Mims v. Mims

635 A.2d 320, 1993 D.C. App. LEXIS 305, 1993 WL 511997

• Court: District of Columbia Court of Appeals
• Decided: December 9, 1993
• Docket: 91-FM-437
• Status: Published

Opinions

SCHWELB, Associate Judge:

On March 7, 1991, the trial judge granted Stephen Mims (the father) a judgment of absolute divorce from Bernice Mims (the mother). She awarded the mother custody of the parties’ two minor children, and ordered the father to pay $502 bi-weekly in child support. On appeal, the father contends that, because his children live with the mother in Maryland, the motions judge should have granted the father’s pretrial motion to apply the Maryland child support guideline rather than the District of Columbia guideline. He also argues that the trial judge erred in granting the mother sole use and possession of the marital home until the parties’ younger child reaches the age of eighteen. Finally, he contends that the trial judge erroneously found that the father had voluntarily reduced his income, and that this erroneous finding led to an incorrect calculation of his child support obligation.

We agree with the first two of the father’s contentions; only the first requires plenary discussion.¹ Accordingly, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion.²

I.

The parties were married in January 1983 in the District of Columbia. They had two children, who were seven and five years old at the time of the divorce. The couple purchased a marital home in Suitland, Maryland, in May 1988. They separated in September 1988, and the father moved into his mother’s house in the District. The mother and the two children continued to live in Maryland. In August 1990, the father filed a complaint for divorce in the Superior Court. The mother filed an answer and counterclaim seeking custody, support, and division of the marital property.

On October 4, 1990, the father’s counsel filed a motion to adopt foreign law, and requested the court to apply Maryland’s child support guideline, Md.Code Ann., Fam.Law § 12-201, et seq., (1992), instead of the District’s, D.C.Code § 16-916.1 (1993). After a hearing, the motions judge denied the request in an order signed on October 31,1990. The judge concluded that, because the parties were not yet divorced, the children’s domicile was that of the father, and that the children were therefore domiciled in the District. The judge also reasoned that if the case had been instituted by the mother pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), D.C.Code § 30-304 (1988), District of Columbia law would apply. Invoking the District’s “governmental interest analysis,” the judge concluded that “the party seeking support is not required to be domiciled in the District,” and that “the law of the father’s domicile should apply.”

II.

We are compelled to disagree with the motions judge’s conclusion, which rests on an incorrect determination of the children’s domicile. “[I]f the father and the mother have separate domiciles, minor children take the domicile of the parent with whom they actually live.” Oxley v. Oxley, 81 U.S.App.D.C. 346, 347, 159 F.2d 10, 11 (1946); see also Restatement (Second) Conflict of Laws, § 22(1) (1971) (“[a] minor has the same domicilie] as the parent with whom he lives”).³ Accordingly, the children are domiciled in Maryland.

The domicile determination is critical, for there is precedent in this jurisdiction, which was not cited to the trial judge, but which strongly suggests (and at least arguably requires) that we at least presumptively apply the law of the children’s domicile. In Simonds v. Simonds, 81 U.S.App.D.C. 50, 52, 154 F.2d 326, 328 (1946), decided a quarter of a century before M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), the court held that the question whether a minor domiciled in the District has the right to sue her father, domiciled elsewhere, for support was governed by the law of the District of Columbia.

In Alves v. Alves, 346 A.2d 736 (D.C.1975), the issue was whether the parties' 19-year-old son, who lived with his mother in Maryland, was entitled to child support from the father, a domiciliary of the District. The age of majority in Maryland was eighteen, but in the District it was twenty-one. Accordingly, in order to decide whether the father was obliged to continue to support his son, the court was first required to determine whether the question was governed by Maryland law or District of Columbia law. In Alves, as in this case, the father had obtained a divorce in our Superior Court and the litigation was being conducted in a District of Columbia forum. Nevertheless, this court held that

the domiciliary state being that of the mother, since she has custody, it is the law of Maryland which governs here. We see no reason, therefore, why we should not look to the law of Maryland to determine whether, at the time the trial court had jurisdiction, the son was a minor or an adult.

Id. at 739.

Given these precedents, and at least in the absence of particularized circumstances requiring a different result, the children’s Maryland domicile is at least arguably conclusive. To be sure, both Simonds and Alves were apparently decided on the basis of the child’s domicile alone, and the father has not disputed the motions judge’s determination that the “governmental interest analysis” approach, see, e.g., Rymer v. Pool, 574 A.2d 283, 285 (D.C.1990), which was not mentioned in either Simonds or Alves, applies in this case. No decision of this court has been cited to us, however, and we have found none, purporting to overrule Simonds or Alves, insofar as choice-of-law questions in child support cases are concerned. Even if we were to treat the father’s “concession” as amounting to a stipulation that the test applied in these decisions has been superseded,⁴ we are not bound by stipulations on questions of law in general, Sebold v. Sebold, 143 U.S.App.D.C. 406, 412 n. 8, 444 F.2d 864, 870 n. 8 (1971) (decided several months before M.A.P. v. Ryan), or as to choice of law in particular, Montgomery Fed. Sav. & Loan Ass’n v. Baer, 308 A.2d 768, 770 (D.C.1973).⁵ Our obligation under M.A.P. v. Ryan to follow otherwise binding precedents does not evaporate because a party has failed to cite them to us.

