On Appeal from Superior Court, Chittenden Unit, Family Division February Term, 2012 Thomas J. Devine, J.
The opinion of the court was delivered by: Robinson, J.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Father appeals an order of the superior court's family division upholding the magistrate's denial of his motion to modify his child support obligation. In particular, father argues that the magistrate erred in declining to impute income to mother, and that the magistrate failed to properly apply a credit in his favor to account for derivative benefits paid directly to mother on behalf of the minor child by the Social Security Administration on account of father's disability. We reverse.
¶ 2. Father and mother are the parents of a minor child born in January 2000. In 2006, by stipulation of the parties in this parentage action, the family court assigned physical rights and responsibilities to mother, who had been the sole custodial parent prior to that stipulation, and increased father's parent-child contact to include every other Tuesday to Monday during the school year. During the summer, the minor child was to spend fifty percent of his time with each parent. Because the new order contemplated that the minor child would spend well over thirty percent of nights with father, the parties stipulated to a new child support order pursuant to the shared custody guidelines. The child support order obligated father to pay $175 per month, and obligated the parties to split equally all unreimbursed health-related expenses, including dental.
¶ 3. In November 2008, because father was unable to work due to severe injuries he suffered in a motor vehicle accident, the family court issued a modified child support order that did not require either party to pay child support. The order reflected that upon father's return to full-time employment, child support payments, calculated pursuant to the guidelines, would resume. The parties remained obligated pursuant to that order to split unreimbursed health-related expenses equally.
¶ 4. In December 2010, father filed a pro se motion to modify child support by establishing an order requiring mother to pay him child support. Father represented that he had begun receiving Social Security Disability (SSDI) benefits, and that the minor child had begun receiving derivative benefits on account of father's disability. In his motion, father raised three issues. First, he represented that the Social Security Administration (SSA) was sending the $190/month derivative benefit for the minor child directly to mother, and he essentially argued that he should receive some benefit in the determination of his child support obligation on account of that payment. Second, he explained that the SSA mailed the initial derivative benefit check for the minor child, which included accumulated benefits in the amount of $4370, to mother; he argued that this lump sum payment should be credited toward his share of the $5780 uninsured dental bill for the minor child's braces. Third, he asked the magistrate to take mother's voluntary underemployment into account in fashioning a new child support order.
¶ 5. In a March 2011 order, the magistrate denied father's motion. With respect to the monthly child support obligation, the magistrate made the following relevant findings: (1) The parties shared physical rights and responsibilities for the minor child based upon an approximate overnight schedule of fifty-three percent with mother and forty-seven percent with father;*fn1 (2) father received $1035 per month in direct SSDI benefits; (3) in addition to the minor child that is the subject of this parentage action, father has two other minor children; (4) mother resides with two other minor children in addition to the minor child that is the subject of this parentage action; (5) mother collected $1026 in monthly unemployment benefits, earned approximately sixty dollars per week tending bar, and received $700 per month in child support on account of her other two children; (6) the $190 monthly derivative SSDI benefit for the minor child on account of father's disability was paid directly from the SSA to mother on account of her status as the primary custodial parent.*fn2 None of these facts are in dispute.
¶ 6. The magistrate did not impute additional income to mother, and did not make any findings relating to this determination.
¶ 7. The magistrate noted that father operated a business that had generated more than $50,000 in gross receipts in 2008 and 2009, but with respect to which father's tax return showed a net loss in each year. The court stated that it assumed that father did not continue to operate that business without some financial benefit, despite the losses reflected on paper, but did not make any finding that the business generated income to father, and did not impute any additional income to father on account of this business.
¶ 8. Recognizing that the court was powerless to order SSA to divide the derivative benefit between the parents or send it to father rather than mother, the magistrate explained that this court's decision in Cantin v. Young, 171 Vt. 659, 662, 770 A.2d 449, 452 (2000) (mem.), provided the framework for considering the derivative payment in the child-support-guidelines calculation: first, the court would consider the derivative benefit as income to father; then it would treat the benefit as a child support payment from father to mother. Purportedly applying this methodology, the magistrate concluded that a guidelines calculation "would result in a nominal obligation from father to mother after including the derivative benefit." Given the nominal obligation, the trial court opted to keep the zero child support order in place. It further noted that neither party had the current ability to pay support to the other.
¶ 9. With respect to the lump sum accumulated derivative benefit of $4370 that had been paid directly to mother, the magistrate declined to credit father for that sum, explaining that mother's receipt of the lump sum did not alter the parties' respective obligations to pay half the cost of uninsured medical and dental costs.
