Self-Support Reserve Found to Apply to Child Support Surcharge Orders

In Debbie A. (Shattuck) Leitgeb v. Robert Leitgeb, 2016 VT 97, the Supreme Court reversed and remanded the trial court’s determination that a child support obligor could be required to make payments toward an outstanding surcharge when the obligor’s income was below the self-support reserve.

Issue: The parties divorced in 1989 at which time Father was ordered to pay support for the benefit of the parties’ minor child. The child turned age 18 in July 1998 at which time Father continued to owe a substantial child support arrearage and surcharge. In 2005, the child support magistrate entered an order reflecting a total arrearage of $11,424.01, which was comprised of arrears in the amount of $5,627.78 and an accumulated surcharge of $5,796.23. In 2008, Father filed a pro se petition to modify his child support order and at that time had paid the principal amount of the arrearage, but not the surcharge. The child support magistrate denied Father’s request to vacate the surcharge. In 2011, Father continued to seek relief filing two different motions, both of which were denied by the magistrate for, among other reasons, a failure to show a real and substantial change in circumstances. In response to Father’s second motion, the magistrate established a surcharge balance of $3,967, ordered that Father maintain a $50 per month payment schedule and reduced the rate of accrual on the surcharge to 0.5% per month. This order was upheld by the Family Division. Father filed additional motions in 2013 and 2015; the 2015 decision of the child support magistrate and Family Division was ultimately appealed to the Supreme Court.

Holding: The Court reversed the decision below on the basis that 15 V.S.A. s. 656(c) requires that “a court shall not order the payment of arrears in an amount that … would reduce the noncustodial parent’s income below the self-support reserve.” This standard differs from the authority vested in a court to order at least a nominal payment toward a current child support order even when the obligor’s income is below the self-support reserve. The self-support reserve is calculated at 120 percent of the U.S. Department of Health and Human Services poverty guidelines. At the time of the magistrate’s 2015 decision, Father earned Social Security disability benefits of $976 per month; the self-support reserve at that time was $1,177. In ordering Father to continue paying support while his earnings were below the self-support reserve, the magistrate made no findings that good cause existed for such an order. Accordingly, the decision was reserved and the matter remanded for further proceedings on that issue.