III.

Even if Simonds and Alves were no longer good authority — an “if’ as formidable as any since Rudyard Kipling’s day — the result would still be the same. Application of the governmental interest analysis⁶ in this case also requires the choice of Maryland law. The children’s domicile in a particular jurisdiction ordinarily provides that jurisdiction with the primary interest in assuring their support.

The interests of the District and Maryland in this controversy are reflected in their respective guidelines. “[Sjtatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” J. Parreco & Son v. District of Columbia Rental Hous. Comm’n, 567 A.2d 43, 46 (D.C.1989) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (Learned Hand, J.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945)). We must therefore identify the purposes of the District of Columbia child support guideline and of its Maryland analogue in relation to the issue presented in this case.

Child support is not intended to punish the father, but rather to ensure a decent standard of living for the child. Under the District’s guideline, “[cjhild support payments are for the benefit of the children ... and the children’s interest is paramount.” Nevarez v. Nevarez, 626 A.2d 867, 872 (D.C.1993) (citation omitted). The non-custodial parent’s income is, of course, relevant, but this is because

[a] proper calculation of the costs of rearing a child is dependent upon the income of the parents and is a function of that income; it is inappropriate to attempt to establish the amount of the financial needs of the child as though that figure were independent of parental income.

REPORT OF THE SUPERIOR COURT CHILD SUPPORT Guidelines Committee 10 (April 1988) (quoted in Fitzgerald v. Fitzgerald, 566 A.2d 719, 735 n. 5 (D.C.1989)) (separate opinion of Steadman, J.). This is the reason — indeed, the only reason — for the consideration in the guideline of the non-custodial parent’s gross income. In other words, the primary purpose of the District’s child support legislation is to protect the rights of District of Columbia children, not to penalize District of Columbia fathers. Cf. Wright v. Wright, 386 A.2d 1191, 1195 (D.C.1978) (explicating purpose of child support). Indeed, the District of Columbia has no legitimate interest in ensuring that a father who lives in the District must pay more to support Maryland children than an otherwise similarly situated Maryland resident would be required to pay. Cf. Kaiser Foundation Health Plan v. Rose, 583 A.2d 156, 159 (D.C.1990).⁷

In the present case, Maryland’s “governmental interest” is intrinsically greater than the District’s. The children are in Maryland. Their principal expenses are in Maryland. Maryland is the jurisdiction in which the father’s non-support would have its impact, and which would have to look after the children if, for example, they became public charges.⁸ It is therefore Maryland’s responsibility, more or less as parens patriae, to determine the needs of Maryland domiciliar-ies and how those needs should be met. Unlike the District’s guideline, the Maryland guideline was promulgated to protect Maryland children. The governmental interest at issue being the assurance of adequate support for children living in the jurisdiction, and the children in this case being Maryland domiciliaries, it is Maryland’s guideline which “would be most advanced by having its law applied to the facts before us.” Stutsman II, supra, 546 A.2d at 373. In his otherwise comprehensive separate opinion, Judge Fer-een fails in our view to come meaningfully to grips with this central truth.

The mother argues that, if she had sought child support from the father under URESA, “the residence of the obligor parent [would] control when determining the obligation and the level of support.” She suggests that we should therefore apply District law in this case, so that the choice of law would be the same no matter which party initiated the suit and which forum was selected for that purpose. The mother’s position, however, is founded on a mistaken premise.

If the action had been brought in Maryland, the mother would presumably have registered her judgment in the Superior Court (as did the mother in Nevarez) so that she could reach the father’s assets in the District and, if possible, his wages. But contrary to the mother’s assertion, the choice-of-law provision in the District’s URESA statute, D.C.Code § 30-304 (1993), authorizes the Superior Court to apply the law either of the jurisdiction where the father was present during the relevant period or of the jurisdiction where the dependents were present at the time of the non-support.⁹ Recently, in Nevarez, 626 A.2d at 4 n. 4, this court indicated, in the context of a suit brought in the District pursuant to URESA by a mother who lived with her children in Texas, that the court would at least “arguably be justified in applying the laws of Texas.”¹⁰ Nevarez thus stands for the proposition that application of the law of the State where the children live is, at least, a permissible alternative which the court is bound to consider. Even if this were a URESA case, which it is not, there is no inexorable statutory command which would then preclude the application of the Maryland guideline.

