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LEON GUERRERO V. MOYLAN, 2002 Argued and submitted on June 17,
2002. Filed Sept. 26, 2002. Appeal from the Superior Court
of Before
PETER C. SIGUENZA, JR., Chief Justice, JOHN A. MANGLONA, Designated Justice, and
RICHARD H. BENSON, Justice Pro Tempore. OPINION SIGUENZA,
C.J. [1]
Defendant Appellant Douglas B. Moylan ("Moylan") appeals from the
lower court's order that Moylan pay child support to Plaintiff Appellee Doris
Leon Guerrero ("Leon Guerrero") in the amount of $523.32 per month.
Moylan argues that the lower court should not have applied the Guam Child
Support Guidelines ("Guidelines") in determining his child support
obligation. Moylan further argues that even if the Guidelines could be utilized,
the lower court improperly calculated his child support under them. Last, Moylan
challenges the effective date of the order and the participation of the Office
of the Attorney General ("AG") in lower court proceedings. [2]
We find that the trial court acted within its discretion in utilizing the
Guidelines. However, we agree with Moylan and find that the trial court erred in
the calculation of his child support. We also find that the trial court erred by
ordering, without justification that the child support order be effective from
the date the motion was heard and not the date the motion was made. Last,
regarding participation by the AG in these proceedings, we find no error. I. [3]
Moylan and Leon Guerrero divorced on June 13, 1997. The final decree of divorce
granted the parties joint and equal legal and physical custody of their two
minor children but left the matter of child support unresolved. See Appellant's
Excerpts of Record, pp. 1-7 (Final Decree of Divorce, Oct. 3, 1997;
Interlocutory Judgment of Divorce, Oct. 3, 1997). In the interim, Moylan paid
temporary child support in the amount of $1,014.88 per month. [4]
On December 29, 2000, Moylan moved to set permanent child support. The lower
court heard the matter on February 7, 2001, and on March 6, 2001, issued its
Decision and Order. Pursuant to this decision, Moylan was ordered to pay Leon
Guerrero temporary child support in the amount of $523.32 per month. In setting
child support, the court added the amount owed in basic child support
($1,714.51) to the amount owed in necessary expenses ($752.92) to arrive at a
total child support obligation of $2,467.43. Moylan was obligated to pay Leon
Guerrero 71.25% of that amount or $1,758.04, and Leon Guerrero was obligated to
pay Moylan 28.75% of that amount or $709.39. Both of these amounts were adjusted
downward by 50% to account for the parties' joint custody arrangement. Moylan
was then ordered to pay the difference between his and Leon Guerrero's
obligations, which equaled $523.32. Moylan moved to amend the order, and the
trial court denied his motion. Moylan now appeals the March 6, 2001 child
support order and the denial of his motion to amend. II. [5]
"An order for child support is a final judgment as to any installment or
payment of money which has accrued up to the time either party makes a motion to
set aside, alter or modify the order." Title 5 GCA § 34121 (1996). This
court has jurisdiction to review all final judgments of the Superior Court,
Title 7 GCA § 3107(a) (1994), and therefore has jurisdiction over the instant
appeal. Leon Guerrero v. Moylan, 2002 III. [6]
Moylan attacks the child support order on several different grounds. He argues
that the trial court erred in using the Guidelines to calculate child support in
a joint and equal custody arrangement. He also believes that the Guidelines are
null and void because they are ultra vires and because they have not been
updated as required by Title 5 GCA § 34118(a) (1996). [7]
Assuming the Guidelines are valid and applicable, Moylan disputes the trial
court's calculation of his child support obligation under the Guidelines. First,
Moylan argues that the court improperly exceeded the Guidelines' schedule when
setting the parties' basic child support obligation amount. Second, Moylan
argues that the trial court should not have calculated his child support
payments based on his earning capacity instead of his actual earnings. Last,
Moylan asserts that the trial court erred in failing to impute income to Leon
Guerrero for her free housing. [8]
Moylan raises two final grounds in his appeal. He believes that the court erred
in retroactively applying the child support order to the date the lower court
heard the motion instead of the date Moylan brought his motion to set permanent
support. He also contends that the AG should have been disqualified from
participating in the case due to a conflict of interest. A. Guidelines applicability [9]
Pursuant to 5 GCA § 34118, the AG promulgated a schedule of child support
payments, now set forth in Article 2 of Title 19 of the Guam Administrative
Regulations ("GAR"). The authority vested in the AG was limited to
formulating guidelines for payments "to be paid by a non-custodial parent
to a custodial parent." 5 GCA § 34118(a) (emphasis added). The first issue
before this court focuses on the above language, and whether by its terms, it
precludes the application of the Guidelines to a joint and equal custody
arrangement. Matters of statutory interpretation are questions of law and
reviewed de novo. See [10]
A non-custodial parent is defined as "any person who is responsible for the
support of a child, and who is absent from the household whether the person's
location is known or unknown." Title 5 GCA § 34202(h) (as reenacted by P.L.
