which a judge may determine the appropriate award of child support. For example, the factors contained in § 12-202(a)(2)(iii) delineate situations that affect the financial resources of the parents or the financial needs of the children. To construe the statute so as to exclude other relevant financial considerations that have the same or similar impact as the considerations listed above would be in contravention of the legislative intent to prevent unjust or inappropriate results. We hold that the facts, as found by the trial court, could support a departure from the child support guidelines.²¹⁶

The appellate court remanded because the requisite findings pursuant to Fam. Law § 12-202(a)(2)(iv) were not made. If the trial court determines that the application of the Guidelines would be unjust or inappropriate in a particular case, the court is directed to make a written finding on the record stating why.²¹⁷ Specifically, the court's finding shall state:

A. the amount of child support that would have been required under the Guidelines;

B. how the order varies from the Guidelines;

C. how the finding serves the best interest of the child; and

D. in cases in which items of value are conveyed instead of a portion of the support presumed under the Guidelines, the estimated value of the items conveyed.²¹⁸

The Tannehill court noted that a finding that departure from the Guidelines serves the best interest of the children must include all the parties' children, including those children in the custody of the other parent.²¹⁹

In Dunlap v. Fiorenza,²²⁰ a case decided before the Child Support Statute was amended in 2000, the Appellate Court of Maryland upheld the trial judge's decision to deviate downward from the Guidelines based on the presence in father's household of two other young children. The appellate court stated that "[t]he addition of two half-siblings on the father's side of the family is per se a significant part of the departure rationale."²²¹ In a strong dissent , Judge Ellen L. Hollander disagreed that the addition of half-siblings per se warranted departure from the Guidelines, stating "if a downward deviation was appropriate in every case where there are subsequent children born to a party, the legislature would have provided for same in the same manner that the Guidelines allow a parent to deduct pre-existing child support."²²²

In any event, it is no longer permissible to deviate from the Guidelines solely on the basis that a parent has other children in the household.²²³ The child support statute was amended in 2000 to specify that this factor may not provide the sole basis for rebutting the presumption that the child support guideline is correct. Fam. Law § 12-202(a)(2)(iv).

It is not a deviation from the Guidelines to deduct child support actually paid but not subject to a child support order. In Lacy v. Arvin,²²⁴ the court stated that Fam. Law § 12-201(c)(1) requires the court to factor into "adjusted actual income" under the Guidelines, pre-existing reasonable child support paid for other children as long as the support satisfies certain criteria. The child support must be:

(1) actually paid,

(2) a "definite sum,"

(3) payable on an ongoing basis, and

(4) the amount must be reasonable.

The Appellate Court of Maryland stated:

A non-custodial parent who voluntarily undertakes to discharge his legal obligation to pay child support, by agreement with the other parent, should not have his responsible and non-litigious conduct count against him in a child support proceeding for another child.²²⁵

In Shrivastava v. Mates,²²⁶ the principal question raised was whether a binding agreement for child support between the parties is, in and of itself, a sufficient reason for deviation from the Guidelines. The pre-Guidelines agreement apportioned not only basic support obligations, but also educational costs through college (which the noncustodial father agreed to pay in full). The wife filed a Petition for Modification based on the adoption of the child support Guidelines.²²⁷ Under the Guidelines, the wife was entitled to an increase in child support from $750 per month to $1,756 per month. The trial court concluded that the application of the Guidelines would be unjust and inappropriate, basing its conclusion on the existence of the comprehensive agreement, and dismissed wife's petition. Wife contended that there was insufficient evidence before the court to support its finding that application of the Guidelines would be unjust or inappropriate, and that the court failed to make the necessary findings accompanying its departure from the Guidelines. The Appellate Court of Maryland agreed and remanded, reasoning as follows:

The Circuit Court determined that the Agreement was, in and of itself, a sufficient reason for deviation from the child support Guidelines. The court apparently did not consider the impact of the Agreement upon the financial resources of the parents or the financial needs of the children. The court thereby elevated the parties' contractual expectations over the best interest of the children and impermissibly allowed the parties "to agree to preclude a child's right to support by the other parent, or the right to have that support modified in appropriate circumstances". The court also failed to make the necessary findings accompanying its departure from the Guidelines. While the court indicated that items of value were conveyed under the Agreement instead of a portion of the support presumed under the Guidelines, it did not state the estimated value of the items conveyed. Nor did the court state how deviation from the Guidelines served the best interest of the children.²²⁸

The court further noted that "[t]he burden is on the party seeking an amount of child support different from that indicated by the Guidelines to rebut the presumption by evidence that the use of the Guidelines would be unjust or inappropriate."²²⁹

The court provided a hypothetical where the court would award a child support amount less than that indicated by the Guidelines:

Assume that application of the guidelines in a particular case would force a supporting parent to pay more than the amount of child support dictated by the Guidelines, because the parent has conveyed items of value under the terms of an agreement instead of paying a portion of the child support presumed under the guidelines. In such a situation, the terms of the agreement clearly impact upon the financial resources of the parents, because one parent's financial resources have been functionally decreased, while the other has been functionally increased. It may also have an effect upon the child's needs if the items conveyed would otherwise have to be purchased for the child. The trial court, in finding that departure from the guidelines is warranted, may explain that the best interests of the child are served because the child is, in effect, receiving the amount of support to which it is presumptively entitled under the guidelines. Thus, the requirement that a trial court make specific written or oral findings supporting departure from the guidelines effectively restricts the court's consideration of the terms of an agreement for child support between the parties to the impact of that agreement upon the financial resources of the parents or the financial needs of the children."²³⁰

In Kovacs v. Kovacs,²³¹ another opinion concerning departure from the Guidelines, the intermediate court indicated that, just as with separation agreements, the mere existence of an arbitration award is not enough, alone, to overcome the obligation to comply with the Guidelines.

The parties in Kovacs had submitted various issues for arbitration before a Beth Din, a Jewish court proceeding before a panel of three...