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12/09/93 STEPHEN MIMS v. BERNICE MIMS

December 9, 1993

STEPHEN MIMS, APPELLANT
v.
BERNICE MIMS, APPELLEE



Appeal from the Superior Court of the District of Columbia Family Division; (Hon. Jose M. Lopez, Motions Judge, Hon. Zinora M. Mitchell-Rankin, Trial Judge)

Before Ferren, Schwelb, and Farrell, Associate Judges. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Associate Judge Farrell. Opinion of Associate Judge Ferren, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: On March 7, 1991, the trial Judge granted Stephen Mims (the father) a judgment of absolute divorce from Bernice Mims (the mother). She awarded the mother custody of the parties' two minor children, and ordered the father to pay $502 bi-weekly in child support. On appeal, the father contends that, because his children live with the mother in Maryland, the motions Judge should have granted the father's pretrial motion to apply the Maryland child support guideline rather than the District of Columbia guideline. He also argues that the trial Judge erred in granting the mother sole use and possession of the marital home until the parties' younger child reaches the age of eighteen. Finally, he contends that the trial Judge erroneously found that the father had voluntarily reduced his income, and that this erroneous finding led to an incorrect calculation of his child support obligation.

We agree with the first two of the father's contentions; only the first requires plenary Discussion. *fn1 Accordingly, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion. *fn2

I.

The parties were married in January 1983 in the District of Columbia They had two children, who were seven and five years old at the time of the divorce. The couple purchased a marital home in Suitland, Maryland, in May 1988. They separated in September 1988, and the father moved into his mother's house in the District. The mother and the two children continued to live in Maryland. In August 1990, the father filed a complaint for divorce in the Superior Court. The mother filed an answer and counterclaim seeking custody, support, and division of the marital property.

On October 4, 1990, the father's counsel filed a motion to adopt foreign law, and requested the court to apply Maryland's child support guideline, Md. Code Ann., Fam. Law § 12-201, et seq., (1992), instead of the District's, D.C. Code § 16-916.1 (1993). After a hearing, the motions Judge denied the request in an order signed on October 31, 1990. The Judge concluded that, because the parties were not yet divorced, the children's domicile was that of the father, and that the children were therefore domiciled in the District. The Judge also reasoned that if the case had been instituted by the mother pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), D.C. Code § 30-304 (1988), District of Columbia law would apply. Invoking the District's "governmental interest analysis," the Judge concluded that "the party seeking support is not required to be domiciled in the District," and that "the law of the father's domicile should apply."

II.

We are compelled to disagree with the motions Judge's Conclusion, which rests on an incorrect determination of the children's domicile. "If the father and the mother have separate domiciles, minor children take the domicile of the parent with whom they actually live." Oxley v. Oxley, 81 U.S. App. D.C. 346, 347, 159 F.2d 10, 11 (1946); see also RESTATEMENT (SECOND) CONFLICT OF LAWS, § 22 (1) (1971) (" minor has the same domicile as the parent with whom he lives"). *fn3 Accordingly, the children are domiciled in Maryland.

The domicile determination is critical, for there is precedent in this jurisdiction, which was not cited to the trial Judge, but which strongly suggests (and at least arguably requires) that we at least presumptively apply the law of the children's domicile. In Simonds v. Simonds, 81 U.S. App. D.C. 50, 52, 154 F.2d 326, 328 (1946), decided a quarter of a century before M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), the court held that the question whether a minor domiciled in the District has the right to sue her father, domiciled elsewhere, for support was governed by the law of the District of Columbia.

In Alves v. Alves, 346 A.2d 736 (D.C. 1975), the issue was whether the parties' 19-year-old son, who lived with his mother in Maryland, was entitled to child support from the father, a domiciliary of the District. The age of majority in Maryland was eighteen, but in the District it was twenty-one. Accordingly, in order to decide whether the father was obliged to continue to support his son, the court was first required to determine whether the question was governed by Maryland law or District of Columbia law. In Alves, as in this case, the father had obtained a divorce in our Superior Court and the litigation was being conducted in a District of Columbia forum. Nevertheless, this court held that

the domiciliary state being that of the mother, since she has custody, it is the law of Maryland which governs here. We see no reason, therefore, why we should not look to the law of Maryland to determine whether, at the time the trial court had jurisdiction, the son was a minor or an adult.