25-161:2 (August 31, 2000)). Moylan argues that in a joint and equal custody
arrangement, there is no non-custodial parent because both parents are custodial
parents. Thus, the Guidelines cannot be applied to him. The lower court
disagreed, stating: [I]n
every shared custody situation, there is always at a given point in time one
party who is the custodial parent and another party who is the non-custodial
parent. When the time comes for these parties to exchange custody of their
children, the custodial parent becomes the non-custodial parent and the
non-custodial parent becomes the custodial parent. Appellant's
Excerpts of Record, p. 53 (Decision and Order, March 6, 2001). Thus, the trial
court found and the AG agreed, that each parent's status changes when custody is
exchanged. When the children are with Leon Guerrero, Moylan is the non-custodial
parent; and when the children are with [11]
The lower court relied on Erickson v. Erickson, 127 N.M. 140, 978 P.2d 347
(N.M.Ct.App.1999), wherein one court faced with a shared custody arrangement
declared "each parent is, in a sense, both a custodial parent and a
non-custodial parent." Erickson, 978 P.2d at 352. However, the court's
reliance on Erickson is misplaced. It is distinguishable from the instant case
because Erickson involved a split custody arrangement. Each parent had custody
of one child and no custody of the other at any given time, and was thus a
custodial and non-custodial parent simultaneously. In other words, the parent
was a custodial parent with respect to the child in his possession and a
non-custodial parent with respect to the child not in his possession. No
parallel situation exists here, wherein both children are in the custody of only
one parent at a time. [12]
More applicable is Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826
(App.Div.1998), the last in a developing line of [13]
Baraby involved a factual situation identical to the one now before us, with the
parties sharing joint and equal custody. Baraby found that New York's child
support guidelines applied to joint and equal custody arrangements, citing to
Bast v. Rossoff, 167 Misc.2d 749, 635 N.Y.S.2d 453 (Sup.Ct.1995). In Bast, a [14]
If
the guidelines do not cover this circumstance, as both parties and the dissent
seem to agree, we think it impossible to contend that there has been an
unwarranted deviation from them. A trial court judge cannot logically be accused
of deviating from a standard that by its own terms does not purport to apply to
the facts. We thus recur to the rule of discretion that governs dissolution of
marriage cases. [15]
[16]
We agree with the approach taken by the above-mentioned courts. The ultimate
goal in any child support case is to protect the best interests of the children.
Unless otherwise limited by statute, courts are vested with discretion to set
child support in the amounts necessary to effectuate that purpose. Like B. Guidelines validity 1. Ultra vires [17]
Moylan's second contention is that because provisions of the Guidelines speak to
shared custody, the Guidelines exceed the enabling statute and are thereby void.
