NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
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                                         2016 VT 97

                                        No. 2015-414

Debbie A. (Shattuck) Leitgeb                                   Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Windsor Unit,
                                                               Family Division

Robert Leitgeb                                                 May Term, 2016


M. Kathleen Manley, J.

Debbie A. Shattuck, Pro Se, Springfield, Plaintiff-Appellee.

Robert Leitgeb, Pro Se, Littleton, New Hampshire, Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   ROBINSON, J.        This case requires us to consider whether and under what

circumstances a child support order can compel an obligor parent whose income is below the

self-support reserve to make monthly payments toward outstanding arrearages on a child support

surcharge. Father appeals pro se from a family court order affirming a magistrate’s decision to

deny his motion to modify a child support order that related solely to outstanding arrearages

owed for surcharges. He argues that because his limited income from social security disability

benefits is below the self-support reserve, he should not be ordered to make $50 monthly

payments toward outstanding surcharges. We reverse and remand.
        ¶ 2.      The facts are largely undisputed. The parties were divorced in 1989. Father was

ordered to pay child support for the parties’ minor child, who turned eighteen in July 1998.

Although father did not thereafter incur any new child support obligations, he continued to owe a

substantial arrearage and surcharges.1 In January 2005, the child support magistrate issued a

child support order reflecting a judgment of arrears in the amount of $11,424.01. That judgment

reflected past due child support principal in the amount of $5627.78 and accumulated surcharges

of $5796.23. The court ordered wage withholding from any employer in the amount of $50 per

month, although the order noted that father had a pending application for social security benefits.

The court further ordered that surcharges would continue to accrue on the judgment at the

statutory rate.

        ¶ 3.      In May 2008, father filed a pro se petition to modify his child support order. By

that time, the child support principal arrearage was paid, but accrued surcharges remained.

Father was living on social security disability benefits. In January 2009, after a hearing, the

magistrate denied father’s motion to vacate or set aside the surcharge under 15 V.S.A. § 606(d).

The court left in place the existing child support order requiring father to pay $50 per month

toward the outstanding surcharges.

        ¶ 4.      In April 2011, father filed another pro se motion seeking modification. This time

rather than requesting termination of his obligation to pay the arrears altogether, his motion

sought a reduction of his monthly payment toward the outstanding arrearage. In that motion, he

represented that he was unemployed, disabled, and unable to meet his medical expenses. In an

entry order, the child support magistrate ruled that father had not established a real, substantial,

or unanticipated change of circumstances, nor any other legal basis for relief. The court noted


        1
         A surcharge is assessed “[i]n lieu of interest on unpaid child support which has accrued
under a child support order,” and is computed at a rate set by statute. 15 V.S.A. § 606(d)(1).


                                                  2
that in 2005, when it issued an order requiring him to pay $50 per month toward the arrearages,

father was unemployed and not receiving social security disability benefits. It further noted that

it had denied a similar motion in January 2009, after a contested hearing.

       ¶ 5.    In September 2011, father again filed a pro se motion, this time seeking discharge

of his surcharge arrearage obligation altogether. Father filed this motion after the effective date

of 15 V.S.A. § 606(d)(2), which provides: “In the interest of justice, the court may discharge all

or part of a surcharge that accrued subsequent to the date of the last judgment upon a finding that

since that date, the obligated parent became unable to comply with the underlying support

obligation.” In his motion, father cited a decrease in his social security disability payments and

his struggle to pay rent. The magistrate denied father’s motion to modify because father had not

shown an unanticipated change in circumstances as required by 15 V.S.A. § 660. In particular,

the change in his Social Security Disability payments was not sufficient to trigger a modification.

The magistrate further denied father’s motion under 15 V.S.A. § 606(d)(2) on the ground that

father had not shown that since the last judgment he had become “unable to comply.” However,

in December 2011, the magistrate did enter a new, modified child support order establishing a

surcharge arrearage balance of $3967.41, maintaining the $50 per month payment schedule, and

reducing the rate of accrual of continuing surcharges to 0.5% per month, or 6% per year. The

Superior Court, Family Division, upheld this order on appeal.

