Rose v. Rose – Child Support, Overnights & Retroactive Modification

On February 1, 2018, the Court of Special Appeals issued its opinion in Rose v. Rose, a case involving:

• Alimony termination due to the ex-spouse’s alleged cohabitation in a marriage like relationship pursuant to Gordon v. Gordon;
  • I discuss this in Rose v. Rose – Alimony Termination & Cohabitation.
• Reimbursement of children’s expenses; and,
• Modification of child support when parties agree to annual recalculation of child support and whether support should be based upon the children’s actual overnights with a parent or the number of overnights court ordered.

Child Support – Overnights & Shared Custody Guidelines

The Rose v. Rose opinion focuses on whether to apply shared physical custody child support guidelines when the actual number of overnights are less than provided in the parties’ agreement.  In particular, the ex-wife presented evidence that ex-husband’s overnights over more than a four (4) year period equaled less than one hundred twenty-eight (128) overnights or less than thirty-five percent (35%) of the overnights.  Ex-husband disputed this.

When a parent has one hundred twenty-eight (128) or more overnights with a child and both parents contribute to the expenses of the child or children in addition to the payment of child support, then per Maryland child support law, this is “shared physical custody”.  The number of overnights are included in the shared physical custody child support formula.  Often, a shared physical custody child support calculation results in less child support than a sole physical custody child support calculation, which does not include the number of overnights.

The Court of Special Appeals relied on the language of Family Law Article §12-201(n), the definition of “shared physical custody”, which states:

“(n)(1) “Shared physical custody” means that each parent keeps the child or children overnight for more than 35% of the year and that both parents contribute to the expenses of the child or children in addition to the payment of child support.

(2) Subject to paragraph (1) of this subsection, the court may base a child support award on shared physical custody:

(i) solely on the amount of visitation awarded; and

(ii) regardless of whether joint custody has been granted.”

Applying Family Law Article §12-201, the Court of Special Appeals stated:

“The plain language of FL § 12-201(n)(1) defines “shared physical custody” as occurring when each parent “keeps” the child or children overnight for more than 35% of the year and contributes to the expenses of the child or children in addition to child support payments. Black’s Law Dictionary (10th ed. 2014) defines a “keeper” as “Someone who has the care, custody, or management of something and who [usually] is legally responsible for it.” We think that the plain meaning of the word “keeps” means to maintain actual possession, or in this case, for a child to actually stay with the parent overnight. We find support for our interpretation of the word “keeps” in this context in Guidash v. Tome, 211 Md. App. 725 (2013). There, we described the 35% threshold for “shared physical custody” as follows: “a child must stay overnight with each parent for a minimum of 128 nights to trigger a shared custody child support calculation.” Id. at 748-49. Thus, if a parent can demonstrate that a child stays with that parent more than 35% of the overnights in a year, then “shared physical custody” is established, pursuant to FL § 12-201(n)(1), for the calculation of child support.

On the other hand, FL § 12-201(n)(2) provides that, “Subject to paragraph (1) of this subsection, the court may base a child support award on shared physical custody: (i) solely on the amount of visitation awarded[.]” (Emphasis added).  The plain meaning of this subsection makes two things clear.   First, that FL § 12-201(n)(2) is subject to FL § 12-201(n)(1), meaning that a court cannot grant child support based on shared physical custody unless it first determines that the amount of visitation awarded in the extant order exceeds 35% of the overnights per year. Second, the word “may,” by its definition, generally “connotes a discretionary act, i.e., one that is not required.” Heit v. Stansbury, 199 Md. App. 155, 158 (2011). Although it is discretionary for a court to rely on a court ordered award of visitation when determining shared physical custody for child support purposes, a court may only exercise such discretion after determining that the order actually awards a parent more than 35% of the overnights per year. Cf. Lee v. Andochick, 182 Md. App. 268, 293-94 (2008) (holding that “court has discretion as to whether to base a child support award on shared physical custody” under the predecessor to FL 12-201(n)(2)).”

In sum, the court identified two situations impacted by the child support statute:

1. When a parent establishes that he or she actually keeps the child for 35% or more of the overnights; and,
2. When a parent cannot establish that he or she actually keeps the child for 35% or more of the overnights, but asks the court to exercise its discretion awarding child support based upon the amount of overnights awarded.

The appellate court concluded that the two situations call for a trial court to consider and apply the shared physical custody child support guidelines differently:

1. A parent proving that he or she actually keeps the child for 35% or more of the overnights requires application of the shared physical custody child support guidelines; whereas,
2. A parent awarded 35% or more of the overnights but who cannot prove actually keeping the child for 35% or more overnights permits (but does not require) the court, in its discretion, to apply the shared physical custody child support guidelines.

