Fitzgerald v. Fitzgerald

STEADMAN, Associate Judge,

concurring in part and dissenting in part:

I begin, as does the majority, with the proposition that statutory language can derive “meaningful content from the purpose of the Act, its factual background and the statutory context,” but draw a different conclusion with respect to the scope of the *733 guidelines language of D.C.Code § ll-1732(j)(4)(A) (1989 Repl.).

As the majority opinion relates in more detail, that code provision stemmed from the enactment by Congress of the Child Support Enforcement Amendments of 1984. Among other things, this enactment required that as a condition for receiving certain federal funds, each state and the District must establish guidelines for determining the amount of child support awards. 42 U.S.C. § 667 (a) (Supp. IY 1986). Implementing regulations, promulgated in 1985, required that the guidelines “be based on specific descriptive and numeric criteria and result in a computation of the support obligation.” 45 C.F.R. § 302.56 (c) (1988). Both the law and the implementing regulations contemplated that the guidelines could be established “by law or by judicial or administrative action.” 42 U.S.C. § 667 (a) (Supp. IV 1986). The same law also required that each state establish expedited support procedures, 42 U.S.C. § 666 (a)(2) (Supp. IV 1986) including hearings in which the presiding officer is not a judge. 45 C.F.R. § 303.101 (1988).

In 1986, Congress undertook to bring the District into compliance with these requirements as part of the District of Columbia Judicial Efficiency and Improvement Act. In addition to creating permanent authority for the appointment of hearing commissioners and expanding their authority to establish child support orders, the legislation contained the provision defining how those orders were to be arrived at; viz., “as provided by law, and in accordance with guidelines established by rule of the Superior Court.” D.C.Code § ll-732(j)(4)(A) (1989 Repl.). Thus, insofar as the District was concerned, Congress opted for judicially determined guidelines, and more specifically, guidelines developed by the Board of Judges of the Superior Court.

The nationwide guidelines requirement of the 1984 Child Support Enforcement Amendments was added in the Senate. The relevant Senate Committee report gives an indication of the role expected of the body developing the guidelines for a particular jurisdiction and the objectives of the guideline requirement:

Although the child support enforcement program has greatly strengthened the ability of children to have support orders established and collected, there remains a continuing problem that the amounts of support ordered are in many cases unrealistic. This frequently results in awards which are much lower than what is needed to provide reasonable funds for the needs of the child in the light of the absent parent’s ability to pay. In some instances, however, there are also awards which are unrealistically high.

Some States have established guidelines to be used by the courts in setting the amount of child support orders. Where these guidelines exist, overall award levels tend to be somewhat higher than where the amount of the order is entirely discretionary with each judge. Moreover, the existence of guidelines tends to assure that there is reasonable consideration given both to the needs of the child and the ability of the absent parent to pay. This provides some protection for both parties.

The Committee amendment requires each State to develop a set of guidelines to be considered by judges and others authorized to order support in the State in determining support orders. The development of such guidelines will necessarily require States to devote some study to what is appropriate and to review what other States have done. For this reason, the amendment allows two full years (until October 1986) for States to develop the guidelines. The exact nature of the guidelines will be determined by each State and may be established by law or by a judicial conference or other mechanism as may be appropriate in that State.

The Committee recognizes that the development of a court order is a complex determination requiring the consideration of many aspects of the individual circumstances of the parties involved, and that there may be a need for courts to have the flexibility to exercise discretion. For *734 this reason, the amendment leaves to each State the decision as to how these guidelines are to be considered. It is the view of the Committee, however, that the very existence of a set of guidelines in each State will tend to improve the reasonableness and equity with which support orders are established.

S.Rep. No. 387, 98th Cong., 2d Sess. 40, reprinted in 1984 U.S. Code Cong. & Admin. News 2397, 2436.

