Appeal from the Superior Court of the District of Columbia; (Hon. Geoffrey M. Alprin, Motions Judge)
Before Rogers, Chief Judge, and Terry and King, Associate Judges.
The opinion of the court was delivered by: King
KING, Associate Judge: In this domestic relations matter, the husband appeals the trial court's order affirming a hearing commissioner's increase of his monthly child support obligation beyond the $500 sum set forth in the parties' separation and property settlement agreement. On appeal, he contends the trial court erred because the hearing commissioner lacked authority both to modify an agreement that had not been incorporated into any court order and to impose a permanent order of support different from that set forth in the agreement. The husband also contends that equal protection principles *fn1 are violated when the District of Columbia provides legal assistance to custodial parents but does not provide the same service for non-custodial parents. We reject both claims and affirm.
In December 1987, the trial court entered an order of divorce, approving the parties' separation and property settlement agreement ("agreement") without merging the agreement into the divorce order. The agreement provided that the mother would have custody of the couple's daughter and would receive a monthly payment of $500 for child support from the father. In the fall of 1988, the husband failed to make his support payments, and the wife sought assistance from the Office of Corporation Counsel ("OCC"). On January 5, 1989, the OCC filed a Petition for Child Support in the trial court on her behalf. *fn2 In response, a hearing was held on July 27, 1989, during which the parties agreed to a temporary support order that required the husband to make support payments, in the amount of $500 a month, into the court registry. Thereafter, the husband made support payments in that amount into the court registry for the next eighteen months.
On November 16, 1989, the husband filed a motion for summary judgment, claiming that because the agreement entered into by the parties had not been merged into the order granting the divorce, the wife was precluded from seeking an increase in child support. *fn3 In her response to that motion the wife moved for an increase in child support payments. The husband also claimed that legal representation by the OCC on behalf of the wife violated the Equal Protection Clause because legal assistance by the OCC is only provided to the custodial spouse.
On February 21, 1990, Judge George Goodrich, relying on Cooper v. Cooper, 472 A.2d 878 (D.C. 1984), which established the standard for modification of unmerged, unincorporated child support agreements, granted the husband's summary judgment motion with respect to the wife's request for an increase. The Judge ruled that to obtain a modification of such an agreement, Cooper requires the custodial spouse to show, inter alia, that there has been a material change in circumstances that was unforeseen at the time the agreement was made -- a showing the wife failed to make. The July 27, 1989, temporary support order remained in force, however, and the husband continued to make support payments pursuant to it.
On June 12, 1990, on the wife's behalf, the OCC filed a motion to increase child support, claiming there was a substantial and material change in the needs of the child and the ability of the father to contribute to his daughter's care. The husband was also served with interrogatories and discovery requests. After the husband failed to provide discovery, the trial court ordered him to comply, warning that sanctions would be imposed if he failed to do so. The husband continued to oppose the motion to increase support, asserting that the Cooper requirement had not been met because nothing unforeseen had occurred since the parties' separation and property agreement was entered; the husband also moved for summary judgment. On March 4, 1991, after the husband persisted in his refusal to provide discovery, Judge Joan Zeldon fined the husband $2,200 and precluded him from challenging the material change contention made by the wife. *fn4 On August 22, 1991, Judge Cheryl Long denied the husband's summary judgment motion, ruling that the wife could seek an increase in child support under the Child Support Guideline set forth in D.C. Code §§ 16-916.1 (1993 Supp.) and 30-504 (1993).
On March 11, 1992, Hearing Commissioner Hugh Stevenson, pursuant to Judge Long's ruling, granted the wife's request for an increase in child support. Applying the Child Support Guideline in § 16-916.1, the commissioner ordered the husband to pay $1,034 per month in child support. In doing so the commissioner ruled that the July 27, 1989, temporary support order provided a basis for modifying the terms of the parties' separation and property agreement even though the agreement had not been merged or incorporated into the divorce order. The husband challenged the commissioner's ruling, claiming that (1) there was no evidence of material change or increased ability to pay, (2) he did not understand the implications of his agreeing to the temporary support order, and (3) equal protection was violated because of the legal assistance provided to the wife by the OCC.
Judge Alprin affirmed the commissioner's decision, ruling that Judge Goodrich's grant of summary judgment was only applicable to the wife's request for an increase in support and that the temporary support order "remained a fully valid court order." Judge Alprin also rejected the contention that the husband did not knowingly consent to entry of the temporary support order *fn5 and the equal protection claim.
Our analysis begins with a brief review of the applicable principles before the enactment of the Child Support Guideline. It was then settled law that modification of support payments under an unmerged, unincorporated separation agreement could only be ordered:
if the party seeking modification shows (1) a change in circumstances which was unforeseen at the time the agreement was entered and (2) that the change is both substantial and material to the welfare and best interests of the child.
Cooper, supra, 472 A.2d at 880 (citations omitted). Since private resolution of domestic disputes is favored, a higher standard must be met to modify a private agreement than is so with a court order setting forth the obligations of the parties. Id. A higher standard is appropriate because there is a presumption that "a child support agreement negotiated between two parents is adequate to meet the child's foreseeable needs, and that at the time of the agreement the best interests of the child ...