¶ 10. Father appealed to the family division, which upheld the magistrate's decision. Concerning father's request that the magistrate impute income to mother on account of voluntary underemployment, the family division noted that imputation of additional income would only be appropriate if the magistrate found that mother, who testified that she had been laid off and was looking for work, was voluntarily underemployed. Reviewing the record, the family division affirmed that the magistrate did not err in failing to make such a finding.
¶ 11. With respect to the SSDI derivative benefit, the family division stated, "The court has been unable to find any case law from other states authorizing a trial court to divide among parents the monthly SSA derivative benefits received by the custodial parent." Accordingly, the family division affirmed on this point. Likewise, the family division concluded that the magistrate's order denying father's request to split the lump sum arrearage payment was not erroneous. Father timely appealed.
¶ 12. Before considering the magistrate's calculation of ongoing child support in light of the derivative benefit, we address the dissent's suggestion that this issue is not before this Court because it was not raised below. Post, ¶¶ 44-53. The magistrate's decision reflects that father, representing himself, was "seeking an order that he receive a portion of [the minor child's] ongoing derivative benefit." The superior court's order on appeal recites father's argument that the "Family Court needs to order an equitable means of distributing the benefit ($190/month) to account for support the child [sic] when he is with disabled parent 47% of the time, and with his able-bodied parent 53% of the time." That court further noted that father's legal argument for appeal "boils down to two points." The first of those points was father's claim that "he is entitled to some of the SSA derivative benefit . . . which mother receives directly from the SSA." Like the magistrate, the superior court on appeal squarely considered not only its authority, or lack thereof, to "divide up" the derivative benefit, but it analyzed and ruled on the application of the child support guidelines to these facts in light of our decision in Cantin. 171 Vt. 659, 770 A.2d 449. This latter question, which is the central issue in father's brief, is squarely before us given this record. The suggestion that because father initially framed his argument below as one to "divide the benefit" we cannot consider the proper application of the child support guidelines to these facts ignores the thrust of unrepresented father's arguments below, as well as the reality that both lower courts squarely addressed the argument presented on appeal. See Rutland Herald v. Vt. State Police, 2012 VT 24, ¶¶ 33-34, 191 Vt. 357, 49 A.3d 91 (acknowledging that party could have made its constitutional arguments "more pointedly" in trial court, but holding that issues were preserved because briefing made it sufficiently clear that party argued that applicable statute should be construed in light of constitutional considerations); Bradford Oil Co. v. Stonington Ins. Co., 2011 VT 108, ¶ 22, 190 Vt. 330, 54 A.3d 983 ("Preservation requires a party to present the issue with specificity and clarity at the trial court in order to ensure that the original forum is given an opportunity to rule on an issue prior to review by this Court." (emphasis added) (quotations omitted)); see also Sandgate Sch. Dist. v. Cate, 2005 VT 88, ¶ 9, 178 Vt. 625, 883 A.2d 774 (mem.) (acknowledging "wider leeway" traditionally accorded pro se litigants).
¶ 13. The dissent also contends that the magistrate's order and the superior court's affirmance were predicated on a "deviation" from the child support guidelines, presumably pursuant to 15 V.S.A. § 659, such that the underlying child-support-guidelines calculation is irrelevant. Post, ¶¶ 45-51. The suggestion that even if the magistrate's initial guidelines calculation was substantially wrong, its purported decision to deviate insulates that calculation from review is puzzling. The guidelines calculation is presumed to reflect the amount of child support needed, 15 V.S.A. §§ 655, 659(a), and is unquestionably an important factor in the overall child support order even in the case of an order deviating from the guidelines. See id. § 659(a) (deviation reflects adjustment of child support from guidelines amount). It is not a bursting bubble that ceases to have significance once a court deviates. If the magistrate had issued a new child support order in this case, and its findings reflected that it had done so believing itself to be deviating by $26 per month from the presumptively appropriate level of support calculated pursuant to the guidelines, the fact that the magistrate deviated from the guidelines would not preclude us from reviewing a substantial legal error in its underlying guidelines calculation.
¶ 14. In any event, the dissent's argument misapprehends the record, as well as the procedural posture of the magistrate's order. The magistrate did not enter a new child support order--with or without a deviation; rather, the magistrate denied father's motion to modify an already-existing zero-support order.
