http://www.courts.ri.gov/Courts/SupremeCourt/OpinionsOrders/pdf-files/09-34.pdf
WRITTEN BY: Justice Maureen McKenna Goldberg
SOURCE OF APPEAL: Providence County Family Court
JUDGE FROM LOWER COURT:
Chief Judge Jeremiah S. Jeremiah, Jr.
General Magistrate John J. O’Brien, Jr.
ATTORNEYS ON APPEAL:
For Plaintiff: Cristine L. McBurney, Esq.
For Defendant: Karen Auclair Oliveira, Esq.
Supreme Court
No. 2009-34-Appeal.
(P 07-747M)
Cesar Tamayo :
v. :
Paula Arroyo. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are
requested to notify the Opinion Analyst, Supreme Court of
Rhode Island, 250 Benefit Street, Providence, Rhode Island
02903, at Telephone 222-3258 of any typographical or
other formal errors in order that corrections may be made
before the opinion is published.
Supreme Court
No. 2009-34-Appeal.
(P 07-747M)
Cesar Tamayo :
v. :
Paula Arroyo. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Justice Goldberg, for the Court. This case came before the Supreme Court on
December 1, 2010, pursuant to an order directing the parties to appear and show cause
why the issues raised in this appeal should not summarily be decided. In this appeal, the
defendant, Paula Arroyo (Arroyo or defendant), appeals from a Family Court order in
favor of Cesar Tamayo (Tamayo or plaintiff), the father of her child.1 This appeal stems
from a miscellaneous action Tamayo filed in March 2007 seeking to establish custody,
visitation and child support for the minor child of the parties, Samantha Tamayo
(Samantha or minor child), who was born on November 24, 2005. After reviewing the
memoranda submitted by the parties and the arguments of counsel, we are satisfied that
cause has not been shown; thus, the appeal may be decided at this time. For the reasons
set forth below, we vacate the order of the Family Court and remand this case for
proceedings in accordance with this opinion.
1 Cesar Tamayo and Paula Arroyo have never been married to each other. Tamayo
engaged in an extra-marital affair with Arroyo, which resulted in the birth of their child.
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Facts and Travel
After Tamayo filed his petition, Arroyo filed a counterclaim, seeking sole
custody, child support, and medical insurance for the minor child. During the trial, the
Family Court magistrate heard testimony from plaintiff, defendant, and Lieutenant
Colonel Ricottilli (Lt. Col. Ricottilli), an accountant with the Rhode Island National
Guard, where Tamayo was working as a military technician and also was a member of
the Rhode Island National Guard.2 Lieutenant Colonel Ricottilli testified about
Tamayo’s income from both positions. The testimony disclosed that Tamayo received a
one-time bonus from the National Guard in March 2007 and also regularly received a
“locality adjustment payment.”3 Additionally, although Tamayo’s Family Court filings
reported he received $1,350 per month in rental income, his 2006 tax return reflected a
loss of nearly $18,000 from those properties.
Arroyo testified about Samantha’s day-care expenses and also attempted to have
the child’s former day-care provider testify. However, when plaintiff suggested that
defendant’s day-care provider might have been paid in cash—which was unreported
income—and that she may be in the United States illegally, the magistrate refused to
allow the witness to testify without first producing immigration documents and tax
returns. The magistrate declared, “[t]here’s no way [plaintiff is] paying someone who is
not reporting income and [who is] receiving it under the table.” When the witness failed
2 In addition to testimony from these witnesses, it appears that there was much discussion
between counsel and the magistrate in chambers that is not part of the record, leading to a
confusing and incomplete record. We consistently have condemned this practice.
3 There was no testimony about the locality adjustment payment that was shown on
plaintiff’s paystub, which was admitted as a full exhibit. Apparently there was a lengthy
chambers discussion that was not placed on the record.
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to return to court with these documents, the magistrate drew an inference that she was
“cheating the government.” He therefore refused to order plaintiff to reimburse
defendant for past day-care expenses.4 With respect to Arroyo’s prospective day-care
expenses, counsel suggested that plaintiff’s mother, or wife, to whom he was married at
the time Samantha was born, could care for the child at no cost to the parties. However,
no evidence was introduced about the validity or viability of this offer.