The appellate court then presented three scenarios that might justify an award of shared physical custody child support for a parent awarded at least, but exercising less than, 35% overnights:

“In exercising its discretion, the court would likely need to consider why the awarded visitation was not actually exercised by the parent. We cannot possibly articulate the universe of relevant evidence in such cases, but relevant evidence might include:

1) whether the primary custodial parent obstructed the non-custodial parent’s overnight visitation;

2) whether a child was hospitalized or otherwise unable to be with the non-custodial parent for overnight visitation; and

3) whether the parents, acting jointly in the best interest of their child, agreed to temporarily limit overnight visitation with the non-custodial parent.

In sum, if a court determines that there is good reason for a parent’s failure to keep a child more than 35% of the overnights as awarded in an order, the court could, under subsection (n)(2), calculate child support based on shared physical custody.” (Emphasis added.)

In Footnote 7 the appellate court stated that discretionary application of the shared physical custody child support guidelines may apply prospectively.  This writer understands that to mean when the child support determination occurs simultaneously to the award of a shared physical custody.  On the fact, a statement of the obvious.  Because a parent, newly awarded shared physical custody, cannot prove that he/she has actually availed himself/herself of future overnights.

Perhaps Footnote 7 intends to address those situations in which shared physical custody is awarded with doubts about how many of the shared overnights a parent will avail himself/herself.  So, giving the trial court discretion when awarding child support.

Not to be overlooked – Footnote 9, which raises far more questions than it answers.  Specifically, Footnote 9 states:

“We reject [payor’s] argument that the circuit court did not have the authority to calculate child support for the years 2013 through 2016. [Payor’s] argument is based on FL § 12-101(a)(3), which provides: “For any other pleading that requests child support, the court may award child support for a period from the filing of the pleading that requests child support.” In [payor’s] view, FL § 12-101(a)(3) precludes the court from awarding child support for any period prior to April 29, 2016, the date [payee] filed her motion to enforce recalculated child support. We reject [payor’s] contention because [payee] merely sought enforcement of paragraph 6 of the parties’ Separation and Property Settlement Agreement, which expressly provides for an annual recalculation of child support commencing in 2013. FL 12-101(a)(3) is therefore inapplicable. Further, we express no view on the merits of [payor’s] argument that the circuit court did not have the statutory authority to make child support retroactive to 2013.”

Maryland Family Law §12-101(a)(3) allows a court to modify child support retroactive (so, dating back) to the date a request for modification is filed with the court.  (For more discussion on retroactive child support, please read Maryland Child Support – What is Retroactive Child Support?)

Superficially, Footnote 9 contains very clear language that Family Law §12-101(a)(3) is inapplicable.  But what does this really mean?  For example:

• Is Footnote 9 drawing a distinction between retroactive child support and recalculation of child support?
• So, is the court saying that a trial court has the jurisdiction to recalculate child support if an agreement requires parties to recalculate child support?  But, not necessarily award the recalculated support retroactively?
• Or, does it remain unresolved if the court can award retroactive child support in such a situation?
• If the court can award retroactive support and an agreement requires periodic recalculation of child support but is silent about retroactivity, then from what date should the court calculate retroactive child support?
• Is there an implied date of retroactivity in a contract requiring recalculation?  If so, what is it?
• Or, should an agreement requiring recalculation also contain explicit language about retroactivity and/or waiver of retroactivity?
• Likewise, should an agreement requiring recalculation reserve the court’s jurisdiction to determine retroactivity?  And, should any incorporating court order (such as a Judgment of Absolute Divorce or Child Support Order) contain language reserving jurisdiction?
• Must parents attempt to recalculate child support before asking the court to enforce the required recalculation and, thus, modify child support?
• Can a parent lose the right to recalculate child support and/or request retroactive child support if he/she waits too long to make a request?
• Should a child support agreement contain a retroactivity waiver for parents who do not avail themselves of required child support recalculation?
• If an agreement contains required recalculation of child support language, and the parents do not agree on the recalculated amount, why is that not an unenforceable agreement to agree?  What language should an agreement contain to avoid this?

Reimbursement of Children’s Expenses

Because the ex-husband failed to answer pre-trial discovery requests about his position on expense reimbursement, the trial court declined to receive evidence from ex-husband (including his own testimony) challenging ex-wife’s expenses.  Likewise, at trial ex-husband stated he was not seeking offset of expenses he had paid against reimbursement sought by ex-wife.  The Court of Special Appeals upheld the trial court’s decision:

“In light of [ex-husband’s] complete failure to provide discovery related to the children’s shared expenses, we decline to second-guess the trial court’s decision to preclude [ex-husband] from challenging whether those expenses were reimbursable under the Agreement.”

Lesson learned:  Carefully consider the appropriateness and consequences of holding back evidence.

Conclusion

On the one hand, Rose v. Rose provides greater clarity for child support modification cases when the number of overnights are disputed.  On the other hand, Rose v. Rose raises many questions about child support agreements requiring recalculation of child support, retroactivity of such recalculations, and the court’s jurisdiction and authority to address such agreements.  Careful consideration should be given to drafting agreement language requiring recalculation of child support and the consequences if the court is asked to enforce the agreement.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, Instagram, Twitter, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.