Id. at 739.

Given these precedents, and at least in the absence of particularized circumstances requiring a different result, the children's Maryland domicile is at least arguably conclusive. To be sure, both Simonds and Alves were apparently decided on the basis of the child's domicile alone, and the father has not disputed the motions Judge's determination that the "governmental interest analysis" approach, see, e.g., Rymer v. Pool, 574 A.2d 283, 285 (D.C. 1990), which was not mentioned in either Simonds or Alves, applies in this case. No decision of this court has been cited to us, however, and we have found none, purporting to overrule Simonds or Alves, insofar as choice-of-law questions in child support cases are concerned. Even if we were to treat the father's "concession" as amounting to a stipulation that the test applied in these decisions has been superseded, *fn4 we are not bound by stipulations on questions of law in general, Sebold v. Sebold, 143 U.S. App. D.C. 406, 412 n.8, 444 F.2d 864, 870 n.8 (1971) (decided several months before M.A.P. v. Ryan), or as to choice of law in particular, Montgomery Fed. Sav. & Loan Ass'n v. Baer, 308 A.2d 768, 770 (D.C. 1973). *fn5 Our obligation under M.A.P. v. Ryan to follow otherwise binding precedents does not evaporate because a party has failed to cite them to us.

III.

Even if Simonds and Alves were no longer good authority -- an "if" as formidable as any since Rudyard Kipling's day -- the result would still be the same. Application of the governmental interest analysis *fn6 in this case also requires the choice of Maryland law. The children's domicile in a particular jurisdiction ordinarily provides that jurisdiction with the primary interest in assuring their support.

The interests of the District and Maryland in this controversy are reflected in their respective guidelines. "Statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." J. Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 46 (D.C. 1989) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (Learned Hand, J.), aff'd, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 (1945)). We must therefore identify the purposes of the District of Columbia child support guideline and of its Maryland analogue in relation to the issue presented in this case.

Child support is not intended to punish the father, but rather to ensure a decent standard of living for the child. Under the District's guideline, "child support payments are for the benefit of the children. . . and the children's interest is paramount." Nevarez v. Nevarez, 626 A.2d 867, 872 (D.C. 1993) (citation omitted). The non-custodial parent's income is, of course, relevant, but this is because

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.

REPORT OF THE SUPERIOR COURT CHILD SUPPORT GUIDELINES COMMITTEE 10 (April 1988) (quoted in Fitzgerald v. Fitzgerald, 566 A.2d 719, 735 n.5 (D.C. 1989)) (separate opinion of Steadman, J.). This is the reason -- indeed, the only reason -- for the consideration in the guideline of the non-custodial parent's gross income. In other words, the primary purpose of the District's child support legislation is to protect the rights of District of Columbia children, not to penalize District of Columbia fathers. Cf. Wright v. Wright, 386 A.2d 1191, 1195 (D.C. 1978) (explicating purpose of child support). Indeed, the District of Columbia has no legitimate interest in ensuring that a father who lives in the District must pay more to support Maryland children than an otherwise similarly situated Maryland resident would be required to pay. Cf. Kaiser Foundation Health Plan v. Rose, 583 A.2d 156, 159 (D.C. 1990). *fn7

In the present case, Maryland's "governmental interest" is intrinsically greater than the District's. The children are in Maryland. Their principal expenses are in Maryland. Maryland is the jurisdiction in which the father's non-support would have its impact, and which would have to look after the children if, for example, they became public charges. *fn8 It is therefore Maryland's responsibility, more or less as parens patriae, to determine the needs of Maryland domiciliaries and how those needs should be met. Unlike the District's guideline, the Maryland guideline was promulgated to protect Maryland children. The governmental interest at issue being the assurance of adequate support for children living in the jurisdiction, and the children in this case being Maryland domiciliaries, it is Maryland's guideline which "would be most advanced by having its law applied to the facts before us. Stutsman II, supra, 546 A.2d at 373. In his otherwise comprehensive separate opinion, Judge FERREN fails in our view to come meaningfully to grips with this central truth.

The mother argues that, if she had sought child support from the father under URESA, "the residence of the obligor parent control when determining the obligation and the level of support." She suggests that we should therefore apply District law in this case, so that the choice of law would be the same no matter which party initiated the suit and which forum was selected for that purpose. The mother's position, however, is founded on a mistaken premise.

