Analysis: Mullin v. Mullin

Richard J. Byrd, Esq.

Mullin v. Mullin, 3/22/05, Fairfax Circuit, Judge Bellows

Facts: Under 6/15/00 Order, Dad was paying $1,600/Mo. support for child and was obligated to carry the health insurance for the child. The Order stated that Mom "shall be responsible for any out of pocket uninsured medical expenses not to exceed $200 per month."

In Nov., 2002 Dad lost his job and unilaterally cut support down to $800/Mo, but he continued the health insurance on child until Jan., 03 when Mom began paying it. In Oct., 03, Mom lost her job, but continued to cover the child on COBRA.

In March, 2004 Dad filed to modify CS and to establish the amount of arrearage. In April, 2004 DCSE filed a Rule to Show Cause against Dad for $12,000 of arrearage.

Trial Court hearing was in May, 2004. At that time the child was age 18 but had not graduated from high school.

Child suffers from a debilitating illness, multiple hereditary exostosis, a disease that creates large bone growths resulting in scarring, fatigue and nerve damage. Because of the disease, the child has had 8 or 9 surgeries, has at least twelve additional bone tumors in his legs, 10 more tumors in his pelvic area, a "permanent disability" of his right arm. He suffers from chronic pain. He is being treated by 5 different physicians. The school system had classified the child as "medically disabled." He was in a school homebound program.

Mother sought an increase in support for the child and an order that support would continue beyond the child's 19th birthday.

On the morning of the hearing, Dad paid DCSE the full $14,640 of arrears.

Trial Court: The T/C awarded Mom:

• (1) $7,162 as reimbursement for providing health insurance 10/02 – 5/04.
   
• (2) $8,500 as reimbursement for child's medical costs. The T/C found that the Order stating that Mom was to pay the first $200/Month of uncovered expenses implied that Dad was to pay the remainder of the health expenses.
   
• (3) $7,547 in attorneys fees.
   
• (4) The trial court also ordered father to continue paying child support at $810/Month plus $300/Month toward the Mom's health insurance cost after high school graduation, reasoning that the child is severely and permanently physically disabled, is unable to live independently and support himself, and resides with a parent. The T/C also ordered the parents to pay equally all uncovered medical expenses.

Issues on Appeal:

• 1. Continuation of CS After Age 19: Father argues that the trial court erred in ordering him to continue paying child support after child graduates from high school, reasoning that this ruling was premature, since the child was still in high school, and the court should not try to predict the future.

Holding C/A:

The court must continue support for an 18 year old who is still in high school. The court may provide support for an over-18 year old who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking child support. These two scenarios are not mutually exclusive. It would be entirely consistent with the statutory language to order a continuation of child support under the rationale that both of these statutory exceptions are applicable to a given situation. The trial court concluded that the child is both: (1) a full-time high school student under the age of 19 who is living at home and is not self-supporting, and (2) a severely disabled child over the age of 18 who is unable to live independently and who resides with his mother, who is seeking a continuation of support. The T/C was correct in concluding that this child met both conditions.
 

• 2. Sufficiency of Evidence and Lack of Expert: The Dad contended that the Mom did not present evidence as to the child's ability to live independently and support himself, and the Mom gave only her own lay-witness testimony regarding the child's medical condition.

Holding C/A:

The C/A concluded that mother's uncontradicted lay witness testimony, which was based on her own personal observations and experiences, was sufficient for purposes of this statute. The trial court found that the child suffers from chronic and debilitating pain, rendering him unable to even go to school for the full day. "Thus, there is ample evidence in the record from which it may be inferred that M.M. cannot live independently and support himself." The lay testimony of the Mom regarding the causation of an injury is admissible for whatever weight the fact finder may choose to give it.
 

• 3. Does Dad have the Obligation to Pay Medical Expenses Over $200/Momth?: The 2000 support order stated that the Mom was to pay the first $200/Mo. of the child's uninsured medical costs, but it did not state at all who was responsible for the amounts over that. The Dad believes that the T/C was wrong in simply inferring that it was the Dad who was to pay all of the remaining expenses.

Holding C/A:

The May 2000 consent order provided that mother "shall be responsible for any out of pocket uninsured medical expenses not to exceed $200 per month." The C/A agreed with the T/C that this order means that Mom's liability for out-of-pocket medical expenses was ‘capped' at $200 per month and that Dad is responsible for all costs over $200 per month. "We agree. According to the plain language of the consent order, mother was responsible for the first $200 of out-of-pocket medical expenses, and father was responsible for any amounts expended in excess of $200. Accordingly, the trial court did not err in ordering father to reimburse mother for the portion of her monthly out-of-pocket medical expenses that exceeded $200."

Also, the C/A also ordered that the Father pay the Mother's counsel fees for the appeal.

[Editor's note: The holding as to continued support after age 18/19 certainly seems reasonable given this child's grievous disability - BUT - it should be noted that the C/A's holding in this case does seem to violate the long-standing rule in support cases that the court can only deal with the current situation and should not try to foresee a possible, but hypothetical, situation in the future.]

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[Editor's Note: - This is an informal, and not rigorous, treatment of the issues and holdings in these cases. For the sake of brevity and easier reading, some liberty has been taken by the author with some of the language of the Court of Appeals, even though that language appears in Quotes. For example, underlining is used to emphasize important text. Also, shorthand language is used. E.G. - Where the actual opinion might say: "Fowler's position with regard the parties' Property Settlement Agreement of July 1, 1999 was..." this quote might actually be presented here as: "Mom's position regarding their PSA was..."]

© 2005, Richard J. Byrd, Esq., Chairman, Family Law Section, Fairfax Bar Association. This case summary may not be quoted or reprinted without express written permission.