Opinion
FILE NO.: CN 11-03563 CPI NO.: 16-34678 (RTSC) CPI NO.: 16-34341 (Child Support)
02-21-2018
T----- G-------- Petitioner, v. J------- G-------- Respondent.
ORDER REGARDING REVIEW OF COMMISSIONER'S ORDER
Before the Court is a Request for Review of a Commissioner's Order ("ROCO") filed November 6, 2017 by T----- G-------- ("Father") objecting both to the Commissioner's Support Order of September 18, 2017 that set J------- G--------'s ("Mother") back support obligation at $2,405.00 and the Commissioner's amended Order of October 11, 2017 denying in part and granting in part Father's Motion to Reargue the Petitions for Child Support Modification and Rule to Show Cause filed by Father on September 19, 2017. In his Motion to Reargue, Father presented several arguments. First, that the Commissioner failed to include Mother's prior arrears balance of $2,056.32 as of August 28, 2017 in determining Mother's retroactive obligation. Second, that the Commissioner made several mathematical errors in calculating Mother's and Father's current and back support obligations. Mother filed a Response to Motion for Reargument on September 29, 2017.
The Commissioner, by a Support Order dated September 18, 2017, set Father's current support obligation at $632.00 per month minus $100.00 per month in credit for Mother's past arrears, concluded that Mother owes Father $890.59 in medical support, and set Mother's net retroactive obligation to Father from September 2015 to August 2017 at $2405.00 based on adjustments in Mother's monthly earnings during that period.
The Commissioner, by an amended Order dated October 11, 2017, granted in part Father's Motion to Reargue by amending the September Support Order to reflect that Mother's retroactive support as of August 31, 2017 is $2,884.00 ($2405.00 + $479.00) plus $890.59 in medical support. The Commissioner also denied in part Father's Motion in that "[t]he Court recalculated all arrears using the new retroactive obligations which nullified the arrears number in the [Division of Child Support Services] balance prior to the Order."
Standard of Review
A party may seek a ROCO pursuant to 10 Del. C. § 915(d)(1), which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by the rules of the Court, within 30 days from the date of a Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject, or modify in whole or in part the Order of the Commissioner. The Judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
Case law further explains what is meant by a de novo determination:
Therefore, in the de novo determination, the Court will make an independent review of the record and decide whether to accept, reject or modify in whole or in part the Commissioner's Order. In a de novo determination, the Judge considers (1) testimony presented at the Commissioner's hearing (if hearing is held), (2) the findings of fact and recommendations of the Commissioner, and (3) the specific written objections filed by the objecting party.
C.A. v. C.A., No. CN06-04047, 2007 WL 4793921, at *1 (Del. Fam. Ct. Apr. 3, 2007) (citing D.K.B. v. State, No. 0308003909, 2003 WL 23269499, at *1 (Del. Fam. Ct. Dec. 18, 2003).
Discussion of Mother's Procedural Arguments
Before discussing the substance of Father's ROCO, the Court will address Mother's procedural arguments raised in her Response to Father's ROCO. First, Mother argues that Father's ROCO from November 6, 2017 should be dismissed because he did not file his ROCO within 30 days from the date of the Commissioner's Support Order from September 18, 2017, the timeline set by 10 Del. C. § 915(d)(1) within which a party is permitted to challenge a commissioner's order. In raising this argument, Mother implies that the clock does not reset at the docket date of a commissioner's amended order following reargument. However, this argument is inconsistent with established Family Court of Delaware case law. In D.L.B. v. K.A.B., Judge Pyott interpreted Delaware Supreme Court precedent to require that "the statute of limitations clock for a Request for Review is restarted after a decision on a Motion for Reargument is entered." Therefore, because Father filed his ROCO within 30 days from the date October amended Order was docketed, his ROCO is timely regardless of the fact that it was filed more than 30 days after the September Support Order was docketed.
Although the Commissioner issued the Support Order on September 12, 2018, it was not docketed until September 18, 2018. As a result, the Court will use the docket date in order to calculate timeliness pursuant to Family Court of Delaware case law. See S.E.V. v. S.D.V., No. CS10-02232, 2013 WL 1749525, at *2 (Del. Fam. Ct. Mar. 28, 2013).
