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D.H.S. v. Frye
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 128
Docket:	Han-99-592	
Submitted
on Briefs:	June 15, 2000
Decided:	June 30, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.


DEPARTMENT OF HUMAN SERVICES v. ROBERT FRYE


ALEXANDER, J
.
	[¶1]  Robert Frye appeals the paternity judgment of the Superior
Court (Hancock County, Mead, J.) finding Frye to be Justin W.'s biological
and legal father, awarding the State of Florida $7910 for past child support,
awarding Angela Meabon $3274 for past child support for periods she was
not receiving public assistance, and imposing a weekly child support
obligation of $37 on Frye.  On appeal Frye contends that the court erred in
(i) applying Maine law to determine the amount of Frye's child support
arrearage to the State of Florida and the amount of his arrearage and
prospective child support obligations to Angela Meabon; (ii) not imputing
income to Meabon; and (iii) considering child care expenses for Meabon's
two younger children in its child support calculations.  We affirm.
I. CASE HISTORY
	[¶2]  The parties do not dispute the facts.  Robert Frye is a resident
of Maine.  Angela Meabon is a resident of Florida, but was romantically
involved with Frye in Maine, where their son was conceived.  Meabon gave
birth to Justin in Florida on September 23, 1986.  Meabon is the mother of
two other children, ages 5 and 10, who live with her and her current fiancé. 
She is not presently employed. 
	[¶3]  In May 1996, the State of Florida petitioned the Maine
Department of Human Services to commence an action to establish Frye's
paternity and to obtain an order for past and future child support.  Frye
stipulated that he is Justin's biological father.  
	[¶4]  Following a hearing, the court issued the paternity judgment
from which Frye appeals.   
II. DISCUSSION
	[¶5]  Frye argues that choice of law rules support the application of
Florida law to this case and that Florida law would not support as large an
award.{1} 
	[¶6]  This issue is governed by the Uniform Interstate Family
Support Act, 19-A M.R.S.A. §§ 2801-3401 (1998 & Supp. 1999).  Pursuant
to sections 3001(2)(A) & 3051(1)(B) (1998), a responding tribunal of this
state may issue a child support order if a "support enforcement agency"
located in another state petitions for such an order and a support order has
not yet been issued in either that state or this state.  Choice of law issues are
governed by section 3003, which states:
Application of law of this State
Except as otherwise provided by this chapter, a responding
tribunal of this State shall:

   1.  Procedural and substantive law;  powers and remedies. 
Apply the procedural and substantive law, including the rules
on choice of law, generally applicable to similar proceedings
originating in this State and may exercise all powers and
provide all remedies available in those proceedings;  and

   2.  Determine duty and amount of support.  Determine the
duty of support and the amount payable in accordance with
the law and support guidelines of this State.
19-A M.R.S.A § 3003 (1998).  
	[¶7]  Subsection 1 requires that the responding tribunal apply
choice of law rules to matters arising under the Uniform Interstate Family
Support Act.  However, subsection (2) expressly provides that when the
issue is the duty to pay and the amount to pay, Maine law will be applied. 
There is good reason for this position, to assure ease of calculation and to
avoid the need to change support orders and determine other states'
requirements as a child may move from state to state.  Because Frye's only
complaint is that application of the Florida statutes would result in a lesser
award, his argument is without merit. 
	[¶8]  Frye also argues that because Meabon's unemployment is
voluntary, the court was required to impute income to her for purposes of
computing his child support obligation. 
	[¶9]  Pursuant to 19-A M.R.S.A. § 2001(5)(D) (1998):
5.  Gross income.  "Gross income" means gross income of a
party as follows

. . . .

D. Gross income may include the difference between the
amount a party is earning and that party's earning capacity
when the party voluntarily becomes or remains unemployed
or underemployed, if sufficient evidence is introduced  
concerning a party's current earning capacity.  In the
absence of evidence in the record to the contrary, a party
that is personally providing primary care for a child under
the age of 3 years is deemed not available for employment.
The court shall consider anticipated child care and other
work-related expenses in determining whether to impute
income, or how much income to impute, to a party providing
primary care to a child between the ages of 3 and 12
years. . . .
Id. (emphasis added).

	[¶10]  Meabon testified by telephone{2} that she does not currently
work because her fiancé takes care of her.  She testified that she had
worked in low wage jobs and that she had training in the health care field. 
Meabon testified that she would incur child care costs for her youngest child
if she were to return to work because his kindergarten classes are only in
session from 9:30 a.m. to 2:30 p.m. and the afterschool program would cost
$75 per week. 
	[¶11]  Frye's complaint is essentially that he would have a lesser
weekly obligation if the court had imputed income to Meabon.  While a
court, on appropriate facts, may impute income to one obligated to pay child
support, see Finn v. Finn, 517 A.2d 317, 318-19 (Me. 1986), such a
determination is discretionary with the trial court.  The court did not abuse
its discretion by imposing a $37 per week obligation on Frye when
testimony indicated that it would cost Meabon twice that amount in child
care costs to work.  
	[¶12]  Frye finally argues that the court's order is fundamentally
unfair because he is being required to pay more money because of child care
costs for Meabon's other children, whom he does not have a responsibility
to support.  Section 2001(5)(D) provides, "The court shall consider
anticipated child care and other work-related expenses in determining
whether to impute income, or how much income to impute, to a party
providing primary care to a child between the ages of 3 and 12 years."  See
19-A M.R.S.A. § 2001(5)(D).  Because the statute does not state "the child,"
the court may consider expenses generated as a result of other children who
are the primary care giver's responsibility.  Notably, Frye's obligation was
reduced because of his own child care costs for other children.
	The entry is:
			Judgment affirmed.

Attorneys for plaintiff: Andrew Ketterer, Attorney General Melissa Reynolds O'Dea, Asst. Attorney General 84 Harlow Street Bangor, ME 04401 For defendant: Robert Frye 20 Youngs Avenue Ellsworth, ME 04606
FOOTNOTES******************************** {1} . According to Frye, Florida law would preclude a retroactive support award for time periods more remote than 24 months from the date of the petition and would mandate an imputation of income to Meabon because her decision not to work is voluntary. We do not determine if Frye's arguments regarding Florida law are correct. {2} . 19-A M.R.S.A. § 3016(6) (1998) states: 6. Testimony not in person. In a proceeding under this chapter, a tribunal of this State may permit a party or witness residing in another state to be deposed or to testify by telephone, audiovisual means or other electronic means at a designated tribunal or other location in that state. A tribunal of this State shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony. Section 3016(6) makes an adjustment from the generally applicable Rule, M.R. Civ. P. 43(a) that testimony "shall be taken orally in open court, unless otherwise provided . . . ."