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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2349 September Term, 2003

MICHAEL KEITH SHENK v. JULIE O. SHENK

Murphy, C.J., Barbera, Thieme, Raymond G., Jr. (Ret'd, Specially Assigned), JJ. Opinion by Thieme, J.

Filed: October 28, 2004

This is an appeal of the custody and child support provisions of a Judgment of Absolute Divorce entered by the Circuit Court for Montgomery County. Appellant Michael Keith Shenk ("husband")

presents two issues arising from the court's decisions as to custody of the parties' three children and child support. Our

review will focus on the facts necessary for consideration of the following issues of the appellant, which we have restated: I. II. Did the trial court err in attributing to the wife hypothetical monthly child care expenses? Did the trial court err in awarding the parties joint legal custody with the wife having final tie-breaking decision-making authority in the event of a future dispute? FACTS The parties were married on November 16, 1996, and had three children before separating voluntarily on May 25, 2002. The

husband, a high school graduate, testified that he had worked for an internet telecommunications company, earning $90,000.00 a year, until he was fired in June of 2001. Because he had long hungered

to own a restaurant, the husband began working variable hours as a server at a Houston's restaurant to learn the business. he earned $29,452.15. In 2002,

He told the court that he was not actively

seeking new employment because working at Houston's gave him the flexibility to deal with the circumstances of his personal life caused by the divorce. However, he realized that he had to start

looking for a better paying job and he was trying to "network" through family, friends, or customers at the restaurant.

Reverting for the moment to the point in time when the husband lost his telecommunications job, the appellee wife, who has a bachelor degree in business administration, began working fifteen to eighteen hours per week doing record keeping and running errands for her father's real estate business. She earned $1,500.00 per

month. She and the children continued to reside in the family home and her working hours were arranged around the children's

schedules.

Her mother, who lived next door, watched the children

one day per week and the two women shared a housekeeper/babysitter. The wife paid this housekeeper/babysitter $1,290.00 per month, $400.00 of which was reimbursed by her mother for one day per week of housecleaning. The wife estimated that her child care and housecleaning expenses would increase to $1,421.00 per month if she went to work full time. The husband testified that his sister, a day care provider who lived approximately 20 minutes from the family home, had offered to watch the parties' children at no cost. The parties and other witnesses testified about their The

relationship prior to and during the separation period.

husband's cousin and wife's friend told the court that both parties were good with their children, but that, "[w]ith each other, there was turmoil." However, she felt their communication had improved

since they had developed a system of writing to each other in a notebook. The husband concurred with that assessment, telling the

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court that he thought his wife was a good parent, who made good decisions, but that he wanted the opportunity to be involved in making those decisions. The court asked if a disagreement related

to a minor decision, such as participation in sports, might end up in litigation, and the husband replied, "What I would say is go ahead and sign [the child] up for that." make efforts to remain an active parent. The wife also testified that the notebook had helped to defuse tensions between them. She complained that her husband was He stated that he would

inconsistent in his opinions about the children. She said that she felt she knew what was best for them. While she wanted his input,

she felt that, "if I need to make that call, I think I'm the one to do it." DISCUSSION I. -the child support issueAt the conclusion of trial, the court found that both parents were voluntarily impoverished. of income to the husband. The court then imputed $65,000.00

Based on the testimony of the wife's

father, the court found that she could earn at least $45,000.00 by working full time. impoverishment, `potential the "After the court makes a finding of voluntary court to must then to the make a determination who has of

income'

impute

parent

become

voluntarily impoverished, in order to ascertain the appropriate

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level of child support," (2003).

Malin v. Mininberg, 153 Md. App. 358, 406

Regarding child care, the court stated: Maybe she needs a day care provider. Maybe she doesn't. I have to, I think if I am going to find that she is voluntarily impoverishing herself because she is not working full-time, I have to assume that she is going to have to pay somebody to watch the children while she does that. The testimony of Mr. Shenk was that the amount of money that was paid to the day care provider in this case was reasonable for somebody who watched a 2-year-old all day and who would have the responsibility for watching a 3-year-old, and would have the responsibility for watching the 5-year-old when he comes back from his school.

When questioned by husband's counsel as to whether it would make a difference whether the wife was employed part time or full time, the court answered that it did not. Counsel pursued this

point, asking what the amount of child support would be if the wife did not work full time, continuing to earn the same income, and the following transpired: THE COURT: The appropriate child support is what I have ordered. All right? Because I don't believe that I can attribute income to her and at the same time not attribute some day care expenses. Do you follow me? [DEFENSE COUNSEL]: I follow you, Your Honor. I am just, I guess my concern is Ms. Shenk doesn't go out to get a job, survives on her present income. Then we have the issue of whether or not the day care is job-related and then he is paying a number that is a lot higher if we did a calculation on her present income. This is the concern I had -4

THE COURT: I understand your concern. We will just have to wait and see what happens come September 1, 2003, because that's what I have ordered now. I think that we need to have some incentive for both of these parties to get to work. If in fact she is not working, you may have to revisit the issue. [DEFENSE COUNSEL]: I understand. I am not arguing, Your Honor. I am just saying there is an incentive to Mr. Shenk because you have ordered that in a couple of months there is going to be a child support number that is considerably bigger to him. I do not know what incentive in anything the Court has said is there for Ms. Shenk to go out and get a job. You haven't changed anything. It is just going to be a higher number, based on his income. There is no incentive for her to do anything here. That's my concern. THE COURT: I understand. [DEFENSE COUNSEL]: All right. THE COURT: That's my order. I can understand your concern. I would have the same concern. I thought about that concern, but that's the only way that I can see to do it right now. In its written ruling, the court ordered the husband to pay $900.00 per month until September and $2,043.00 per month

thereafter.

On September 8, 2003, the husband filed a post-trial

motion to amend that provision, based upon the wife's continued part-time status. The motion was denied, although the trial court

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stated that this fact "would be a sufficient basis for the filing of a Motion to Modify Child Support. . . ." On appeal, the husband argues that the trial court erred by awarding the wife an amount of child support that was based upon hypothetical work-related expenses. We agree.

The statutory basis for calculating child support is the parties' adjusted actual incomes. Md. Code (1999 Repl. Vol., 2003 In addition, section

Supp.), Family Law Article ("FL"),

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