Opinion
Supreme Court DOCKET NO. 2012-068
08-31-2012
Bobbi Jo Stellate/Office of Child Support v. McCurtis Anthony Williams, a/k/a Zen Williams
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Rutland Unit,
Family Division
DOCKET NO. 209-5-01 Rddm
Trial Judge: Nancy Corsones
In the above-entitled cause, the Clerk will enter:
Father appeals the modification of a child support order. At the last of several child support hearings, father reported that he had lost his job since the prior hearing. He argues that the magistrate erred in imposing the prospective child support obligation without taking that fact into account, and that the family division erred in affirming this result. We affirm the family division's order as it relates to father's child support obligation from the time mother filed the motion to modify to the date father lost his job, and reverse and remand for further proceedings to determine father's income and child support obligation from the date he reportedly lost his job.
The parties are parents to one child, born in October 1999. Mother was entrusted with sole physical and legal parental rights and responsibilities of the child. In 2002, the magistrate entered a child support order requiring father to pay $0 in support. In April 2010, with the assistance of the Office of Child Support (OCS), mother filed a motion to modify child support based on father's employment. The magistrate held hearings on August 17, 2010, and September 20, 2010. At the beginning of the first hearing, both parties were sworn in. They both testified concerning their income. There was some confusion regarding father's income because he was participating in a deferred-payment program and the magistrate would not admit written answers from father's employer to interrogatories sent by OCS. At the conclusion of the second hearing the court asked father to send mother, OCS, and the court copies of his 2008 and 2009 W-2s and tax returns, as well as a statement from his employer regarding his 2010 earnings, by September 27, and requested that the parties file a written agreement to the information or a written objection and request for hearing by October 4. On September 28, the court received father's 2008 W-2 and a letter from father stating that he had been terminated from his employment on September 27.
On October 4, OCS filed a motion, stating that defendant had not produced a 2009 tax return, and requesting "a brief hearing to evaluate information capable of establishing Mr. Williams' income for 2010." The court scheduled a third hearing on November 22, 2010, for that purpose. Father responded by letter dated October 5, reiterating that he had been terminated and therefore an additional hearing to assess his 2010 income would not be useful.
Prior to November 22, OCS apparently asked the court to cancel the hearing, but the court did not do so since OCS was not a party in interest. At the hearing, OCS and mother indicated that, although father had only provided his 2008 W-2, and not the tax returns, they did not want to go forward with an additional hearing. The parties stipulated to the admission of father's 2008 W-2. The OCS representative started to ask father whether he agreed to stipulate to admission of the employment verification father's employer had completed after the last hearing to confirm father's wages year-to-date, but the court interrupted and indicated that was not the issue before the court. After pressing father about his efforts to obtain his 2008 and 2009 taxes, the magistrate engaged in the following exchange with father:
THE COURT: [W]e asked you to get a statement of information from a previous employer.At that point the magistrate interrupted father, noted that he could have subpoenaed his employer, and ended the hearing.
MR. WILLIAMS: I was terminated from my employer.
THE COURT: Right.
MR. WILLIAMS: And all—
THE COURT: You were to go back and get a statement of information on what you were paid.
MR. WILLIAMS: I was told—I was told that my W-2s would be sent to me by mail at the end of the year and my access to all of my paystubs was terminated like the day—the day I was suspended, which was before our last hearing. So I currently actually have no employer. I'm not working. I have no income. I sent a letter to the Court involving—and my previous employer will not provide me with any information outside of—
The information the magistrate was seeking from father appears to be the same information the OCS representative had previously attempted to introduce by stipulation. In his January 11, 2012, verified motion to reconsider, father testified that his employer had provided the income-verification information to OCS on October 1—nearly two months before the November 22 hearing. The form, appended to father's motion, reflects father's termination date of September 27, 2010.
In February 2011, the magistrate issued findings of fact, conclusions of law, and a child support order. The magistrate found that father's income was $4203 per month and set his child support obligation at $564 per month in accordance with the child support guidelines. The order was effective April 22, 2010 (the date mother moved to modify child support), and was prospective. The order was generally thorough and detailed, and it acknowledged that father had testified that he was on paid suspension from work at the time of the second hearing, but the magistrate made no mention of father's statement to the court at the final hearing that he was unemployed and had no income as of the close of evidence. Although the magistrate relied in part on the information about father's 2008 W-2, which was admitted at the November 22 hearing, the decision did not mention that hearing alongside the prior two in its recitation of the procedural history of the case.
Father appealed the decision to the family division, claiming, among other things, that the magistrate failed to take into account his termination. In a decision date-stamped December 2, 2011, the court affirmed the magistrate's decision. The court explained that while father had evidence to demonstrate he was terminated effective September 27, 2010, the appeal was confined to the record before the magistrate, which showed father was employed. The court reviewed the evidence presented at the August 17 and September 20 hearings and found that the hearing had concluded prior to his September 27 termination. Because his termination followed the end of the hearing, father's recourse was to file a motion to modify based on his loss of employment. In its review of the record, the court made no mention of the November 22 hearing.
While the case was on appeal to the superior court, the magistrate denied motions to stay the child support order and to reconsider its denial.
