MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 ME 53 Docket: Han

- 22

- 357 Submitted

On	B riefs : April	19,	2023 Decided: August	15,	2023 Panel: STANFILL ,	C.J.,	and MEAD, HORTON , CONNORS , LAWRENCE, and DOUGLAS , JJ.
BONNIE	J. (MCCARTHY

- GUBER)	MCCARTHY

v. JACOB I. GUBER

STANFILL , C. J. [¶1] Jacob I. Guber	 appeals	 from	 the	 District	 Court’s	 (Ellsworth, David Mitchell ,	J. ) divorce	judgment .		Guber	argue s	the	court	erred	in	calculating past child	support by	failing	to account for	changes	in	the	parties’	income s and child	care	costs , to use the	substantial ly

- equal

- care calculation , and to provid e Guber with	a downward deviation from	 the child	support	guidelines

. Guber also	argues	the	court	erred in	calculating	his future child	support	obligation by excluding	his	child care	costs. We agree that the	court	erred	in	its	calculation of past	and future support and therefore vacate	the	court’s	child	support	order and	remand	for	further proceedings

.2 I. BACKGROUND [¶ 2 ] The	following	facts ,	which are	supported	by the evidence , are	drawn from	 the	 procedural	 record	 and	 the	 court’s	 findings	 of	 fact in	 the	 divorce judgment

. See Sulikowski	v.	Sulikowski ,	2019	ME	143,	¶¶	2,	11,	216	A.3d	893

. Guber	 and Bonn ie	 J. (McCarthy

- Guber)	 McCarthy were	 married	 in	 2017.	 	 In November	 2019, McCarthy filed	a	 divorce	 complaint	 based	 on	irreconcilable marital differences.	 	 The	 parties	 have	 one	 child	 together and	 had	informally agreed	 to equally split	 their	 time	 with	 the	 chi ld	 pending the final	 divorce judgment

. [¶ 3 ] In	March 2020, McCarthy moved	for	an	interim	hearing	to	address child	 support

. Using	 the	 calculation	 applicable	 when the	 parties provide substantially	equal	care	 for	 the	child, s ee 19

- A	M.R.S.	§	2006(5)(D

- 1)	(2023) , she	 proposed	 an	interim	 order	 requiring	 Guber	 to	 pay	 $191.33	 per	week	in child	support. Guber	opposed	an y interim	order	because	he	was	unemployed at	the	time	and	unsure when	he	could	resume	gainful	employment.		The	court ( Laskey , M. )	denied McCarthy ’s	motion	 for	a child	support hearing under	 the
COVID

- 19 pandemic emergency	protocols	then	in	effect

. Guber voluntarily	paid a	total	of $800 toward child	support while	the di vorce was	pending

.3 [¶ 4 ] Throughout	 the	 case,	 the	 parties	 filed	 multiple	 child	 support affidavits. McCarthy ’s	 a ffidavit s	 stated	 that she	 expected	 to	 earn	 $5,000 in 2019, $18,720 in	2020,	and	$25,000	in	2022 , with	weekly	child	care	costs	of $108 in	2022

. Guber	filed	an	affidavit in	2020 indicat ing he	expected	to	earn $16 2 ,922.98 that	year , with weekly	child	care	costs	of	$377.50. In	2022, Guber filed	an	updated	affidavit stating he	expected	to	earn	$117,000 that	year, with weekly	child	care	costs	of	$8 0. [¶ 5 ] The	court	( David Mitchell ,	J. )	held	a	contested	hearing	on	 June	14 and	 15,	 2022. The	 parties submitted	 proposed	 divorce	 judgments at	 the hearing

. Guber’s proposed	judgment acknowledged	that	he	owed	past	support and suggested	 that the	 court use the	 substantial ly

- equal

- care calculation to calculate past support and apply	a fifty	percent downward	deviation to	his	past support	 obligation .	 	 Guber	 further	 suggested that	 the	 court	 calculate future child	support	with	him	as	the	primary	care	provider. [¶ 6 ] McCarthy ’s proposed	judgment	suggested	that Guber owe d her	past child	support

