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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1853 September Term, 1998

BRENDA J. (GROVE) DUNLAP

v.

VINCENT CHARLES FIORENZA

Moylan, Hollander, Salmon, JJ.

OPINION BY MOYLAN, J. Concurring and dissenting Opinion by Hollander, J.

Filed: September 30, 1999

Brenda

J.

(Grove)

Dunlap,

the

appellant/cross-appellee,

challenges the determination of Judge James C. Cawood, Jr., in the Circuit Court for Anne Arundel County with respect to the amount of child support she was entitled to receive for the son she parented out of wedlock with Vincent Charles Fiorenza, the appellee/crossappellant. 1) Dunlap raises four issues for our consideration: Did the trial court err in attributing to her a potential income of $50,000 per year at a time when she was unemployed? Did the trial court err by deviating downward from the Child Support Guidelines by $157 per month? Did the trial court err in failing a) to back date the support order and b) to award her a contribution for the medical and educational expenses she had incurred? Did the trial court err in failing to require Fiorenza to pay at least one-half of their child's private school tuition?

2)

3)

4)

Fiorenza, in his cross-appeal, raises the following issues: 5) Did the trial court err Dunlap a contribution attorney's fees? in awarding toward her

6)

Did the trial court err in failing to award Fiorenza income tax exemptions because of his child support payments? FACTUAL AND PROCEDURAL BACKGROUND

The parties to this appeal were never married.

On September In

28, 1984, Justin Fiorenza ("Justin") was born to the parties. 1987 in the Circuit Court for Prince George's County, a paternity action against Fiorenza with respect

Dunlap filed to Justin.

-2Subsequently, both parties entered into a Consent Order whereby 1) Dunlap retained sole custody of Justin and 2) Fiorenza was

obligated to pay child support in the amount of $200 per month. For the next twelve years, Dunlap retained sole physical and legal custody of Justin. During that time, Justin began

experiencing difficulties in school as early as the first grade. When Justin was in the fourth grade, he was diagnosed with

attention deficit disorder ("ADD"). grades Justin attended St. John

From the third through sixth the Evangelist School ("St.

Johns"), a private parochial school.

Because of his behavioral

problems, however, in May of 1996 Justin was asked by school officials not to return to St. Johns at the end of his sixth-grade year. In the summer of 1996, Dunlap, her minor daughter from a prior marriage (Lauren), and Dunlap's now-husband but then boyfriend, moved from Prince George's County to Anne Arundel County,

ostensibly because Dunlap believed she could find a suitable public school for Justin there. Justin was enrolled in Central Middle Within weeks after school began,

School for the fall of 1996.

however, Justin's teachers complained of his behavior in the classroom. During that fall semester Justin was suspended on a

number of occasions. In October of 1996, Dunlap quit her job of nineteen years as a general manager at a Roy Rogers Restaurant, at least in part to devote more attention to Justin. At the time she left the Roy

-3Rogers Restaurant, she was earning approximately $50,000 per year. Dunlap also withdrew her retirement contributions from her former employer's retirement plan in a single lump sum. After she stopped

working, Dunlap picked up her son from school earlier than she had been able to do in the past and met with his teachers and guidance counselor on numerous occasions. Justin's behavior, however, did not improve. During the

spring semester of 1997, a gun was discovered in his back-pack while he was in school. He was accordingly suspended. For the

remainder of the spring semester, he received in-home tutoring and was then placed on long-term suspension from all Anne Arundel County schools for at least one additional semester. During that

period of home tutoring, Dunlap supervised Justin's progress. Justin underwent counseling sessions with Dr. Robert Marcus of Sheppard Pratt Hospital from February of 1997 until April of 1998. On Custody.1 June 23, 1997, Fiorenza filed a Petition to Modify

Fiorenza, who was then living in Pennsylvania, sought to

have Justin move in with him and to attend school in Pennsylvania. Dunlap opposed the motion. Dunlap decided that Justin would attend Queen Anne's School, a private school, beginning in the fall of 1997. Given the expense

of tuition at Queen Anne's School, Dunlap sought to have Fiorenza's

Fiorenza's petition was originally filed in the Circuit Court for Prince George's County. It was transferred to Anne Arundel County because that is where Dunlap and Justin were then domiciled.

