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Lasché v. Levin

August 6, 2009

ERNEST P. LASCHÉ, APPELLANT,
v.
PAMELA BETH LEVIN, APPELLEE.



Appeal from the Superior Court of the District of Columbia. (DRB1274-06) (Hon. Jerry S. Byrd, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Argued January 29, 2009

Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.

Appellant, Ernest P. Lasché, appeals the trial court's order that he pay $697 per month, beginning February 1, 2007, in current child support and $130 per month, beginning July 1, 2007, toward a judgment of $81,343 in unpaid retroactive child support dating from1996 forward. Lasché argues that the trial court did not have the authority to award retroactive child support from as far back as 1996, and that even if the trial court had such authority, the trial court abused its discretion in rejecting his defense of laches. Lasché also argues that the trial court erred in calculating his retroactive child support payments under the presumptive statutory Guideline by (1) including certain "lump-sum" trust distributions, (2) failing to deduct fees paid on a twenty percent interest in a family-owned beach property, and (3) failing to deduct investment losses from an online business venture. Finally, Lasché argues that the trial court erred in calculating his income for the purposes of determining his current child support obligation by failing to deduct his business expenses from his earned income. We agree with Lasché's argument that the non-periodic trust distributions should not have been included in his "gross income" under the Guideline and remand for recalculation of the retroactive child support figure. In all other respects, we uphold the trial court's determinations.

I. The Basic Facts

Lasché and appellee, Pamela Beth Levin, were married on June 11, 1993, In Milan, Italy. Their daughter was born in Italy on December 17, 1994. On or about August 16, 1995, the parties separated when Levin and the daughter returned to Washington, D.C., from Italy. Lasché returned to the Washington, D.C., area in October 1995 but did not reside with Levin or the daughter.

In January 1998, Levin filed a Complaint for Divorce, Custody, and Child Support in the District of Columbia Superior Court. Levin hired an individual to effect service on Lasché, but that individual was unsuccessful in effecting service. The Superior Court then dismissed Levin's complaint without prejudice due to her failure to effect service on Lasché. Levin again filed for divorce in the Superior Court at some point in 2002 but again was unable to effect service on Lasché. She then applied for child support services from the District's child support agency.

On his part, Lasché filed a Petition for Dissolution of Marriage before the Circuit Court in Manatee County, Florida, on September 18, 2002, and an Amended Petition for Dissolution of Marriage on November 6, 2002.The Florida judge granted the parties' divorce but made no ruling regarding child support or visitation due to jurisdictional limitations.In September 2004, Levin re-contacted the District's child support agency, which filed an interstate support action on Levin's behalf. The child support agency was unable to locate Lasché.

On April 12, 2006, Lasché filed a complaint for custody and access to his minor daughter in the District of Columbia Superior Court. On May 15, 2006, Levin filed her answer to the complaint and her counterclaim for custody and child support. Lasché filed an answer to the counterclaim for custody, noting that he was not seeking physical custody of the minor child. The trial court held a pendente lite hearing on November 2, 2006, and issued a temporary child support order on December 7, 2006.*fn1 The trial court held a hearing on retroactive child support on January 23 and 24, 2007, and issued its order on June 5, 2007.

In its final order, the trial court calculated Lasché's prospective child support obligation as $697 per month based on an estimated income of $41,290 per year. The trial court based this estimation on Lasché's bank deposits for the first five months of 2006, annualized for the full year.*fn2 In addition, the trial court ordered Lasché to pay $81,343 in retroactive support payments covering the period from January 1996 to December 2006, to be paid at a rate of $130 per month, as well as $12,434 for Levin's attorney fees. Prior to the trial court's order for retroactive support payments, Lasché's only payments to Levin for the care of their child since 1996 were three payments of $150 in September, October, and November 2006, as well as a single payment of $985 in December 2006.

II. The Retroactive Child Support Award

We first address Lasché's challenges to the trial court's award of retroactive child support payments. "The trial court has broad discretion in making child support decisions. Absent a showing of abuse of that discretion, such decisions, both under the statutory guideline and independent of the guideline, will not be disturbed on appeal." Galbis v. Nadal, 734 A.2d 1094, 1100 (D.C. 1999). See also, e.g., Slaughter v. Slaughter, 867 A.2d 976, 977 (D.C. 2005).

A. Retroactivity Vel Non

The trial court ordered that Lasché pay $130 per month beginning on July 1, 2007, for a total of $81,343 in retroactive child support payments for the period from January 1996 to December 2006.Lasché argues that the trial court erred in awarding retroactive child support from 1996. He claims that there is "no legal authority for an award of child support against a former spouse and acknowledged father of a child that is retroactive to a date ten years prior to the date child support came to be at issue." The more appropriate ...


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