Family Law Case Review 4/5/11

Family Law Weekly Case Review

Posted on April 6, 2011


Case: Timothy D. Sexton v. Donna M. (Sexton) Sedlak

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: Trial court acted within its discretion by not modifying a child support obligation retroactively to a date prior to the date Father filed his petition to modify child support.

HELD: Trial court acted within its discretion by not terminating child support as to a child who was over 18 and not enrolled in school, even though there was evidence presented that the child was earning in excess of the minimum wage.

HELD: Trial court abused its discretion in calculating Father’s child support without giving consideration to the child’s ability to earn an income.

FACTS AND PROCEDURAL HISTORY: Father and Mother married in 1989, and divorced with three children in 1998. Pursuant to the parties’ original Decree, the parties shared legal and physical custody of the children, and no child support was due between the parties. In 2002, following a motion by Mother and a hearing, primary physical custody of the children shifted to Mother, and Father was ordered to pay support of $154 per week. Father paid accordingly through August 2005, when the parties apparently made an informal change in the custody arrangement; two months later, Mother filed a petition to modify child support, reciting that the parties had returned to shared custody and that child support payments should be terminated. The trial court denied that motion and took no action, referring the parties to seek legal counsel, to prepare child support worksheets, etc. No further action was taken on this support modification petition.

In 2006, the parties signed and notarized an agreement that provided for split custody and recited that no child support payments would be due between the parties. However, the agreement was not filed with the trial court.

In early 2009, the oldest of the parties’ three children turned 21. In June 2009, Father filed a motion to emancipate the parties’ middle child, who was 19, along with a request to modify custody and support for the youngest child. Following a hearing, Father’s request to emancipate the middle child was denied and, further, the trial court calculated a net arrearage of $28k based primarily upon support payments not made by Father since 2005, and in spite of the apparent informal agreement between the parties that no support would be due during that term. The trial court also reduced Father’s support obligation, from the $154/wk obligation that had existed since 2002, to $117/wk. However, the support was lowered retroactively only to June 2009 when Father’s petition to modify was filed. Father appealed.

Father’s primary argument on appeal was that the trial court erred when it did not retroactively modify his child support obligation to $0 for the period back to Mother’s 2005 petition to modify that was never acted upon. The Court of Appeals disagreed, concluding that the trial court acted within its discretion by using June 12, 2009, as the effective date for support modification.

Next, Father assigned error to the trial court’s refusal to terminate child support as to the parties’ middle child. It was uncontroverted that this child was over 18 and was not attending or enrolled in school. Disputed, however, was the ability of this child to support herself. Father referred to evidence in the record of this child earning in excess of the minimum wage. However, the Court of Appeals concluded that this earning history did not per se establish cause to terminate weekly support and, instead, Father was simply asking the Court of Appeals to reweigh evidence. The Court of Appeals concluded that the trial court’s decision not to terminate weekly support as to the parties’ middle child was within its discretion.

Finally, Father appealed the calculation of Father’s new child support obligation. The Court of Appeals rejected various arguments by Father as to the trial court’s imputation of income to Father based upon voluntary underemployment. However, the Court of Appeals agreed with Father that the trial court erred when it failed to consider the amount that the parties’ middle child was earning in calculating the child support amount. Thus, while the trial court’s order was generally affirmed, the calculation of the new support level was reversed and remanded for consideration of the middle child’s ability to support herself in calculating Father’s child support obligation.

Judge Kirsch issued a dissenting opinion, expressing concern that the majority’s opinion “promotes formalism over fairness” in addressing the issue of retroactive modification. Judge Kirsch also concluded that, since Mother’s petition to modify filed in 2005 had never been formally dismissed and technically remained pending, it would have been proper to modify support retroactive to that 2005 filing date.

To view the text of this opinion in its entirety, click here: Timothy D. Sexton v. Donna M. (Sexton) Sedlak

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