. She also	asked	that	the	court	order	Guber	to	pay	her	future	child support.		She incorporated	two	child	support	orde rs	and	attached	worksheets. The first	child	support	order calculated Guber’s past support obligation	based on	the parties ’ provid ing substantially	equal	care	for	the	child. The	second child4 support order addressed	 Guber’s	 support	 obligation	 after	 June	 17 ,	 2022, calculating his obligation as	though McCarthy was	the	primary	care	provider. [¶ 7 ] The	 court’s	 divorce	 judgment,	 entered	 o n	 July	 7,	 2022,	 award ed primary	 residence	 to McCarthy and	 ordered	Guber	 to	 pay $319	 per	week	in child	support to	McCarthy starting October	25,	2019, which	was the f irst	Friday after	service	of	the	divorce	complaint. [¶ 8 ] On	July	20,	2022, Guber moved	for	a	new	trial	and	to	alter	or	amend the	judgment , s ee M.R.	Civ.	P.	59(a),	(e) , asserting	that	in	awarding	past	support, the	court	should	have	considered	that the	parties shared	equal	time	with	the child and	that their	incomes and	child	care costs fluctuated during	the	pendency of	 the	 divorce	 proceeding

. He	 argued that the	 court	 shou ld	 have	 used	 the substantially

- equal

- care calculation and	applied	a downward deviation	to	his past child support obligation .	 	 Additionally, Guber asserted that the	 court ignored his child	care costs in calculating	his future child	support	obligation

. The	next	day, Guber moved	for	further	findings	of	fact	and	conclusions	of	law ,
s ee M.R.	 Civ.	 P.	 52(b) , concerning	 the	 same	 issues and	 making	 similar arguments. [¶ 9 ] T he	 court	 denied Guber’s motions,	 explaining	 that	 “[i]n	 deci ding whether	to	make	a	support	order	retroactive,	[the]	court	is	under	no	obligation5 to	 compute	what	 a	 support	 obligation	would	 be	 at	 various	 times	 during	 the pendency	 of	 the	 case , ” adding	 that	 it	 would	 not	 have	 made	 a	 substantial difference	in	any	event. Guber timely	appealed.		14	M.R.S.	§ 1901 (1) (202 3 ); M.R.	App.	P.	2B(c)( 2 )

. II. DISCUSSION [¶1 0 ]	 	 We	 review	 the	 court’s child	 support award	 for an abuse	 of discretion	 and the court’s underlying	 factual	 findings for	 clear	 error

. See Bloom v.	Bloom , 2021	ME	 59,	¶	 6,	 263	A.3d	 491

. We	 review	 for	an	abuse	 of discretion	the	denial	of	a	motion	for	further	findings	of	fact

. Klein	v.	Klein ,	2019 ME	85,	¶	5,	208	A.3d	802 ; see Ehret	v.	Ehret ,	2016	ME	43,	¶	9,	135	A.3d	101 (explaining	that	when	a	court	denies a	motion	for	further	findings	of	fact,	we cannot	infer	any	findings the court did	not expressly include in	its	judgment). We	review	de	novo	questions	of	statutory	interpretation. Bloom ,	2021	ME	59, ¶	6,	263	A.3d	491.
A. Guber’s Past	Child Support Obligation [¶1 1 ] “Child	support	in	Maine	is	governed	by	statute.” Bouchard v. Frost , 2004	ME	9,	¶	14,	840	A.2d	109

. The	child	support	statute	permit s courts	 to award	both past	and future child	support. 19

- A	M.R.S.	§ 2006

. “[ T ] he re	is a rebuttable	presumption	that	the	parental	support	obligation	derived	from	the6 support	 guidelines	 is	 the	 amount	 ordered	 to	 be	 paid,	 unless	 support	 is established	 under	 2006,	 subsection	 5	 or	 2007.”	 	 19

- A	M.R.S.	 §	 2005 (2023)

. Section	 2006(5)	 governs	 speci al	 circumstances, including	 when the	 parties provide	substantially	equal	care	for	the	child. See 19

- A	M.R.S.	§ 2006(5)(D

- 1).
Section	2007 lists the criteria for deviating	from	the	guidelines ,	including when the	application	of the	guidelines	would	be	unju st	or	inappropriate. See 19

- A M.R.S.	§ 2007 (3)(A) (2023)

. [¶1 2 ] Here,	the court applied	the	guidelines	to	determine Guber’s future child	support obligation

. The c ourt’s	findings on child	support	are	contained	in the	child	support	worksheet	and	order that were incorporated	in	the divorce judgment ,	which	 does	 not	explain	 the	 court’s	 findings	in	greater	 detail. The court	 found	 that McCarthy ’s annual income wa s	 $25,000	 and	 that	 Guber’s
annual income wa s	 $124,565.	 	 The	 court	 also	 found	 that McCarthy incurred $108	in	weekly	child	care costs and	 that	Guber incurred no	child	care costs

