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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12

- FM

- 1386
A NTWANYE E RIC F ORD , A PPELLANT ,

V
. R ITA C ASTILLO , A PP ELLEE
. Appeal from Order of the Superior Court of the District of Columbia ( DRB

- 3227

- 03 ) (Hon. Danya A. Day son , Trial Judge) (Argued September 25 , 201 3 Decided September 4, 2014) Johnny M. Riddick for appellant. Rita Castillo , pro se . Before G LICKMAN and B ECKWITH , Associate Judges , and N EBEKER , Senior Judge

. B ECKWITH , Associate Judge : Appellant Antwanye Eric Ford contends that the trial court erred in calculating his adjusted gross income (AGI) u nder the D.C. Child Support Guideline, D.C. Code § 16

- 916.01 (2012 Repl.), 1 by not subtracting certain expenses that he must pay under a s eparation a greement that had been

1 All subsequent statutory references are also to D.C. Code (2012 Repl.).2

“incorporated and merged” with the parties‟ divorce decree. We agree that the trial court should have subtracted those expenses in calculating his AGI. We therefore reverse and remand for a recalculation of Mr. Ford‟s child support obligation.

I. Background

Mr. Ford and appellee Rita Castillo married on October 4, 1997, and divorced, in an uncontested divorce, on January 20, 2004. The parties have one child together, born on March 6, 1998. As part of the divorce, the parties, both acting pro se , drafted a s eparation a greement pr oviding for custody, access, education, and support. It stipulated that Mr. Ford would have the child for the first half of the week and Ms. Castillo would have the child for the second half of the week . Mr. Ford would bear the entire cost of the child ‟ s private school tuition, which , after financial aid and other grants, totaled $8,650 per sc hool year. Mr. Ford would pay for the child ‟ s health insurance ; e ach parent would pay one half of the child ‟ s unreimbursed medical costs, school aftercare, and airf are to the Dominican Republic (for twice

- annual visits with Ms. Castillo ‟ s family ) ; and each would contribute $125 quarterly for clothing and $125 annually for Christmas gifts. Mr. Ford earned approximately $50,000 per year at the time of the agreement , a nd Ms. Castillo earne d approximately $47,000. This s eparation

a greement was “incorporated and merged” with the Judgment of Absolute Divorce3

issued by the trial court on January 20, 2004.
In April 2011, the parties agreed that the child would reside with M s. Castillo during the school year . The following month , Ms. Castillo filed a petition seekin g child support under the D.C. Child Support Guideline. Both parties ‟ incomes had increased substantially since 2004. At the time of Ms. Castillo ‟ s petition, Mr . Ford was earning $237,920 per year and Ms. Castillo was earning $90,000 per year. Ms. Castillo alleged in her petition that the new custody arrangement and Mr. Ford ‟ s increased earnings warranted a modification in child support under D.C. Code § 46

- 204 (a)

. In a series of hearings, the parties disputed whether Mr. Ford ‟ s obligations under the Judgment of Absolute Divorce should figure into th e monthly support calculation. The cost of private school tuition, in part because of Mr. Ford ‟ s greater earnings, had increased to $22,151 per year. The trial court told the parties

on April 4, 2012 , that it would not credit Mr. Ford ‟ s expenses for tuition, nor his other required expenses , in calculating his AGI because they were “a discrete oblig ation separate and apart from child support.” In a May 30, 2012 , written order, the court stated that “[Mr. Ford ‟ s] obligation to pay tuition exists independently of his obligation to pay child support.” And i n a July 9, 2012, written order, the trial co urt reiterated that Mr. Ford ‟ s expenses in paying the4

child ‟ s “private school tuition, his annual travel to the Dominican Republic, one half of his extraordinary unreimbursed medical expenses, one half of other school costs, and maintenance of his medical insurance . . . do[] not receive a credit in the child support Guideline calculation.”

The court gave three reasons for not crediting these expenses

. First, “tuition is listed as a separate obligation in the agreement, which although not dispositive, is a factor subject to consideration.” The court noted that a chart in the “ Child Support ” section of the agreement “ explicitly addressed „ other school costs, ‟ thereby indicating that the parties chose to distinguish tuition payments as separate from their overarching child support obligations.” Second, “the tuition provision lists both an amount of tuition and names a specific school . . . implying that this

w as not only a financial term but one related to legal custody.” Third, “the language of [the] Divorce Decree notes that parties have „ settled matters relating to child support and custody, visitation, medical and health insurance for the child, education , and other matters. ‟ By distinguishing child support from education, the Court treated tuition separately from child support, and the parties did not object or file any pleading to amend the judgment” (emphasis added by the trial court ).
Having decided n ot to subtract these expenses from Mr. Ford‟s gross income, the court calculated his monthly obligation under the Guidelines to be5

$1,446. Be cause Mr. Ford‟s and Ms. Castillo‟s combined AGI exceeded $240,000
per year, the Guideline projection did not “pre sumptively” apply and the court had discretion to impose a greater (although not a lesser) amount. D.C. Code § 16

- 916.01 (h). In this case, t he court found the minimum amount “fair and just.” The court also ordered Mr. Ford to pay Ms. Castillo $14,460 i n retroactive support for the ten months that Ms. Castillo‟s petition had been pending

. Mr. Ford appealed.

