Erica J. Hall Houser v. Nicholas A. Houser, No. 2220, Sept. Term 2022. Opinion by Arthur, J.
FAMILY LAW – CHILD SUPPORT – USE OF CHILD SUPPORT GUIDELINES
Section 12-202(a)(1) of the Family Law Article of the Maryland Code (1984, 2019 Repl. Vol.) mandates that courts use the child support guidelines in any proceeding to establish or modify child support. The court must award the amount dictated by the guidelines unless it determines that “the application of the guidelines would be unjust or inappropriate in a particular case.” FL § 12-202(a)(2)(ii). If the court determines that the application of the guidelines would be unjust or inappropriate, it must make specific findings, including a finding about how deviating from the guidelines serves the child’s best interest. FL § 12-202(a)(2)(v).
In this case, both parents submitted a child support agreement proposing that the father would have no child support obligation. The Circuit Court for Anne Arundel County refused to accept the agreement because the parents failed to provide any justification to support a deviation from the guidelines. Instead, the court applied the statutory guidelines and ordered the father to make monthly payments. The parents appealed, arguing that their agreement was in the best interest of their child and that the court’s refusal to accept their agreement was a violation of their fundamental right to direct the care, custody, and control of their child.
The Appellate Court of Maryland held that even if parents have created an agreement regarding child support, the circuit court must apply the statutory guidelines unless the court finds that doing so would be unjust or inappropriate. Although the court may deviate from the guidelines, Maryland courts do not permit parents to agree privately to waive child support altogether. The right to receive child support is a right that belongs to the child. Accordingly, the circuit court found no reason to deviate from the guidelines, and thus, did not err in its use of the guidelines.
CONSTITUTIONAL LAW – RIGHT TO DIRECT THE CARE, CUSTODY, AND CONTROL OF CHILDREN – OBLIGATION TO PAY CHILD SUPPORT
In Troxel v. Granville, 530 U.S. 57, 65 (2000), a plurality of the United States Supreme Court held that a Washington state statute permitting a court to order a parent to grant visitation rights to third parties deprived parents of substantive due process because it infringed upon their “liberty interest” in “the care, custody, and control of their children.” The opinion did not address a parent’s legal obligation to pay child support. Prior to Troxel, the Court held in Rivera v. Minnich, 483 U.S. 574, 580 (1987), that a father has no “liberty interest in avoiding financial obligations to his natural child that are validly imposed by state law.” The liberty interest discussed in Troxel does not entitle parents to exculpate one another from their legal obligation to support their children. The circuit court did not err in rejecting the parents’ contention that the parents had a constitutional right to agree that the father would pay no child support. Circuit Court for Anne Arundel County Case No C-02-FM-20-002520
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 2220
September Term, 2022
______________________________________
ERICA J. HALL HOUSER
V.
NICHOLAS A. HOUSER
Arthur, Shaw, McDonald, Robert N. (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Arthur, J. ______________________________________
Filed: August 1, 2024
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State * Ripken, J., did not participate in the Court’s Government Article) this document is authentic. decision to designate this opinion for 2024.08.01 14:54:09 publication pursuant to Md. Rule 8-605.1 -04'00'
Gregory Hilton, Clerk The parents of a five-year-old child agreed that the father would have no
obligation to support the child even though the mother would have primary physical
custody and the father’s income is more than twice the mother’s. The Circuit Court for
Anne Arundel County refused to accept the agreement. Instead, the court ordered the
father to make monthly child support payments in accordance with the Maryland child
support guidelines, Maryland Code (1984, 2019 Repl. Vol.), § 12-204 of the Family Law
(“FL”) Article.
The parents appealed. They argue, among other things, that the court’s order
violated their fundamental right, as fit parents, to determine how much to spend on the
support of their child.
For the reasons stated in this opinion, we affirm the judgment of the circuit court.
BACKGROUND A. Initial Divorce Proceedings
Erica Hall Houser (“Mother”) and Nicholas Houser (“Father”) were married in
2012. They have one child, who was born in 2018. The parties separated on February
14, 2020, with the intent to end their marriage.
Mother initiated divorce proceedings on September 18, 2020. Among other
things, Mother requested sole custody of the child, as well as child support payments,
including payments retroactive to the date of her complaint.
Father filed a counterclaim on October 13, 2020. He too requested sole custody of
the child, as well as child support payments, including payments retroactive to the date of filing his counterclaim. He later amended his counterclaim to include additional
allegations and theories, but his request for relief remained the same.
The parties reached an agreement concerning pendente lite custody and access to
the child, but were unable to reach an agreement on other issues. Consequently, the court
scheduled a merits hearing for January 24, 2023.
B. The Three Agreements
On January 19, 2023, just days before the scheduled hearing, Mother and Father
entered into three agreements, titled: Property Settlement Agreement; Custody and
Parenting Agreement; and Child Support Agreement.
The Property Settlement Agreement and the Custody and Parenting Agreement are
relatively straightforward. The Child Support Agreement is not.
In the Property Settlement Agreement, the parties agreed that Mother would
continue to hold, reside in, and have exclusive use of the family home in Edgewater,
Maryland. Father waived all equity, interest, and rights in the home. Mother would have
sole liability on the mortgage on the home. Mother and Father also agreed to discharge
each other from alimony obligations and from any rights to their respective retirement
assets.
