Clark v. Clark

779 A.2d 42, 172 Vt. 351, 2001 Vt. LEXIS 182

• Court: Supreme Court of Vermont
• Decided: June 22, 2001
• Docket: 99-028
• Status: Published

Opinions

Skoghmd, J.

Father appeals from an order of the Chittenden Family Court granting mother’s motion to modify child support. He argues that the court had no jurisdiction to modify the award because mother failed to meet her burden of showing a real, substantial and unanticipated change of circumstances, see 15 V.S.A. § 660(a) & (b); and, even if the court had jurisdiction, it incorrectly determined the amount of the modified award. We affirm.

The following facts are not in dispute. Mother and father were married in 1980. Their son Justin was bom in 1982 and their daughter Mattie was bom in 1986. Justin suffers from moderate cerebral palsy and, developmeritally, is about five years behind his chronological age. He also suffers from attention deficit disorder and, as a result, has problems with his peers and with authority figures. Mattie is healthy and has no special needs.

During the marriage, the parties resided in Charlotte, and Justin attended Charlotte Elementary School, where he received special education services. The parties were divorced in 1993. Pursuant to the parties’ stipulation, the court, in its final divorce order, awarded mother parental rights and responsibilities for Justin and Mattie, awarded father visitation, and provided that child support would be determined by the magistrate. Over father’s objection, the court awarded mother sole possession of her interest in her father’s estate and the Alison Clark Trust, a testamentary trust established by her father. The magistrate subsequently set child support at $944.92 per month, pursuant to the parties’ stipulation.

Father appealed the portion of the family court’s decision that awarded mother the estate and trust. In March 1994, the magistrate issued a child support order in the amount of $1,287.00 per month, in accordance with the child support guidelines. Father agreed to dismiss his appeal when mother agreed to stipulate to a child support order of $600.00 per month. In November 1994, the parties stipulated to child support of $600.00 per month, and in December 1994, the magistrate amended the order accordingly. The amended order deviated from the child support guidelines by more than ten percent.

In the spring of 1994, mother moved to South Burlington because she found Charlotte too isolating, and because she had heard positive things about the South Burlington school system’s program for special-needs children. Justin, however, had difficulty in the school system. In March 1995, mother visited Crotched Mountain Rehabilitation Center and Preparatory School in New Hampshire, determined it was appropriate for Justin, and enrolled him there in June 1995, at a cost of $88,349.00 per year. In September 1995, mother filed a motion to modify child support; in June 1998, the magistrate granted mother’s motion and set child support at $1,707.00 per month. The family court affirmed. Father appeals.

I. Real, Substantial and Unanticipated Change of Circumstances

Father first argues that the court had no jurisdiction to modify the award. According to father, because Justin’s needs were apparent from an early age, the fact that he required special schooling was not a real, substantial, and unanticipated change of circumstances.¹

15 V.S.A § 660(a) provides, in pertinent part:

On motion of either parent. . . and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary or modify a child support order, whether or not the order is based upon a stipulation or agreement.

15 V.S.A § 660(b) provides, in pertinent part:

A child support order . . . [that] varies more than ten percent from the amounts required to be paid under the support guideline, shall be considered a real, substantial and unanticipated change of circumstances.

Under § 660(b), because the child support order mother sought to modify deviated from the guidelines by more than ten percent, the court had jurisdiction to modify the order. See Grimes v. Grimes, 159 Vt. 399, 406, 621 A.2d 211, 214 (1992) (declining to reach issue of whether decrease in father’s income was real, substantial and unanticipated change in circumstances under § 660(a), citing § 660(b), and stating: “Because it is undisputed that the 1987 order set the child support obligation more than 10% above the guideline amount, the court did not err in modifying the order.”).

II. Amount of Award

Father argues that the court incorrectly determined the amount of the modified award because the court failed to impute income to mother for stocks that father contends are performing poorly, stocks that were not generating any income at the time of the hearing, expenses the trust incurs annually, and the increase in value of the trust corpus. Further, father argues, the court erroneously imputed $600 per month in income to him based upon the monthly rental value of a cottage that father’s employer allows him to live in for free.

In Vermont, child support obligations are based upon the gross incomes of the parties. See Ainsworth v. Ainsworth, 154 Vt. 103, 107, 574 A.2d 772, 775 (1990). The language of 15 V.S.A. § 653(5) defines “gross income,” in the context of child support calculations, as the “actual gross income of a parent,” including “income from any source, including, but not limited to, ... trust income.” 15 V.S.A § 653(5)(A)(i). Furthermore, the definition of gross income provides that “[fincóme at the current rate for long-term United States Treasury Bills shall be imputed to nonincome producing assets with an aggregate fair market value of $10,000.00 or more.” Id. (emphasis added).

