Richard Strobl v. Christine Strobl

VERMONT SUPREME COURT Case No. 22-AP-341
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

JULY TERM, 2023

Richard Strobl* v. Christine Strobl } APPEALED FROM:
} Superior Court, Windsor Unit,
} Family Division
} CASE NO. 169-5-13 Wrdm
Trial Judge: Robert P. Gerety, Jr.

In the above-entitled cause, the Clerk will enter:

Father appeals from the denial of his motion to modify parental rights and responsibilities
(PRR) and the denial of his motion to modify child support. We affirm.

Mother and father are the parents of a son, born in November 2002. In a May 2018
order, mother was awarded sole physical PRR subject to father’s right to parent-child contact
(PCC). Father was directed to pay mother $406.82 in monthly child support. In December 2018,
son moved out of mother’s home and began living with his adult sister. In April 2019, son began
living full-time with father. During this time, the court found that both parents provided
financial support for son.

In August 2019, father moved to modify child support. He alleged that a change of
circumstances existed because his income had decreased and son was living with him. Father
did not include a completed child-support-calculation worksheet with his motion or explain the
amount of child-support reduction that he sought. A magistrate judge denied father’s request in
August 2019. The magistrate explained that, under 15 V.S.A. § 660(b), a child-support order
that varies more than ten percent from the amounts required to be paid under the support
guideline is considered a real, substantial, and unanticipated change of circumstances. A motion
to modify a support order under § 660(b) must be accompanied by an affidavit setting forth
calculations demonstrating entitlement to a modification. See id. § 660(d). The magistrate
found that father’s allegation that his income “was reduced by more than more than 10%” due to
surgery he underwent eight months ago did not fall within the definition of a real, substantial,
and unanticipated change of circumstances under 15 V.S.A. § 660. The magistrate further found
that with respect to son’s residence, the existing PRR order awarded mother sole legal and
physical parental rights and responsibilities and in calculating child support, it must allocate
parenting time based on that order. The magistrate thus found no changed circumstances to
support modification of the existing child-support order.

Father appealed this decision to the trial court and moved to modify PRR. In a
November 2022 order, the court affirmed the magistrate’s child-support ruling and denied
father’s motion to modify PRR. It found that father failed to include “an affidavit setting forth
calculations demonstrating entitlement to modification,” as required by 15 V.S.A. § 660(d),
which was fatal to his request. The court added that, in a case like this one where one party has
sole physical custody of a child, the calculation of child support does not rest on the amount of
time each parent actually spends with a child. See id. §§ 656(a), 657. Divisions of PCC time
were considered only if an existing PRR/PCC order was for shared or split physical custody.
Accordingly, the court explained, because the existing PRR order had not yet been modified, the
alleged change in son’s living circumstances did not support a modification of child support.
The court noted that father could have filed a new motion to modify child support and corrected
the procedural and substantive shortcomings identified by the magistrate, but he did not do so.
Instead, he appealed to the trial court.

Turning to PRR and PCC, the court explained that, at the time the magistrate denied
father’s child-support motion, father’s pending motion to modify PRR and PCC had not yet been
adjudicated. These motions remained pending for an extended time. A hearing was scheduled
for December 2020, but prior to that date, the court issued an order stating that, absent objection,
the motion would be denied for lack of jurisdiction given that son would turn eighteen in
November 2020. The hearing was nonetheless commenced as scheduled but not completed. The
final hearing was held in June 2022.

The court found that, while son’s decision to move in with father constituted a
substantial, material, and unanticipated change in circumstances, it lacked jurisdiction to make a
PRR/PCC order once son turned eighteen. By statute, it could make such orders only for a
“minor child of the parties.” Id. § 665(a). Son was no longer a minor; he was twenty years old
at the time of the court’s decision. The court added that the existing PRR/PCC order father
sought to modify had also expired given son’s age. The court rejected father’s assertion that it
could retroactively modify PRR/PCC to enable father to retroactively modify child support. It
explained that while the law allowed child support to be modified retroactively, PRR and PCC
orders were prospective in application. They could not be made retroactive because parties
subject to the order had no ability to turn back the clock and change their behavior to comply
with such an order. The court thus denied father’s motion. This appeal followed.