The Custody and Parenting Agreement set forth the parties’ agreement regarding
the custody and control of the child. Mother and Father agreed to joint legal custody of
the child. Mother would have primary physical custody; Father was entitled to five
overnight visits every two-week period.
2 In the Child Support Agreement, Mother and Father began by acknowledging that
Father had not paid any child support to Mother. They calculated Father’s child support
arrearages at “approximately $41,708.” “However,” Mother and Father “agree[d] that
there are no child support arrears as of the date of this Agreement and [Mother] waive[d]
any entitlement to child support arrears.”
In the Child Support Agreement, Mother and Father also agreed that the Maryland
child support guidelines were “inapplicable to their case.” They asserted that because
their household combined income exceeded $15,000.00 per month, theirs was an “above-
guidelines” case, to which the guidelines 1 do not strictly apply. See, e.g., Ruiz v.
Kinoshita, 239 Md. App. 395, 425 (2018). “[A]fter consulting” the guidelines “and
considering the best interests of their minor child,” Mother and Father “agree[d] that each
party shall each [sic] be generally charged with support for the minor child when he is in
their respective care and custody.” In other words, Mother and Father agreed to a
“waiver of child support.” The parents “both agree[d]” that the waiver of child support
was “in the best interests of the minor child.”
In the Child Support Agreement, Mother and Father also agreed that the
agreement “shall not be modifiable for at least a period of twenty-four months from the
date of execution.” 2 Mother and Father “recognize[d]” that under Maryland law “child
The General Assembly has increased the limits of the guidelines to $30,000.00 1
per month, but the change applies only to cases filed after the effective date of the act. See 2020 Md. Laws ch. 384, § 2.
But see Guidash v. Tome, 211 Md. App. 725, 741 (2013) (holding that an 2
agreement purporting to prohibit a court from modifying the amount of child support “did
3 support must be determined by considering the best interests of the minor child.”
Nonetheless, they “agree[d] that any modification of” the agreement “would not be in the
best interest of the minor child.” They recited that they had “reached this agreement in
consideration for many factors and considerations [sic], some of which would not be
considered by a court of competent jurisdiction if this matter were to be decided by that
Court.”
The Child Support Agreement did not identify the “factors and considerations”
that a court would not consider or why a court would not consider them. The agreement,
however, did provide that if either party attempted to modify the agreement in
contravention of the prohibition on modification for at least 24 months, that action
“would immediately constitute a material change in circumstances” under the Custody
and Parenting Agreement, entitling the other parent to ask a court to alter the custody
arrangement.
Under the Child Support Agreement, Father agreed to continue to maintain health
insurance for the child, but Mother would be responsible for the first $6,000.00 per year
in extraordinary medical expenses. Father and Mother would split the extraordinary
medical expenses once they exceeded $6,000.00 in any given year.
not limit the circuit court’s authority to revisit this issue in light of changed circumstances” and “[was] void as violative of the clearly-established public policy of this State”); Corapcioglu v. Roosevelt, 170 Md. App. 572, 606 (2006) (stating that “[a] parent may not bargain away the child’s right to support, and modification of that support, from the other parent”); Lieberman v. Lieberman, 81 Md. App. 575, 588 (1990) (stating that “[a] parent cannot agree to preclude a child’s right to support by the other parent, or the right to have that support modified in appropriate circumstances”).
4 Finally, in the Child Support Agreement, Mother was to be solely responsible for
the cost of all extracurricular activities and for all work-related childcare expenses.
C. Merits Hearing
On January 24, 2023, Mother and Father appeared before the Circuit Court for
Anne Arundel County for a hearing on the merits. The court knew that the parties had
reached a settlement.
At the outset, Mother’s counsel informed the court that the parties had done
“something a little unique in this case.” He explained that the parties had executed three
separate agreements because they did not “want the Court to use the child support
guidelines.” He asked the court to consider two ways of proceeding. First, if the court
required the use of the child support guidelines, then counsel would ask the court to
incorporate, but not merge, two of the agreements into the judgment, but not to
incorporate or merge the child support agreement. Second, if the court allowed Mother
and Father to “deviate,” in his words, from the child support guidelines, then counsel
would ask the court to incorporate all three agreements into the judgment.
After ascertaining that the guidelines dictated a child support payment from Father
to Mother, the court asked, “[W]hat are you asking me to do with child support?”
Counsel for Mother answered, “Zero.” The court asked, “Why.” Counsel responded,
“Well, basically that is what their agreement is.” Counsel also referred obliquely to
“other agreements with respect to property” and “the way that they are going to deal with
things.”
5 The court responded that it was “not willing . . . to just waive child support.” It
explained that it would be required to make a “difficult finding” that it is “in the best
interest of the minor child . . . to receive no child support.”
Counsel for Mother asked the court to incorporate the Parenting Agreement and
the Child Custody Agreement, but not the Child Support Agreement, into the judgment.
The court responded: “If I am resolving child custody, I have to address child support as
well.” When counsel objected that the Family Law Article does not require the court to
fix the amount of child support when the parents have “resolved” the issue of support, the
court responded: “There is case law that says that the Court has an obligation to explore
child support and to order child support.”
