Weaver v. Weaver

CHARLES LEE WEAVER, JR. v. HOLLIN I. WEAVER

No. 739

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

March 1, 2019

Circuit Court for Harford County

Case No. 12-C-02-001120

UNREPORTED

Graeff, Shaw Geter, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

Alpert, J., concurs in the judgment only.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Charles Weaver, appellant, challenges the Orders of the Circuit Court for Harford County, which denied exceptions he filed to the Magistrate's Report and Recommendations regarding child support and ordered him to pay child support to his ex-wife, Hollin Weaver, appellee.¹ Mr. Weaver presents several questions for this Court's review,² which we have consolidated and rephrased, as follows:

1. Did the circuit court abuse its discretion by not dismissing appellee's complaint for failure to adequately respond to discovery requests?

2. Did the circuit court err in finding a material change in circumstances sufficient to modify the child support award?

For the reasons set forth below, we answer each question in the negative,³ and therefore, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On January 7, 1997, Mr. and Ms. Weaver were married. The parties have two children together, J.F.W., born in August 1998, and J.M.W., born in December 1999. On April 16, 2002, Ms. Weaver filed a Complaint for Limited Divorce in the Circuit Court for Harford County, which she amended on November 27, 2002. On September 10, 2002, the parties entered into a marital settlement agreement, in which they agreed to joint legalcustody of their two children, with Ms. Weaver having primary physical custody. Mr. Weaver agreed to pay Ms. Weaver $1,100 per month in child support, effective July 1, 2002. On March 20, 2003, the circuit court granted Ms. Weaver an Absolute Divorce from Mr. Weaver. The circuit court's judgment incorporated, but did not merge, the terms of the parties' marital settlement agreement, including Mr. Weaver's responsibility to pay Ms. Weaver $1,100 in child support.

On October 29, 2014, Ms. Weaver filed a Complaint for Modification of Absolute Divorce, alleging a material change in circumstances. She alleged that the minor children were residing almost exclusively with her, with minimal visitation with Mr. Weaver, and "the parties have both increased their income substantially since the Judgment of Absolute Divorce."⁴

On April 17, 2015, Mr. and Ms. Weaver entered into a Consent Order, agreeing that, effective November 1, 2014, Mr. Weaver would pay child support to Ms. Weaver in the amount of $1,893 per month, with an additional $100 for accumulated arrearages.⁵ In arriving at that amount, the parties had agreed to utilize their respective W-2 forms and to not engage in testimony or discovery. The Consent Order was approved and docketed by the circuit court.

On September 10, 2015, Ms. Weaver filed a Complaint for Modification of Child Support, stating that she "believe[d] . . . that [Mr. Weaver] intentionally misrepresented his income," and alleging that Mr. Weaver "understat[ed] the same by a significant amount of money." In his answer to the complaint, Mr. Weaver denied "any intentional misrepresentation of income" and stated that his income had not "materially changed since the entry of the consent order."

On March 9, 2016, Mr. Weaver filed a motion to dismiss Ms. Weaver's complaint. Ms. Weaver filed an answer to the Motion to Dismiss and attached her short form financial statement, which indicated that her total monthly income, before taxes, was $7,964. At a hearing before a magistrate, Ms. Weaver testified that this was a decrease in her income, which was due to a re-calculation of her earnings from her part-time position as a nurse. Ms. Weaver indicated that the position had "a benefit . . . of 20 hours per week," and her pay check fluctuates because "[a]nything that [she] do[es] above that is . . .[a] per diem."

On March 24, 2016, the circuit court denied the motion to dismiss. The parties then engaged in discovery.

On August 8, 2016, Mr. Weaver filed a motion for sanctions, alleging that Ms. Weaver had failed to respond to his discovery requests. He also filed a renewed motion to dismiss on the ground that the parties' use of their W-2 forms to calculate their income was based on a mutual agreement. He asserted that Ms. Weaver's complaint for modificationwas procedurally "misleading and [an] improper attempt to circumvent" the allotted 30-day period to file a motion to revise pursuant to Md. Rule 2-535(a).⁶

Ms. Weaver responded by reasserting that the parties' prior Consent Order was based on "a material misrepresentation by [Mr. Weaver] to deliberately understate his income," and she demanded that Mr. Weaver provide "strict proof" of his income. On August 22, 2016, the circuit court denied Mr. Weaver's renewed motion to dismiss.

