Gulian v. Gulian

Dimotsis, D.J.,

concurring and dissenting. The majority’s conclusion, that the family court failed to separate the maintenance *165award from the child support award, ignores the clear holding of the family court. After performing several child support calculations, the family court ruled that child support was not warranted based on the respective incomes of the parties and the shared parenting arrangement. Disregarding the outcome determined by the child support guidelines, the majority finds error in the apparent result that part of mother’s maintenance will be used toward the support of the children. Both parents, however, are obligated to provide support for their children, and such is the policy behind the child support statute. 15 V.S.A. § 650. Maintenance, as income, must be considered when determining child support, 15 V.S.A. § 658(5)(A)(i), and the guidelines anticipate that both parents will contribute part of their respective incomes, from whatever source, to care for their children.

The majority’s point “that when the amount of maintenance award results in no child support award according to the guidelines, the amount of maintenance must be adjusted to reflect the fact that maintenance and child support are separate awards that serve different purposes,” reveals its misunderstanding of the interrelationship between child support and maintenance. The majority’s confusion about the role of maintenance in child support calculations results in its requiring an additional maintenance hearing after child support has been determined. This additional hearing, coming after the child support hearing, in addition to imposing additional procedural burdens on the family court and litigants, will result in additional maintenance income that will be effectively sheltered from the child support calculation. Accordingly, I dissent from part I of the majority’s opinion. Because I agree that the family court abused its discretion in tying the duration of maintenance to the minority of the children, I concur in part II of the opinion.

I. Amount of Maintenance

The majority concludes that the family court’s decision is unreviewable because the majority cannot determine the actual amount of maintenance awarded by the family court. On the contrary, the family court’s decision “provide[s] a clear description of what was decided and why.” Kanaan v. Kanaan, 163 Vt. 402, 415, 659 A.2d 128, 137 (1995). As stated in the order, the family court did not intend to order child support: “In view of the fact that the parties each have the children approximately 50% of the time, and that spousal maintenance awarded until February 1, 2000 approximately *166equalizes the parties’ income, no specific child support award is entered.” Despite this clear indication from the family court, the majority divines that the maintenance award is in fact a combined maintenance and child support award. The cause of the majority’s confusion is the family court’s methodology of determining an amount of maintenance before calculating whether any child support is owing under the guidelines. The methodology employed by the family court, however, of determining child support based upon post-maintenance incomes of the parties is precisely that contemplated and required by the child support statute and guidelines. 15 V.S.A. §653.

Before calculating child support, the court must first determine the parties’ respective gross incomes. Under our child support statute, “[g]ross income shalí include: income from any source, including, but not limited to . . . spousal support actually received.” 15 V.S.A. § 653(5)(A)(i). Although the majority suggests that to achieve the purpose of maintenance it must be sheltered from the income available for the support of children, that is not what the child support statute provides. Indeed, although our child support statute originally excluded maintenance from the spouse in the present action as income available for child support, in 1990 the Legislature amended 15 V.S.A. § 653, so that maintenance from the current spouse is included as income. The amended statute allows the family court to consider “the financial resources available to both parents, as required by federal regulation.” L. Morgan, Child Support Guidelines: Interpretation and Application § 2.03[e][16], at 2-44 (2000) (“Excluding alimony from consideration is illogical, especially where alimony can be a significant financial resource.”).1

*167The majority is troubled by the “unsupportable position — that although mother needs maintenance for her needs and rehabilitation, she has no need for child support to provide adequately for her children.” The majority’s concern reveals its misunderstanding of the interrelationship between child support and maintenance. Regardless of its purpose, the method for awarding maintenance is through increasing mother’s income. 15 V.S.A. § 752(a). That maintenance received by mother should be used for support of the children is anticipated by our child support statute and not inconsistent with our maintenance law. See 15 V.S.A. § 654 (guidelines reflect the parents’ available income which shall be used for support of the children); 15 V.S.A. § 654 (guideline amounts must be “based on the concept that children should receive the same proportion of parental income after separation or divorce of their *168parents as they would receive if their parents were living together in one household”); 15 V.S.A. § 752(a)(2) (court can consider support needed for the care of children when determining whether to award maintenance); 15 V.S.A. § 752(b)(1) (in considering financial resources and parties’ ability to meet those resources, expenses associated with caring for a child and amount of child support received can be considered).

The child support statute and guidelines require that parents contribute to the care and support of their children “in proportion to their respective available incomes and in proportion to the amount of time each parent exercises physical custody.” 15 V.S.A. § 657(a). The amount of support needed for the care of children is the total support obligation, see 15 V.S.A. § 653, which “reflects the percent of combined available income which parents living in the same household in Vermont ordinarily spend on their children” as determined by the Secretary of Human Services. 15 V.S.A. § 654. See generally Ainsworth v. Ainsworth, 154 Vt. 103, 104-05, 574 A.2d 772, 774-75 (1990) (child support guidelines explained). Because mother’s income includes her maintenance payments, a portion thereof will-necessarily be used towards the support of the children. That the family court articulated this result does not render its decision erroneous.

