Tetreault v. Coon

Tetreault v. Coon  (96-415); 167 Vt. 396; 708 A.2d 571

[Filed 23-Jan-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. 96-415


Roxanne Tetreault                            Supreme Court

                                             On Appeal from
    v.                                       Windham Family Court

Raymond Coon                                 June Term, 1997


Ellen Holmes Maloney, J.

       Geoffry F. Walsh, Vermont Legal Aid, Inc., Springfield, for
  plaintiff-appellant

       Daphne Moritz, Office of Child Support, Springfield, for
  defendant-appellee Office of Child Support


PRESENT:  Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       DOOLEY, J.   Plaintiff Roxanne Tetreault appeals from a child support
  order against the father and noncustodial parent, Raymond Coon, arguing
  that it is inadequate to meet the needs of the four minor children of the
  parties.  The case raises important questions about the support obligations
  of the noncustodial parent when the custodial parent has children from a
  subsequent relationship that impair that parent's ability to earn income to
  support any of the children.  The family court held that the presence of
  subsequent children authorized it to deviate from the child-support
  guidelines and reduce the child-support obligation of defendant father. We
  disagree and reverse.

                                     I.

       The parties never married, but have four minor children from their
  relationship.  After separating in February of 1989, mother gained sole
  legal and physical responsibility for the four children.  An October 1991
  interim parentage order required father to pay $646 per month in child
  support and to provide health insurance coverage for the children.  During
  this period,

 

  mother had a relationship with another man, and twin boys were born of this
  relationship.  She separated from the father of the twins and received $43
  weekly in child support from him.  On September 10, 1992, the Office of
  Child Support filed a petition to issue a final child-support order against
  father, increasing the amount of support for mother consistent with the
  guidelines. In response to the motion, father requested that the magistrate
  deviate from the child-support guidelines pursuant to 15 V.S.A. § 659(a)
  and set a support amount lower than the guidelines would require.  Father
  also asserted that mother was "voluntarily unemployed" and income should be
  imputed to her pursuant to 15 V.S.A. § 653(5)(A)(iii).

       After several hearings on the motion, the family court magistrate
  issued a decision on February 1, 1994.  The magistrate found:

    Ms. Tetreault has a minimal work background.  She was in the Air
    Force where she received training in propeller repair, but never
    did any civilian work in that field.  Her only other work
    experience was assisting her mother in a restaurant doing
    waitressing and serving food.  This ended five or six years ago.
    She has had no other paid employment since then.  She currently
    does not work because she needs to care for the twins who are two
    years old.  She does not have any backup day care in place for her
    children if they should be sick.  All of her children with Mr.
    Coon, however, are now school age and are enrolled full time in
    public school.

  At the time of the hearing, mother received ANFC welfare benefits.

       Father worked full time as an equipment specialist for a major
  manufacturer.  At the time of the hearing, he earned $3,341 per month as a
  salaried employee.  He was attending college to earn a B.A. in Business
  Management and expected to graduate in April 1994.

       Despite her findings on mother's employment history, the magistrate
  decided to impute income to mother.  Noting that the Legislature
  specifically provided that an existing support order could not be reduced
  because of the obligor's additional dependents, 15 V.S.A. § 656a(c), she
  reasoned that equity required that a support obligation not be increased
  because of a custodial parent's additional dependents.  She held that
  allowing mother not to work in order to take care of the young twins would,
  in effect, be increasing father's support obligation because

 

  of her additional dependents.  Thus, the magistrate held that mother was
  voluntarily unemployed to the extent of any work she could perform
  consistent with caring for the children of the parties, and imputed such
  income as mother could earn under these circumstances.  See 15 V.S.A. §
  653(5)(A)(iii).  She decided that mother could work thirty hours per week
  while the children of the parties were in school and imputed income to her
  at the rate of $5 per hour.  The imputed income reduced the amount of child
  support the children would receive under the guidelines from $1,248.20 per
  month to $1,156.99 per month.(FN1)

       Mother appealed the magistrate's order to the family court.  In its
  November 22, 1994 order, the family court determined that the magistrate's
  findings did not support the conclusions with respect to the imputation of
  income:

     [T]here was no finding by the court that there were job openings
     available in plaintiff's community at the stated hourly wage range.
     There were no findings that plaintiff possessed the skill, experience
     or training levels needed for available job openings.  No findings
     were made related to the cost of day care or its availability for the
     non-school age children in plaintiff's household.  There was no
     indication plaintiff's day care costs would not exceed her income.
     The day care costs for the four older children, ages 8-13 years, for
     summer and other school vacation periods was not considered.  In
     the absence of any of the above findings, it was error for the
     magistrate to conclude that plaintiff could find employment.