The court engaged in a colloquy with counsel for both parents in an effort to
ascertain whether there was some basis to depart from the guidelines. Through the
colloquy, the court learned that the child was less than five years old and that Father was
waiving his interest in the marital home, but that the amount of equity in the home was
not much, even before paying the costs of sale. When Father’s counsel reiterated that the
parents believed that the waiver of child support was in the child’s best interest, the court
responded: “It is in their best interest[;] it is not in the child’s best interest . . . to receive
no child support.” When counsel persisted, the court repeated that it could not deviate
from the guidelines unless it made a “finding that it is in the best interest of the child.”
“And,” the court added, “there is just nothing you have said so far that gets me there.”
6 At this juncture, counsel for Mother acknowledged that the Family Law Article
authorized the court to set child support, 3 but asserted that Father and Mother have a
constitutional right to decide how to raise their child. Counsel claimed that, as a
constitutional matter, a court could not second-guess the decision of “fit and proper
parents” that it is not in their child’s best interest for a court to order child support. The
court disagreed with counsel’s contention.
Counsel for the parents requested a recess. When they returned, they told the
court that they would like to move forward to obtain a divorce. Counsel recognized that
the court could call the parents as witnesses, ask them questions under oath, and make a
determination about child support. The court responded: “That is the way that I am going
to proceed if we are going to be addressing custody.”
Mother took the stand. In response to the court’s questions, she testified, over
objection, that she was employed as a project manager for a software development
company. Her annual salary was “around” $74,000.00 a year. She paid for the child’s
daycare costs, which amounted to about $1,386.00 a month. When asked by the court if
there was “some reason” why she was not seeking child support payments, Mother
responded:
I believe that his relationship is the most important and we have gone our separate ways and supported ourselves and our child financially independently thus far and have done well, I think. And so moving forward I would prefer not to have to deal with any money.
3 Counsel stated: “So obviously 12-201 and 12-202(a) provide the Court with the authority to set child support.”
7 The court asked Mother whether she believed that “the father has an obligation to
assist in supporting the child.” She responded that “he does.”
Mother confirmed that the child would stay overnight with her roughly 61 percent
of the time and with Father roughly 39 percent of the time. She also confirmed that
Father had paid no child support since the separation.
Next, the court called Father to testify. Over objection, Father testified that he was
currently employed as an IT engineer or architect and that he had an annual salary of
$170,000.00 per year. In response to questions from his own counsel, Father testified
that he spent “anywhere between [$]100 and [$]150” a month for the child’s health
insurance. The court said that it would use the higher figure, of $150.00 per month, in
calculating child support.
At the close of testimony, the court determined that the guidelines dictated a child
support obligation of $2,105.00 per month. Then, the court considered various avenues
to justify a deviation from the guidelines.
The court found that there was less than $20,000.00 in equity in the marital home,
after deducting the likely costs of sale. Consequently, the amount of equity was “not a
significant figure that would permit [the court] to deviate from the guidelines[.]” The
court considered a deviation for travel costs, but rejected it, because the parties live in
relatively close proximity to one another.
Mother’s counsel argued that Mother and Father were “fit and proper persons” to
have legal and physical custody. He asserted that if Mother and Father were capable of
making “sound fundamental decisions” pertaining to custody, they should also be
8 permitted to make a decision not to require child support. “There is no better person on
the planet . . . than the biological parents of a child,” he argued, to decide “what they
believe is in their child’s best interest.”
The court responded that it had heard no reason “other than . . . this is what the
parents would like to do.” Counsel for Mother replied, “[T]hat is exactly the argument.”
He asserted that under Troxel v. Granville, 530 U.S. 57 (2000), 4 Mother and Father have
a “fundamental right to parent” and that the courts cannot “second guess” what they have
said is in the best interest of their children.
The court disagreed, stating that it “has an obligation to look out for the best
interest of the minor child.” The court could think of “no reason . . . why [Father]
shouldn’t pay his proportional share.” It explained that it could not justify deviating
“from $2,105 to zero.” The court accepted the Child Support Agreement into evidence,
but did not incorporate it into the judgment for absolute divorce.
Ultimately, the court ordered Father to pay $2,105.00 per month in child support,
beginning on February 1, 2023. It permitted Father to make the payment directly to
Mother rather than to the Office of Child Support Enforcement.
4 As discussed in greater detail below, Troxel v. Granville concerned a state statute that authorized “[a]ny person” to petition a court for visitation rights “at any time” and authorized the court to grant visitation rights whenever, in the court’s judgment, “visitation may serve the best interest of the child.” Id. at 60 (quoting Wash. Rev. Code. § 26.10.160(3) (1994)). A plurality of the Court held that the statute violated a fit parent’s substantive due process right to make decisions concerning the care, custody, and control of her children. Id. at 72-73.
9 In addition, the court found that Father had a child support arrearage of
$41,708.00. It ordered Father to pay off the arrearage at the rate of $195.00 per month.
In conclusion, the court stated:
The parties’ agreement to exchange no child support has not been justified in any way that I can see other than they believe as Counsel pointed out that as two fit parents, they are entitled to make that decision on their own and I don’t think the case law supports that. Maybe the legislature will change it at some point but that is where we are at this point.
Mother noted a timely appeal on February 13, 2023. Father noted a timely appeal
on February 15, 2023. Both Mother and Father ask this Court to vacate the child support
order and to allow Mother and Father to waive the child support obligation.