The magistrate declined to impute income to mother for stocks that father contended were performing poorly because he concluded that mother’s investments were income producing assets. The family court affirmed. Here, it is undisputed that mother’s investments are income producing assets. Thus, because the statute only applies to nonincome producing assets, father’s argument fails. See Tarrant v. Department of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999) (In determining legislative intent, we begin with plain meaning of statutory language; if legislative intent is clear from language, we enforce statute “according to its terms without resorting to statutory construction.”). As a policy matter, father argues that courts should require child support obligors and obligees “to at least make reasonable investments.” We disagree. It is not the role of the judiciary to second guess personal investment decisions or to micromanage investment portfolios. And while we note that, “ ‘[i]n a given set of circumstances, the court may determine that it is appropriate to require a parent to reinvest or liquidate certain assets to provide for his or her children,’ ” this is not such a case. Ogbom v. Hilts, 692 N.Y.S.2d 490, 492 (App. Div. 1999) (quoting Webb v. Rugg, 602 N.Y.S.2d 716, 718 (App. Div.1993)).²

Next, father argues that the court erred in refusing to impute income to mother for $643,000 worth of stocks in mother’s trust that were not producing income at the time of the hearing. According to father, the evidence before the magistrate did not support his or the family court’s conclusion that those stocks were income producing assets. However, father concedes that these stocks and the stocks he contends were performing poorly were commingled in one investment account. As we stated above, the facts of this case do not give rise to the circumstances in which a court should evaluate the parties’ investment portfolios. To require courts in every case to carefully examine an investment account and determine which stocks are producing income and which are not would be an overly burdensome task.³

Father also argues that the court erred in failing to impute income to mother based upon $32,000 in trust-related taxes, legal and accounting fees, and fiduciary fees that are paid out of trust income annually. Under the terms of the trust, mother was entitled to the trust corpus when she reached the age of forty. Because mother is over forty years old, she could elect to have the trust distributed to her. Instead, mother continues to use the executors of the trust to administer the trust, thereby incurring annual fees and expenses. Father contends that because mother chooses to leave the funds in the trust, the fees should be imputed to her as income.

Father’s argument appears to be based on a confusion regarding the distinction, for child support obligation purposes, between the income a trust generates, and the amount of such income that a beneficiary actually realizes. As noted, the governing statute includes “trust income” in the definition of a parent’s “gross income.” See 15 V.S.A. § 653(5)(A)(i). In construing a statute, “ ‘our overriding objective must be to effectuate the intent of the Legislature.’ ” State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999) (quoting State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996)). In doing so, our first step “ ‘is to look at the language of the statute itself [because] [w]e presume the Legislature intended the plain, ordinary meaning of the language.’ ” Id. (quoting State v. O’Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996)). It is clear from a reading of the plain language of the statute that the legislature intended to define income in terms of the parent’s income, and not the income generated by a trust.

Father presented no evidence that the amount of taxes and fees paid was unreasonable, or what a reasonable fee would be to manage this particular trust. Accordingly, in determining whether trust income used to pay the costs of administering the trust should be imputed to mother, the only question is whether she was entitled- to receive as income the amounts paid by the trustees for administrative costs. The terms of the trust provide the trustees complete discretion over charging these costs of administration either against principal, or against income, and do not provide mother with any control over which source of payment is selected.

At trial, both parties’ experts testified that the income mother receives is the net income of the trust, after the costs of administration have been deducted. Were the trustees to pay administrative costs out of principal, leaving the gross income generated by the trust untouched, that entire amount of trust income would be eligible for consideration in calculating mother’s child support obligation. The same would be true if she was to invoke her right to have the trust principal distributed to her, as there would then be no restriction on her right to the income generated by the trust assets. These scenarios do not, however, reflect the reality of mother’s situation. The amount of trust income she receives is exactly what she is entitled to receive, and what the trust requires to be distributed to her, and no more, in light of the trustees’ discretionary election to charge administrative costs to trust income. Therefore, the amount of trust income expended to pay the costs of administration are not imputable to mother as income, and thus are not to be considered in determining her child support obligation. The family court did not abuse its discretion in not attributing the fees to mother as income.

Father next argues that the court erred by refusing to impute income to mother based on the increase in the corpus, or “capital gain” as he characterizes the increase in corpus, of her father’s trust. According to father, under 15 V.S.A. § 653(5)(A)(i), the increase in value of the trust corpus should be considered a capital gain. While testimony was presented and the issue was argued before the magistrate, father failed to raise this issue when he appealed to the family court. A review of the required statement of questions to be determined by the family court, see V.R.F.P. 8(g)(3)(B), and the accompanying memorandum shows that father did not argue this question on appeal to the family court. As he failed to raise the issue before the family court, he has waived the right to raise it on appeal to this Court. See Morais v. Yee, 162 Vt. 366, 372, 648 A.2d 405, 410 (1994) (arguments not presented before the trial court are not considered by this Court).