Thus, it seems contemplated that the development of the guidelines would be a major project, occupying perhaps two years, in which “necessarily” the guideline promulgators would devote study to “what is appropriate,” including a review of what other jurisdictions were doing. The guidelines were to prevent “unrealistic” awards and apparently were expected to result in “somewhat higher” levels. Inequities between awards were to be avoided. Each jurisdiction would determine how to develop the guidelines, “by law or by a judicial conference or other mechanism.” These appear to be strong expectations for the guidelines, seeming to rest uneasily with an unchanged application of the status quo.

Turning to the D.C. guidelines enactment before us, the parties presented us with several differing interpretations. Appellant and her associated amici argued that to the degree the guidelines deviate from existing law, they exceed the scope of delegated power and are therefore invalid, the position adopted by the majority here. I think the apparent congressional expectations for the guidelines requirement counsel against such a narrow reading. Corporation Counsel, on the other hand, appears to view the statute as constituting a delegation by Congress of virtually total legislative power in the area. 1 He reads the phrase “as provided by law” to refer only to legislatively-enacted law and the Constitution, rather than case law. This in my judgment goes too far in effectively reading the phrase out of the Act.

Rather, I would construe the statutory language to provide that the guidelines be developed against the broad backdrop of the bedrock objectives of existing law— viz., protecting the best interests of a child under an equitable allocation of parental support responsibility — coupled with a realistic appreciation that elements of that law could be significantly affected and modified in achieving the goals of uniformity, predictability, and fairness sought by the imposition of a guidelines requirement. 2 In our jurisdiction, the existing law was characterized by a very large measure of discretion in the child support decisionmaker to determine somewhat amorphously-defined needs of the child and the parents’ ability to pay. See, e.g., E.R.B. v. J.H.F., 496 A.2d 607 (D.C.1985); Brice v. Brice, 411 A.2d 340 (D.C.1980); Moore v. Moore, 391 A.2d 762 (D.C.1978); Wright v. Wright, 386 A.2d 1191 (D.C.1978). By definition, guidelines are intended to channelize the broad exercise of discretion, and the Superior Court is the entity closest to day-to-day experience in that regard. Furthermore, the federal requirement that the guidelines must be based “on specific descriptive and numeric criteria and result in a computation of the support obligation” 3 raised the distinct possibility of modification. And as the above-quoted Committee report indi *735 cated, the very process of drawing up guidelines was expected to he an occasion of review and study. 4

The two significant departures in the Guideline from existing law presented by the case before us are elements of the methods for calculating the needs of the child and for determining ability to pay.

With respect to the first, it is true that the pre-existing practice tended to focus on the needs of the child in isolation, typically relying on a financial statement prepared by the custodial parent showing actual present expenditures for the child. However, increasingly our decisions had come to recognize that a child’s interests must be addressed in the context of the parents’ overall financial status. Benvenuto v. Benvenuto, 389 A.2d 795, 799 (D.C.1978) (factor to be considered in determining needs is “the standard of living which the child would have enjoyed had the marriage not been dissolved”); Cooper v. Cooper, 472 A.2d 878, 880-81 (D.C.1984) (“best interests of the children must be assessed in the context of the standard of living to which the children have become accustomed”). It seems a natural and permissible development that the Guideline should review the needs of the child “as a function of parental income” 5 rather than relying upon financial statements and testimony of the parties — an individualized and subjective procedure.

With respect to the allegedly improper use of gross income rather than net income as pre-existing law phrased the requirement, several observations may be made. First, whether net or gross income is used, the aim is the same: to devise a formula capable of wide application that will lead to fair and consistent results in the bulk of child support cases. Under pre-existing law, the determination of net income was left to the informed discretion of the trial court, with, inevitably, differences in application and treatment. See, e.g., Plumley v. Plumley, 465 A.2d 393, 394-95 (trial court ordered to make a detailed financial analysis of the parties’ “net disposable income[s], based on all legitimate financial obligations”) (citation omitted). Thus, rather than some objectively arrived-at figure, net income in fact was a floating concept with wide discretionary ranges. Gross income, the Guidelines Committee determined, is “not subject to as many variations and manipulations as is net income and is easier to ascertain and verify.” Guideline, supra note 4, at 22. With both uniformity and predictability as objectives underlying the concept of the Guideline, I do not think it is inconsistent with the broad purposes motivating the congressional requirement of guidelines to use this somewhat different starting point for determining equitable ability to pay, which is the underlying aim. Indeed, to some extent the difference between the two standards could be theoretical, since if net income were used then the percentage figure allocable to child support would presumably be increased to compensate. 6