No. CK05-01872, 2008 WL 6041389, at *2 (Del. Fam. Ct. Nov. 12, 2008).
Next, Mother argues that Father should not be permitted to introduce "Exhibit A," a print out from the Division of Child Support Services ("DCSS") website that tracks Mother's past child support payments and existing arrears balance, as part of his ROCO because Father never introduced this evidence at the August 29, 2017 hearing on Father's Petition for Child Support Modification and Rule to Show Cause and also did not comply with Fam. Ct. Civ. R. 53.1(e) procedure for introducing "additional evidence" as part of a ROCO. Although the specific content of Exhibit A was not admitted into evidence at the August 29 hearing, the issue of Mother's existing arrears balance was addressed on the record during the hearing between 2:20:46 - 2:21:32 as reflected in the official trial transcript below wherein Father's attorney engages Mother, during recross, in a series of questions about Mother's child support payment history.
Q - And so that's why you're not -- you didn't pay [child support] for years?
A - I didn't refuse to pay. I didn't have the money to pay. It was supposed to automatically come out of my paycheck after that final order. It did not automatically come out of my paycheck, and I was -- I had such little income that I couldn't risk paying him separately and then them deciding to take it out.
Q - Well currently I think -- well, this is not current. This is a February 2017 arrears statement. It looks like you're in arrears, February, about $3,000. Does that make sense?
A - That's because --
Mother's Attorney - Objection. What's the relevance to this current --
A - And that's because the Court granted him some back support from the time that he filed...
Following this line of questioning, Father's attorney moves on and never attempts to enter the February 2017 arrears statement or other information about Mother's existing arrears balance into evidence. However, based on the excerpted exchange between Father's attorney and Mother alone, there is no dispute that arrears existed at the time of the August 29 hearing, or that there was a discussion of the approximate amount of arrears as of February 2017. Only the exact amount of back support Mother still owed at the time of the hearing was in question.
However, the Court will assume that Exhibit A is "additional evidence" within the meaning of Fam. Ct. Civ. R. 53.1(e). As a result, the Court must follow the procedure set out in that rule to determine if Exhibit A can be admitted into evidence as part of Father's ROCO.
Rule 53.1(e) provides in relevant part that:
Prior to determination of the matter, a party may request in writing that additional evidence be permitted to be offered. The Court shall only accept such additional evidence if it finds: 1) that it is newly discovered evidence which by due diligence could not have been discovered in time to offer it before issuance of the commissioner's order or 2) if the circumstances are such as would justify reopening the record in the interest of justice.
First, although Father did not file a request in writing with the Court to admit "additional evidence" prior to filing his ROCO, the Court will not block the admission of this evidence on this procedural issue alone. Second, the evidence of Mother's arrears balance dating back from a May 2014 Order is not "newly discovered evidence." Father's attorney clearly had this information on hand during the August 2017 hearing in that she referenced a document at the hearing that reflected that Mother's arrears balance was about $3,000 in February 2017. However, the Court concludes that it is "in the interest of justice" to admit Exhibit A along with Father's ROCO because Mother and Father's attorney engaged in an exchange about Mother's arrears during the August 2017 hearing and without Exhibit A, the Court will not have a correct reflection of the DCSS record on Mother's arrears amount. Therefore, the Court will consider the evidence contained in Father's Exhibit A as part of his ROCO.
Finally, Mother argues in her Response to Father's ROCO that Father cannot relitigate the same arguments already denied by the Commissioner following Father's Motion to Reargue. This assertion by Mother is incorrect. The entire purpose of a ROCO under Fam. Ct. Civ. R. 53.1 is to allow a party to appeal an interim or final order of a commissioner to a judge. This purpose does not depend on whether the commissioner's order follows a Motion to Reargue or not. Although Rule 53.1 sets out limits to what new evidence is presented in a ROCO, there are no limits to recycling prior legal arguments in a ROCO. Therefore, the Court will consider the entirety of Father's legal arguments contained in his ROCO.
Having addressed Mother's procedural arguments, the Court will now turn to Father's allegations that the Commissioner made various omissions and incorrect calculations in the September 2017 Support Order that were not fully corrected by the October 2017 amended Order.