If the action had been brought in Maryland, the mother would presumably have registered her judgment in the Superior Court (as did the mother in Nevarez) so that she could reach the father's assets in the District and, if possible, his wages. But contrary to the mother's assertion, the choice-of-law provision in the District's URESA statute, D.C. Code § 30-304 (1993), authorizes the Superior Court to apply the law either of the jurisdiction where the father was present during the relevant period or of the jurisdiction where the dependents were present at the time of the non-support. *fn9 Recently, in Nevarez, 626 A.2d at 4 n.4, this court indicated, in the context of a suit brought in the District pursuant to URESA by a mother who lived with her children in Texas, that the court would at least "arguably be justified in applying the laws of Texas." *fn10 Nevarez thus stands for the proposition that application of the law of the State where the children live is, at least, a permissible alternative which the court is bound to consider. Even if this were a URESA case, which it is not, there is no inexorable statutory command which would then preclude the application of the Maryland guideline.

There are concededly factors, which could perhaps be compelling under other factual scenarios, suggesting that we should apply District law. The father chose to bring his action in the District of Columbia. *fn11 The law of the forum governs "unless the foreign state has a greater interest in the controversy." Kaiser-Georgetown Community Health Plan v. Stutsman, 491 A.2d 502, 509 (D.C. 1985) (Stutsman I). Moreover, when the interests of both jurisdictions are "equally weighty," we have considered "the substantial savings that can accrue to the State's judicial system when its Judges are able to apply law with which they are thoroughly familiar or can easily discover. . . ." Id. at 509 n.10 (citations and internal quotation marks omitted). *fn12 We are satisfied, however, that these considerations are substantially outweighed, on these particular facts, by the most important reality in this case -- namely, that we are dealing with support for children domiciled in Maryland, and that other things being equal, Maryland has a significantly greater interest than does the District in setting the level of that support. Accordingly, we conclude that the Maryland child support guideline, and not the District's, applies to this case.

IV.

For the foregoing reasons, the judgment appealed from is reversed in part *fn13 and the case is remanded for further proceedings consistent with this opinion, including appropriate modifications of the divorce decree.

So ordered. *fn14

FARRELL, Associate Judge, Concurring: I join Judge SCHWELB's opinion unqualifiedly. As Judge FERREN concedes in Dissent, there is no "indication" in either statute or case law that Maryland, in applying its child support guideline, would turn a blind eye to that "rare" case, post at 27, not exemplified here, in which the non-custodial parent experienced a dramatic increase in his/her standard of living. We should not decide this case on the bare hypothetical possibility of such an outcome. Without a more persuasive demonstration of likely difference in the application of the two guidelines, Judge SCHWELB is correct that "the most important reality in this case," in a balancing of governmental interests, is that the children are domiciled in Maryland, where their primary expenses are incurred.

FERREN, Associate Judge, Concurring in part and Dissenting in part: I join the majority opinion with respect to Disposition of the marital home. See ante note 1. I respectfully Dissent, however, from the majority's fundamental ruling that Stephen Mims's child support obligation should be determined by reference to the Maryland child support guideline instead of the District of Columbia guideline. *fn1 First, I believe the majority has misinterpreted the two precedents that supposedly require us to apply the law of the children's domicile (Maryland) to the issue of child support, Simonds v. Simonds, 81 U.S. App. D.C. 50, 154 F.2d 326 (1946), and Alves v. Alves, 346 A.2d 736 (D.C. 1975) (Alves II). The majority, therefore, errs in suggesting, see ante Part II., that M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), requires us to apply the "territorialist" *fn2 approach to choice-of-law questions represented by Simonds and Alves II.

Second, the majority erroneously concludes, in the alternative, that even if these precedents no longer are binding, a "governmental interest" approach to choice-of-law would bring about the same result: applying the law of the children's domicile (Maryland). To the contrary, because there is a "false conflict," the law of the forum -- the District's child support guideline -- applies. But even if there is a "true conflict," the District guideline applies because, as elaborated below, Maryland does not have a "greater interest in the controversy." Kaiser-Georgetown Community Health Plan, Inc. v. Stutsman, 491 A.2d 502, 509 (D.C. 1985) (Stutsman I). Indeed, ...


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