  Thus, the court refused to impute income to mother under § 653(5)(A)(iii).

       Nevertheless, the court affirmed the magistrate's decision under a
  different rationale. The court held that application of the guidelines
  would be inequitable to father, reasoning that mother's desire to remain at
  home caring for her two youngest children reduced her ability to contribute
  financially and placed an unfair burden on father.  Relying upon 15 V.S.A.
  § 659(a), the court deviated from the guidelines and determined father's
  support obligation based on the actual expenses of the four children, which
  it found to be $1,100, a figure similar enough to the $1,156.99 per month
  ordered by the magistrate to leave the magistrate's decision undisturbed.

       Plaintiff argues on appeal that neither rationale is consistent with
  the child support statute and requests that we order that the child-support
  order be increased to that calculated under the guidelines, solely relying
  on defendant's income.  The Office of Child Support appears here as
  appellee and urges us to affirm on either the rationale adopted by the
  magistrate or that of the family court.(FN2)  We agree with plaintiff that
  neither rationale supports the order.

                                     II.

       We start with the decision of the magistrate because that decision
  best raises the underlying issues.  Review of the decision of the
  magistrate is normally based on the record made before the magistrate.  See
  15 V.S.A. § 465; V.R.F.P. 8(g)(4).  Findings of fact shall not be set aside
  unless clearly erroneous.  See V.R.C.P. 52(a)(2); V.R.F.P. 4 (Rules of
  Civil Procedure apply in divorce proceedings); V.R.F.P. 8(b) (Family
  Proceedings Rule 4 applies to magistrate proceedings).  The decision will
  be affirmed if the conclusions of law are supported by the findings.  See
  Abbiati v. Buttura & Sons, Inc., 161 Vt. 314, 318, 639 A.2d 988, 990
  (1994).

       Under Vermont's guidelines statute, the total child support obligation
  is divided between the parents in proportion to their respective incomes. 
  See 15 V.S.A. § 656(a).  Therefore, the first step in calculating a
  child-support order under the guidelines is to determine the gross income
  of each parent.  See id. § 653(5).  "Gross income" is defined broadly and
  includes income from any source.  Id. § 653(5)(A)(i).  The statute provides
  in part:

     (A) Gross income shall include:
                          . . .
     (iii) the potential income of a parent who is voluntarily
     unemployed or underemployed unless
                          . . .
          (c) the unemployment or underemployment of the parent is
     in the best interest of the child . . . .

    Id. § 653(5)(A)(iii).

 

       The statute does not define voluntary unemployment or underemployment. 
  Nor does it directly address the situation where a child-support obligee
  remains at home to care for young children, except to the extent that such
  a parent can be said to be voluntarily unemployed or underemployed. 
  Recognizing this, the magistrate looked elsewhere in the statutory scheme
  for a relevant policy.  Because the children for whom mother remained at
  home were born after the children of the parties, the magistrate looked to
  the policy on subsequent dependents.

       In Ainsworth v. Ainsworth, 154 Vt. 103, 113, 574 A.2d 772, 778 (1990),
  we held that the family court could find a support order based on the
  guidelines to be inequitable in cases where the obligor had a duty to
  support other dependent children.  Following that decision, the Legislature
  amended the statute to specifically allow an adjustment for additional
  dependents not covered by the support order, calculated as follows:

     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.

  15 V.S.A. § 656a(b).  The adjustment is not available "to the extent that
  it contributes to the calculation of a support order lower than a
  previously existing support order for the children who are the subject of
  the modification hearing at which the adjustment is sought." Id. § 656a(c).

       Relying on the modification provision, the magistrate decided that it
  should apply when the obligee has additional dependents and seeks to raise
  the support order because of them. From this conclusion, the magistrate
  reasoned that proper action consistent with the policy was to treat the
  additional dependents as if they did not exist.(FN3)


 

       The magistrate found more in the statutory scheme than we can.  If
  anything, the policy of the statute is to recognize the effect of
  additional dependents, not to ignore them.  The magistrate passed over the
  main policy of the statute and focused on a hold-harmless provision. By its
  terms, the provision applies only to modification motions and only to the
  consideration of the additional dependents of the obligor.  In contrast,
  this proceeding involves the initial setting of a child-support amount
  under the guidelines and consideration of additional dependents of the
  obligee.