Discussion of Commissioner's Calculations in September 2017 Support Order
A. The Commissioner Failed to Account for the Pre-existing Arrears Dating from Prior to May 2014.
On December 16, 2013, a Commissioner issued a Permanent New Support Order wherein Mother was to owe $509.00 per month in current support and $21.00 per month in arrears to Father. On May 6, 2014, a different Commissioner issued a Permanent Arrears/Contempt Support Order wherein the Commissioner concluded that Mother was in arrears of $4204.12 as of April 30, 2014 and therefore revised Mother's monthly support payments to $509.00 per month in current support and $61.00 per month in arrears to Father. In Father's ROCO, he presented evidence from the DCSS website that as of August 2017 Mother had a still existing arrears balance of $1793.24 and argued that the Commissioner did not factor that amount into either the September 2017 or October 2017 support calculation. Although the Commissioner asserts in the October 11 amended Order that "the Court recalculated all arrears using the new retroactive obligations which nullified the arrears number in the DECSS balance prior to the Order," this Judge does not agree. It does not appear that the Commissioner factored in the pre-May 2014 arrears balance of $4204.12 that was at $1793.24 in August 2017 into the new retroactive obligations because the Commissioner's analysis of Mother's retroactive obligation only goes back to September 2015. Additionally, there is no evidence that the Commissioner, in making the new retroactive obligation calculation grafted in the pre-May 2014 arrears balance that stood at $3223.08 in October 2015 per Exhibit A. However, as will be discussed below, the Commissioner did factor in Mother's arrears payments toward that pre-May 2014 balance when calculating how much Mother had already paid toward her recalculated child support obligations. This Judge believes that the monthly arrears payments dating from May 2014 to present should be kept separate and not used to calculate current support obligations. That is, the May 6, 2014 Support Order should not simply be erased by the September/October 2017 Orders nor should the pre-May 2014 arrears balance be "nullified" by those orders but rather they should be added into the 2017 Orders such that Mother continues to owe $1793.24 based on the pre-May 2014 arrears balance as of August 2017. Therefore, the Court GRANTS Father's request to add the amount of $1793.24 to Mother's net retroactive obligation to Father.
B. The Commissioner Erred in Crediting Amounts that Were Paid by Mother towards Her Pre-existing Arrears Balance Toward the New Current Support Obligations.
In determining the amount that Mother paid toward her child support obligations from September 2015 to August 2017, the Commissioner included both the monthly current support payments and the arrears payments for a total of $7892.00 in payments from September 2015 to October 2016 and $5878.76 in payments from November 2016 to August 2017. Father argues that Mother should only be credited for paying $509.00 per month from September 2015 to August 2017 or only the monthly current support payments. This Judge agrees with Father's analysis because the Commissioner was using the total payments (current support + arrears) made by Mother as a basis for reducing how much she still owes after recalculating what her current support payments should have been during any given month between September 2015 to August 2017 based on her actual earnings. Crediting Mother's pre-May 2014 arrears payments both toward the reduction in her existing arrears balance and toward the reduction in how much she still owes in retroactive current support obligations is a double counting. Therefore, the Court GRANTS Father's argument that the Commissioner erred in crediting Mother's arrears payments between September 2015 and August 2017 toward her current support payment obligations. However, because Father relied on the Commissioner's incorrect calculation of how much Mother paid in total from November 2016 to August 2017, the Court does not agree with the amount Father argues was in error during that period.
This calculation cited by the Commissioner in the September 2017 Support Order is incorrect. Mother's current support and arrears payments from November 2016 to August 2017, per the DCSS website, total $5787.76 and not $5878.76. --------
Mother's DCSS profile reveals that she made $7126.00 in current support payments and $766.40 in arrears payments from September 2015 to October 2016 for a total of $7892.40 in payments. Only the $7126.00 in current support payments should be used to deduct from the Commissioner's calculation of what Mother should have been paying in current support payments based on her actual earnings from September 2015 to October 2016 and not the entire $7892.40, to the result that the Commissioner credited Mother an excess of $766.40 for that period. Additionally, Mother's DCSS profile reveals that Mother made $5090.00 in current support payments and $697.76 in arrears payments from November 2016 to August 2017 for a total of $5787.76 in payments (and not $5878.76 as stated in both the September 2017 Support Order and Father's ROCO). Only the $5090 in current support payments should be used to deduct from the Commissioner's calculation of what Mother should have been paying in current support payments based on her actual earnings from November 2017 to August 2017 and not the entire $5787.76 to the result that the Commissioner credited Mother an excess of $697.76 for that period. Therefore, the Court concludes that $1,464.16 ($766.40 + $697.76) should be added to Mother's net retroactive obligation to Father.