. Applying	 the	 guidelines	 to these	 findings,	 the	 court	 concluded	 that Guber’s future child	 support	 obligat ion would	 be $319	 per	 week

. The	 court	 then ordered	that Guber’s child	support obligation would	be	“ retroactive ” to	the	first Friday	following	the	date	of	service	of	the	divorce	complaint

.7 [¶1 3 ] “ R etroactiv e ” support is separate	 and	 distinguishable	 from an award	of “past	support” under	the	child	support	statutes. “Retroactive	support” is	 awarded	 when	 an	 existin g	 child	 support	 order	 is	 modified	 and	 the modification	applies	 retroactively

. See 19

- A	M.R.S.	 § 2009(2)	 (2023) ( “C hild support	orders	may	be	modified retroactively	but	only	from	the	date	that	notice of	 a	 petition	 for	 modification	 has	 been	 served	 upon	 the opposing	 party, pursuant	to	the	Maine	Rules	of	Civil	Procedure.” ) ; see,	e.g. , Holbrook v.	Holbrook , 2009	ME	80,	¶¶	5,	23,	976	A.2d	990.		 In	contrast, “past	support”	is	awarded when	a	newly	issued	child	support	order	awards	support during a pr ior period not	previously	governed	by	any	child	support	order. See 19

- A	M.R.S.	§ 2006(2). When	modifying	an	existing	award under	section	200 9 ,	a	court	may	decide that the	modification	should	be	retroactive,	meaning	that	it	should	start	before	the date	 of	 the	 amended	 judgment. See 19

- A	 M.R.S.	 § 2009(2). In	 making	 that decision,	 the	 court	may	 consider,	inter	 alia,	when	 the	 factors that led	 to	 the modified	award arose . In	this	context ,	we have stated that “[r]etroactivity of	a [ child ] support	award	is	within	the	broad	discretion	of	the	court.” Nicholson	v. Nicholson ,	2000	ME	12,	¶	9,	747	A.2d	588 ; see Levasseur	v.	Levasseur ,	2010	ME 5,	¶	6,	987	A.2d	528; Holbroo k ,	2009	ME	80,	¶	23,	976	A.2d	990 ; F inn	v.	Finn , 517	A.2d	317,	319	(Me.	1986); see	also Wood	v.	Wood ,	407	A.2d	282,	28 6

- 8 88 (Me.	 1979) (addressing	 the	 issue	 of	 retroactive	 modification	 before	 the legislature	adopted	section	2009(2))

. [¶1 4 ] Here, however, the court issued	a	child	support	order	for	the	first
time as	part	of	 t he	divorce	judgment. Accordingly, without	an	existing	child support	order	to	modify, the	retroactivity	language	of section	2009(2) does	not apply to	Guber’s	child	support	obligation. [¶1 5 ]		Instead,	the	issue	before	the	court	was a	request	for “past	support.” Although the	award	of	past	support	involves	many	discretionary	decisions, the method	by	which	it	is	calculated does not

. Courts	are	required	to calculate	past support	 “ by apply ing the	 current	 support	guidelines	 to	 the	 period	 for	which past	support	is	owed.”		19

- A M.R.S.	§	2006(2) ; s ee also 19

- A	M.R.S.	§	1653(8) (2023) ( providing	that	in a	parent’s	action	for	child	support	under	19

- A	M.R.S. §	1654 (2023) ,	“ the	court	may	require	the	child’s	nonprimary	care	provider	to pay	past	support , ” the	determination	of	which	mu st	comply	with c hapter	63, including section 2006(2) ); 19

- A	M.R.S.	 § 2103(6) (2023) ( explaining	 that	in enforcement	actions	brought	by	the	Department	of	Health	and	Human	Services, the “ obligation	 for	past	support	due	is	established	by	application	of	the	most current	 child	 support	 scale	 to	 the	 responsible	 parent’s	 income	 for	 the	 time period	 in	 which	 the	 appl icant	 was	 entitled	 to	 support	 payments	 and	 may9 include	reimbursement	for	past	medical	expenses”)

. This	means that the	court

must first	determine the parties ’ incomes and	child care costs ,	as	well	as	any health	insurance	costs	or	extraordinary	medical	expenses, for	the past
- support period

. 1 See 19

- A	M.R.S.	§	2006. Then,	the	court	must	apply	the	child	support guidelines

— including whether	support should	be	based on	substantial ly equal

car e and whether a	deviation is	justified

— to	 those	 findings	 to	determine	 the past child support	obligation for	a	given	period

