When parties' combined income exceeds $240,000, there is a presumed minimum set forth by 19-A M.R.S. § 2006(5)(B) (2008), but a court's determination of child support beyond the highest level on the chart is entirely within its discretion. White v. Allen, 667 A.2d 112, 115 (Me. 1995). The divorce judgment and incorporated settlement agreement, as well as section 2009(3), permit either party to seek a modification of the child support provisions upon a showing of a substantial change in circumstances.
[¶ 10] Finally, Leifester assigns error to the court's method of computing his obligation for past child support. Leifester argues that the award must be based on reimbursement for actual and reasonable expenditures, citing White v. Allen, 667 A.2d 112 (Me. 1995). White v. Allen, however, lost any value as precedent by virtue of amendments to 19 M.R.S.A. § 272.
We review such a deviation from the guidelines "for an abuse of discretion, and, absent a violation of a positive rule of law, we will overturn the trial court's decision only if it results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument." Fowler v. Fowler, 1997 ME 231, ¶ 6, 704 A.2d 373, 374-75 (citing White v. Allen, 667 A.2d 112, 115 (Me. 1995)). The statute provides:
See Linard v. Hershey, 489 N.W.2d 599, 602 (S.D. 1992)(applying SDCL ch. 25-7 to retroactive support in paternity action). But see White v. Allen, 667 A.2d 112, 114 (Me. 1995)("The child support guidelines do not apply to an award of past support" — term "necessary support" in statute allows reimbursement to mother of actual expenses); Royston v. Stayton, 859 S.W.2d 276, 277 (Mo. Ct. App. 1993)(law of necessaries, rather than child support guidelines, applies to determine amount of award of retroactive child support for five-year period before paternity petition filed). If the majority wants to punish the mother but protect the child, perhaps the back support could be placed in a trust.
We review for an abuse of discretion, and, absent a violation of a positive rule of law, we will overturn the trial court's decision only if it results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument. White v. Allen, 667 A.2d 112, 115 (Me. 1995). [¶ 7] We have stated that "in order to account for differing circumstances, including variables in income . . ., the Legislature introduced a measure of flexibility by enacting section 317."
Other courts have given trial courts more discretion in computing support obligations for high-income parents without prohibiting any particular methodology. See Galbis, 626 A.2d at 31-32 (statute does not prohibit use of guideline percentage of income for parents with incomes above guideline maxima); White v. Allen, 667 A.2d 112, 115 (Me. 1995) (court has discretion "[a]bsent a violation of a positive rule of law"); Voishan v. Palma, 609 A.2d 319, 324 (Md. 1992); In re Marriage of Wackler, 850 P.2d 963, 966 (Mont. 1993) (court has "broad discretion" in fashioning support order for income above the guidelines); Archer, 813 P.2d at 1061 (support obligation for parents with income above the guidelines within the discretion of the court considering "the overall scheme of the Guidelines"); Nash, 846 S.W.2d at 806 (court had discretion to award support at guideline maximum percentage without a showing of need for more support than guideline maximum).