On September 20, 2016, in response to Mr. Weaver's motion for sanctions, the circuit court ordered that Ms. Weaver respond to his discovery requests within 20 days. The order stated that, in the event of a failure to comply, "the [c]ourt shall consider other sanctions, including dismissal of [Ms. Weaver's] Complaint for Modification of Child Support." On October 6, 2016, Ms. Weaver's counsel filed a Notice of Service of Discovery with the court, stating that answers to interrogatories were served on Mr. Weaver's counsel.

On January 6, 2017, Mr. Weaver filed a new motion for sanctions.⁷ In response, Ms. Weaver's counsel admitted to not formally responding to Mr. Weaver's document request, asserting that all documents were provided with the answer to interrogatories sentto Mr. Weaver in October 2016 and re-sent in November. Ms. Weaver's counsel also alleged that Mr. Weaver "failed to properly serve the Motion for Sanctions" on Ms. Weaver, noting that the motion was sent to the wrong e-mail address for counsel. Ms. Weaver's counsel alleged that "[Ms. Weaver] ha[d] concerns that this was a deliberate attempt to avoid notifying her of pleadings filed in this case."

Magistrate Hearing

On February 22, 2017, the magistrate held a hearing. Mr. Weaver's counsel renewed his motion to dismiss, but the magistrate stated that the motion was one for a judge to resolve.

Ms. Weaver was first to testify. She testified regarding her employment history, noting that in 2015 she was employed as a part-time nurse, with University of Maryland Upper Chesapeake Health ("Upper Chesapeake"), as a real-estate agent with Coldwell Banker, and with an administrative company, Debt Collection Administration ("DCA"), LLC, which she owned. During this period, her adjusted gross income was $123,067. She provided her tax returns for 2015 and 2016, stating that her employers remained the same in 2016 and 2017, and she expected her income to remain consistent in 2017. The magistrate stated that he would "use the 2016 income for 2017."

On cross-examination, Mr. Weaver's counsel questioned Ms. Weaver about the expenses she claimed related to each job. She had given documents supporting those expenses to her accountant, but not to counsel. Ms. Weaver testified that, as a nurse, she was scheduled to work 20 hours a week, but she had been picking up some extra hours onweekends filling in for other nurses. There were shift differentials for night shifts, resulting in extra pay.⁸

Mr. Weaver testified next. He stated that his income from the Army National Guard was $135,692 in 2015, and he received $5,400 from a slot machine in a casino. In 2016, his income from the National Guard was $136,245, and he received an additional $600 from gambling. At the time of the hearing, his pay was the same, but he stated that he was retiring on July 1, 2017, and his pay would "be cut 45% at least."

On cross-examination, counsel for Ms. Weaver asked Mr. Weaver if his W-2 was used to ascertain his income for the 2015 order, which he confirmed. The W-2 indicated that his income was $127,356. Counsel asked if Mr. Weaver also received additional employee benefits provided through his employment with the Army National Guard. Mr. Weaver stated that he received a basic housing allowance of $3,147 each month, a "flight pay incentive pay" of $192.50 twice a month, and a "subsistence allowance" of approximately $250 each month.

Counsel for Ms. Weaver argued that child support should be modified based on a change of circumstances. He asserted that Mr. Weaver's income proffered in 2015 was $127,000, and in 2016 it was roughly $180,000. He asked for a modification fromSeptember 2015, when he filed the motion to modify, and again in August 2016, when the oldest child turned 18. Counsel for Mr. Weaver took issue with the income and expenses that Ms. Weaver provided, and he argued there was no changed circumstances to warrant a modification of child support.⁹

As indicated, the magistrate stated that it was going to conduct its calculation for the child support guidelines utilizing the 2016 income totals for their 2017 income. Neither party voiced an objection.

On February 24, 2017, the magistrate issued its report and recommendations. In summarizing the evidence before it, the magistrate noted the parties' respective income, as follows:

The Plaintiff [Ms. Weaver] is employed earning income from three different entities. She works at Upper Chesapeake Medical Center as a Registered Nurse, Coldwell Banker as a real estate agent, and as the owner of a company called Debt Cancellation Administration LLC. Her combined income from those three entities as found on Plaintiff's exhibit number one, her 2015 individual tax return, was $123,067. In 2016 she earned $126,574 from those three entities. She expects to earn approximately the same amount in 2017.

The Defendant [Mr. Weaver] is

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