A review of the Guidelines reveals two sections which address shared custody
cases. First, 19 GAR § 1203(i) restricts a court's ability to lower child
support in shared custody situations without certain findings. Second, 19 GAR §
1203(q) requires that all child support awards be made pursuant to the
Guidelines. Moylan argues that these provisions exceed the authority conferred
in 5 GCA § 34118 wherein the AG is directed to establish a schedule for
payments to be paid by a non-custodial parent to a custodial parent; not for
parents who share custody. [18]
"It is well established that in exercising its rule-making authority an
administrative agency cannot extend the meaning of the statutory language to
apply to situations not intended to be embraced within the statute." Trump
Equitable Fifth Ave. Co. v. Gliedman, 57 N.Y.2d 588, 457 N.Y.S.2d 466, 443
N.E.2d 940, 943 (Ct.App.1982). In our earlier discussion, we found that the
language of 5 GCA § 34118, which relies on the distinction between custodial
and non-custodial parents, did not contemplate a shared custody arrangement. See
Bast, 635 N.Y.S.2d at 454. "A statute which creates an administrative
agency and invests it with powers restricts it to the powers granted. The agency
has no powers except those mentioned in the statute." Gouge v. 2.
Failure to update [19]
Section 34118(a) requires the AG to update the Guidelines biannually. This has
not been done since the regulations were enacted in 1996. Moylan argues that due
to the failure of the AG to update the Guidelines, the Guidelines have expired
and are thereby ineffective. We disagree. [20]
Section 34118(e) directly addresses this contention, stating that, "[u]ntil
a new schedule is promulgated as required by this section, the schedule
previously promulgated by the Director of Public Health and Social Services
shall continue to be used in the manner specified by Public Law 18- 17 as a
guideline in cases where the court deems it relevant." 5 GCA § 34118(e)
(1996). Pursuant to this section, the Guidelines shall continue to be valid and
effective despite the failure of the AG to provide a biannual update. [21]
We note that section (e) fails to reflect the transfer of authority over child
support matters from the Department of Public Health and Social Services to the
Office of the Attorney General. However, it would be unreasonable to read
section (e) as requiring the re-institution of an older schedule promulgated by
the Director of Public Health. Instead, we interpret this provision as seeking
only to continue in effect the most recently enacted schedule. Therefore, the
Guidelines have not expired, and continue in full force and effect. C.
Exceeding the Guidelines [22]
The payment schedule provided in Title 19 of the Guam Administrative Regulations
sets the maximum basic child support obligation for two children at $1,222.50.
However, the table also vests in the court discretion to award an additional
amount should the parents' combined adjusted gross income exceed $7,500 per
month. Here, the parties' combined adjusted gross income totaled $10,518.48.
Thus, the lower court applied the statutory percentage of 16.3% to arrive at a
basic child support obligation of $1,714.51. Moylan argues on several different
grounds that the trial court abused its discretion by exceeding the Guidelines'
cap. 1. Contract limits [23]
Moylan argues that the court was prohibited from exceeding the Guidelines' table
based on contract principles. The parties signed a stipulated agreement of
divorce, which the court incorporated into both the Interlocutory Judgment of
Divorce and the Final Decree of Divorce. See Appellant's Excerpts of Record, pp.