QUESTIONS PRESENTED
On appeal, Mother presents three questions for review. Father presents the same
three questions.
1. Did the trial court err when it issued a child support order after the parties had voluntarily withdrawn child support as a justiciable issue, and the court did so over the objections of the parents who the court found to be fit and proper?
2. Did the trial court mis-apply [sic] the statute, or abuse its discretion, when the court ordered child support and arrears over the express objection of the parents who the court found to be fit and proper?
3. Did the trial court violate the parents’ constitutional rights when the court ignored their agreement regarding child support when the parents were found to be fit and proper?
Although Mother and Father are adversaries in name, they request the same relief:
reversal. Father’s brief largely incorporates the arguments in Mother’s.
Because Mother and Father both contended that the circuit court had erred and that
it had violated their constitutional rights in ordering Father to pay child support, we asked
10 the Attorney General to file an amicus brief. We asked the Attorney General to address
two issues:
1. May a court apply the statutory child support guidelines when the parents have reached an agreement regarding the level of child support?
2. Do the Maryland cases concerning the parents’ ability to waive child support remain good law after Troxel v. Granville[, 530 U.S. 57 (2000)]?
The Attorney General filed an amicus brief in response to our request. In
summary, he argues (1) that a court must follow the guidelines unless it would be unjust
or inappropriate to do so and (2) that Troxel v. Granville does not require a court to
endorse an agreement in which the parents have agreed to forgo child support.
STANDARD OF REVIEW
“The trial court’s decision as to the appropriate amount of child support involves
the exercise of the court’s discretion.” Guidash v. Tome, 211 Md. App. 725, 735 (2013).
“A court can abuse its discretion when it makes a decision based on an incorrect legal
premise or upon factual conclusions that are clearly erroneous.” Id. However, “where
the [child support] order involves an interpretation and application of Maryland statutory
and case law, [the] Court must determine whether the [trial] court’s conclusions are
‘legally correct’ under a de novo standard of review.” Walter v. Gunter, 367 Md. 386,
392 (2002).
DISCUSSION
The parents’ first two contentions are variations of one another. First, they assert
that the court erred in addressing the issue of child support after they had “withdrawn” it
11 from consideration. Second, they assert that the court erred or abused its discretion in
awarding child support over their objections. Because these contentions are closely
related, we shall address them together.
We begin with a pair of elementary propositions. First, parents have a legal
obligation to support their children. See, e.g., Drummond v. State ex rel. Drummond, 350
Md. 502, 520 (1998); Petrini v. Petrini, 336 Md. 453, 459 (1994); Durkee v. Durkee, 144
Md. App. 161, 182 (2002); Shrivastava v. Mates, 93 Md. App. 320, 327 (1992); see FL §
5-203(b)(1) (stating that parents “are jointly and severally responsible for the child’s
support, care, nurture, welfare, and education[]”). Second, because of the State’s role as
parens patriae or the protector of those who cannot protect themselves, “it is the duty of
a court to consider the child’s best interest” in matters pertaining to child support. See,
e.g., Geramifar v. Geramifar, 113 Md. App. 495, 503 (1997).
FL § 12-202(a)(1) states the general rule that, “in any proceeding to establish or
modify child support . . . , the court shall use the child support guidelines . . . .” “As the
language of the provisions ma[de] clear, ‘[i]t is mandatory that the statutory guidelines be
used. No deviation from the cookbook methodology may be made.’” Allred v. Allred,
130 Md. App. 13, 17-18 (2000) (quoting John F. Fader II and Richard F. Gilbert,
Maryland Family Law § 8-3 (2d ed. 1995)).
A purpose of the guidelines was “to remedy the unconscionably low levels of
many child support awards when compared with the actual cost of raising children, to
improve the consistency and equity of child support awards, and to increase the
efficiency in the adjudication of child support awards.” Petrini v. Petrini, 336 Md. at
12 460. The conceptual underpinning of the guidelines is that children should receive the
same proportion of parental income, and thereby enjoy the same standard of living, as
they would have experienced had their parents remained together. Voishan v. Palma, 327
Md. 318, 322 (1992).
“There is a rebuttable presumption that the amount of child support which would
result from the application of the child support guidelines . . . is the correct amount of
child support to be awarded.” FL § 12-202(a)(2)(i). Thus, a court must award the
amount of child support dictated by the guidelines unless it determines that “the
application of the guidelines would be unjust or inappropriate in a particular case.” FL §
12-202(a)(2)(ii). If the court determines that the application of the guidelines would be
unjust or inappropriate, it must make specific findings, including a finding about how its
conclusion serves the child’s best interest. FL § 12-202(a)(2)(v).
Although a court may depart from the guidelines when they generate an unjust or
inappropriate result, Maryland courts have repeatedly stated that parents may not waive
the obligation of child support. For example, in Walsh v. Walsh, 333 Md. 492, 503
(1994), the Court remanded the case for a determination of whether the father’s cessation
of mortgage payments was a material change of circumstances that warranted a
reconsideration of the amount of his child support obligation. For guidance on remand,
the Court stated:
[W]hile parties are encouraged to settle domestic disputes, when doing so, they must be mindful of the needs of their children. When a judge approves and incorporates an agreement of the parents into an order of support, the judge must do more than merely rubber stamp anything to
13 which the parents agree. Judges have an obligation to assure that children do not suffer because of any disparate bargaining power of their parents.