There are concededly factors, which could perhaps be compelling under other factual scenarios, suggesting that we should apply District law. The father chose to bring his action in the District of Columbia.¹¹ The law of the forum governs “unless the foreign state has a greater interest in the controversy.” Kaiser-Georgetown Community Health Plan v. Stutsman, 491 A.2d 502, 509 (D.C.1985) (Stutsman I). Moreover, when the interests of both jurisdictions are “equally weighty,” we have considered “the substantial savings that can accrue to the State’s judicial system when its judges are able to apply law with which they are thoroughly familiar or can easily discover....” Id. at 509 n. 10 (citations and internal quotation marks omitted).¹² We are satisfied, however, that these considerations are substantially outweighed, on these particular facts, by the most important reality in this case — namely, that we are dealing with support for children domiciled in Maryland, and that other things being equal, Maryland has a significantly greater interest than does the District in setting the level of that support. Accordingly, we conclude that the Maryland child support guideline, and not the District’s, applies to this case.

IV.

For the foregoing reasons, the judgment appealed from is reversed in part¹³ and the case is remanded for further proceedings consistent with this opinion, including appropriate modifications of the divorce decree.

So ordered. 14 ,

1 . We note with respect to the father's second contention that under Maryland law, which the trial court was required to apply, Williams v. Williams, 390 A.2d 4, 5-6 (D.C.1978), any provision in an order that concerns the family home "shall terminate no later than 3 years after the date on which the court grants an annulment or a limited or absolute divorce.” Md.Code.Ann., Fam.Law § 8 — 210(a)(1) (1991). The mother concedes that the trial judge's order was not in compliance with this statutory limitation, and the divorce decree must be modified accordingly.

2 . As to the third contention, the trial judge, who was in the best position to assess the father’s credibility, found that the father had voluntarily reduced his income by resigning from a full-time position, retaining only part-time employment. The father had nevertheless managed to stay current on his payments of $750 per month on a sublease of a 1989 Mercedes automobile. "The courts properly show no patience toward a person who seeks to circumvent family obligations without first decreasing his own expenditures.” Benvenuto v. Benvenuto, 389 A.2d 795, 800 (D.C.1978). We note, on the other hand, that at the time that the father held both full-time and part-time employment, he was working a total of sixty-eight hours a week.

We must remand the case in any event so that the trial court can apply the Maryland guideline instead of the District’s. The trial court must then determine whether the father was “voluntarily impoverished” within the meaning of Md. Code Ann., Fam.Law § 12 — 201(b)(2) (1992); John O. v. Jane O., 90 Md.App. 406, 601 A.2d 149, 156 (1992). It may not be reasonable to expect the father to work sixty-eight hours a week indefinitely, and we therefore suggest that the court take a second look at the father’s realistic earning capacity in the current job market. See John O., supra; Freeman v. Freeman, 397 A.2d 554, 555-56 (D.C.1979); cf. Guyton v. Guyton, 602 A.2d 1143, 1145 (D.C.1992).

3 . We question, but need not decide in this case, whether prior decisions holding that a child’s domicile was automatically that of the father, see, e.g., Schneider v. Schneider, 78 U.S.App.D.C. 383, 384, 141 F.2d 542, 543 (1944), which were apparently based on the perception of the husband as presumptively the “head” of the household, could survive today’s more enlightened approach to distinctions based on an individual's sex. Cf. Spindel v. Spindel, 283 F.Supp. 797, 813 (E.D.N.Y.1968) (Weinstein, J.) (legal equality of the sexes renders married woman capable of acquiring domicile separate from her husband, notwithstanding "ancient doctrine” to the contrary).

4 . The father's counsel stated in his brief in this court, that ”[t]he motions judge correctly concluded that the District of Columbia has followed the recent trend adopting the governmental interest analysis approach to choice of law questions." Counsel did not cite either Simonds or Alves, however, and it does not appear that this purported concession or acknowledgment was made with knowledge of these authorities.

5 . As Justice Brandéis wrote for the unanimous Court in Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289-90, 61 L.Ed. 722 (1917), “[i]f the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the Court cannot be controlled by agreement of counsel on a subsidiary question of law."

6 . Under this approach, the court first identifies the governmental policies underlying the applicable laws and then determines which jurisdiction’s policies would be more significantly advanced by having its law applied. Stutsman v. Kaiser Found. Health Plan, 546 A.2d 367, 373 (D.C.1988) (Stutsman II).

