Dunlap v. Fiorenza

738 A.2d 312, 128 Md. App. 357, 1999 Md. App. LEXIS 172
CourtCourt of Special Appeals of Maryland
DecidedSeptember 30, 1999
Docket1853, Sept. Term, 1998
StatusPublished
Cited by20 cases

This text of 738 A.2d 312 (Dunlap v. Fiorenza) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlap v. Fiorenza, 738 A.2d 312, 128 Md. App. 357, 1999 Md. App. LEXIS 172 (Md. Ct. App. 1999).

Opinions

MOYLAN, Judge.

Brenda J. (Grove) Dunlap, the appellant/cross-appellee, challenges the determination of Judge James C. Cawood, Jr., in the Circuit Court for Anne Arundel County with respect to the amount of child support she was entitled to receive for the son she parented out of wedlock with Vincent Charles Fioren-za, the appellee/cross-appellant. Dunlap raises four issues for our consideration:

1) Did the trial court err in attributing to her a potential income of $50,000 per year at a time when she was unemployed?
2) Did the trial court err by deviating downward from the Child Support Guidelines by $157 per month?
3) Did the trial court err in failing a) to back date the support order and b) to award her a contribution for the medical and educational expenses she had incurred?
4) Did the trial court err in failing to require Fiorenza to pay at least one-half of their child’s private school tuition?
Fiorenza, in his cross-appeal, raises the following issues:
5) Did the trial court err in awarding Dunlap a contribution toward her attorney’s fees?
6) Did the trial court err in failing to award Fiorenza income tax exemptions because of his child support payments?

[361]*361FACTUAL AND PROCEDURAL BACKGROUND

The parties to this appeal were never married. On September 28, 1984, Justin Fiorenza (“Justin”) was bom to the parties. In 1987 in the Circuit Court for Prince George’s County, Dunlap filed a paternity action against Fiorenza with respect to Justin. Subsequently, both parties entered into a Consent Order whereby 1) Dunlap retained sole custody of Justin and 2) Fiorenza was obligated to pay child support in the amount of $200 per month.

For the next twelve years, Dunlap retained sole physical and legal custody of Justin. During that time, Justin began experiencing difficulties in school as early as the first grade. When Justin was in the fourth grade, he was diagnosed with attention deficit disorder (“ADD”). From the third through sixth grades Justin attended St. John the Evangelist School (“St. Johns”), a private parochial school. Because of his behavioral problems, however, in May of 1996 Justin was asked by school officials not to return to St. Johns at the end of his sixth-grade year.

In the summer of 1996, Dunlap, her minor daughter from a prior marriage (Lauren), and Dunlap’s now-husband but then boyfriend, moved from Prince George’s County to Anne Arun-del County, ostensibly because Dunlap believed she could find a suitable public school for Justin there. Justin was enrolled in Central Middle School for the fall of 1996. Within weeks after school began, however, Justin’s teachers complained of his behavior in the classroom. During that fall semester Justin was suspended on a number of occasions.

In October of 1996, Dunlap quit her job of nineteen years as a general manager at a Roy Rogers Restaurant, at least in part to devote more attention to Justin. At the time she left the Roy Rogers Restaurant, she was earning approximately $50,000 per year. Dunlap also withdrew her retirement contributions from her former employer’s retirement plan in a single lump sum. After she stopped working, Dunlap picked up her son from school earlier than she had been able to do in [362]*362the past and met with his teachers and guidance counselor on numerous occasions.

Justin’s behavior, however, did not improve. During the spring semester of 1997, a gun was discovered in his backpack while he was in school. He was accordingly suspended. For the remainder of the spring semester, he received in-home tutoring and was then placed on long-term suspension from all Anne Arundel County schools for at least one additional semester. During that period of home tutoring, Dunlap supervised Justin’s progress. Justin underwent counseling sessions with Dr. Robert Marcus of Sheppard Pratt Hospital from February of 1997 until April of 1998.

On June 23, 1997, Fiorenza filed a Petition to Modify Custody.1 Fiorenza, who was then living in Pennsylvania, sought to have Justin move in with him and to attend school in Pennsylvania. Dunlap opposed the motion.

Dunlap decided that Justin would attend Queen Anne’s School, a private school, beginning in the fall of 1997. Given the expense of tuition at Queen Anne’s School, Dunlap sought to have Fiorenza’s child support payments increased. Accordingly, on September 23,1997, Dunlap filed a Motion to Modify Child Support.

Justin began showing improvement during the 1997-98 school year (Justin’s eighth grade year) at Queen Anne’s School. Dunlap continued to maintain close contact with Justin’s teachers and she also paid for the entire tuition of the 1997-98 school year and various tutoring sessions. Justin was invited to return to the school for his ninth grade year.

A hearing took place over the course of several days during June of 1998. The focus of that hearing was on the appropriate custody arrangement for Justin. At the time of the hearing, each party had married. Fiorenza had two children by his marriage, whose ages were two years and six months, [363]*363respectively. Dunlap also had a nine-year old daughter by an earlier marriage.

On July 14, 1998, Judge Cawood issued an Opinion and Order whereby the parties were granted joint legal custody of Justin. Primary physical custody remained with Dunlap. He ordered Fiorenza to pay increased child support from his former payment of $200 per month to the amount of $400 per month and also to contribute $300 per month toward private school tuition.

STANDARD OF REVIEW

When presented with a Petition to Modify Child Support, a court may modify a child support obligation at any time if a material change in circumstances has been shown that justifies such a modification. A decision regarding such a modification is left to the sound discretion of the trial court and will not be disturbed unless that discretion was arbitrarily used or the judgment was clearly wrong.

Moore v. Tseronis, 106 Md.App. 275, 281, 664 A.2d 427 (1995) (citations omitted); Tidier v. Tidier, 50 Md.App. 1, 9, 435 A.2d 489 (1981). Maryland Rule 8-131(c) expressly provides:

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

See In re Joshua W., 94 Md.App. 486, 491, 617 A.2d 1154 (1993).

ATTRIBUTION OF $50,000 PER YEAR EARNING CAPACITY TO DUNLAP

Dunlap maintains that Judge Cawood erred in attributing $50,000 of income to her when she was unemployed at the time of trial. In support of her position, she claims that the trial court failed to make an explicit finding of voluntary impoverishment, and, even if it implicitly made such a finding, [364]

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Dunlap v. Fiorenza
738 A.2d 312 (Court of Special Appeals of Maryland, 1999)

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Bluebook (online)
738 A.2d 312, 128 Md. App. 357, 1999 Md. App. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-fiorenza-mdctspecapp-1999.