In February 2008, the magistrate issued a bench decision and an order that
provided in relevant part: “As to [p]laintiff’s BAQ military income, which is
[nontaxable] and not reportable to the Internal Revenue Service, and which is received by
him on a regular basis, that income is excluded from the calculation of this [Child-
Support] Order.” The magistrate’s wording with respect to plaintiff’s “BAQ income” has
led to some confusion, specifically because it appears that he used the term
interchangeably with “locality pay,” notwithstanding that the terms have very distinct
meanings. “BAQ” is a colloquial term for “basic allowance for quarters;” it refers to an
allowance that members of the military receive for housing if they are not assigned to a
military housing facility. 37 U.S.C. § 403(a)(1). “Locality pay,” on the other hand, is a
cost of living benefit that any federal government employee may receive based on his or
her geographical assignment. 5 U.S.C. §§ 5301, 5304. When pressed about which benefit
he was excluding, the magistrate responded, “regulatory or locality pay,” or “other
income that he receives which would be generally speaking for quarters, uniforms, et
4 We look with disfavor upon the magistrate’s handling of this witness. After being
informed of potential Internal Revenue Service (IRS) and deportation consequences, the
witness nevertheless elected to testify. However, the magistrate inappropriately refused
to allow her to do so. We know of no law or court rule that requires a witness to prove
his or her legal status or compliance with federal tax laws as a condition precedent to
testifying in our courts.
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cetera[.]” Our careful review of the record discloses that there was no evidence that
plaintiff received “BAQ income” and therefore that payment, if any, is not before us.
However, evidence concerning plaintiff’s locality adjustment payments was
misconceived by the magistrate.
The order also excluded any income Tamayo received from his rental properties,
based on the magistrate’s finding that these properties generated a loss, as reported on his
2006 tax return. Additionally, as to Arroyo’s day-care expenses, the order states that
there would be no retroactive payment of day-care costs by Tamayo because of the
“inference drawn by this [c]ourt that there have been cash payments by [defendant] to
[the day-care provider], * * * [and] that she is cheating the government.” With respect to
prospective expenses, the magistrate ordered that “[i]f [defendant] opts to use the [daycare]
provider that she has, the obligation for [day care] would be 100 percent hers
because there is in fact free day care available.” Finally, rather than establishing a
specific amount of child support as is required by the guidelines, the magistrate directed
the attorneys to draft an agreed-upon order that simply reiterated his bench decision.
Therefore, to date, no specific dollar amount for the support of this child has been
ordered.
Arroyo sought review of the magistrate’s decision, in accordance with G.L. 1956
§ 8-10-3.1(d),5 arguing that the magistrate erred with respect to these findings. In a
5 General Laws 1956 § 8-10-3.1(d) provides in pertinent part:
“A party aggrieved by an order entered by a magistrate shall be
entitled to a review of the order by a justice of the [F]amily [C]ourt.
Unless otherwise provided in the rules of procedure of the [F]amily
[C]ourt, such review shall be on the record and appellate in nature.”
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written decision and order entered in November 2008, all but one of the magistrate’s
findings were affirmed by the then-chief judge of the Family Court.6 Arroyo appealed to
this Court and argued the same issues that were challenged below. The plaintiff asks this
Court to affirm the Family Court’s order and alternatively argues that this appeal is not
properly before the Court.
Standard of Review
General Laws 1956 § 15-5-16.2(a) “provides that the Family Court ‘shall order
either or both parents owing a duty of support to a child to pay an amount based upon a
formula and guidelines adopted by an administrative order of the [F]amily [C]ourt.’”
Waters v. Magee, 877 A.2d 658, 665 (R.I. 2005) (quoting § 15-5-16.2(a)); see Family
Court Administrative Order 87-2. “It is well established that the appropriate award of
child support is to be determined by the trial justice in his or her sound discretion, and we
shall not disturb such a determination on review absent a clear abuse of that discretion.”
Mattera v. Mattera, 669 A.2d 538, 542 (R.I. 1996); see Gibbons v. Gibbons, 619 A.2d
432, 435 (R.I. 1993); Sullivan v. Sullivan, 460 A.2d 1248, 1249 (R.I. 1983); Brierly v.
Brierly, 431 A.2d 410, 415 (R.I. 1981).
6 The magistrate also found that Tamayo was entitled to a credit for adding Samantha to
his health insurance. The reviewing judge determined that the magistrate erred because
there was no evidence that this insurance cost Tamayo anything. That issue was reversed
and remanded for the magistrate to determine whether Tamayo had incurred any costs,
and is not before this Court.