       Thus, we draw a conclusion from the statutory scheme opposite to that
  drawn by the magistrate.  The Legislature's intent is that the economic
  effects of additional dependents should be considered in establishing
  child-support awards.  This policy suggests that we must consider the
  impact of plaintiff's additional children, rather than ignore them.

       In the absence of more specific direction from the Legislature, we
  have looked to how other jurisdictions have applied statutory requirements
  to impute income in cases of voluntary unemployment to parents who stay in
  the home to raise children.  Not surprisingly, there is a split of
  authority on the issue.  Some courts have held that stay-at-home parents
  are voluntarily unemployed, while others have ruled that they are not. 
  Compare Thomas v. Thomas, 589 A.2d 1372, 1373 (N.J. Super. Ct. 1991)
  (mother who stayed at home to care for young children from subsequent
  relationship was not "voluntarily unemployed") with Canning v. Juskalian,
  597 N.E.2d 1074, 1076-79 (Mass. App. Ct. 1992) (mother who stayed home to
  care for child was "voluntarily unemployed").

 

       The different positions reflect the weight given to the conflicting
  considerations.  On the one hand, imputing income to a stay-at-home parent
  creates an economic disincentive to remarriage and child conception,
  punishes children for the action of their custodial parent, does not
  support the nurturing of young children and requires consideration of
  income that is often fictional.  See Canning, 597 N.E.2d  at 1077 n.9.  On
  the other hand, the policy discourages parental unemployment or
  underemployment, recognizes the volitional aspect of conceiving subsequent
  children, and does not require the obligor to pay more because of the
  presence of a second family the obligor is not required to support.  See
  id.

       We believe that the conflicting considerations can be accommodated by
  a policy that allows income imputation in appropriate cases, but not in all
  cases.  Among the factors for the family court to consider in deciding
  whether to impute income are:

     (1) the age, maturity, health, and number of children in the home;
     (2) the custodial parent's employment history, including recency
     of employment and earnings, as well as the availability of suitable
     employment; (3) the age and health of the custodial parent; (4) the
     availability of appropriate child-care givers; (5) the relationship
     between the expense of child-care givers and the net income the
     custodial parent would receive; (6) the cost, if any, for
     transportation, suitable clothing, and other items required for the
     custodial parent to have the imputed employment; (7) the custodial
     parent's motivation or reasons for being at home; and (8) the
     adequacy of available resources if the custodial parent remains at
     home.

  Stanton v. Abbey, 874 S.W.2d 493, 499 (Mo. Ct. App. 1994).  The family
  court must have discretion in evaluating the relevant factors.  Cf. Smith
  v. Stewart, 165 Vt. 364, 370, 684 A.2d 265, 269 (1996) (family court has
  discretion in determining child-support award outside the guidelines).  The
  factors go to whether the parent's unemployment or underemployment can be
  considered to be voluntary.(FN4)  For this reason, they apply whether the
  stay-at-home parent is rearing children of the parties to the support
  order, or additional children of a parent other than

 

  the child-support obligor.  See Atkinson v. Atkinson, 616 A.2d 22, 23 (Pa.
  Super. Ct. 1992).

       Implied in these factors is a policy on treatment of expenses in
  producing imputed income.  In McCormick v. McCormick, 159 Vt. 472, 477, 621 A.2d 238, 240 (1993), we held that in determining child support the family
  court could impute income to a father equal to his expenditures where the
  court was unable to get a true picture of his income and assets.  We also
  held, however, that "fundamental fairness" required that the father be able
  to offset against the imputed income amounts the father paid for tuition to
  enable the children to attend private schools.  Id. at 478, 621 A.2d  at
  241.  Similarly, fundamental fairness requires that any income imputed to a
  stay-at-home parent must reflect the expenses that would produce that
  income. Otherwise, the imputed income is fictional, because it could never
  actually be produced, and the actual support available to the children is
  reduced.