Id. at 503-04.
The Court added: “Even before the guidelines, this Court made it clear that
agreements between the parents were not binding on a court ordering child support.” Id.
at 504 (citing Stancil v. Stancil, 286 Md. 530, 535 (1979)).
The Court expressed a similar proposition in Stambaugh v. Child Support
Enforcement Administration, 323 Md. 106 (1991). In that case, a mother had agreed to
waive child support arrearages in exchange for the father’s agreement to consent to the
adoption of the children by the mother’s husband. Id. at 109. In holding that the
agreement violated public policy and was invalid, the Court stated, “Generally, the duty
to support one’s minor children may not be bargained away or waived.” Id. at 111.
On several occasions, this Court has reiterated the principle that parents may not
bargain away their legal obligation to support their children. See, e.g., Guidash v. Tome,
211 Md. App. 725, 739 (2013) (stating that “parents may not waive or bargain away a
child’s right to receive support”); Bornemann v. Bornemann, 175 Md. App. 716, 731
(2007) (stating that “the duty to support one’s child cannot be waived by contract”);
Corapcioglu v. Roosevelt, 170 Md. App. 572, 606 (2006) (stating that “[a] parent may not
bargain away the child’s right to support, and modification of that support, from the other
parent”); Shrivastava v. Mates, 93 Md. App. 320, 327 (1992) (stating that “[t]he law and
policy of this State is that the child’s best interest is of paramount importance and cannot
be altered by the parties”). “Any such agreement is at odds with the public policy in
14 favor of responsible parents supporting their children financially.” Corapcioglu v.
Roosevelt, 170 Md. App. at 606.
“A parent owes this obligation of support to the child, not to the other parent[.]”
Knott v. Knott, 146 Md. App. 232, 247 (2002); accord Guidash v. Tome, 211 Md. App. at
742 (stating that the father’s “obligation to pay child support is to his son, not his former
spouse”); Rand v. Rand, 40 Md. App. 550, 554 (1978) (stating that “[t]he fixing of child
support derives from the obligation of the parent to the child, not from one parent to
another”). “[N]o agreement, regardless of its terms, can relieve [a parent] of that
obligation.” Guidash v. Tome, 211 Md. App. at 742. Because the right to support
belongs to the child and not to a parent, a parent is unable to trade away the right to child
support in exchange for something of value to the parent alone.
Not only is a parent unable to bargain away a child’s right of support, but there are
strong policy reasons to prohibit agreements to waive child support:
The State has a vested interest in requiring a responsible parent to support his or her child. Otherwise, the State could be responsible in whole or in part for the support of a minor child, even though a parent is financially able to meet those obligations. We hold that a parent may not, even potentially, shift the burden of support to the State.
Lieberman v. Lieberman, 81 Md. App. 575, 588 (1990).
And, as the Attorney General argues in his amicus brief, “power imbalances
between spouses, including circumstances where one spouse fears violence by the other,”
may make it difficult to assess whether the spouses have freely entered into an agreement
to waive child support. “Judges have an obligation to assure that children do not suffer
because of any disparate bargaining power of their parents.” Walsh v. Walsh, 333 Md. at
15 504. By adhering to the guidelines unless it would be unjust or inappropriate to do so,
courts can avoid the possibility that they may approve putative agreements that result
from pressure, fear, or other power imbalances.
Against this body of authority, Mother and Father argue, first, that the court erred
in awarding child support because, they say, they had voluntarily withdrawn the issue
from consideration. They claim that the issue of child support was no longer
“justiciable.” We disagree.
In their pleadings, both parents had requested child support (and an award of child
support arrearages). On the morning of the merits hearing, they asked the court to
approve their agreement on child custody as well as their agreement on child support.
They purported to withdraw the issue of child support only after the court told them that
it would not approve an agreement to waive child support altogether. In these
circumstances, allowing the parents to withdraw the issue of child support would be
tantamount to allowing them to waive the child’s right to support, which they cannot do.
See, e.g., Stambaugh v. Child Support Enforcement Admin., 323 Md. at 111; Guidash v.
Tome, 211 Md. App. at 739; Corapcioglu v. Roosevelt, 170 Md. App. at 606; Shrivastava
v. Mates, 93 Md. App. at 327. A rule prohibiting parents from waiving their children’s
right to support would have little efficacy if the parents could prevent a court from
enforcing the rule through the simple expedient of purporting to withdraw the issue of
support from the court’s consideration. 5
Father characterizes the effort to withdraw the request for child support as an oral 5
amendment of the pleadings. He asserts that a court has no power to address issues not
16 Mother and Father advance several contentions in support of their second
argument, that the court erred or abused its discretion in awarding child support over their
objection. None have merit.
Mother and Father begin by arguing that the guidelines apply only in “contested”
cases, but that their case was not “contested” because they had reached an agreement to
waive the child’s right to support. This argument is nothing more than a variant of their
fallacious argument that the court could not award child support because they had
“withdrawn” the issue. The parents can say that the case was “uncontested” only because
they purported to withdraw the issue of child support, which they cannot do.
Mother and Father rely prominently on Ruppert v. Fish, 84 Md. App. 665, 674
(1990), a case concerning FL § 8-103(a). That statute permits a court to “modify any
provision of a deed, agreement, or settlement with respect to the care, custody, education,
or support of any minor child of the spouses, if the modification would be in the best
interests of the child.”