Finally, father argues that the court erred in imputing $600 per month in income to him based upon the monthly rental value of a cottage in which his employer allows him to live free of charge, and which father occupies approximately fourteen nights a month. On appeal, father contends there was no evidence that staying at the cottage reduces his personal living expenses. See 15 V.S.A § 653(5)(A)(ii) (gross income includes: “in-kind payments received by a parent in the course of employment... if they reduce personal living expenses”). At trial, however, father affirmed that the cottage was an in-kind benefit from his employer which reduced the cost of his living expenses. The testimony of father, and of mother’s expert, agreed that the rental value of the cottage was $600 per month. Father stated that he only resided in the cottage because it was offered for free, and if he had to pay to stay there, he would instead stay in a local motel. Thus, but for the housing provided by his employer, father would incur additional monthly personal living expenses. Therefore, it was proper to impute to father the rental value of the property. See McDaniel v. McDaniel, 653 So. 2d 1076, 1077 (Fla. Dist. Ct. App. 1995) (under statutory scheme including as gross income for child support purposes in-Mnd payments to the extent that they reduce living expenses, court properly included on monthly basis the value of company car provided to husband).

Affirmed.

1 The magistrate found that Crotched Mountain was not an extraordinary educational expense for purposes of determining mother’s income. See 15 V.S.A. § 653(4) & (9). He did, however, And that Justin’s enrollment at Crotched Mountain was a real, substantial and unanticipated change of circumstances for purposes of establishing jurisdiction to modify the support order. The family court affirmed. Father does not argue that the magistrate erred in finding that Crotched Mountain was not an extraordinary educational expense. Therefore, we do not address the issue.

2 The cases cited by the dissent to support the imputation by the court of a higher rate of return on investments than is maintained by the party are factually distinguished by an underlying obfuscation or deliberate attempt to conceal assets. For example, in Miller v. Miller, 734 A.2d 752 (N.J. 1999), husband, a longtime market manager for Merrill Lynch and an “experienced investor,” sought a downward modification of his alimony payments. On a net worth of over $6 million, $4.5 million of which was liquid, the trial court granted husband’s motion and reduced wife’s alimony from $200,000 per year to $48,000. Husband had invested his assets in a manner yielding only 1.6% interest. On appeal, the order was reversed and remanded for recalculation using a method attributing investment earnings at the rate on long-term A-rate corporate bonds. The court noted that “a supporting spouse cannot insulate his or her assets from the alimony calculus by investing those assets in a non-income producing manner.” Id. at 760. In Kay v. Kay, 339 N.E.2d 143 (N.Y. 1975), husband claimed annual income of $28,000 but owned real estate and stock valued at nearly one million dollars. He had attempted to obscure the true amount of his income, deceiving his wife during their marriage as to his true income level, and presenting “complicated testimony at trial in an effort to explain away much of this income as spent on business needs.” Id. at 145. It was against this factual backdrop that the court held that “if it were necessary for the husband here to utilize his capital or other assets, they would not be exempt from the requirement that he maintain the marital standard of living simply because he voluntarily maintains his finances in a form that limits the income they produce.” Id. at 146. And, in Pagar v. Pagar, 397 N.E.2d 1293, 1297 (Mass. App. Ct. 1980), husband sought a downward modification of alimony and child support payments after investing $49,000 in a yacht from which he subsequently received income of $23 a week as captain. Because of “obscurities” in the husband’s expenses listed in his financial statements, and after commenting on the fact that husband was “maintaining his finances in a form that limits the income he receives, twenty-three dollars a week, from an initial $49,000 investment,” the court found he had not met his burden and declined to modify his obligation.

The only case cited by dissent involving a trust beneficiary is In re Dick, 18 Cal. Rptr. 2d 743 (Ct. App. 1993), in which the husband had transferred more than $20 million in assets to various offshore trusts and corporations, which he placed in the control of others acting for his benefit. The appeals court stated that “[t]he crucial finding was that husband had organized his assets so that he had created ‘a labyrinth of trusts and corporations designed by him ... to shield and protect [him] from creditors’ ” and to avoid tax liability. Id. at 752. The court then looked past the apparent form of ownership to determine the extent of husband’s true interest and the availability of those assets in assessing his ability to pay spousal support. Id. at 751-52. There is no suggestion in this case that mother has been duplicitous in her arrangements for income.

3 The dissent argues that we should create a presumption imputing a reasonable rate of return on underearning assets in child support cases, rebuttable upon a showing that the parent has a purpose for investing in the undereaming assets which benefits the children eligible for support. 172 Vt. at 365, 779 A.2d at 53-54. In the present case, the family court awarded mother all of her inherited wealth, including the trust established by her father, despite father’s strong opposition. In the 1993 findings and memorandum of decision, the court concluded:

The crux of this case is that [father’s] obligation to pay maintenance is roughly offset by [mother’s] good fortune in inheriting a substantial estate from her family, which will be needed to maintain a standard of living approximately that established during the marriage (and which [father] will continue to enjoy due to his relatively high earning capacity) and provide somewhat for the reasonable needs of Justin for the foreseeable future. So there is no misunderstanding, the court finds that Justin is a child with serious disabilities which probably will require that he receive substantial life time care.

The trial court apparently anticipated plaintiff’s ongoing and long-term care obligations for her son.