       ¶ 6.    In September 2013, father filed another motion seeking reduction of his monthly

obligation to repay arrearages to $0 and discharge of the surcharges. The magistrate rejected the

motion noting that at that time father had both earned income and Social Security income and

that his total monthly income exceeded his expenses such that he was able to make the $50 per

month payment.




                                                3
       ¶ 7.    Finally, in February 2015, father filed another pro se motion to modify the child

support order relating to his outstanding surcharges. This is the motion that led to this appeal.

Father alleged that his income had decreased, he was disabled, and the child support order in

question was issued more than three years prior. His requested relief was a decrease in his

monthly obligation to $0.

       ¶ 8.    The magistrate held a contested hearing. Although father indicated that the sole

relief he was seeking was discharge of the surcharge arrearage pursuant to 15 V.S.A.

§ 606(d)(2), most of his testimony was directed at his inability to pay the $50 per month. It was

not clear that he understood that the motion he filed suggested two alternate forms of relief: one

that would discharge some or all of the surcharge arrearage pursuant to § 606(d)(2), and one that

would leave the accrued surcharge judgment intact, but would reduce or eliminate his monthly

payment obligation.

       ¶ 9.    At the hearing, the Office of Child Support indicated that father’s remaining

surcharge arrearage was approximately $1917. Based on father’s testimony, the magistrate

found that father had $976 per month in Social Security Disability benefits, in addition to fuel

assistance and food stamps. His monthly expenses for rent, utilities, prescription medications,

and sundries totaled $935 per month, leaving him with $41 per month from which he could pay

the $50 arrearage payment. The magistrate noted that $50 of his monthly expenses was a

payment toward past due rent; the magistrate reasoned that if he reduced this amount by $9 per

month, he would be able to make the arrearage payment.

       ¶ 10.   With respect to father’s motion to discharge his remaining accrued surcharges in

the interest of justice pursuant to 15 V.S.A. § 606(d), the magistrate concluded that the statute

authorizes discharge of only surcharges that accrued subsequent to the date of the last judgment,




                                                4
upon a finding that the obligated parent had become unable to comply with the underlying

support obligation since that date. Noting that father had no outstanding support obligation or

support arrearage (as opposed to surcharge arrearage), the magistrate concluded that no

surcharges had accrued since the last judgment, and the court was not authorized to discharge

surcharges that had accrued prior to that time and that were reduced to judgment in that order.

Accordingly, the magistrate concluded that § 606(d) did not give the court authority to reduce

father’s arrearage balance.

       ¶ 11.   The magistrate went on to consider the possibility of reducing or eliminating

father’s monthly payment obligation, as opposed to discharging the underlying judgment. The

magistrate noted that father’s living circumstances had changed on account of a recent divorce

and that his income had fallen. However, the magistrate found that his modest monthly income

was still sufficient to meet his modest expenses and allow him to continue paying $50 per month

toward his surcharge arrearages.     In addition, the magistrate found that father’s consistent

payment of the $50 per month over the course of years supported the finding that he was, in fact,

able to afford the payment. For these reasons, the magistrate declined to reduce father’s monthly

surcharge arrearage payment.

       ¶ 12.   On appeal, the family division affirmed. With respect to father’s request for relief

“[i]n the interest of justice” under 15 V.S.A. § 606(d)(2), the court affirmed the magistrate’s

conclusion that the statute did not apply, as none of the remaining obligation had “accrued

subsequent to the date of the last judgment.” As to the request for modification under 15 V.S.A.

§ 660, the court affirmed the magistrate’s finding that father’s circumstances had changed, and

upheld the magistrate’s conclusion that father was capable of making the payments. Father

appealed.