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Analysis
I
Jurisdiction
The plaintiff first argues that this case is not properly before the Court on direct
appeal. The plaintiff correctly states that G.L. 1956 § 14-1-52(b) governs the method of
seeking appellate review of a modification of a child-support order. Rather than filing a
direct appeal, a party seeking relief from a modification of a child-support order must file
a petition for writ of certiorari and will be heard by this Court only if the discretionary
writ is issued.7 The plaintiff contends that this is an appeal from a modification of a
child-support order for which review by way of petition for certiorari is required. We
reject this contention. The order that is the subject of this appeal is the only child-support
order between these parties; it neither modifies nor supplants any prior child-support
order and, because the parties are not married, the order is not part of a decision pending
entry of final judgment of divorce. Therefore, the provisions of § 14-1-52(a) are
controlling, and defendant appropriately has invoked this Court’s jurisdiction to decide
the issues raised in this appeal.
7 General Laws 1956 § 14-1-52 states in pertinent part:
“(a) From any final decree, judgment, order, decision, or verdict of the
[F]amily [C]ourt, except as provided in subsection (b) of this section, there
shall be an appeal to the [S]upreme [C]ourt * * *.
“(b) Every person aggrieved by any * * * order * * * of the
[F]amily [C]ourt relating to modification * * * of child support, [may] * *
* seek review of questions of law in the [S]upreme [C]ourt by petition for
writ of certiorari * * *. [T]he [S]upreme [C]ourt may, if it sees fit, issue
its writ of certiorari to the [F]amily [C]ourt * * *.” (Emphases added.)
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II
Child-Support Order
a) Policy of Child-Support Guidelines
The Family Court Child-Support Guidelines & Administrative Order (childsupport
guidelines) “are based on the incomes of both parents” and are designed to afford
“the children of the parties the greatest possible support.” Family Court Administrative
Order 87-2, I.;8 see § 15-5-16.2(a). We consistently have stated that “[t]he guiding
principle in setting a child-support award is to balance the needs of the child against the
financial ability of the absent parent.” Paradiso v. Paradiso, 122 R.I. 1, 3, 404 A.2d 60,
61 (1979). “A court may consider all relevant factors, including the financial resources
and needs of the child and each of the parents * * * [and] the Family Court may ‘consider
every factor that would serve to reveal in totality the circumstances and conditions’
bearing on the welfare of the children.” Sullivan, 460 A.2d at 1250 (quoting Bellows v.
Bellows, 119 R.I. 689, 693, 382 A.2d 816, 819 (1978)). This Court defines a parent’s
ability to pay very broadly, to “provide the child or children with the greatest possible
support.” Lembo v. Lembo, 624 A.2d 1089, 1090 (R.I. 1993); see Adam v. Adam, 624
A.2d 1093, 1097 (R.I. 1993); Sullivan, 460 A.2d at 1250; Brierly, 431 A.2d at 415.
b) National Guard Income
The magistrate determined that Tamayo’s child-support obligations would be
based on both his military and civilian earnings, but would not include “other income that
he receives which would be generally speaking for quarters, uniforms, et cetera, which is
8 The guidelines were originally promulgated in 1987. Although the child-support
schedule has been amended every five years, each amended order states that “[t]he
instructions for the use of the [g]uideline worksheet set forth in prior Administrative
Order 87-2 should continue to be followed.”
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received on a regular basis[,]” because such income was not reportable to the IRS.
Additionally, the magistrate did not indicate whether the one-time bonus plaintiff
received was included in the child-support order. In both respects, we are satisfied that,
in failing to make such a finding, the magistrate erred.
The starting point for determining whether a parent’s income will be included for
child-support purposes is the definition set forth in the child-support guidelines. Such
income:
“[I]ncludes, but is not limited to, income from salaries,
wages, commissions, bonuses, dividends, severance pay,
pensions, interest, trust income, annuities, capital gains,
social security benefits, worker’s compensation benefits,
unemployment insurance benefits, disability insurance
benefits, gifts, prizes, and alimony or maintenance
received, and all other forms of earned [or] unearned
income. Specifically excluded are benefits received from
means-tested public assistance programs * * *.” Family
Court Administrative Order 87-2, IV.B.1. (Emphases
added.)
The child-support guidelines provide an expansive definition of income, providing a nonexhaustive
list of types of income and ending with a catchall provision for all other forms
of income, whether earned or unearned. The only types of income excluded are “benefits
received from means-tested public assistance programs.” Id. The child-support
guidelines also include as income “[e]xpense reimbursements or in-kind payments
received * * * if they are significant and reduce[] personal living expenses.” Id.