In Ruppert v. Fish, 84 Md. App. at 668, the parents’ agreement gave the father the
right to “choose the child[’s] education[.]” This Court affirmed an order modifying the
agreement to prohibit the father from moving the child to another school as a new school
year was about to begin, but vacated an order allowing the father to continue to choose
which school the child would attend in subsequent years. Id. at 676-77. On remand, the
framed by the pleadings. Father fails to recognize that, under Maryland Rule 2-341(b), a party can amend a pleading within 15 days of trial only by leave of court. Here, the putative amendment occurred on the morning of the trial itself. Neither party sought or obtained leave of court for the purported amendment.
17 mother would have the opportunity to show that it was no longer in the child’s best
interests for the father to choose which school the child would attend. Id. We cautioned
that, on remand, “it [was] not for the court to decide where [the child] goes to school; it
[was] merely for the court to determine whether it remains in [the child’s] best interest
for that decision to be made by [the father.]” Id. at 676.
Mother and Father highlight some of this Court’s comments concerning a court’s
statutory ability to modify an agreement with respect to care, custody, education, or
support in the child’s best interests. They point to the statement that “[t]he parents of a
minor child are generally free to enter into an agreement respecting the care, custody,
education, and support of their child[ren].” Id. at 674. They stress this Court’s assertion
that the parents “are the persons who ought to decide those things.” Id. (emphasis in
original). They also stress this Court’s declaration that a “court should presume” that the
parents acted in their children’s best interest and that parents “will not ordinarily agree in
writing to act in a manner detrimental to their children.” Id. at 675.
In the comments highlighted by the parents, this Court discussed how a court
should proceed when one parent asks the court to modify an agreement with respect to
care, custody, education, or support in the child’s best interests. Through its qualified
statements that parents are “generally free” to enter into agreements respecting the
support of their children, that courts “should” indulge a rebuttable presumption that the
parents acted in the best interest of their children, and that parents “will not ordinarily
agree” to act in a manner detrimental to their children, this Court did not override the
many subsequent cases that say that “the judge must do more than merely rubber stamp
18 anything to which the parents agree”; 6 that “[j]udges have an obligation to assure that
children do not suffer because of any disparate bargaining power of their parents”; 7 that,
“[g]enerally, the duty to support one’s minor children may not be bargained away”; 8 that
“the child’s best interest is of paramount importance and cannot be altered by the
parties”; 9 and that “no agreement, regardless of its terms, can relieve” parents of the
obligation to support their children. Guidash v. Tome, 211 Md. App. at 742.
Mother and Father address none of the language in any of the many cases that say
that parents may not bargain away a child’s right to support. 10 Nonetheless, they argue
that the legislature “acknowledged and approved of the ‘bargaining’ of child support.”
They cite FL § 12-202(a)(2)(iii)(1), which permits a court to depart from the guidelines if
an agreement provides for other forms of financial support for a child. They assert that
the circuit court abused its discretion in “fail[ing] even to consider that provision,” but
they point to no agreement by which Father undertook to provide other forms of financial
6 Walsh v. Walsh, 333 Md. at 504. 7 Id. 8 Stambaugh v. Child Support Enforcement Admin., 323 Md. at 111. 9 Shrivastava v. Mates, 93 Md. App. at 327. 10 The only case that they cite is Walsh v. Walsh, which, they say, “deals solely with the trial court’s conclusion that the cessation of the father’s mortgage contribution was not a material changes [sic] in circumstances.” They do not address the Court’s guidance on remand, including its injunction that “the judge must do more than merely rubber stamp anything to which the parents agree” and that “[j]udges have an obligation to assure that children do not suffer because of any disparate bargaining power of their parents.” Walsh v. Walsh, 333 Md. at 504.
19 support for the child. Instead, they criticize the court for noting the minimal amount of
equity that Mother would receive in the agreement by which she received the marital
home (and the accompanying debt obligation). Their argument does not identify any
errors in the circuit court’s decision.
Mother and Father go on to assert that under FL § 12-202(b)(1)(i) “[a] court may
decline to establish a child support order if the parent who would have the obligation to
pay child support . . . lives with the child who would be the subject of the child support
order and is contributing to the support of the child.” They claim the benefit of this
provision because the child lives with Father 39 percent of the time. The parents did not
make this argument in the circuit court, so it is not preserved for appellate review. Md.
Rule 8-131(a). But even if it were preserved, their argument would seem to permit a
court to dispense with child support in most, if not all, cases in which the parents have
shared physical custody. See FL § 12-201(o)(1) (defining “shared physical custody” to
mean “that each parent keeps the child or children overnight for more than 25% of the
year and that both parents contribute to the expenses of the child or children in addition to
the payment of child support”). That could not be what the guidelines intended. In any
event, FL § 12-202(b)(1)(i) is discretionary—the court “may decline to establish a child
support order” in certain circumstances. FL § 12-202(b)(1)(i) does not obligate the court
to decline to establish a child support order.