1-7 (Final Decree of Divorce, Oct. 3, 1997; Interlocutory Judgment of Divorce,
Oct. 3, 1997). While the agreement did not settle the matter of child support,
it stated: [C]hild
support will be resolved by the parties if possible or the parties may petition
the court for determination of the amount of support to be paid by defendant to
plaintiff, however, the amount of support shall in any event be based on a
strict application of the Child Support Guidelines of the Government of Guam,
except that the parties mutually agree that each party shall equally contribute
to the cost of health insurance of the minor children. Appellant's
Excerpts of Record, p. 5 (Interlocutory Judgment of Divorce, Oct. 3, 1997)
(emphasis added). Moylan argues that because the agreement dictated that the
Guidelines be strictly applied, the court was stripped of its discretion to
deviate from those Guidelines when calculating child support. [24]
While contract principles are applied to settlement agreements, courts are
unanimous in concluding that parents cannot by agreement limit or divest a court
of its discretion in setting child support. See, e.g., Labass v. Munsee, 66
Cal.Rptr.2d 393, 399, 56 Cal.App.4th 1331, 1341 (Ct.App.1997); Straub v. B.M.T.,
645 N.E.2d 597, 599-600 (Ind.1994); Calton v. Calton, 485 So.2d 309, 310
(Miss.1986); Tammen v. Tammen, 289 [25]
The position of courts across the country is clearly contrary to Moylan's
contention. The lower court's discretion to exceed the Guidelines' table could
not be limited by the parties' agreement to "strictly apply" the
Guidelines. This argument is not further buttressed by the fact that the
parties' agreement was incorporated by the court into the final decree. See
LaBass, 66 Cal.Rptr.2d at 399, 56 Cal.App.4th at 1340. Therefore, the lower
court did not err by deviating from the Guidelines even if such a deviation was
in contravention of the parties' agreement. 2. Contract clause [26]
Moylan also argues that, by deviating from the parties' agreement, the trial
court substantially impaired obligations set forth in the contract, thereby
committing a constitutional violation. The Contracts clauses of the Organic Act
and the U.S. Constitution prohibit the government from enacting any law that
impairs the obligation of a contract. 48 U.S.C. 1421b(j); 3. Failure to make findings [27]
Moylan's final challenge to the court's exceeding of the Guidelines' cap is that
the trial court set the basic child support in excess of the schedule without
making any finding that the increase was necessary to meet the children's needs.
New York has held that "[t]he blind application of the statutory formula to
the combined parental income over [the statutory cap] without any express
findings of the children's actual needs constitutes an abdication of judicial
responsibility and renders meaningless the statutory provisions setting a cap on
strict application of the formula." Chasin v. Chasin, 182 A.D.2d 862, 582
N.Y.S.2d 512, 514 (App.Div.1992) (citations omitted). [28]
In this instance, the trial court did not make any factual findings to support
setting the basic child support obligation beyond the Guidelines' cap. The court
simply referred to statutory policy without showing a corresponding need for an
increase in child support to benefit the children. Specifically, the court
stated: [I]t
would be consistent with the purposes of the Guidelines to increase the basic
support obligation.... The court finds this to be in furtherance of the
guidelines that support be provided consistent with the parties ability to pay
and consistent with the purpose of the guidelines that maximum support amount
established under the schedules is a base amount and it is not intended to be a
cap or a ceiling. Appellant's
Excerpts of Record, p. 69 (Decision and Order, March 6, 2001). [29]
While we recognize that the court is not bound to apply the Guidelines, its
election to use the Guidelines as a framework for setting child support demands
that deviations from the Guidelines be supported by findings. These findings
must be more than a simple recitation by the court of relevant statutory
factors; the court must relate those factors to the specific facts in the case
before it. Gluckman v. Qua, 253 A.D.2d 267, 687 N.Y.S.2d 460, 462- 63
(App.Div.1999). The court must show how the figure it is using reflects the
reasonable needs of these particular children in these particular circumstances.
The court in this instance failed to makes such findings. Therefore, we find
that it abused its discretion in setting the parties' basic child support
obligation at $1,714.51. D.
