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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No.12-FM-1386

                         ANTWANYE ERIC FORD, APPELLANT,

                                         V.

                               RITA CASTILLO, APPELLEE.

                      Appeal from Order of the Superior Court
                            of the District of Columbia
                                  (DRB-3227-03)

                        (Hon. Danya A. Dayson, Trial Judge)
(Argued September 25, 2013                             Decided September 4, 2014)

      Johnny M. Riddick for appellant.
      Rita Castillo, pro se.
      Before GLICKMAN and BECKWITH, Associate Judges, and NEBEKER, Senior
Judge.
      BECKWITH, Associate Judge: Appellant Antwanye Eric Ford contends that

the trial court erred in calculating his adjusted gross income (AGI) under the D.C.

Child Support Guideline, D.C. Code § 16-916.01 (2012 Repl.),1 by not subtracting

certain expenses that he must pay under a separation agreement that had been


      1
          All subsequent statutory references are also to D.C. Code (2012 Repl.).
                                         2


“incorporated and merged” with the parties‟ divorce decree. We agree that the trial

court should have subtracted those expenses in calculating his AGI. We therefore

reverse and remand for a recalculation of Mr. Ford‟s child support obligation.


                                I.     Background


         Mr. Ford and appellee Rita Castillo married on October 4, 1997, and

divorced, in an uncontested divorce, on January 20, 2004. The parties have one

child together, born on March 6, 1998. As part of the divorce, the parties, both

acting pro se, drafted a separation agreement providing for custody, access,

education, and support. It stipulated that Mr. Ford would have the child for the

first half of the week and Ms. Castillo would have the child for the second half of

the week. Mr. Ford would bear the entire cost of the child‟s private school tuition,

which, after financial aid and other grants, totaled $8,650 per school year. Mr.

Ford would pay for the child‟s health insurance; each parent would pay one half of

the child‟s unreimbursed medical costs, school aftercare, and airfare to the

Dominican Republic (for twice-annual visits with Ms. Castillo‟s family); and each

would contribute $125 quarterly for clothing and $125 annually for Christmas

gifts.    Mr. Ford earned approximately $50,000 per year at the time of the

agreement, and Ms. Castillo earned approximately $47,000.          This separation

agreement was “incorporated and merged” with the Judgment of Absolute Divorce
                                          3


issued by the trial court on January 20, 2004.


      In April 2011, the parties agreed that the child would reside with Ms.

Castillo during the school year. The following month, Ms. Castillo filed a petition

seeking child support under the D.C. Child Support Guideline.          Both parties‟

incomes had increased substantially since 2004. At the time of Ms. Castillo‟s

petition, Mr. Ford was earning $237,920 per year and Ms. Castillo was earning

$90,000 per year.    Ms. Castillo alleged in her petition that the new custody

arrangement and Mr. Ford‟s increased earnings warranted a modification in child

support under D.C. Code § 46-204 (a).


      In a series of hearings, the parties disputed whether Mr. Ford‟s obligations

under the Judgment of Absolute Divorce should figure into the monthly support

calculation. The cost of private school tuition, in part because of Mr. Ford‟s

greater earnings, had increased to $22,151 per year. The trial court told the parties

on April 4, 2012, that it would not credit Mr. Ford‟s expenses for tuition, nor his

other required expenses, in calculating his AGI because they were “a discrete

obligation separate and apart from child support.” In a May 30, 2012, written

order, the court stated that “[Mr. Ford‟s] obligation to pay tuition exists

independently of his obligation to pay child support.” And in a July 9, 2012,

written order, the trial court reiterated that Mr. Ford‟s expenses in paying the
                                          4


child‟s “private school tuition, his annual travel to the Dominican Republic, one

half of his extraordinary unreimbursed medical expenses, one half of other school

costs, and maintenance of his medical insurance . . . do[] not receive a credit in the

child support Guideline calculation.”


      The court gave three reasons for not crediting these expenses. First, “tuition

is listed as a separate obligation in the agreement, which although not dispositive,

is a factor subject to consideration.” The court noted that a chart in the “Child

Support” section of the agreement “explicitly addressed „other school costs,‟

thereby indicating that the parties chose to distinguish tuition payments as separate

from their overarching child support obligations.” Second, “the tuition provision

lists both an amount of tuition and names a specific school . . . implying that this

was not only a financial term but one related to legal custody.”          Third, “the

language of [the] Divorce Decree notes that parties have „settled matters relating to

child support and custody, visitation, medical and health insurance for the child,

education, and other matters.‟ By distinguishing child support from education, the

Court treated tuition separately from child support, and the parties did not object or

file any pleading to amend the judgment” (emphasis added by the trial court).