II. Analysis
“A trial court has a considerable measure of discretion in determining the appropriate amount of alimony and child support,” and “ that dete rmination will not be disturbed on appeal unless the court clearly abused its discretion.” Araya v. Keleta , 65 A.3d 40, 48 (D.C. 2013) (quotation marks and citations omitted)

. W e review questions of statutory interpretation de novo. See Wilkins v. Ferguson , 928 A.2d 655, 667 (D.C. 2007). In interpreting statutes, we begin w ith the provision‟s plain language and also consider “„its placement and purpose in the statutory scheme. ‟ ” Tippett v. Daly , 10 A.3d 1123, 1126 (D.C. 2010) (en banc) (quoting
Ba iley v. United States , 516 U.S. 137, 145 (1995)).
Mr. Ford argues that the trial court erred in treating the child

- related obligations he assumed under the divorce decree as “discrete obligation[s] separat e and apart from child support” and declining to cr edit them when calculating his6

AGI (and based on his AGI , his minimum monthly child support payment )

. 2 We conclude that in calculating Mr. Ford‟s AGI, the trial court should have counted the tuition payment and Mr. Ford‟s other child

- related obligations a s “prior child support orders” and deducted them from Mr. Ford‟s gross income. 3
The Guideline directs courts to “[r]efer to Worksheet B in Appendix III to calculate child support in cases involving shared physical custody.” 4 D.C. Code § 16

- 916.01 (x). That worksheet follows the instructions set forth in D.C. Code § 16

- 916.01 (q) : To reach a parent‟s AGI, i t tak es each pare nt ‟ s gross income and adds or subtract s alimony, subtract s “prior child support orders,” and adjust s for additional children l ivin g in the home. A parent‟s monthly obligation is then

2 At oral argument, Mr. Ford clarified that he does not seek to modify the obligations

— including paying the child‟s tuition

— that he assumed in the s eparation a greement.
3 We reject Mr. Ford‟s contention that the trial court erred in modifying the parties ‟ child support arrangement at all. T he court first found a “substantial and material change , ” D.C. Code § 46

- 204 (a) , in the child‟s needs because the child was spending significantly more time with the mother. It also found a “substantial and material change ” in Mr . Ford‟s ability to pay based on Mr. Ford‟s increase in income. It noted that while private school tuition had also increased, tuition nevertheless occupied a lesser percentage of his income. These facts suffice to demonstrate a substantial and material change warranting a modification in Mr. Ford‟s child support obligation.
4 The trial court used a “shared physical custody” arrangement when running the Guideline in this case and estimated that Mr. Ford cared for the child 35% of the time. See D.C. Code § 16

- 916.01 (q)(1).7

computed from that AGI

. Worksheet B cit es D.C. Code § 16

- 916.01 (d)(4) when directing that “prior child support orders” be deducted from gross income. That statute provides that “[a] support order tha t is being paid by either parent shall be deducted from the parent ‟ s gross income before the child support obligation is computed.” The term “support order” is defined in two statutes as follows:

“Support order” means a judgment, decree, or order, whether temporary, final, or subject to modification, issued by a court or an administrative agency of competent jurisdiction, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, o r a child and the parent with whom the child is living, which provides for monetary support, health care, arrearages, or reimbursement and which may include related costs and fees, interest and penalties, income withholding, attorneys ‟ fees, and other reli ef. D.C. Code § 16

- 901 (8); § 46

- 201 (2).
In this case, t he terms of the s eparation a greement drafted by Mr. Ford and Ms. Castillo became “issued by a court” within the meaning of D.C. Code § 16

- 901 (8) when they were incorporated into the divorce decree in 2004 . “The purpose of incorporating the terms of a separation agreement into a separation or dissolution decree is to make them the terms of the decree.” L INDEY AND P ARLEY

ON S EPARATION A GREEMENTS AND A NTENUPTIAL C ONTRACTS (Matthew Bender) § 83.30 (2 d ed. 2013). See also Brown v. Dyer , 489 A.2d 1081, 1083 ( D.C. 1985) (granting the Superior Court‟s Family Division jurisdiction over an action to8

recover payment promised in an incorporated

- but

- not

- merged agreement). 5
Further, Mr. Ford‟s obligations to p ay tuition and health insurance, as well

as his other obligations, shared with Ms. Castillo, to pay for the child‟s clothing, Christmas gifts, after

- school programs, unreimbursed medical costs, and travel to the Dominican Republic, were “for the support an d maintenance of a child ” within the meaning of D.C. Code § 16

- 901 (8). 6 The statute‟s broad conception of the

“ the support and maintenance of a child” includes “ monetary support, health care, arrearages, or reimbursement ” and “related costs and fees. ” O ur case law has also