                                                5
       ¶ 13.   On appeal, father challenges the magistrate’s denial of his request to modify to

zero his monthly payment obligation.2 He argues that the magistrate’s order requiring him to

make monthly payments toward his arrears despite the fact that his income is undisputedly below

the self-support reserve runs afoul of 15 V.S.A. § 656(c), and that the magistrate clearly erred in

concluding that he was able to pay $50 per month.3

       ¶ 14.   We will neither set aside the magistrate’s findings unless they are clearly

erroneous, nor its conclusions if reasonably supported by the findings. Tetreault v. Coon, 167

Vt. 396, 399-400, 708 A.2d 571, 574 (1998). But our review of questions of law is non-

deferential and plenary. Mitchinson v. Mitchinson, 173 Vt. 483, 484, 788 A.2d 23, 24 (2001)

(mem.).

       ¶ 15.   We agree with father that the magistrate failed to apply the proper standard under

15 V.S.A. § 656(c) in ordering him to pay $50 per month toward his arrearages. The statute

relating to computation of a parent’s support obligation provides that if a noncustodial parent’s

available income is less than the self-support reserve, the court shall use its discretion in

determining support and shall require payment of a nominal support amount.              15 V.S.A.




       2
          Father does not directly challenge the magistrate’s and superior court’s refusal to
discharge the outstanding arrearages pursuant to 15 V.S.A. § 606(d)(2). Because no surcharges
have accrued since the prior judgment in December 2011, the magistrate and superior court
concluded that § 606(d)(2) does not offer father any recourse.
       3
           Father also argues that the magistrate erred in concluding that he had failed to show a
real, substantial, and unanticipated change of circumstances as a prerequisite to modifying the
order, noting that 15 V.S.A. § 660(a)(1) authorizes the court to waive the requirement of a
showing of a real, substantial, and unanticipated change of circumstances if the child support
order has not been modified by the court for at least three years. We do not understand the
magistrate to have concluded that father failed to show a real, substantial, and unanticipated
change of circumstances. Rather, the magistrate identified critical changes in father’s financial
and living circumstances and evaluated his request to modify his monthly payment obligation on
its merits. For that reason, we need not address father’s argument on this point.


                                                6
§ 656(b). However, with respect to arrearages, as opposed to ongoing support, the statute

provides:

                 If the noncustodial parent owes arrears to the custodial parent, the
               court shall not order the payment of arrears in an amount that, by
               itself or in combination with the noncustodial parent’s share of the
               total support obligation, would reduce the noncustodial parent’s
               income below the self-support reserve, unless the custodial parent
               can show good cause why the payment of arrears should be
               ordered despite the fact that such an order would drop the
               noncustodial parent’s income below the self-support reserve. Such
               arrears shall remain the responsibility of the noncustodial parent
               and be subject to repayment at a time when the noncustodial
               parent’s income is above the self-support reserve.

15 V.S.A. § 656(c).

       ¶ 16.   The self-support reserve is currently defined in statute as “the needs standard

established annually, and calculated at 120 percent of the U.S. Department of Health and Human

Services poverty guideline per year for a single individual.” 15 V.S.A. § 653(7). It was

previously defined by statute as “the needs standard established annually by the commissioner

for children and families which shall be an amount sufficient to provide a reasonable subsistence

compatible with decency and health.” 15 V.S.A. § 653(7) (2009) (as amended by 2011, No. 119

(Adj. Sess.) § 3). The applicable regulation of the Office of Child Support continues to define

the self-support reserve as an amount intended to provide a child support payer with reasonable

subsistence compatible with health and decency. Child Support Guidelines § 1, Code of Vt.

Rules 13 161 001, http://www.lexisnexis.com/hottopics/codeofvtrules. The regulation explains,

“The Self-Support Reserve is deducted from the noncustodial parent’s available income, the

amount remaining is compared to the noncustodial parent’s child support obligation to determine

if he or she has sufficient income to meet the obligation.” Id.