      Having decided not to subtract these expenses from Mr. Ford‟s gross

income, the court calculated his monthly obligation under the Guidelines to be
                                         5


$1,446. Because Mr. Ford‟s and Ms. Castillo‟s combined AGI exceeded $240,000

per year, the Guideline projection did not “presumptively” apply and the court had

discretion to impose a greater (although not a lesser) amount. D.C. Code § 16-

916.01 (h). In this case, the court found the minimum amount “fair and just.” The

court also ordered Mr. Ford to pay Ms. Castillo $14,460 in retroactive support for

the ten months that Ms. Castillo‟s petition had been pending. Mr. Ford appealed.


                                  II.   Analysis


      “A trial court has a considerable measure of discretion in determining the

appropriate amount of alimony and child support,” and “that determination will not

be disturbed on appeal unless the court clearly abused its discretion.” Araya v.

Keleta, 65 A.3d 40, 48 (D.C. 2013) (quotation marks and citations omitted). We

review questions of statutory interpretation de novo. See Wilkins v. Ferguson, 928

A.2d 655, 667 (D.C. 2007). In interpreting statutes, we begin with the provision‟s

plain language and also consider “„its placement and purpose in the statutory

scheme.‟” Tippett v. Daly, 10 A.3d 1123, 1126 (D.C. 2010) (en banc) (quoting

Bailey v. United States, 516 U.S. 137, 145 (1995)).


      Mr. Ford argues that the trial court erred in treating the child-related

obligations he assumed under the divorce decree as “discrete obligation[s] separate

and apart from child support” and declining to credit them when calculating his
                                         6


AGI (and based on his AGI, his minimum monthly child support payment).2 We

conclude that in calculating Mr. Ford‟s AGI, the trial court should have counted

the tuition payment and Mr. Ford‟s other child-related obligations as “prior child

support orders” and deducted them from Mr. Ford‟s gross income.3


      The Guideline directs courts to “[r]efer to Worksheet B in Appendix III to

calculate child support in cases involving shared physical custody.”4 D.C. Code

§ 16-916.01 (x). That worksheet follows the instructions set forth in D.C. Code §

16-916.01 (q): To reach a parent‟s AGI, it takes each parent‟s gross income and

adds or subtracts alimony, subtracts “prior child support orders,” and adjusts for

additional children living in the home. A parent‟s monthly obligation is then


      2
         At oral argument, Mr. Ford clarified that he does not seek to modify the
obligations—including paying the child‟s tuition—that he assumed in the
separation agreement.
      3
         We reject Mr. Ford‟s contention that the trial court erred in modifying the
parties‟ child support arrangement at all. The court first found a “substantial and
material change,” D.C. Code § 46-204 (a), in the child‟s needs because the child
was spending significantly more time with the mother. It also found a “substantial
and material change” in Mr. Ford‟s ability to pay based on Mr. Ford‟s increase in
income. It noted that while private school tuition had also increased, tuition
nevertheless occupied a lesser percentage of his income. These facts suffice to
demonstrate a substantial and material change warranting a modification in Mr.
Ford‟s child support obligation.
      4
          The trial court used a “shared physical custody” arrangement when
running the Guideline in this case and estimated that Mr. Ford cared for the child
35% of the time. See D.C. Code § 16-916.01 (q)(1).
                                         7


computed from that AGI. Worksheet B cites D.C. Code § 16-916.01 (d)(4) when

directing that “prior child support orders” be deducted from gross income. That

statute provides that “[a] support order that is being paid by either parent shall be

deducted from the parent‟s gross income before the child support obligation is

computed.” The term “support order” is defined in two statutes as follows:

             “Support order” means a judgment, decree, or order,
             whether temporary, final, or subject to modification,
             issued by a court or an administrative agency of
             competent jurisdiction, for the support and maintenance
             of a child, including a child who has attained the age of
             majority under the law of the issuing state, or a child and
             the parent with whom the child is living, which provides
             for monetary support, health care, arrearages, or
             reimbursement and which may include related costs and
             fees, interest and penalties, income withholding,
             attorneys‟ fees, and other relief.

D.C. Code § 16-901 (8); § 46-201 (2).


       In this case, the terms of the separation agreement drafted by Mr. Ford and

Ms. Castillo became “issued by a court” within the meaning of D.C. Code § 16-

901 (8) when they were incorporated into the divorce decree in 2004. “The

purpose of incorporating the terms of a separation agreement into a separation or

dissolution decree is to make them the terms of the decree.” LINDEY AND PARLEY

ON   SEPARATION AGREEMENTS      AND   ANTENUPTIAL CONTRACTS (Matthew Bender)

§ 83.30 (2d ed. 2013). See also Brown v. Dyer, 489 A.2d 1081, 1083 (D.C. 1985)

(granting the Superior Court‟s Family Division jurisdiction over an action to
                                         8


recover payment promised in an incorporated-but-not-merged agreement).5


      Further, Mr. Ford‟s obligations to pay tuition and health insurance, as well

as his other obligations, shared with Ms. Castillo, to pay for the child‟s clothing,

Christmas gifts, after-school programs, unreimbursed medical costs, and travel to

the Dominican Republic, were “for the support and maintenance of a child” within

the meaning of D.C. Code § 16-901 (8).6 The statute‟s broad conception of the

“the support and maintenance of a child” includes “monetary support, health care,

arrearages, or reimbursement” and “related costs and fees.” Our case law has also


