Articles

Articles by Thomas Ellis, Esq.:

• Fairly Facias: Child Supprt Guildelines
• Yes, You Can Fight City Hall and Win: New Roads Creating Havoc For Homeowners of Condemntaitons

Fairly Facias: Child Support Guidelines
The Publick Enterprise, Annapolis, Maryland
Volume XII No. 16, August (2 nd half) 1989
By: Thomas Ellis, Esq.

As anyone who has ever gone through it knows, divorce is an unpleasant, emotionally difficult experience. When children are involved, there is often an added problem. Will the custodial parent be able to meet the financial needs of the children? As a result of Senate Bill 49, which became effective as law February 24, 1989, Maryland has adopted Federally mandated guidelines for child support.

The new law provides for three important changes. By far, the most important change is the recognition that child support should be based on the actual gross income of the parents, not their income after expenses. Second, once the total of the parties gross income is determined, the amount of child support is determined by looking at tables provided in the guidelines. The legislature has set the financial needs of children at higher levels than the Maryland courts have generally found necessary.

Each parent then pays child support as indicated in the guidelines, based on the relationship that their gross income bears to the combined gross income of the parties.

Third, under circumstances where the court may believe that a parent has voluntarily reduced his or her income to avoid paying child support, it may assess that parent with child support based on potential income rather than actual income.

How then, does the law apply these significant changes? Whether considering sole or joint custody, the actual monthly income of each parent before taxes is used. Actual income takes into account income from any source, whether salary or otherwise, and includes potential income of a parent who has voluntarily eliminated or reduced his or her income. A parent will not, however, be assessed with his or her potential ability to earn income of they are unable to work because of a physical or mental disability, or because they are caring for a child under two years of age for whom they and their spouse are both responsible.

Actual income is determined before taxes or other deductions and allows the deduction only of ordinary and necessary expenses that are required to produce that income. For self-employed parents, or parents with company benefits, expense reimbursement and in-kind payments are also considered. Under certain circumstances, the court may even consider severance pay, capital gains, and gifts or prizes as actual income. The primary exclusion from actual income is income from certain public assistance programs.

Parents are allowed to deduct reasonable pre-existing child support payments that they actually pay, alimony payments that they actually pay, and the actual cost of providing health insurance coverage for any child for whom the parents are both responsible. If alimony is awarded, it will be considered actual income to the person receiving it.

After allowable adjustments are made, the combined incomes of the parents are determined. That total is then found on a table as part of the guidelines. This table sets the basic child support obligation for monthly combined incomes. By relating the percentage of each parents income to the combined total income, the amount of each parent’s child support obligation can be easily determined.

For example, if we assumed that the mother has an actual monthly income (before taxes) of $1,666 and the father has an actual monthly income (before taxes) of $3,750; and that neither parent has a pre-existing child support payment, and there are no premiums paid for health insurance, then the monthly adjusted actual income of the parents would be $5,416. By dividing each parents income by the combined income, we would see that the mother’s share would be 31% and the father’s share would be 69%.

We would then look to the tables provided by the legislature, which indicate that parents with two minor children with a combined monthly actual income of $5416 have a basic child support obligation of $1,115 per month. If we assume for the purposes of this example that there are no work related child care expenses or extraordinary medical expenses, then the total child support obligation would be $1,115 per month.

The mother would be assessed with 31% of the $1,115, or $345 per month, and the father would be assessed with 69% of $1,115, or $769 per month.

In this example, if the mother were the custodial parent, it would be presumed that she would spend her assessed share on the children and the father would be required to pay her the $769 per month.
The guidelines provide additionally for certain specific expenses related to child care to be added to the basic child support obligation and divided between the parents as appropriate. These expenses include actual child care expenses incurred as a result of a job or job search, extraordinary medical expenses, attendance at special or private schools, and expenses for transportation of the child between the homes of the parents.

Special guidelines are used where there is shared physical custody. An approach is used which takes into consideration the amount of time that the child or children spend with each parent. For a shared physical custody to be used, each parent must keep the child or children overnight for more than 35% of the year. They must show that each parent contributes to the expenses of the child or children in addition to the payment of child support.

Parties who have already been divorced and who are already subject to an order to pay or receive child support are not ignored by the new law. Either party may request a modification of the prior order and argue the new guidelines as a basis for changing the prior order, if the application of such guidelines would result in a change of child support payments of 25% or more.

If must be kept in mind in considering the new support guidelines that they are just that- guidelines. The law indicates that the guidelines are advisory only, and the court may elect to disregard them, considering instead other factors which the court considers most appropriate.

