Richardson v. Richardson

Superior Court of Guam·Decided December 17, 2012·No. DM0361-01·Unknown

Opinion

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IN THE SfPERI OR

! i

DARIUS A. RICHARDSON, M.D., ) Domestic Case No. DM361-01"

)

Plaintiff,

) DECISION AND ORDER:""/y , ) RE CHILD Sl1PPORT ~-----

vs. )

)

JEAN LORRAINE RICHARDSON, )

)

Defendant. )

)

-------------------------

Issues regarding child support came before this Court following the Guam Supreme

Court decision, Richardson vs. Richardson, 2010 Guam 14. An evidentiary hearing was held that lasted several days. Attorney Daniel Berman appeared for and with Plaintiff Darius A. Richardson ("Father"). Defendant Jean L. Richardson ("Mother"), pro se, appeared through video-conferencing and telephone-conferencing. The Court, after having heard the testimony of the parties and other witnesses and having reviewed the exhibits entered in the case and the record, now issues its Decision and Order.

The issues addressed in this Decision are: (I) calculation of child support from August 1, 2008 through July 31, 2009; and (II) calculation of child support from August 1, 2010 forward. The Guam Supreme Court held that this Court erred in deviating from the Guidelines to determine total monthly child support and in calculating the imputed income of Mother.

I. August 1,2008 through July 31, 2009.

A. The calculation of Father's income was not appealed. The amount of Father's annual income is $130,210 and his monthly income is $10,851 1•

I See November 10,2008 Finds. & Order at 2, items 1-3.

B. The computation of Mother's imputed income was appealed. The Supreme Court held that Mother's continued unemployment was voluntary. See Richardson, 2010 Guam 14 ~ 32. The Supreme Court declined to find that caring for children not of school age was reasonable cause for the voluntary unemployment and further held that time spent in self-representation was not cause for voluntary unemployment. Id. ~~ 41-43. The Supreme Court concluded that this Court's decision to impute income was proper and appropriate.

The Supreme Court "remand[ed] the issue of Jean's earning capacity for findings consistent with this opinion and leave for the trial court to determine in the first instance whether part-time employment is due to a 'reasonable cause' under section 1203(a)(5) of the Guam Administrative Rules and Regulations." Id. ~ 54. This Guidelines item provides that:

(5) If a parent is unemployed ... the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, such as caring for children, the court may attribute income to the parent up to his or her earning capacity.

Mother testified that she was unable to be employed because of her young children's need for care after schoof. She admitted that, although there was a charge, she could enroll the children in after-school care. Father's expert witness testified that was not good cause for part- time employment because flex time was available and she could work a full-day and still pick up her children after school. 3 On August 1, 2008, Moses was 13 year old, Sahara was 10 12 years old, and Garcelle was 8 12 years old. Moses attended a public schooL 4 Sahara and Garcelle attended private schooL 5 Mother took the children to school and picked them up after school. 6

2 Hearing 117111 at 2:09 p.m. 3 Testimony of David Burger at Hearing 117/11 at 4:26 p.m. 4 November 10, 2008 Dec. & Order at 3. 5Id

If Mother was employed full-time, then the younger children would either have to be emolled in the after-school care program increasing their educational expenses or use public transportation to return to their residence. Given their youth, public bus transportation is chancy. The Court finds it would be reasonable for Mother to be employed at least six hours per day and care for the younger children from 3 p.m. to 5 p.m. when she has custody in 2008.

Father presented extensive expert evidence regarding Mother's earning capacity in Honolulu and New York City. The Guam Supreme Court held that in construing 19 G.A.R. Section 1203(a)(5), earning capacity is "the amount of income [a parent] would earn by making all reasonable voluntary efforts to maximize income." Richardson, 2010 Guam 14 ~ 45. In her treatise, cited with approval by the Guam Supreme Court, Laura W. Morgan suggests the factors to be considered in determining the amount of imputed income are:

In most states, the first step in determining whether to impute income as a matter of law is to determine earning capacity. A party's earning capacity is the amount of income he or she would earn by making all reasonable voluntary efforts to maximize income .... Further, a person's earning capacity as a question of fact is to be based on evidence in the record.

When determining "earning capacity," the courts have generally focused on five factors. First, the court will look to the work and earnings history of the parent. The courts generally do not like to impute income to a parent at a level more than the parent ever earned in the past, especially if that parent has been out of the job market for a number of years.

Second, the courts look at the educational attainments of the parent. Court do not like parents who do not utilize their education to maximize income.

Third, courts look at specific occupational qualifications. Courts will not impute income at an occupational level the parents cannot or have not attained. Fourth, the courts will look at the parent's specific physical and mental condition. Fifth, the courts will look to prevailing job opportunities in appropriate geographic area, along with the prevailing wages in that geographic area. [Citations omitted.]

Laura W. Morgan, Child Support Guidelines: Interpretation and Application §2.04(c) (2010 Supplement).

The application of these five factors is as follows:

First, with respect to Mother's work and earnings history, although the evidence shows that Mother was last remuneratively employed before Moses was born, the evidence also shows that Mother has demonstrated that she possesses the legal skills of a seasoned paralegal. More specifically, Mother been pro se since the trial in the matter, and, as a pro se litigant, she has prepared numerous pleadings for trial and the appeal and has appeared at both trial and appellate hearings. In fact, Father's expert testified that she demonstrated skill as a paralegal and was qualified for the position ofParalega12. 7 Second, with respect to Mother's education, she has a Bachelor of Science degree from Vassar College (1986) and attended but did not graduate from PACE Law School. 8 Third, Father argues that Mother is qualified to do paralegal work in either Honolulu or New York City.9 Mother testified that she included as imputed income $12,000 per annum for part-time work as an administrative assistant or secretary. 10 In Mother's opinion, the full-annual salary for such a position is $24,000.

Fourth, Mother did not argue that she was either physically or mentally impaired limiting her ability to be employed.

7Testimony of David Burger at Hearing 12116110 at 3:27 p.m. and 3: 41 p.m. See also Plaintiffs Exhibit 0, page 7, E.5. 8 See PI.'s Ex. 0, at 3, pt. (b). 9 Mother did not present sufficient evidence to show that she would not be able to obtain employment as a paralegal in Honolulu or New York City. Mother also did not contradict Mr. Burger's position that she "as significant opportunities for employment as a paralegal either in Honolulu or New York City." See Pl.'s Ex. Oat 7, pt. E. 10 Hearing 117111 at 4: 17 p.m.

Fifth, the Court must determine the prevailing wages in the appropriate geographical area. When Mother has custody of the children she resides in Honolulu. When she does not have custody, she resides in New York City. Mother concedes that she could earn $24,000 per annum in Honolulu.

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