*736 Accordingly, while I am fully in agreement with respect to the child custody issue, I respectfully dissent from the limitation of the Guideline authority to existing law.

.In the District this presents no delegation or separation of powers problem. See Palmore v. United States, 411 U.S. 389, 397 , 93 S.Ct. 1670, 1676 , 36 L.Ed.2d 342 (1973) (Congress may exercise within the District all legislative powers that the legislature of a state might exercise and may distribute judicial authority as it sees fit); Keller v. Potomac Electric Power Co., 261 U.S. 428, 442-43 , 43 S.Ct. 445, 448-49 , 67 L.Ed. 731 (1923) (grant by Congress of legislative power to District courts to review and change rates of Public Utilities Commission upheld); cf. Mistretta v. United States, -U.S.-, 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989) (upholding Federal Sentencing Guidelines).

. I am not unmindful that the guidelines are to be established by "rule," but I am not convinced that limitations otherwise applicable to such rules must perforce be carried over intact to the guidelines.

. 45 C.F.R. § 302.56 (c) (1988). That implementing regulation was promulgated in May 1985, well in advance of the consideration and passage by the Congress of the D.C. guidelines statute.

. Indeed, the Guideline as promulgated is itself stated to be an evolving document under continuing study and subject to refinement. District of Columbia Superior Court Child Support Guideline, 2 D.C. Ct. Rules Ann. 19, 20 (1989) (Introduction).

. The basic conclusion of the Committee, expressed in its Report of the District of Columbia Superior Court Child Support Guidelines Committee 10 (April 1988), was that "[a] proper calculation of the costs of rearing a child is dependent upon the income of the parents and is a function of that income; it is inappropriate to attempt to establish the amount of the financial needs of the child as though that figure were independent of parental income.”

. This is not to say that circumstances could not arise where the application of the gross income formula rather than net income would result in such distortion that the application of the Guideline would be drawn into question— hence, the importance of the presumption, as discussed in the majority opinion, in this and other applications of the Guideline. However, the recent amendment to 42 U.S.C. § 667 (b) presumably will require a re-examination of this provision of the Guideline and further discussion would be fruitless at this point. Likewise, in light of the majority holding, I do not venture to examine the specific impact of the Guideline in its present form on the facts here, as determined by the trial court.

With respect to the procedures followed in adoption of the Guideline, it is fair to note that the Guideline stemmed from a Committee appointed in mid-1985 consisting of four judges, two commissioners, and nine lay members, *736 eight of whom were attorneys. The Committee met an average of once every two weeks for over two years. Subcommittees were established to pursue some aspects of the Committee's work and report back to the entire Committee. The Committee reports that it consulted many sources as part of its deliberations, and a number of experts addressed the Committee. Presentations and materials were furnished to the judges of the Superior Court on three different occasions. Report, supra note 5, at 2-3. Final approval of the Guideline on September 28, 1987, by the Board of Judges occurred barely in time to meet the statutorily imposed deadline of October 1, 1987, for promulgation of the Guideline under which both the Committee, and the Board of Judges were laboring. While reasonable people may certainly differ as to what requisite or optimal procedures should be followed in promulgating the Guideline, I am not prepared to join in any sweeping pejorative denunciation (as the concurrence perhaps might be read) of a process that was, I have no reason to doubt, a sincere and arduous effort to timely perform a congressionally mandated task.