Yes, You Can Fight City Hall And Win:
New Roads Creating Havoc For Homeowners Of Condemnations
The Capital, Annapolis, Maryland
Friday, August 4, 1989
By: Thomas Ellis

Just as bull dozers have ravaged 514 acres of trees to create new road for the residents of Anne Arundel County, they have also created havoc for the property owners whose land and homes are being condemned. Local environmentalists supported by the Maryland Conservation Council are shocked at the devastation and are searching for ways to handle our growth patterns without destroying our environment.

But who is speaking out for the property owners whose land and homes are being condemned? These people are being forced either to leave their homes or sell to the state portions of their property which is some cases changes their home from one bordered by trees, foliage and wildlife to a home with an interstate highway for a backyard.

During the construction phase, many of these homeowners live with diesel smoke, fumes, noise, and even the vibrations from constant bulldozing. As one property owner on Ridgely Avenue put it, “The yellowjackets are swarming everywhere.”

The power of eminent domain permits land to be taken by the state provided the property owner is paid fair compensation for the land taken. Unfortunately for many property owners, this is often a long and difficult time filled with uncertainty and anxiety and often resulting in the property owner receiving substantially less than fair compensation.

After the first knock on his door by a right-of-way agent advising him that a public authority requires his land, the property owner is given a pamphlet outlining what to expect. What the pamphlet does not tell him to expect is that often the plans for the highway will change many times and that he may live in a state of uncertainty for a period of years.

The state is required to have an appraisal done of the property to be condemned and then to negotiate a price with the property owner. The property owner is at a disadvantage since in the negotiation stage the state will not give him a copy of their appraisal.

The homeowner should not assume that the appraisal done for the state is simply accepted nor should he assume that the offer made to him on the basis of that appraisal reflects fair compensation.

Part of the State Highway Administration is a department called the Bureau of Appraisal Review, which reviews appraisals prepared for the state. If the appraisal does not satisfy the Bureau of Appraisal Review, other appraisals may be ordered until one is received that is acceptable to the state. Often this is the lowest of the two or more appraisals.

This low appraisal may be the basis for the state’s offer to the homeowner with no mention being made of the fact that one or more additional appraisals were obtained. Often the other appraisals are substantially higher than the amount offered to the homeowner. It is only after a condemnation petition has been filed and the homeowner, through his attorney, is able to obtain documents from the state that copies of all appraisals are obtained.

Frequently faced with the realities of a jury trial and forced to reveal the higher appraisals it has until then kept hidden, the state will increase its offer just before trial. Even so, the increased offer may not reflect fair compensation.

How can the property owner know what is just compensation? A simple appraisal of the property owner’s property will normally not be sufficient to determine fair compensation in the case of condemnation. Under condemnation law, the homeowner is entitled to receive what his property would be worth for its highest and best use and an appraiser is allowed to take into consideration potential uses and even, in some cases, possible changes in zoning.

In addition, the homeowner is entitled to be compensated for damage to the remainder where all of the property is not taken. Damage to the property can be caused by many factors, such as reduction in size, destruction of view, noise and restriction or re-routing of entrances to name but a few. This an appraisal done for the purposes of condemnation is different from an appraisal that simply determines the market value of an existing property.

If the state and the property owner cannot agree on fair compensation, the state files a condemnation petition and the matter proceeds to a jury trial. Under certain circumstances, the homeowner is entitled to a preliminary hearing before a board known as the Board of Property Review. This is an informal hearing at which both the state and the property owner present evidence and on which the board ultimately renders their opinion as to value.

Prior to and during this hearing, the property owner or his attorney is still not entitled to have a copy of the state’s appraisal nor to discover if other state appraisals exist. Either side may elect to proceed with a jury trial subsequent to the Board of Property Review Hearing.

How realistic is it to fight for fair compensation? One family on Route 3 was originally offered $287,000 for their land and was ultimately awarded $750,000 by an Anne Arundel County jury. Given the choice they would have preferred to hold onto their land, which had been in the family for 40 years but were, by going to trial, at least able to be fairly compensated for their land.

Another owner of commercial property was ultimately offered 10 times the original offer made by the state for a strip of land located in a median. although the piece of land taken was very small, it denied the property owner his access to all southbound traffic on a major highway. This settlement wasn’t reached until after the trial had begun and while it resulted in the owner receiving fair compensation it did nothing to avoid the years of frustration and uncertainty and the real concern that he would only receive a fraction of what his property was worth.

As a practical matter short of a change in the law, there is no way to avoid the frustration and often heartbreak of having one’s property condemned. Nevertheless those who have decided to fight the system seem to have faired best while those who feel they have to take the state’s offer are often paid much less than the fair market value of their property.

(Attorney Thomas Ellis of South County handles condemnation cases at his Annapolis practice.)

Thomas F. Ellis, III JD PA
Attorney At Law
275 West Street, Suite 105
Annapolis, Maryland 21401
Phone (410) 280-5603
Fax (410) 280-6670