. See 19

- A	M.R.S.	§ §	2005, 2006 , 2007 ; se e also Sullivan	v.	Doe ,	2014	ME	109,	¶¶ 24

- 30,	100	A.3d	17 1. [¶1 6 ] W e therefore conclude that the	court	erred	as	a	matter	of	law	by stating	it	was	“under	no	obligation	to	compute	what	a	support	obligation	would be	at	various	times	during	the	pendency	of	the	case” ; section	2006 (2 )	provides to	 the	 contrary. An	 award	 of	 past	 support	 re quires	 one	 or	 more	 such calculations for the	period	for	which	past	support	is	awarded

. 2 See 19

- A	M.R.S. § 2006(2). Because we	 conclude	 that	 the	 court	 erred ,	we	 vacate	 the	 court’s award	of	past child	support	and	remand	for	further	proceedings.

1 Here,	 there	was evidence	in	 the	record	concerning	 the	past

- support	period:	 the parties	 filed multiple	child	support	affidavits	reflecting	their	incomes	and	child	care	costs at	various	times , and t estimony	during	the	hearing	touched	on	the	parties’	incomes	and	child	care	c osts during	those	times

.
2 We	recognize	that	this	process	may	result	in	multiple	calculations	and	child	support	orders	for differing	periods,	particularly	in	a	case	such	as	this	where	the	parties’	incomes	fluctuated over	several years	of	pre

- judgment	separation.10 [¶1 7 ] Wh ile considering the	past

- support	period o n	remand,	the	court should determine whether	 the	 substantial ly

- equal

- care calculation is applicable	and	whether	a ny downward deviation is	warranted

. See,	e.g. , Pratt v. Sidney ,	 2009	 ME	 28,	 ¶ 11,	 967	 A.2d	 685 ( specifying	 that	 a substantially

- equal

- care	 determination	 requires	 a	 detailed	 inquiry	 into	 an array	 of	 factors) ; Nicholson , 2000	ME	 12,	¶ 9,	 747	A.2d	 588 (explaining	 that “[t] he	 party	 seeking	 to	 have	 the	 court	 deviate	 from	 the	 guidelines	 has	 the burden	 to	 o vercome	 the	 presumption ”	 that	 the	 obligation	 derived	 from	 the guidelines	is	the	proper	amount)

. The	court must also account	for	Guber’s $800 payment toward	 child	 support. See Bloom ,	 2021	ME	 59,	¶ 11,	 263	A.3d	 491 (demonstrating	that	courts	must	account	for	any	payments	that	a	party	already made	toward	child	support	when	determining	the	amount	of	support	owed	at the	 time	 the	court	enters	its	judgment); see	also Nadeau	v.	Nadeau ,	2008 ME 147,	¶	57,	957	A.2d	108

. B. Guber’s Future Child	Support Obligation [¶1 8 ] The	child	support	statute	require s courts	to	add	child	care	costs	to the	basic	support	entitlement	to	determine	the	total	basic	support	obligation.
19

- A	M.R.S.	§ 2006(3).		Here , the	undisputed	evidence was that	Guber had $80 in	weekly	child	care	costs.		T he	court ’s	award	of future child	support ,	however,11 excluded Guber’s	child	care costs from the child	support worksheet	and	order

. Although	there	may	be	reasons why	the court	chose	to exclude	Guber’s	child

care	costs , this exclusion was	not	supported	by	the	court’s	express	findings

. See Ehret , 2016 ME 43, ¶ 9, 135 A.3d 101 ( indicating that the	“ court	must	ensure that	 the	judgment	is supported	by	express	 factual	 findings	 that	are	based	on record	evidence,	are	sufficient	to	support	the	result,	and	are	sufficient	to	inform the	parties	and	any	reviewing	court	of	the	basis	for	the	decision ”)

. [¶1 9 ] Because we cannot infer why the court dispensed with Guber’s child care costs , we vacate the court’s child support order and remand so that the court can correct its factual error or make further findings of fact and conclusions of law supporting the exclusion of Guber’s claimed child ca re costs

. The	entry	is: Judgment	as	to	child	support	vacated.		Judgment affirmed	 in	 all	 other	 respects.	 	 Remanded	 for further	proceedings	consistent	with	this	opinion.

Laura	P.	Shaw,	Esq.,	Dirigo Law	Group	LLP,	Camden,	for	appellant	Jacob I

. Guber Rosemarie	Giosia,	Esq.,	Ellsworth,	for	appellee	Bonnie	J.	McCarthy

Ellsworth	District	Court	docket	number	FM

- 2019

- 260 F OR C LERK R EFERENCE O NLY