5 Separation agreements that are not only “incorporated” but also “merged” into a court order are, of course, also “issued by a court” within the meaning of D.C. Code § 16

- 901 (8). See Mazza v. Hollis , 947 A.2d 1177, 117 9 (D.C

. 2008) (explaining that the parties‟ merged agreement had been “adopted by the court as its own determination of the proper disposition” (quoting Hamel v. Hamel , 539 A.2d 195, 199 (D.C

. 1988)) ); Duffy v. Duffy , 881 A.2d 630, 639 (D.C. 2005) (“Where a settlement agreement is merged into the trial court‟s order . . . the binding force of the amount of child support is not based on the contractual obligation arising from an agreement between the parties, but on th e authority of the court‟s order.”). Because this case does not involve a court‟s authority to modify a separation agreement, we have no need to explore any distinction between incorporated

- and

- merged agreements and incorporated

- but

- not

- merged agreements. See Mazza , 947 A.2d at 1180 (discussing the conflict between the standard for modifying unmerged agreements in Cooper v. Cooper , 472 A.2d 878, 880 (D.C. 1984) , and the standard later enunciated in D.C. Code § 16

- 916.01 (t)).

6 Ms. Castillo‟s ch ild

- relat ed expenses under the s eparation a greement

— for example, the obligation to pay her portion of the child‟s clothing, Christmas gifts, after

- school programs, and unreimbursed medical costs

— a re also court

- ordered expenses “for the support and maintenance of a child” and would be deducted from her gross income in calculating her AGI for Guideline purposes.9

embraced a n expansive understanding of child support. In Brown v. Dyer , 489 A.2d 1081, a woman sued her ex

- husband after he r efused to pay for their child ‟ s private school tuition, w hich he had agreed to pay in a property settlement agreement incorporated into their divorce decree. We construed the suit “as an action for child support” and found the ex

- husband “obligated to pay.” Id. at 1083.
In Carr v. Haynes , 374 A.2d 868 (D.C. 1977), a woman sought to compel her ex

husband to contribute to the ir child ‟ s private school tuition paid during their separation

. We deemed her action “ clearly one for child support” because the ex

husband “had recognized the need of the children to attend a private school and had agre ed they should attend.” Id

. at 870. 7

We conclude that t he s eparation a greement ‟ s child

- related provisions qualify as “support orders” under D.C. Code § 16

- 901 (8) and that Mr. Ford‟s reasonable
expenses in furtherance of those obligations “ shall be deducted from the parent ‟ s gross income before the child support obligation is computed.” D.C. Code § 16

- 916.01 (d)(4). This result honors the plain meaning of the statute and obviates scrutiny of pro se agreements for clues about whether the parties the mselves considered any particular obligations to be “child support.” I t also comports with

7 In Carr v. Haynes , deeming the tuition payment “child support” was necessary to our holding because had we not done so, according to the opinion, we could not have awarded attorneys‟ fees to the ex

- wife. Carr , 374 A.2d at 870.10

the statutory scheme underlying D.C. Code § 16

- 916.01 (q) and Worksheet B in Appendix III

. See Cass v. District of Columbia , 829 A.2d 480, 482 (D.C. 2003) (urging “ an interpretation that makes sense of the statute as a whole”). That scheme directs courts to deduct certain expenses from parents ‟ gross income and to calculate monthly obligations only from the remainder. It conceives of alimony, “prior child support orders,” and adjustments for ot her children living in the home

as spoken for

— that is, as previously reserved carve - outs. Because Mr. Ford and Ms. Castillo together earn more than $240,000, the Guideline projection is not presumptive and t he trial court may impose a n amount greater than the amount yielded by the Guideline. D.C. Code § 16

- 916.01 (h).
U nder the same provision , the court may not impose an amount less than the Guideline ‟s projection. The trial court in this case imposed what it computed to be the exact minimum. As the trial court erred in not counting Mr. Ford ‟ s expenses for tuition and other obligations as “support orders” in calculating his AGI , we reverse the court‟s judgment and remand to allow the court to consider imposing, at its discr etion, a lesser monthly child support payment down to the new minimum. 8

8 The new minimum is not very different from the old minimum. If the trial court inputs $24,000

— what Mr. Ford claims as the cost of his court

- ordered obligations

— into line 1(b) of Appendix III‟s Worksheet B in D.C. Code § 16

- (continued...)11

So ordered.

(...continued) 916.01, which is currently lin e 1(c) on the shared custody framework of the online Guideline c alculator ( http://csgc.oag.dc.gov/application/main/intro.aspx ) , then even without considering any court

- ordered child

- relate d expenses claimed by Ms. Castillo, the Guideline yields a monthly obligation of $1,363

— $83 less than the original $1,446 order. This estimate uses the trial court‟s other inputs, including that Mr. Ford has a child at home ( other than the child in this c ase ) whom he has a legal duty to support.