¶ 15. If the argument is that the court's decision to deny father's request to modify the existing child support order was based on the magistrate's determination that any new child support order would reflect a deviation from the guidelines calculation to a zero-support order, this theory finds scant support in the record. The term "deviation" does not appear anywhere in the magistrate's decision or in the superior court's six-page opinion on appeal. The superior court accurately describes that the magistrate "found that the guideline would result in a 'nominal' obligation from father to mother after including the derivative benefit, and therefore concluded the zero support order should remain in place." Accordingly, the superior court reviewed and reaffirmed the application of Cantin to the child-support-guidelines calculation performed by the magistrate.
¶ 16. The dissent suggests that because the magistrate did not issue an order for the guidelines amount--albeit nominal given the way the magistrate did the calculation--its child support order must have reflected a deviation. But the magistrate did not issue a child support order at all; it denied father's motion to modify. See 15 V.S.A. § 660(a)(1) (child support order may be modified upon showing of real, substantial and unanticipated change of circumstances). Had the magistrate intended to issue a child support order reflecting a deviation, it would have issued a child support order reflecting the guidelines calculation and the court's decision to deviate. Having concluded that the guidelines calculation would require only nominal support from father to mother, the magistrate denied the motion to modify outright.
¶ 17. Moreover, the opinions below do not contain any of the hallmarks of a deviation analysis.*fn3 As we have noted, "Section 659(a) [of Title 15] creates a rebuttable presumption that the amount reflected in the child-support guidelines is the amount of support needed by the children." Tetreault v. Coon, 167 Vt. 396, 405, 708 A.2d 571, 578 (1998). In order to deviate from the guideline amount in a child support order, a court must make a finding that application of the guidelines would be unfair. Id. In making that finding, "the court must consider all of the relevant factors, including the nine factors specified in the statute." See 15 V.S.A. § 659(a); Tetreault, 167 Vt. at 405, 708 A.2d at 578; see also Adamson v. Dodge, 174 Vt. 311, 318-20, 816 A.2d 455, 462-63 (2002) (reversing child support award that departed from guidelines calculation where trial court failed to consider each factor listed in statute).
¶ 18. In fact, the record reflects that the trial court expressly deferred mother's request to present evidence in support of a deviation. At the end of the hearing before the magistrate, in the context of a discussion with counsel in which all present recognized that they did not yet know who would be the obligor under a guidelines calculation, and in response to mother's request to present evidence supporting a deviation in the event that mother was determined to be the obligor, the magistrate stated: "[I]f the court decides that there should be some child support obligation at least preliminarily owed by [mother], then the [c]court will set the matter over for a brief deviation hearing to hear any of the relevant evidence on that issue." Having concluded that, considering the derivative benefit as provided for in Cantin, father owed nominal child support to mother that did not warrant modification of the existing zero-support order, the court never got to the question of deviation.*fn4
¶ 19. Accordingly, we consider the guidelines analysis upon which the magistrate's denial of father's motion to modify rested. The magistrate correctly recognized that our opinion in Cantin establishes the framework for calculating child support in cases in which a child is receiving SSDI derivative benefits on account of a parent. In that case, a non-custodial father received SSDI benefits, and the minor children received derivative benefits on his account. We endorsed a two-step process for taking the derivative benefit into account in the child-support-guidelines calculation. First, we reviewed the purposes of the child support statute--to "reflect the true costs of raising children and approximate insofar as possible the standard of living the child would have enjoyed had the marriage not been dissolved"--and held that the derivative benefits, although paid to the mother as representative payee, should be counted as part of the father's gross income in the child support calculation. Cantin, 171 Vt. at 662, 770 A.2d at 452. We explained that because the SSDI benefits received by the father and by his children were substitutes for the wages that the father would have earned had he not become disabled, declining to include the derivative benefit as part of the father's gross income would lead to "a failure to account for all of the income that would have been available to support the children had the family remained intact." Id. (quotation omitted).
¶ 20. Second, we reaffirmed our holding in a pre-guidelines decision in which we held that an obligor parent is generally entitled to a credit toward a child support obligation for the disability payments received directly by the children. Id. (citing Davis v. Davis, 141 Vt. 398, 449 A.2d 947 (1982)). In Davis, we acknowledged that the derivative benefits for the minor children paid to the custodial parent on account of the non-custodial parent were, "in a sense, a substitute for wages the obligor would have received but for the disability, and from which the court ordered payments would otherwise have been made." 141 Vt. at 401, 449 A.2d at 948. We thus held that such ...