       In adopting this policy, we join the many courts that have required
  consideration of the cost of child care in calculating imputed income.(FN5)
  See, e.g., Vlahos v. Ware, 690 So. 2d 407, 410 (Ala. Ct. Civ. App. 1997)
  (child-care costs, incurred on behalf of children because of parent's
  employment or job search, must be added to calculation of child support);
  Simpson v. Simpson, 650 N.E.2d 333, 337 (Ind. Ct. App. 1995) (work-related
  child-care expenses must be deducted from available income); Harrison v.
  Harrison, 871 S.W.2d 644, 646-47 (Mo. Ct. App. 1994) (reasonable
  work-related child-care expenses must be included when calculating child-
  support order); see also P. Nickerson, The Washington State Child Support
  Schedule:  Judicial Discretion and Deviations from the Standard
  Calculation, 26 Gonz. L. Rev. 71, 78-80 (1990/91) (child-care expenses
  should be included in support calculation because child care is necessary

 

  substitute for parent's care and, depending upon number of children, can be
  considerable expense).  As the Montana Supreme Court noted in In Re
  Marriage of Noel, 875 P.2d 358, 359 (Mont. 1994), by failing to consider
  child-care costs in imputing income, the amount imputed "does not
  realistically reflect the mother's income earning ability."

       Finally, if child-care costs exceed the parent's earning capacity, the
  parent cannot be considered voluntarily unemployed, and income should not
  be imputed.  See Shaddox v. Schoenberger, 869 P.2d 249, 253 (Kan. Ct. App.
  1994).  In Shaddox, the court held that income could not be imputed to a
  mother who had significant child-care responsibilities and limited job
  skills.  See id.  The court relied on a report from the Kansas Commission
  on Child Support, which concluded that it was inequitable to impute income
  when the costs of child care and transportation approximate the custodial
  parent's earning ability.  See id. (citing Report of Kansas Commission on
  Child Support, 10 (1987)).

       The family court's analysis of mother's situation was consistent with
  the above policy on income imputation.  Mother has custody of six children,
  two of whom are very young and not in school.  She has a limited employment
  history and has not recently been employed.  Even if she can earn minimum
  wage, as the magistrate found, the expenses to produce that income are
  likely to be high, assuming child care is available at all.  Thus, we
  affirm the family court's decision not to require income imputation in this
  case.  The court acted within its discretion to require consideration of
  the actual availability of employment and the expenses involved in
  producing income.

                                    III.

       Because we agree with mother that the magistrate's decision cannot be
  affirmed, we must consider the alternative rationale of the family court. 
  After deciding that mother was not voluntarily unemployed, the court held
  that:

     calculating a support award based on the guidelines would be
     inequitable.  Plaintiff's need and desire to remain at home caring
     for her two youngest children, though commendable, does reduce

 

     her ability to contribute finances to the family, and places an
     unfair burden on defendant.  These circumstances allow the court
     to vary from the guidelines.

  Mother contends that the family court had no power to deviate from the
  guidelines in this circumstance and urges us to reverse its decision.

       The family court is required to order the parents owing a duty of
  support to a child to pay an amount of support in accordance with the
  guidelines unless otherwise determined under 15 V.S.A. § 659(a).  See 15
  V.S.A. § 658(a).  Section 659(a) creates a rebuttable presumption that the
  amount reflected in the child-support guidelines is the amount of support
  needed by the children.  To rebut this presumption and deviate from the
  guideline amount when calculating an order of support, the court must
  determine that application of the guidelines would be unfair to the child
  or any of the parties.  See id.; McCormick v. McCormick, 159 Vt. 472, 478,
  621 A.2d 238, 241 (1992); Grimes v. Grimes, 159 Vt. 399, 406, 621 A.2d.
  211, 214 (1992).  To make a finding that application of the guidelines
  would be "unfair" the court must consider all of the relevant factors,
  including the nine factors specified in the statute. See 15 V.S.A. §
  659(a).

       The escape valve of § 659(a) must be applied in light of the purposes
  behind the guidelines statute.  As we explained in Ainsworth, 154 Vt. at
  106, 574 A.2d  at 774-75, there are three purposes: (1) to insure 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," 15 V.S.A. § 650; (2) to
  standardize child-support orders to ensure more equitable treatment of
  parties in similarly situated cases by narrowing or eliminating judicial
  discretion; and (3) to increase the efficiency of child-support
  adjudication and increase the number of settlements due to the
  predictability of the award amounts.

       As we held in Ainsworth, these purposes necessarily constrain the use
  of guideline deviation under § 659(a) and narrow the discretion that the
  section provides to the family court. Allowing the family court to consider
  every variation with respect to the needs of the children,

 

  the living situation or the expenses of the parents, would undermine the
  Legislature's intent in standardizing support awards.  See Ainsworth, 154
  Vt. at 109, 574 A.2d  at 776.  We further warned that if courts were allowed
  to routinely deviate from the guideline amounts, then "the `escape valve'
  of 15 V.S.A. § 659(a) would eat up the rule and destroy the predictability
  of amounts and the maintenance of the standard of living of the children
  that are the desired results of the guideline system."  Id.