In this case, the family court intended to equalize the parties’ incomes through its maintenance award. After awarding maintenance, the court properly considered mother’s and father’s post-award incomes and incorporated these figures and the 50/50 parenting arrangement into the child support guidelines. Because there was a disparity of $2.00 in the total support obligation between the parties, the court did not order that one parent pay the other child support. This was not error.

Because of its confusion regarding the interrelationship between maintenance and child support and the role of the former in calculating the latter, the majority misapprehends this dissent. This dissent does not advocate combining maintenance and child support into one award. Rather, absent a deviation request, where maintenance as income is incorporated into a child support calculation and the guidelines determine that no child support is warranted, then the family court should adhere to the child support guidelines and not award child support.

*169The majority’s solution that whenever a maintenance award results in no child support under the guidelines, the amount of maintenance must be adjusted to reflect the fact that maintenance and child support are separate awards that serve different purposes, disregards the child support guideline scheme to impose a vague mandate that will have immediate and adverse consequences on the operation of the family court. Despite the statutory mandate that mother, like father, contribute part of her income for the support of her children, and that the child support guidelines incorporate each parent’s respective share of this income towards the support of the children, the majority insists that additional maintenance be awarded to serve the purpose of providing for mother’s separate needs. Because this additional maintenance is awarded after the child support calculation, this income will be effectively sheltered for purposes of calculating child support, in contravention of 15 V.S.A. § 653.

The award of additional maintenance will require an additional post-divorce hearing imposing upon litigants and family courts the burden and cost of additional hearing time. The majority offers no guidance as to the procedure to be used by family courts to determine whether and in what amount to adjust the maintenance award. Requiring an additional maintenance hearing after the child support determination will conflict with the purpose and award of a maintenance supplement.2 A maintenance supplement is awarded to correct the financial disparity between the two households and is part of a child support order. 15 V.S.A. § 661(a). Until it is known what the respective incomes of the households will be, the magistrate can only guess whether and in what amount to award a maintenance supplement.

II. Conclusion

Rather than create a disruptive remedy for a problem that does not exist, this Court should confine its review to the case at bar and reverse and remand on the basis of the court’s tying the duration of maintenance to the age of the children.

*170I dissent. I am authorized to say that Chief Justice Amestoy joins in this dissent.

As Representative Ruth Stokes, sponsor and reporter of the amended legislation, explained to the Senate Judiciary Committee, the omission in the original legislation was an oversight.

We determine gross income by including a whole list of things in the current statute. The issue of alimony was left out of consideration in terms of what constitutes somebody’s gross income. In other words if somebody is paying alimony that (inaudible) should not be part of their gross income and if somebody is receiving alimony that clearly should be and this bill corrects what I think was not necessarily the policy decision at the time the guidelines were instituted, but an overlooking of the issue of alimony and this bill proposes to change it in a way that I have described.

Hearing on an Act Related to Child Support before the Senate Judiciary Committee, March 20, 1990, at 9. The following colloquy between then Representative Amy *167Davenport and Legislative Counsel Janet Ancel further explains the need to remove from the definition of gross income the exclusion of alimony received from the payee spouse. The colloquy also demonstrates the intended methodology that child support be determined after maintenance is ordered.

Rep. Davenport. But what happens right now, when you look at people’s income, if in the final order one person was supposed to pay the other person alimony or maintenance, that ought to be included as your — if it was me who was supposed to pay you maintenance, it should be included as your income and deducted from my income, if you’re trying to compare incomes. And it’s because it got left out of the list. If it was in the list and in the list of deductions, then it would work that way.
Rep. Davenport: It was really an oversight; it’s not anything that’s (interrupted)
Ms. Ancel: Yes. That’s right.
Rep. Davenport: So this gross income then just doesn’t refer to the payee, it refers — doesn’t refer to (interrupted)
Rep. Davenport: That’s right.
Ms. Ancel: It’s both parents.
Rep. Davenport: When you’re setting the amount according to the guidelines, you’re looking at the gross income of the custodial and the noncustodial parent.
Rep. Crispe: And so this gross income applies to both.
Rep. Davenport: Yes. Right.
Ms. Ancel: Yes, that’s right.

Hearing on an Act Related to Child Support before the House Judiciary Committee, January 16,1990, at 32.

This conflict will not occur in cases like the one at bar where the parents equally share the physical custody of the children. See Leas v. Leas, 169 Vt. 364, 368, 737 A.2d 889, 892 (1999).