Significantly, the definition of income is not in any way related to whether it is reportable
to the IRS.
Throughout the trial, the magistrate made it clear to the parties that he was not
going to include nontaxable income in the child-support order. Because there is not an
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exception for nontaxable income in the child-support guidelines, we deem this holding to
be erroneous and contrary to the inclusive definition of income set forth in the childsupport
guidelines. Further, because locality adjustment pay addresses the recipient’s
cost of living, this amount should have been viewed as income based on the clear
mandate that “[e]xpense reimbursements or in-kind payments received [shall be
considered income] * * * if they are significant and reduce[] personal living expenses.”
Family Court Administrative Order 87-2, IV.B.1. By failing to include locality pay as
income, the magistrate misconceived the evidence and committed legal error.
We next address the magistrate’s reliance on Tamayo’s 2006 tax return
notwithstanding that more recent information—such as evidence of plaintiff’s 2007
income—was available for review. We are satisfied that the magistrate abused his
discretion by confining his review to the plaintiff’s 2006 reported earnings. Additionally,
the magistrate should have included plaintiff’s one-time bonus, in accordance with
Family Court Administrative Order 87-2. It appears that the magistrate overlooked this
evidence. On remand, we direct the Family Court to calculate the child-support
payments based upon plaintiff’s income as set forth in his employment records, without
regard to whether that income is taxable income or reportable on his tax returns.
c) Rental Income
In addition to an expansive definition of “income” for purposes of child support,
the child-support guidelines provide that “income and expenses from self-employment or
operation of a business should be carefully reviewed to determine an appropriate level of
gross income available to the parent to satisfy a child support obligation. In some
instances, this amount will differ from a determination of business income for income tax
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purposes.” Family Court Administrative Order 87-2, IV.B.1. (Emphases added.)
Although Tamayo reported on his financial statement that he received approximately
$1,350 in monthly income from his various rental properties, he testified that he had
operated those properties at a loss, as reported on his 2006 income tax return. In finding
that defendant was not entitled to benefit from any of plaintiff’s rental income, the
magistrate relied on his 2006 income tax return and failed to perform the careful review
of plaintiff’s rental income and expenses as required by the child-support guidelines. The
magistrate chose to ignore the abundance of testimony presented on this issue. He based
his decision solely on Tamayo’s 2006 tax return, in contravention of the guidelines’
explicit instruction that rental and business income may be different for child-support
purposes, a reflection of the fact that taxable income does not always indicate one’s
ability to pay. On remand, we direct the Family Court to carefully review and analyze
plaintiff’s rental income and expenses and make specific findings about the amount, if
any, available to support this child.
d) Day-care Expenses
The guidelines allow for reimbursement of child-care expenses, conditioned on
such costs being “reasonable; that is, such costs should not exceed the level required to
provide quality care for the child(ren).” Family Court Administrative Order 87-2,
IV.B.7.a. The defendant testified that she was spending approximately $140-150 per
week on day care. Instead of determining whether these costs were reasonable, the
magistrate relied on plaintiff’s assertions that Arroyo’s provider was not reporting her
income to the IRS and that Tamayo’s wife and his mother were willing and able to
provide day care for free. He eventually held that Arroyo was not entitled to
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reimbursement for past or future day-care expenses. We deem this a clear abuse of
discretion.
The sole criterion of whether a parent’s day-care costs may be included in the
child-support calculation is whether those costs are reasonable. Family Court
Administrative Order 87-2, IV.B.7.a. Here, the magistrate’s sole focus centered on
whether the child’s day-care provider was “cheating the government” and inappropriately
required Arroyo to choose between placing the child with the plaintiff’s family or
shouldering the expenses herself. These considerations were especially egregious given
that no evidence was presented about either issue. We therefore hold that Arroyo is
entitled to reimbursement for a portion of the day-care expenses, made retroactive to the
date of the petition. We remand this case to the Family Court for a calculation, based
solely on the reasonableness of the day-care expenses as provided in the child-support
guidelines.
Conclusion
For the reasons stated, the defendant’s appeal is sustained. The order of the
Family Court is vacated, and the papers in the case are remanded to the Family Court for
further proceedings in accordance with this opinion.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Cesar Tamayo v. Paula Arroyo.
CASE NO: No. 2009-34-Appeal
(P 07-747M)
COURT: Supreme Court
DATE OPINION FILED: April 1, 2011
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
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