2016 VT 97
By Elizabeth Kruska
Mr. Leitgeib (Husband) used to be married to Mrs. Leitgeib, also known as Mrs. Shattuck (Wife). Husband and Wife got divorced in 1989. They had a minor child who turned eighteen in 1998. For those who are keeping track at home, that was eighteen years ago. Minor child is now thirty six or thereabouts. I point that out only because this is a case about child support and is still going on eighteen years after the child turned eighteen. Things can get away from you if you’re not careful.
Husband paid his child support, but had a really large arrearage—something in the neighborhood of $11,000. About half of that was the principal; the other half (or so) was a surcharge. Here’s the thing with child support; if you don’t pay it, not only do you have to pay previously-accrued support, but you also have to pay a surcharge on top of that.
Husband went back to Family Court in 2008. He had paid down the principal, but there was still an outstanding surcharge arrearage. He tried to get that eliminated; by that point he was living on Social Security benefits due to a disability. The Family Court didn’t eliminate the payments, but instead made Husband pay $50 per month toward the obligation.
In 2011, Husband went back to Family Court again, trying to argue that he couldn’t pay. He was unemployed, disabled, and couldn’t meet his normal medical expenses. The magistrate ruled against him, because he couldn’t show that he had a real, substantial, and unanticipated change of circumstances. This would have been from the last time they were in court, back in 2008. He filed another motion later in 2011 trying to get the arrearage eliminated altogether. Husband argued it was in the interest of justice to eliminate the debt; by this point he could barely pay his rent and meet his regular expenses. The magistrate denied that, too, because Husband hadn’t shown an unanticipated change in circumstances. The magistrate did recalculate the amount, and dropped the interest rate so it was lower.
Husband went back to Family Court in 2013 seeking a reduction again, this time asking his obligation to be $0. This got denied; the court found that Husband had the ability to meet his expenses and make the $50 per month payment.
Then in 2015 Husband filed another motion to modify the child support. At this point his arrearage was down to $1917. He argued that his income from Social Security had actually decreased. The court and the Office of Child Support did some math and figured out that between his Social Security his food stamps, and his fuel assistance that he actually had a surplus of $41 per month. He had been putting that toward paying off his back rent. The magistrate suggested that if he decreased his back rent payments that he could meet the $50 per month arrearage payment.
The magistrate concluded that since no new arrearages had accrued since the last judgment, that the court could not discharge the surcharge arrearage. Indeed, Husband had paid off the principal years ago. The magistrate also found that even though Husband’s income was pretty small, he could meet his expenses and still make his payment.
Husband appealed to the Family Division, which affirmed the magistrate’s findings.
Husband then appealed to the Vermont Supreme Court, which reverses.
In a situation like this, SCOV gives a lot of deference to the magistrate’s factual findings below. The magistrate is the one who heard all the evidence and saw the witnesses. However, SCOV does a complete review of the law.
Husband tried to argue that the factual findings were in error because there’s no way he could pay the $50 per month. SCOV isn’t about to disturb that, but does find that Husband’s income was below the self-support reserve. The statute on child support gives the magistrate discretion in determining a monthly support amount if the person falls below the monthly self-support reserve. With respect to arrears, the court can’t order someone below the reserve amount to pay the arrearage unless the custodial parent can show a good reason that it should be paid.
This is partly why I pointed out that at this point, the previously minor child in question is in his or her mid-thirties. At some point, even though there is an obligation, it starts to feel a little ridiculous.
The self-support reserve is an amount of money, calculated annually at 120% of the poverty guideline for a single individual. So, it’s just a teensy bit above the federal poverty line. The point of it is so that a person can support him or herself.
The legislature decided that where there’s a current child support obligation, the parent obligated to pay the support should at least make a nominal payment toward a current obligation. This seems like good policy, right? If a parent has a minor child out there who has expenses, that parent should be paying at least a little toward the support of that child. But the legislature has decided that it’s not appropriate for someone to have to go below the self-support reserve to pay toward arrearages. It’s up to the obligee parent to prove why the obligor parent should have to go into the red to pay off the arrearage.
When Husband went to court in 2015, he was getting $976 per month in Social Security. The self-support reserve was $1177; that’s $201 more than he was getting. The magistrate and Family Court’s findings did not include reference to the self-support reserve, nor toward whether Husband had extraordinary circumstances or lots of assets such that he should have to go below the reserve to pay the arrearage. Even though the magistrate did find that he had been faithfully paying the $50 per month, it’s also pointed out that it was automatically deducted, and also that he was having a really hard time meeting other expenses.
So, SCOV reverses and remands for further findings with respect to the self-support reserve.