7 . Our dissenting colleague suggests that the Maryland guideline would not require a father whose income increased dramatically to do as much to bring his children’s standard of living up to his own standard as the District of Columbia guideline requires. Assuming this to be true, we do not believe it to be consistent with objective choice-of-law principles simply to apply the law of that jurisdiction which would award the children the most. Moreover, there is no suggestion that Mr. Mims has recently become a wealthy man, and we need not and do not decide under what, if any, circumstances a District of Columbia court should apply District law because, as a matter of public policy, the support required by the law of the jurisdiction in which the children reside would be inadequate.

8 . As the court stated in a somewhat different context in Lehmer v. Hardy, 54 App.D.C. 51, 55, 294 F. 407, 411 (1923),

[a] minor, like any other person, is entitled to the protection of the laws of the state or territory in which he abides.

(Emphasis added).

9 . Section 30-304 provides:

Duties of support enforceable under this chapter are those imposed under the laws of any state [1] in which the defendant was present during the period for which support is sought, or [2] in which the dependent was present when the failure to support commenced or where the dependent is when the failure to support continues. The defendant shall be presumed to have been present in the responding state during the period for which support is sought until otherwise shown.

(Emphasis and numerical divisions added).

10 . In Nevarez, the initial divorce decree had been issued by a Texas court. In that respect, the case would have been even stronger for applying Texas law than the present case is for application of Maryland law. The father in Nevarez, however, having argued in the trial court that Texas law applied, failed to renew his contention to that effect on appeal. Our comment on Texas law was therefore less than a holding on the issue. Cf. Harris v. Kinard, 443 A.2d 25, 28 (D.C.1982); Rittenhouse v. Rittenhouse, 461 A.2d 465, 466 (D.C.1983).

Harris and Rittenhouse cannot be construed as requiring the court to apply District of Columbia law in a URESA case. Such a result would read out of § 30-304 the provision which allows application of the law of the state in which the dependents were present. See footnote 9, supra, and the statutory language there italicized.

11 . We note, however, that in this case the District is by far the most convenient forum for both parties. The father lives in the District. The mother lives in Suitland, which is closer to our courthouse than to the Prince George’s County Courthouse in Upper Marlboro. At the time the suit was brought, both parties worked at the Library of Congress, a few blocks from our courthouse. Under these circumstances, it would be inequitable to apply to the father some juridical form of the just desserts theory — '"he asked for it and he got it” — when his choice of forum was to the advantage of all concerned.

12 . Whatever the significance of our judiciary’s unfamiliarity with foreign law may be in other cases, we give that factor little weight here. Such considerations were equally present in Alves II, and they were summarily rejected by the court, which saw "no reason” for not applying the law of Maryland. 346 A.2d at 739 (emphasis added).

Aside from the authority of Alves, Maryland law is not especially difficult for District of Columbia judges to discover. Decisions of the courts of Maryland are accorded the most respectful consideration by our courts. Roberts-Douglas v. Meares, 624 A.2d 405, 419 n. 20 (D.C.1992). In fact, the opinions of this court are published in the Maryland Reporter. Maryland’s schedule for computing the father's child support obligation is in the statute, Md.Code Fam.Law § 12-204, and thus readily available.

In Part V of his separate opinion, Judge Fer-ren, articulating his commendable concern for practicality, insists that our decision will overload the judges and hearing commissioners of the Superior Court with endless and unnecessary work. His position is predicated upon his assumption that

as a result of the majority’s decision ... District of Columbia judges will apparently have to apply the law of the children’s domicile in all non-URESA cases, wherever the children live.

(Emphasis in original). Judge Ferren's premise, however, is based on a misreading of our opinion.

Courts do not, or at least should not, issue generalized edicts, nor should they promulgate statute-like rules of law applicable to all future cases, regardless of their facts. Rather, they decide concrete controversies. We do not purport in this opinion to instruct trial judges how to rule on facts substantially different from those here. See, e.g., Khiem v. United States, 612 A.2d 160, 164 (D.C.1992), cert. denied, - U.S. -, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993). The determination that one jurisdiction or the other has the most significant contacts with the matter in dispute, see, e.g., Tramontana v. S.A. Empresa de Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 341, 350 F.2d 468, 471 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966), necessarily requires analysis of the totality of the relevant circumstances. If, in an individual case, it would be impossible or inordinately difficult to determine the proper level of support under the law of a particular jurisdiction, then this would obviously add a factor not here present into the judge's calculus.

Finally, application of governmental interest analysis in this case requires some inquiry into Maryland law in any event. The other principal issue raised in this appeal, namely, the question whether the trial judge could properly award the mother exclusive use of the former marital home until the youngest child reached the age of eighteen, is acknowledged by all parties to be governed by Maryland law.

13 . Our partial reversal affects only the father’s child support obligation and the disposition of the marital home. The parties remain divorced.

14 . Since, on remand, the trial court must apply Maryland law, we do not reach the father’s remaining contentions, which relate to the calculation of his obligations under the District's guideline.