1

-4child support payments increased. Accordingly, on September 23,

1997, Dunlap filed a Motion to Modify Child Support. Justin began showing improvement during the 1997-98 school year (Justin's eighth grade year) at Queen Anne's School. Dunlap

continued to maintain close contact with Justin's teachers and she also paid for the entire tuition of the 1997-98 school year and various tutoring sessions. Justin was invited to return to the

school for his ninth grade year. A hearing took place over the course of several days during June of 1998. The focus of that hearing was on the appropriate At the time of the hearing, each

custody arrangement for Justin.

party had married. Fiorenza had two children by his marriage, whose ages were two years and six months, respectively. Dunlap also had a nine-year old daughter by an earlier marriage. On July 14, 1998, Judge Cawood issued an Opinion and Order whereby the parties were granted joint legal custody of Justin. Primary physical custody remained with Dunlap. He ordered Fiorenza

to pay increased child support from his former payment of $200 per month to the amount of $400 per month and also to contribute $300 per month toward private school tuition. STANDARD OF REVIEW When presented with a Petition to Modify Child Support, a court may modify a child support obligation at any time if a material change in circumstances has been shown that justifies such a modification. A decision regarding

-5such a modification is left to the sound discretion of the trial court and will not be disturbed unless that discretion was arbitrarily used or the judgment was clearly wrong. Moore v. Tseronis, 106 Md. App. 275, 281, 664 A.2d 427 (1995) (citations omitted); Tidler v. Tidler, 50 Md. App. 1, 9, 435 A.2d 489 (1981). Maryland Rule 8-131(c) expressly provides:

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. See In re Joshua W., 94 Md. App. 486, 491, 617 A.2d 1154 (1993). ATTRIBUTION OF $50,000 PER YEAR EARNING CAPACITY TO DUNLAP Dunlap maintains that Judge Cawood erred in attributing

$50,000 of income to her when she was unemployed at the time of trial. In support of her position, she claims that the trial court

failed to make an explicit finding of voluntary impoverishment, and, even if it implicitly made such a finding, it failed to consider the necessary factors when determining voluntary

impoverishment.

In his Opinion and Order, Judge Cawood explained:

Mr. Fiorenza makes about $62,000. Mrs. Dunlap makes about $50,000. She stopped work because she felt Justin needed her at home. Since that appears to have helped, we have some sympathy for that position. Unfortunately, were we to apply [that] litmus test, every mother (and some fathers) could stop working because it would be better to raise the children (especially at a younger

-6age). Our world does not permit this. Two income families are the norm, and single parents cannot stay home and take care of the children. We must posit $50,000 to her. Section 12-204(b) of the Family Law Article provides that "if a parent is voluntarily impoverished, child support may be In

calculated based on a determination of potential income."

Goldberger v. Goldberger, 96 Md. App. 313, 327, 624 A.2d 1328 (1993), we elaborated on the concept of voluntary impoverishment: [F]or purposes of the child support guidelines, a parent shall be considered "voluntarily impoverished" whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources. We then, quoting from John O. v. Jane O., 90 Md. App. 406, 422, 601 A.2d 149 (1992), listed ten factors that should be considered by the trial court when determining whether a parent has voluntarily impoverished himself or herself. 1) whether the party has Included among those factors are efforts to find and retain

made

employment,

2) the party's past work history, and 3) the status of See also

the job market in the area in which the party resides. Moore, 106 Md. App. at 282-83.

Although the factors must be

considered by the trial court, the statute does not require the court to articulate on the record its consideration of each and See

every factor when reaching a determination of child support.

Lapides v. Lapides, 50 Md. App. 248, 252, 437 A.2d 251 (1981) ("The exercise of a judge's discretion is presumed to be correct, he is

-7presumed to know the law, and is presumed to have performed his duties properly.")(Citations omitted). Furthermore,

[o]nce a parent is found to be voluntarily impoverished, his or her potential income will be "determined by the parent's employment potential and probable earnings level based on, but not limited to, recent work history, occupational qualifications, prevailing job opportunities, and earnings levels within the community." Wagner v. Wagner, 109 Md. App. 1, 42-43, 674 A.2d 1 (1996)(quoting Md. Code Ann., Fam. Law

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