Father first argues that he sufficiently alleged changed circumstances to support
modification of the child-support order, citing son’s decision to move in with him. He also
references his decreased income. He suggests that the court should have run the guideline
calculation itself, using figures in his financial disclosure. Father also contends that the court
should have held a hearing on his motion to modify child support.

There was no error. Child support orders may be modified “upon a showing of a real,
substantial and unanticipated change of circumstances.” 15 V.S.A. § 660(a). “Presence of a
change of circumstances is a jurisdictional prerequisite to consideration of a motion to modify.”
Smith v. Stewart, 165 Vt. 364, 374 (1996). As set forth above, the law requires that a “motion to
modify a support order under subsection (b) or (c) of this section . . . be accompanied by an

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affidavit setting forth calculations demonstrating entitlement to modification.” 15 V.S.A.
§ 660(d). Father failed to comply with this requirement. Assuming arguendo that father argued
below that this requirement did not apply to him, the law plainly puts the burden on the movant
to provide a supporting affidavit; it does not require the magistrate or trial court to make the
calculation.
Father moved for relief based on an alleged ten-percent deviation in his income. To the
extent the argument can be understood, father fails to show that he argued below that he
“submitted a request under a(1) and 2(b),” or that “the statute only requires a meant test [sic] for
sections (b) and (c).” See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459 (2000)
(“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”); In re
S.B.L., 150 Vt. 294, 297 (1988) (explaining that appellant bears burden of demonstrating how
trial court erred warranting reversal, and Supreme Court will not comb record searching for
error); see also V.R.A.P. 28(a)(4) (providing that appellant’s brief should explain what issues are,
how they were preserved, and what appellant’s contentions are on appeal, with citations to
authorities, statutes, and parts of record relied upon).
Son’s decision to move in with father did not constitute changed circumstances for the
reasons set forth above. As the court explained, mother had sole physical custody under the
existing order and thus, the calculation was based on the parties’ income, not the amount of time
the child spent with each parent. See 15 V.S.A. § 656(a) (stating that, “[e]xcept in situations
where there is shared or split physical custody, the total child support obligation shall be divided
between the parents in proportion to their respective available incomes”); and cf. id. § 657
(explaining that “[w]hen each parent exercises physical custody for 30 percent or more of a
calendar year, the total child support obligation shall be increased by 50 percent to reflect the
additional costs of maintaining two households,” and “[e]ach parental support obligation shall be
determined by dividing the total support obligation between the parents in proportion to their
respective available incomes and in proportion to the amount of time each parent exercises
physical custody”). Given father’s failure to show changed circumstances, no hearing was
required, assuming arguendo that one was requested.
With respect to PRR, father appears to argue that the law allowed the court to modify the
2018 order notwithstanding son’s age and that he was denied a remedy due to the delay in
adjudicating his request. ∗

Again, there was no error. The court is authorized only to “make an order concerning
parental rights and responsibilities of any minor child of the parties.” Id. § 665(a). The fact that
there was a delay in adjudicating the motion does not provide the court with authority to issue a
PRR/PCC order for an adult. We reject father’s assertion that the court otherwise retained
jurisdiction to issue a PRR/PCC order. Father’s reliance on case law involving retroactive child-
support payments is misplaced given that such orders are expressly allowed by statute. See 15
V.S.A. § 660(e) (allowing for modification of child support as of date that motion to modify is

∗ In his brief, father makes a fleeting reference to a violation of his due-process rights
without further explanation or briefing; therefore, we do not address it. See State v. Jewett, 146
Vt. 221, 221 (1985) (declining to address inadequately briefed constitutional argument).
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filed). The law contains no corollary for PRR/PCC orders, nor would it make sense to do so for
the reason articulated by the trial court. Father’s motions to modify were properly denied.

Affirmed.

BY THE COURT:

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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