Appeal from the Superior Court of the District of Columbia. (04-DRB-1270) (Hon. Jerry Stewart Byrd, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Argued September 13, 2006
Before RUIZ and KRAMER, Associate Judges, and BELSON, Senior Judge.
Appellant appeals the trial court's denial of her motion to increase child support and request for attorney's fees. She challenges the trial court's finding that neither appellee's change in income nor alleged changes in the children's needs merit an increase in child support, as well as the trial court's exclusion of a booklet prepared by appellant which she claims contained the documentary foundation for the expenses set forth on her financial statement. We affirm the judgment of the trial court denying appellant's request for modification of child support and for attorney's fees. We also deny appellee's request for attorney's fees under our Rule 38.*fn1
Appellant and appellee reached a Property and Support Settlement Agreement ("Agreement") on December 28, 2000, which finalized their divorce proceedings in the Circuit Court of Fairfax County, Virginia ("Fairfax Court"). The Agreement, which was incorporated, but not merged, into the divorce decree, addressed spousal and child support, and provided for the proportionate sharing of certain expenses, such as school tuition and unreimbursed medical expenses of their three children, who at the time ranged from five to ten years of age.
In August 2004, the Fairfax Court increased appellee's monthly child support obligation to $4,211,*fn2 a $500 upward deviation from the presumptive amount under the statutory guidelines applicable in Virginia. That same month, appellant filed a complaint in Superior Court to register the Fairfax Court's order in the District on the ground that neither the parties nor the children lived in Virginia (appellant and the children had moved to Maryland and appellee to the District of Columbia), see D.C. Code § 46-306.09 (2001), and to request a modification (increase) of the Virginia support order. In November of 2004, the trial court registered the Fairfax Court's order, but denied appellant's motion to modify it because the D.C. guidelines' presumptions based on income (unlike those in Virginia) do not apply to income in excess of $75,000 and the relocation of the parties by itself did not warrant a modification.
This appeal stems from the denial of appellant's February 2005 motion seeking an increase in child support payments, as well as in appellee's proportionate share of the children's tuition, nanny and unreimbursed medical expenses. Appellant contended that an upward modification was warranted because her income had substantially decreased, whereas appellee's had substantially increased, and there had been a substantial change in the children's needs. Appellant submitted a financial statement dated June 2005, in which she lists monthly expenses for the children of $27,986, an increase of $3,381 per month from the amount she had claimed a year earlier, in seeking an increase from the Fairfax Court. The trial court considered the financial statement but excluded, as a discovery sanction, appellant's proposed exhibit with additional documentation to substantiate the expenses. The trial judge denied the requested modification, finding that there had not been a substantial change in the children's needs after the Fairfax Court's order and that appellee's increase in income of "about 14%" was not so substantial as to warrant an increase in child support in light of the other significant child-related expenses that he currently incurs in addition to child support. The trial judge also denied both parties' request for attorney's fees.
1. Child Support Modification
The statute provides that once a foreign court's child support order is registered in the District, the trial court has authority to modify the registered order, "subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of the District." D.C. Code § 46-306.11(b) (2001). The standard for seeking a modification is set out in the statute:
Any order requiring payment of an amount of child support, regardless of whether the amount of the child support was the subject of a voluntary agreement of the parties, may be modified upon a showing that there has been a substantial and material change in the needs of the child or the ability of the responsible relative to pay since the day on which the order was issued.
D.C. Code § 46-204 (a) (2001) (emphasis added). "Whether there has been a substantial and material change in circumstances is a question committed to the sound discretion of the trial court, and its decision in the matter will not be reversed on appeal without a clear showing of abuse of discretion." Burnette v. Void, 509 A.2d 606, 608 (D.C. 1986).
Appellant challenges the trial court's determination that appellee's ability to pay did not warrant an increase in child support. She argues that the $129,838 increase in appellee's income from 2003 ($911,606) to 2004 ($1,041,444) should result in a corresponding adjustment of appellee's child support payment ...