Mother and Father argue that the maximum amount of support is not always in the
child’s best interest. They cite Petitto v. Pettito, 147 Md. App. 280, 304 (2002), in which
this Court stated: “more can mean less; although appellant seems to suggest that it is
20 always in a child’s best interest to receive the maximum possible amount of monetary
aid, that is not necessarily so.” They ignore the context of this Court’s statement: a
dispute about whether an agreement required a Maryland court to calculate child support
in accordance with the (higher) guidelines applicable in Massachusetts, a state to which
the parties no longer had any connection. We explained:
Use of the child support guidelines of a state wholly unrelated to the parties, except by an outdated agreement, could result in a financial hardship to a parent. In turn, the financial burden on a parent could have an adverse impact on the child, because a parent who is under undue financial pressure may not be able to meet a child’s ongoing emotional needs, which are clearly important to the child’s healthy development.
Id.
Petitto affords no support to the parents’ contention that the circuit court in this
case erred or abused its discretion in applying the guidelines despite the parents’
agreement to waive child support. 11
Finally, Mother and Father cite In re Joshua W., 94 Md. App. 486, 504 (1993),
which states that “a downward departure from the guidelines could be justified as in the
best interest of a child in foster care if the court found, in the proper case, that such an
adjustment was necessary for the parent to obtain the economic stability necessary to
regain custody and care properly for the child.” In re Joshua W. concerns a father’s
obligation to pay child support to the State when his children are in foster care because
11 In fact, Petitto recognizes that an agreement between the parents cannot take priority over the best interests of the child (id. at 303), that “[p]arents cannot waive or bargain away appropriate child support” (id.), and that “‘the child’s best interest is of paramount importance and cannot be altered by the parties.’” Id. at 305 (quoting Shrivastava v. Mates, 93 Md. App. at 327).
21 they have been found to be children in need of assistance or “CINA.” 12 It has little to do
with the case before this Court.
More generally, a downward departure from the guidelines may sometimes be
justified as in the best interest of the child, but a parent must make at least some effort to
justify it. Here, however, the parents asserted that they had no obligation to justify a
downward departure (to zero). Instead, they asserted the circuit court had no choice but
to acquiesce in their agreement to waive the child’s right to support. The circuit court
correctly rejected their assertion. 13
We turn now to the parents’ final argument—that the circuit court violated their
federal constitutional right, as fit and proper parents, to determine how much to spend on
the support of their child (and, by extension, to agree that Father has no obligation to
provide child support to his son). Father and Mother base their constitutional argument
on Troxel v. Granville, 530 U.S. 57 (2000), a fractured decision that yielded six separate
opinions, none of which commanded the assent of a majority of the Court.
In Troxel v. Granville, the Court considered a Washington state statute that
empowered a trial judge to order a fit parent to grant visitation to any third party, over the
12 When Mother’s brief quotes In re Joshua W., it uses ellipsis to omit the words “in foster care.” 13 Mother’s brief raises at least two issues that neither parent presented to the circuit court. For example, she argues that the court incorrectly calculated the amount of child support. She also argues that the court had no authority to determine an arrearage and to require Father to pay it. Because neither parent presented those issues to the circuit court, they are not preserved for appellate review. Md. Rule 8-131(a). We cannot reverse the circuit court for failing to consider issues that no one asked it to decide.
22 parent’s objection, if the court determined that visitation was in the child’s best interest.
The statute “contain[ed] no requirement that a court accord the parent’s decision any
presumption of validity or any weight whatsoever[,]” but rather “place[d] the best-interest
determination solely in the hands of the judge.” Id. at 67.
In a plurality opinion joined by Chief Justice Rehnquist, Justice Ginsburg, and
Justice Breyer, Justice O’Connor concluded that the statute deprived parents of
substantive due process because it infringed upon their “liberty interest” in “the care,
custody, and control of their children” (id. at 65) and their “fundamental right . . . to make
decisions concerning the care, custody, and control of their children.” Id. at 66-67. In
reaching its decision, the plurality stressed “the sweeping breadth” of the statute—anyone
could apply to the court for visitation—and the court’s “broad, unlimited power” to
override a parent’s decision. Id. at 73. Justices Souter and Thomas concurred separately
in the judgment, but not in the specific reasoning of the plurality opinion.
Justice O’Connor’s plurality opinion relied in substantial part on earlier cases
concerning who has the authority to make child-rearing decisions and when a state can
override a parent’s decisions about a child’s education or employment. Id. at 65-66.
Among other cases, the plurality cited and discussed Meyer v. Nebraska, 262 U.S. 390
(1923), which struck down a state statute that prohibited parents from teaching their
children a language other than English; Pierce v. Society of the Sisters of the Holy Names,
268 U.S. 510 (1925), which struck down a state statute that prohibited parents from
sending their children to religious schools; Stanley v. Illinois, 405 U.S. 645 (1972), which
struck down a state statute that presumed that unwed fathers were unsuitable and
23 neglectful parents; and Santosky v. Kramer, 455 U.S. 745 (1982), which struck down a
state statute that permitted a state to terminate a person’s parental rights on proof by less
than clear and convincing evidence. The plurality opinion did not cite or discuss any
cases addressing a parent’s legal obligation to provide adequate support for a child.