       ¶ 17.   The statutory scheme reflects a legislative judgment that an obligor parent should

be required to make at least a nominal payment toward a current parental support obligation,


                                                 7
even when that payment causes that parent’s resources to dip below the self-support reserve, but

a strong presumption against an order requiring current payment toward arrearages to the extent

that payment drops the obligor parent’s resources below the self-support reserve. The statute

does not altogether prohibit an order requiring the obligor parent to make payments toward an

arrearage that cause that parent’s resources to dip below the self-support reserve, but puts a

burden on the obligee parent to show good cause. Under this statutory scheme, an order

requiring monthly payments toward an arrearage that reduces an obligor parent’s resources to

less than the self-support reserve is an exception to the general rule.

       ¶ 18.   At the time of the magistrate’s May 2015 order, the self-support reserve was

$1177. The magistrate found that father’s income from his Social Decurity Disability benefits

was $976—$201 below that amount. Neither the magistrate’s order nor the family division’s

order on appeal reflects consideration of the self-support reserve or 15 V.S.A. § 656(c). The

magistrate made no findings that mother had shown good cause why the payment of arrears

should be ordered notwithstanding father’s monthly income below the self-support reserve. Nor

did the magistrate make any findings from which we might infer a determination of good cause,

such as a finding that, notwithstanding his low monthly income, father has access to significant

assets, or a finding that for some other reason this case is extraordinary. For that reason, we

remand so that the magistrate can evaluate father’s motion in light of 15 V.S.A. § 656(c).

       ¶ 19.   Although our conclusion on this point resolves this appeal, we briefly address

father’s challenges to the magistrate’s factual findings concerning his ability to pay, as those

findings may be relevant to the magistrate’s consideration on remand. Father argues that the

magistrate’s finding that he had an ability to pay $50 per month was clearly erroneous for two

reasons. First, he notes that his monthly income, as found by the magistrate, was $976—$201




                                                  8
less than the statutory self-support reserve. He argues that this fact is inconsistent with the

magistrate’s conclusion that father had an ability to pay the $50 per month. Second, he argues

that the magistrate relied heavily on the fact that father had consistently paid the $50 per month

in concluding that he had the ability to pay.         However, father argues that the funds were

automatically withdrawn from his Social Security Disability benefits, and he therefore had no

choice in the matter—his consistent payment cannot be viewed as evidence of an ability to pay.

       ¶ 20.   Father’s arguments on both points are well-taken. As noted above, the self-

support reserve reflects a legislative assessment of the resources sufficient to provide a

reasonable subsistence compatible with decency and health. Although the court may order an

obligor parent to make payments toward an accrued arrearage even though the obligor’s

resources fall under the self-support reserve, any finding of an ability to pay by an individual

who is unemployed, disabled, and has fewer resources than the self-support reserve protects,

requires particular explanation. Father’s uncontroverted testimony in this case is not inconsistent

with this presumption. Although the expenses that he itemized amounted to slightly less than his

social security disability benefit, he also testified to difficulty paying for his prescription

medications, accumulated debts for medical and other expenses in excess of $1000 due to his

inability to pay, his reliance on the local food pantry in addition to food stamps to meet his

nutritional needs, and his inability to pay for the various sundries and costs of living.

       ¶ 21.   Likewise, the magistrate’s reliance on father’s consistent payment of the $50 per

month as evidence of his ability to pay is unsupported by the record. The funds were withheld

from father’s Social Security disability benefit. He had no choice in the matter. His consistent

payment does not necessarily reflect an ability to pay this sum on top of his most basic living

expenses; at most, it means that some other cost of living has consistently given way. The fact




                                                  9
that father has continued to subsist notwithstanding these deductions does not demonstrate an

ability to pay, especially when his uncontradicted testimony is that he has accrued substantial

debts to medical providers and others as a result of his financial constraints.

       Reversed and remanded.

                                                FOR THE COURT:



                                                Associate Justice




                                                 10