       We cannot, consistent with the limited purpose of § 659(a), allow a
  deviation from the guidelines in this case based on the family court's
  rationale.(FN6)  In the sense used by the family court, allowing a custodial
  parent to stay at home to care for children would always place an "unfair
  burden" on the obligor parent.  Thus, the exception created by § 659 has
  eliminated the policy that allows custodial parents to remain in the home
  in certain circumstances.

       Moreover, this is a case where the record does not support that the
  implied income will ever be realized.  The family court did not shift the
  cost of meeting the children's needs between parents.  Instead, it reduced
  the income available to the children.  While the result may appear to
  balance fairness between the father and mother, it actually penalizes the
  children of the marriage because the mother had additional children.

       We are also concerned about the court's rationale for setting the
  child-support amount it did.  The court chose the support amount of $1,157
  because it roughly represented the amount that plaintiff had been spending
  on the children.  Plaintiff's spending, however, was based on her income
  from welfare benefits.  As we noted recently in Smith v. Stewart, 165 Vt.
  at 369, 684 A.2d  at 269, it is unreasonable to expect a custodial parent to
  spend more money on the

 

  children in anticipation of a court order requiring the noncustodial parent
  to increase the amount of child support.  It is impossible for a welfare
  recipient to increase the expenditures on the children.  We suggested in
  Smith that the family court might ask the custodial parent to itemize how
  additional income might be spent on the children.  See id.  In any event,
  we caution on using historic spending patterns based on reduced income to
  determine the financial needs of children.

       If we were to affirm the family court decision, father's reduction in
  child support would be at the direct expense of his children and would lead
  to the same inequities as the magistrate's decision.  This result would be
  contrary to the statutory purpose of providing children with the standard
  of living they would have enjoyed had the marriage remained intact. See 15
  V.S.A. § 650.  For these reasons, we hold that this case does not fall
  within the narrow scope of exceptions warranting a deviation from the
  child-support guidelines under § 659.  On remand, the family court should
  establish a child support order pursuant to the guidelines or allow
  additional evidence and make findings that would allow imputation of income
  or deviation from the guidelines consistent with the principles in this
  opinion.

       The family court order setting child support at $1,156.00 is reversed
  and the cause is remanded for calculation of a support order consistent
  with this opinion.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


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                                  Footnotes


FN1.  The guidelines calculation is based on the guidelines in effect
  as of July 1992.  The calculation is based on splitting the tax exemptions
  for the children between the parents.

FN2.  Defendant has not appeared in this appeal.

FN3.  Because of the magistrate's rationale, she did not reach the
  question of whether the unemployment of plaintiff, although voluntary,
  could be considered to be in the "best interest" of the twins so that
  imputation was not appropriate under 15 V.S.A. § 653(5)(A)(iii)(c).  That
  question would require the magistrate to resolve whether the term "the
  child" in the subsection includes a child who was not born of the parties
  to the support order.  We also do not reach that question because we
  resolve this case on the meaning of the terms "voluntarily unemployed or
  underemployed."

       The magistrate also did not make the additional dependents adjustment
  calculation under § 656a(b), which appellee acknowledges was error. 
  Applying the instructions accompanying the guidelines, the adjustment would
  reduce plaintiff's monthly available income by $257 and increase
  defendant's support obligation to $1169 per month. 

FN4.  As stated in footnote 3, we do not reach whether the unemployment
  or underemployment is in the best interest of the child as that term is
  used in § 653(5)(A)(iii)(c).

FN5.  We recognize that the method of treating child-care costs may
  vary.  At least for children of the parties, the statute requires that
  these costs be shared by the custodial and noncustodial parents in relation
  to their incomes.  See 15 V.S.A. §§ 653(9) (child-care costs are added to
  guideline support amounts to determine total support obligation), 656(a)
  (total support obligation is divided between parents in relation to their
  respective available incomes).  For other children of the custodial parent,
  it may be more appropriate to subtract child-care costs from gross income
  in determining how much income to impute to the custodial parent.

FN6.  We do not suggest that the court may never deviate from the
  guidelines in cases where either parent has additional dependents.  For
  example, economies of scale may reduce per-child need as the size of the
  family is increased.  Thus, the economic needs of the four children of the
  parties in this case may be reduced because they are in a household with
  two other children, assuming, of course, that the needs of the additional
  children are also being met.  We have no evidence to determine whether
  economies of scale apply in this case.