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Hight v. Tucker

August 17, 2000

BURNETTA P. HIGHT, APPELLANT
V.
CLIFTON E. TUCKER, APPELLEE



Before Terry and Steadman, Associate Judges, and Kern, Senior Judge.

Appeal from the Superior Court of the District of Columbia (Hon. Rafael D¡az, Trial Judge) (Hon. Roy M. Ellis, Hearing Commissioner)

Argued January 6, 2000

Terry, Associate Judge: This is an appeal from the denial of a motion to review a child support order. Appellant*fn1 argues that the trial court erred in (1) not following the statutory child support guidelines in determining the amount of support to be paid, (2) refusing to consider the father's overtime wages in calculating his gross income, (3) failing to issue written findings in support of its order, and (4) refusing to order retroactive support payments. Appellee argues that the court acted properly in all respects. We reverse.

I.

Appellee, Clifton Tucker, is the father of Tiffany Tucker, who was born on October 18, 1977. Mr. Tucker and Tiffany's mother, Gloria Hight, were not married. Gloria Hight died when Tiffany was in her early teens, and thereafter Tiffany resided with her aunt, Burnetta Hight. On November 22, 1996, when Tiffany was nineteen years old, Burnetta Hight filed a petition in the Superior Court to establish Mr. Tucker's paternity and to require him to provide support for his daughter, who was then attending college. On November 26 Mr. Tucker consented to an adjudication of paternity, and on that same day a hearing on the issue of child support was held before a trial court hearing commissioner.

At the hearing there was a dispute over the amount of Mr. Tucker's income. Mr. Tucker was employed by the District of Columbia Department of Public Works. His actual income from that job for the previous year, including overtime, was $56,233, but his base salary was only $35,588. Counsel for Ms. Hight argued that the higher figure should be used to calculate the amount of child support, but the hearing commissioner rejected appellant's argument and ruled that his computations would be based on Mr. Tucker's base salary of $35,588.

Then, when asked by the commissioner why the court should not require him to pay child support, Mr. Tucker replied, "I have a terminally ill wife with cancer," and said that "for the last six, seven years, I've been having a lot of bills" and that "my money [has] been running very low." Mr. Tucker also claimed that he had been paying his daughter's college tuition. However, when Ms. Hight's counsel asked that Tiffany herself be allowed to testify about whether or not her father was actually helping to pay for her education, the commissioner refused to hear her. At one point during the discussion of college tuition, an unidentified person in the courtroom said, "But you didn't pay all of that, because I paid half of it and I asked you to pay the other half." Mr. Tucker replied that he had paid the tuition for the first semester, quoting a figure, but the unidentified person said, "You did not pay all that. I paid half of that." Counsel for Ms. Hight then requested permission to question Mr. Tucker "concerning his wife's disability." The hearing commissioner, however, did not allow such questioning, saying, "I think that's rather personal."

The commissioner then ruled that Mr. Tucker should pay $661.00 monthly in accordance with the low child support guideline.*fn2 He did not allow any evidence to be presented about Mr. Tucker's wife, her illness, or any expenses related to her illness. The commissioner ruled further that because of his wife's illness, Tucker should pay only $500.00 now, and that the amount would be increased to $661.00, the low guideline amount, after one year. He also rejected counsel's argument that Mr. Tucker should pay retroactive child support "[b]ecause this person [Ms. Hight] is not legally responsible for the child."

After Ms. Hight sought review of the commissioner's decision under D.C. Code § 11-1732 (k) (1995), a hearing was held before a Superior Court judge. At the end of that hearing, the judge affirmed the order of the commissioner. The judge ruled that the commissioner had correctly used appellee's base salary to compute child support because it "would have been speculative to include overtime." The judge also held that the commissioner did not err in delaying full payment of Mr. Tucker's child support obligation because of his wife's illness, and that the commissioner had properly denied the request for retroactive support "because the petitioner [Ms. Hight] was not legally responsible for supporting the child."

II.

A. Departures from the Guidelines

The Child Support Guidelines, found at D.C. Code § 16-916.1 (1997), generally govern child support awards in the District of Columbia. There is a statutory presumption that the guidelines will apply, absent a showing that "application of the guidelines would be unjust or inappropriate in the circumstances of the particular case." D.C. Code § 16-916.1 (l). As the statute enumerates, there are several "factors that may be considered to overcome the presumption," one of which is that "[t]he non-custodial parent needs a temporary period of reduced child support payment to permit the repayment of a debt or rearrangement of his or her financial obligations . . . ." D.C. Code § 16-916.1 (l)(5). If such a showing is made, "a temporary reduction may be included in a child support order," provided certain conditions outlined in the statute are met. Id.

In this case, the hearing commissioner evidently found this section of the statute applicable to Mr. Tucker and thus reduced his child support payment to an amount below the minimum required by the guidelines. At the hearing, Mr. Tucker testified that his wife was ill with cancer and that he had incurred expenses in relation to her illness. Critically, however, he presented no documentation to this effect, nor did he even state the total amount of those expenses or give any description of how they impaired his ability to meet his child support obligation. The commissioner, surprisingly, did not allow any such testimony, even when requested by Ms. Hight's counsel, on the ground that it was "rather personal." This was clear error.

The commissioner also departed from the Child Support Guidelines in allowing Mr. Tucker to pay less than the lowest amount prescribed by the guidelines for a period of one year. There is nothing in the record to show what factors the commissioner used in determining that the application of the guidelines may have been "unjust or inappropriate," nor was there any attempt made by Mr. Tucker to justify such an amount under any other part of D.C. Code ยง 16-916.1 (l). Aside from the fact that his wife was seriously ill, Mr. Tucker never presented any evidence about her illness or, more importantly, about the expenses he had incurred as a result of that illness. He cannot rely simply on the fact that his wife is ill; rather, he must present specific data on his income and expenses before he can receive a reduction in his child support payments. Because ...


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