C. The Commissioner Erred in Calculating the August 2017 Obligation as between the Parties.
In the September 2017 Support Order "Calc 9," the Commissioner noted that "Mother owes Father" in the amount of $479.00 based on the August 2017 calculations. However, in the discussion section of the Commissioner's Support Order, the Commissioner both did not include this $479.00 under Mother's retroactive obligation amount to Father for August 2017 and did include this $479.00 under Father's retroactive obligation amount to Mother for August 2017. Although the Commissioner recognized this error in the October 2017 amended Order by adding $479.00 to the amount that Mother should owe Father in net retroactive obligation, Father argues in his ROCO that the Commissioner should have credited $958.00 to the total amount that Mother should owe Father in net retroactive obligation. This Judge agrees with Father and thereby GRANTS Father's argument.
As part of the Commissioner's calculations, she should have added $479.00 to Mother's total obligation to Father for November 2016 to August 2017 for a total obligation to Father of $3,345.00 and not $2,866.00 as stated in the Support Order. The Commissioner should also have subtracted $479.00 from Father's total obligation to Mother for November 2016 to August 2017 for a total obligation to Mother of $2,668.00 and not $3,147.00 as stated in the Support Order. As a result, when factoring both the addition and subtraction, that is a net difference in Mother's obligation to Father of $958.00 that should be added to Mother's net retroactive obligation to Father.
D. The Commissioner Incorrectly Checked the Shared Equal Placement Box on the September 2017 Support Order Form.
In the September Support Order, the Commissioner checked a box reflecting that "one or more children reside in shared equal placement." In Father's ROCO, he argued that this is incorrect because two children reside primarily with Father and two children reside primarily with Mother, but he also added that "[t]his does not make a difference with the support calculation." In Mother's Response, she argued that the Commissioner was correct to check the box because "where each party has two children in each home, [this] is the definition of shared residential placement." According to Fam. Ct. Civ. R. 503(d), "shared equal placement" is defined as "at least 164 overnights annually in each household." Pursuant to the Stipulation and Order Modifying Custody and Visitation from February 7, 2017, the parties did not contemplate a scenario under which any of their minor children would reside in each household at least 164 overnights per year. Therefore, the Court accepts Father's argument that the Commissioner was incorrect in checking the shared equal placement box on the September 2017 Support Order Form. The Court also notes, as Father did in his ROCO, that this inaccuracy on the Support Order does not impact the support calculations of the Commissioner or this Judge. Therefore, the Commissioner's Order is Overruled and modified as specified below.
E. Mother's Request for Attorneys' Fees
In Mother's Response to Father's ROCO, Mother requests attorneys' fees and costs from Father for having to respond to the ROCO. Mother's request is DENIED. The Court finds that Father's ROCO has merit. Assessing Father with attorneys' fees and costs solely for raising the issue of whether the Commissioner incorrectly checked a box that "does not make a difference" is excessive and unnecessary.
F. Conclusion
Therefore, Mother also should owe Father $1,793.24 in pre-May 2014 arrears plus $958.00 based on the error in the Commissioner's August 2017 support calculations plus $1,464.16 based on the Commissioner's error in crediting Mother's past arrears payments in calculating the remaining amounts she should pay in retroactive support payments for a total of $4,215.40 in adjustments based on errors made by the Commissioner. This amounts to a new total arrears balance that Mother owes to Father of $7,510.99, or $2,405.00 in back support obligation and $890.59 in medical support from the September 2017 Support Order plus $4,215.40. ACCORDINGLY, IT IS HEREBY ORDERED THAT:
1. The Commissioner's Order is Overruled.IT IS SO ORDERED this 21st day of February, 2018
2. Mother's new total arrears balance as of August 29, 2017 that she owes to Father is in the amount of $7,510.99.
3. Father shall forward a copy of this order to DCSS to recalculate Mother's and Father's child support obligations.
/s/ _________
ROBERT BURTON COONIN, Judge Cc: Commissioner
Counsel via email
Date emailed: __________ RBC/plr