      5
         Separation agreements that are not only “incorporated” but also “merged”
into a court order are, of course, also “issued by a court” within the meaning of
D.C. Code § 16-901 (8). See Mazza v. Hollis, 947 A.2d 1177, 1179 (D.C. 2008)
(explaining that the parties‟ merged agreement had been “adopted by the court as
its own determination of the proper disposition” (quoting Hamel v. Hamel, 539
A.2d 195, 199 (D.C. 1988))); Duffy v. Duffy, 881 A.2d 630, 639 (D.C. 2005)
(“Where a settlement agreement is merged into the trial court‟s order . . . the
binding force of the amount of child support is not based on the contractual
obligation arising from an agreement between the parties, but on the authority of
the court‟s order.”). Because this case does not involve a court‟s authority to
modify a separation agreement, we have no need to explore any distinction
between incorporated-and-merged agreements and incorporated-but-not-merged
agreements. See Mazza, 947 A.2d at 1180 (discussing the conflict between the
standard for modifying unmerged agreements in Cooper v. Cooper, 472 A.2d 878,
880 (D.C. 1984), and the standard later enunciated in D.C. Code § 16-916.01 (t)).
      6
         Ms. Castillo‟s child-related expenses under the separation agreement—for
example, the obligation to pay her portion of the child‟s clothing, Christmas gifts,
after-school programs, and unreimbursed medical costs—are also court-ordered
expenses “for the support and maintenance of a child” and would be deducted from
her gross income in calculating her AGI for Guideline purposes.
                                         9


embraced an expansive understanding of child support. In Brown v. Dyer, 489

A.2d 1081, a woman sued her ex-husband after he refused to pay for their child‟s

private school tuition, which he had agreed to pay in a property settlement

agreement incorporated into their divorce decree. We construed the suit “as an

action for child support” and found the ex-husband “obligated to pay.” Id. at 1083.

In Carr v. Haynes, 374 A.2d 868 (D.C. 1977), a woman sought to compel her ex-

husband to contribute to their child‟s private school tuition paid during their

separation. We deemed her action “clearly one for child support” because the ex-

husband “had recognized the need of the children to attend a private school and

had agreed they should attend.” Id. at 870.7


      We conclude that the separation agreement‟s child-related provisions qualify

as “support orders” under D.C. Code § 16-901 (8) and that Mr. Ford‟s reasonable

expenses in furtherance of those obligations “shall be deducted from the parent‟s

gross income before the child support obligation is computed.” D.C. Code § 16-

916.01 (d)(4). This result honors the plain meaning of the statute and obviates

scrutiny of pro se agreements for clues about whether the parties themselves

considered any particular obligations to be “child support.” It also comports with

      7
         In Carr v. Haynes, deeming the tuition payment “child support” was
necessary to our holding because had we not done so, according to the opinion, we
could not have awarded attorneys‟ fees to the ex-wife. Carr, 374 A.2d at 870.
                                        10


the statutory scheme underlying D.C. Code § 16-916.01 (q) and Worksheet B in

Appendix III. See Cass v. District of Columbia, 829 A.2d 480, 482 (D.C. 2003)

(urging “an interpretation that makes sense of the statute as a whole”). That

scheme directs courts to deduct certain expenses from parents‟ gross income and to

calculate monthly obligations only from the remainder. It conceives of alimony,

“prior child support orders,” and adjustments for other children living in the home

as spoken for—that is, as previously reserved carve-outs.


      Because Mr. Ford and Ms. Castillo together earn more than $240,000, the

Guideline projection is not presumptive and the trial court may impose an amount

greater than the amount yielded by the Guideline. D.C. Code § 16-916.01 (h).

Under the same provision, the court may not impose an amount less than the

Guideline‟s projection. The trial court in this case imposed what it computed to be

the exact minimum. As the trial court erred in not counting Mr. Ford‟s expenses

for tuition and other obligations as “support orders” in calculating his AGI, we

reverse the court‟s judgment and remand to allow the court to consider imposing,

at its discretion, a lesser monthly child support payment down to the new

minimum.8


      8
         The new minimum is not very different from the old minimum. If the trial
court inputs $24,000—what Mr. Ford claims as the cost of his court-ordered
obligations—into line 1(b) of Appendix III‟s Worksheet B in D.C. Code § 16-
                                                                  (continued…)
                                        11


                                                   So ordered.




(…continued)
916.01, which is currently line 1(c) on the shared custody framework of the online
Guideline calculator (http://csgc.oag.dc.gov/application/main/intro.aspx), then
even without considering any court-ordered child-related expenses claimed by Ms.
Castillo, the Guideline yields a monthly obligation of $1,363—$83 less than the
original $1,446 order. This estimate uses the trial court‟s other inputs, including
that Mr. Ford has a child at home (other than the child in this case) whom he has a
legal duty to support.