On December 30, 2011, father filed a motion to reconsider. Initially, the court denied the motion as untimely, but the court later accepted it on the basis that the trial court had not sent the decision to the parties until December 22, 2011. On reconsideration, the superior court reviewed the transcript of the November 22 hearing. The trial court found that "no witnesses were sworn and no oral testimony was given at the hearing," and that "there was no evidence introduced that demonstrated that he had been terminated at the time of hearing." The court further concluded, "The Magistrate's decision properly did not reach the issue of Mr. Williams's current employment status, and this court, sitting on appeal, will not consider additional evidence not before the Magistrate." Father filed a timely notice of appeal.
As an initial matter, we address OCS's argument that father failed to timely appeal the family division's December 2 merits decision and his notice of appeal is timely only as to the denial of his motion to reconsider. We disagree. Since the court acknowledged that its December 2 order was not promptly sent out and accepted defendant's post-judgment motion as timely, this motion was sufficient to toll the time period for filing father's appeal. See V.R.A.P. 4(b) (timely motion to amend pursuant to V.R.C.P. 52(b) and 59(e) tolls appeal period). Therefore, defendant's notice of appeal, filed within thirty days of the court's denial of his post-judgment motion, was timely to appeal the underlying order.
Thus, we turn to father's appeal of the child support modification. "The court has broad discretion to determine whether it will modify a support order." Garrow v. Garrow, 150 Vt. 426, 428 (1988). On appeal, we accord deference to the magistrate's decision and will reverse "only in the presence of legal error or the absence of factual support for the result." Id. (quotation omitted). However, we will not uphold findings that are clearly erroneous and have no support in the record. Maurer v. Maurer, 2005 VT 26, ¶ 10, 178 Vt. 489.
A superior court's "review of the decision of the magistrate is normally based on the record made before the magistrate." Tetreault v. Coon, 167 Vt. 396, 399 (1998). Considering that record, we conclude that the magistrate's finding as to father's income following his termination was unsupported by the record. The record reflects that father was unemployed and had no earned income prior to the close of the final hearing. There is no countervailing evidence to suggest that father did, in fact, have continued earnings as of the close of the hearing, or that father was voluntarily underemployed and subject to imputation of income. In the face of this, we cannot uphold the magistrate's finding with respect to father's income from the date of his termination forward.
The family division may admit additional evidence in a magistrate appeal when the "record is found to be incomplete." V.R.F.P. 8(g)(4); see 4 V.S.A. § 465. Because we conclude that the record before the magistrate did not support the magistrate's conclusion as to father's present and prospective income, we need not reach the question of whether the superior court erred in declining to consider the additional evidence on appeal.
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OCS argues that the November 22 hearing was held for "the very limited purpose of introducing [father's] recent W-2s, tax returns, and a statement from his employer into evidence." The implication is that, in light of that limitation, father's statements on the record should not be considered. The record does not support such a narrow view of the November 22 hearing. The court did not set a third hearing date at the close of the September 20 hearing and left the matter open. The November 22 hearing was scheduled, at the request of OCS, in order to "evaluate information capable of establishing [father's] income for 2010." Father's statements about his unemployment and lack of income after September 27, 2010, were highly relevant to establishing his income for 2010.
The superior court found that "no witnesses were sworn and no oral testimony was given at the hearing." This was a continuation of a child support hearing that unfolded over three separate days. Father testified at the prior hearings, and took an oath at the beginning of the proceedings. Witnesses are not required to retake an oath at continued hearings, as demonstrated by the court's reminder to the parties at the beginning of the second hearing that they remained under oath. Accordingly, we cannot concur that father was not under oath at the time he told the magistrate he was unemployed.
Thus, we are left with the superior court's conclusion that father's statements about his employment status, while undisputedly made and reflected in the record, did not constitute "oral testimony." In the circumstances of this case, we cannot endorse such a restrictive view. Father attended a continuation of the child support hearing scheduled specifically to consider his 2010 income. He sent the court two letters in advance of that hearing indicating that he had been fired from his job. At the hearing, on the record and still under oath, he directly told the magistrate that he was no longer employed and that he had lost his ongoing income. In the context of this case, we cannot conclude that father's statements were not "evidence" to be considered. Father made multiple efforts to bring the issue of his unemployment to the magistrate's attention, both in writing in advance and orally at the hearing itself. Father cannot be faulted for not insisting that he deliver his evidence from the witness stand; given the way the hearing unfolded and the magistrate's close management of the flow of the hearing, we cannot conclude that father reasonably had that option. Based on the foregoing, we reverse the final child support order insofar as it relates to the period after September 27, 2010. We affirm the child support obligation assessed by the magistrate for the period between when mother filed her motion to modify and September 27, 2010. We remand to the superior court for remand to the magistrate to determine father's child support obligation from September 27, 2010, to the present, and his prospective obligation. Given the passage of time since the proceedings in this case, a further evidentiary hearing will be required to determine the parties' current income levels. See Klein v. Klein, 153 Vt. 551, 557 (1990) (explaining that it is proper to take additional evidence on remand where substantial time had passed and proper distribution and calculation of maintenance depended on current valuation). Reversed and remanded.
BY THE COURT:
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
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Beth Robinson, Associate Justice