By contrast, in Rivera v. Minnich, 483 U.S. 574, 575 (1987), the Court had upheld
a statute that permitted a state to establish paternity (and thus an obligation to pay child
support) by only a preponderance of the evidence. In arguing that the statute was
unconstitutional, the putative father relied on Santosky v. Kramer, 455 U.S. at 748, which
held that due process required proof at least by clear and convincing evidence before a
state could terminate a person’s parental rights. The Court rejected the “tacit assumption
of an equivalence between the State’s imposition of the legal obligations accompanying a
biological relationship between parent and child and the State’s termination of a fully
existing parent-child relationship.” Rivera v. Minnich, 483 U.S. at 579. “[T]he primary
interest of the [putative father],” the Court wrote, “is in avoiding the serious economic
consequences that flow from a court order that establishes paternity and its correlative
obligation to provide support for the child.” Id. at 580. “In contrast,” the Court
observed, “in a termination proceeding the State is seeking to destroy permanently all
legal recognition of the parental relationship.” Id. In these circumstances, the Court
reasoned that “the putative father has no legitimate right and certainly no liberty interest
in avoiding financial obligations to his natural child that are validly imposed by state
law.” Id. Nothing in Troxel undercuts the Court’s earlier statement that parents have “no
liberty interest” in avoiding validly imposed financial obligations to their children.
24 Other courts have identified this same distinction between a parent’s liberty interest
in the care, custody, and control of a child and a parent’s legal obligation to support a
child. See Dietz v. Dep’t of Social Services Child Support, No. 4:23-CV-04114-RAL,
2024 WL 1882165 (D.S.D. Apr. 30, 2024), at *4 (unpublished opinion) (stating that
“parents do not have a constitutional right to avoid supporting their minor child or to be
free from paying what child support amount a state-law system providing due process
protection determines the parent to owe[]”); Margolies v. Margolies, No. 94,924, 2006
WL 2661220 (Kan. Ct. App. Sept. 15, 2006), at *6 (unpublished per curiam decision)
(recognizing that under Troxel “parents have a fundamental right to decide the care,
custody, and control of their children,” but finding no constitutional issue because the only
matter before the court “pertains to the trial court’s determination of child support, not
custody”) (emphasis in original); see also Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn.
2003) (stating, in the context of an equal protection claim, that “[a]llocating a certain
amount of financial support to one’s children is a mandatory obligation, not a fundamental
right[,]” and thus that “parents have no fundamental right to allocate support to their
children as they see fit”). 14
14 In his brief, the Attorney General cited an unpublished decision of the Supreme Court of Montana: In re Marriage of Caffrey, No. 00-307, 2002 WL 1484015 (Mont. 2002). In that case, the Montana court rejected a father’s contention that Troxel prohibited a court from requiring him to make child support payments in accordance with Montana’s mandatory guidelines. Under the Montana Operating Rules, Section 1, Paragraph 3(c)(ii), an unpublished memorandum opinion “shall not be citeable [sic] as binding precedent, but may be cited when relevant to establishing the application of law of the case, res judicata, or collateral estoppel; or in a criminal action or proceeding involving the same defendant or a disciplinary action or proceeding involving the same person.” The Montana Supreme Court does not permit citation to its unpublished
25 Mother claims to find support in Frase v. Barnhart, 379 Md. 100, 124-25 (2003),
where the Court relied on Troxel to reverse an interlocutory order that granted custody to
a fit parent on the condition that she move with her child to a new residence and allow
visitation with the child’s former caretakers at some place other than the mother’s current
residence. Id. at 108. Frase does not advance the parents’ position. The decision about
where a fit parent and her child must live or where visitation must occur does not
implicate the child’s right to child support or the parent’s obligation to provide support; it
implicates the parent’s fundamental right in the care, custody, or control of the child. To
say that a court cannot dictate where a fit mother can live as a condition of retaining
custody, as the Court did in Frase, is not to say that two fit parents can agree to waive
their child’s right to receive support from them.
In the final analysis, “Troxel was an extremely narrow decision” that “hinged ‘on
the sweeping breadth’ of the Washington statute and ‘the application of that broad,
unlimited power.’” Conover v. Conover, 450 Md. 51, 70 (2016) (quoting Troxel v.
Granville, 530 U.S. at 73). The liberty interest discussed in Troxel—the interest of fit
parents in the care, custody, and control of their children—does not entitle those parents
to exculpate one another from their legal obligation to support their children. The circuit
court therefore did not err in rejecting the parents’ contention in this case, that Mother
and Father had a constitutional right to agree that Father would pay no child support.
opinions and disregards arguments based on unpublished opinions. State v. Ferre, 322 P.3d 1047, 1049 (Mont. 2014); State v. Oie, 174 P.3d 937, 939 (Mont. 2007); State v. Little, 861 P.2d 154, 159 (Mont. 1993). Consequently, the unpublished Montana opinion may not be cited as persuasive authority in Maryland. Md. Rule 1-104(b).
26 CONCLUSION
The circuit court correctly considered child support in this matter, as the issue was
appropriately presented for review to that court. In addition, the circuit court correctly
applied the child support guidelines from Title 12 of the Family Law Article, because the
use of these guidelines is mandatory for the determination of a child support award,
unless the court finds that the application of the guidelines would be unjust or
inappropriate and makes specific findings, including a finding about how deviating from
the guidelines serves the child’s best interest. Finally, the circuit court did not err in
determining that Father owed child support and in determining that Father and Mother
had no constitutionally protected liberty interest in agreeing that Father had no obligation
to provide child support for their son.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE EVENLY DIVIDED BETWEEN APPELLANT AND APPELLEE.