Earning capacity [30]
The trial court calculated Moylan's child support obligation using his previous
salary as counsel for the Twenty Fifth Guam Legislature, which was approximately
$98,000.00, instead of the income he currently earns as a partner in a private
law firm, which is around $70,000.00. Moylan argues that it was improper for the
trial court to impute an income of almost $30,000.00 to him for a good faith
change of employment. The lower court has discretion to impute income to a
parent based on his or her earning capacity. See 19 GAR § 1203(5). Thus, we
review the trial court's use of Moylan's earning capacity for an abuse of
discretion. Padilla v. Padilla, 45 Cal.Rptr.2d 555, 557, 38 Cal.App.4th 1212,
1216 (Ct.App.1995). 1. Voluntariness [31]
Moylan first argues that use of his earning capacity is inappropriate because
his change of employment was involuntary. Moylan's appointment as legislative
counsel automatically expired by operation of law when the term for the 25th
Guam Legislature ended. Standing Rules for the 25th Guam Legislature § 22.09.25
("All appointments to positions in [the 25th Guam Legislature] shall
automatically expire on January 2, 2001...."). This technically may have
rendered Moylan's change of employment involuntary, thereby making the use of
Moylan's earning capacity to calculate child support inappropriate. However,
"labels can be deceiving and are not always determinative as to whether one
acted in good faith." In re Marriage of Barnard, 283 Ill.App.3d 366, 218
Ill.Dec. 583, 669 N.E.2d 726, 730 (Ill.Ct.App.1996). "[A] change in
employment which may outwardly appear to be involuntary may, in reality, be
voluntary and treated accordingly." [32]
In determining whether a parent has the opportunity to work, the court must
determine whether there is a "substantial likelihood that a party could,
with reasonable effort, apply his or her education, skills and training to
produce income." Cohen v. Cohen, 76 Cal.Rptr.2d 866, 871, 65 Cal.App.4th
923, 930 (Ct.App.1998). Although Moylan's position was technically terminated at
the end of the legislative term, he failed to take any steps to retain or seek
reappointment with the incoming legislative body. Moylan argues that given the
financial distress of the government and change in make-up of the legislature,
his continued employment with the legislature was speculative at best. Thus, he
seems to be asserting that any effort to acquire his previous position would
have been futile and that he had no opportunity to earn such an income. [33]
However, Moylan also revealed an unwillingness to continue his legislative
employment. Willingness to obtain employment generating a higher income is shown
by good faith efforts, due diligence, and meaningful attempts to secure
employment. Padilla, 45 Cal.Rptr.2d at 558, 38 Cal.App.4th at 1218. Here, Moylan
made no effort to retain his employment with the Twenty Sixth Guam Legislature,
but instead justified his leaving the government position for work in the
private sector. He argued that work in a private firm would allow him to spend
significantly more time with his children, build equity and security in a law
practice, and improve his overall quality of life. His unwillingness to continue
his legislative employment supports the lower court's finding that Moylan's
change of employment was voluntary. 2. Balancing test [34]
Moylan also argues that the court erred in using his earning capacity because
his change of employment was done in good faith. Despite the voluntariness of
Moylan's departure from the [35]
However, the lower court chose instead to apply a balancing test developing in
several jurisdictions, and relied heavily on the Supreme Court of Arizona's
decision in Little v. Little, 193 Ariz. 518, 975 P.2d 108 (Ariz.1999). The
Little court examined the flaws inherent in the good faith test, particularly
"its focus on the parent's motivation for leaving employment rather than
upon the parent's responsibility to his or her children and the effect of the
parent's decision on the best interest of the children." Little, 975 P.2d
at 112. Finding that the good faith test did not comport with public policy,
wherein the paramount factor in setting or modifying child support should be the
financial impact of the decision on the child, the court rejected the good faith
test and opted instead to use a balancing test. [36]
Applying this test, the trial court found that in Moylan's case, spending more
time with his children was not a good reason to leave his employment with the
legislature because they were no longer of preschool age and were only in
Moylan's custody half of the time. Appellant's Excerpts of Record, p. 63
(Decision and Order, March 6, 2001). Moreover, the court found that Moylan
failed to take into consideration the needs and lifestyles of his children
before changing jobs. Appellant's Excerpts of Record, p. 65 (Decision and Order,
March 6, 2001). Based on these considerations, the court held that Moylan's
change of employment was unreasonable and thereby attributed to him his previous
income. [37]
The lower court made no specific findings as to the detriment the children would
suffer as a result of their father's approximately $30,000.00 decrease in pay,
the paramount consideration under the balancing test. Furthermore, the court did
not address all of Moylan's reasons for changing jobs, such as building future
equity in a firm and securing a position that lasts longer than two years. These
considerations may render Moylan's decision to leave the legislature more
reasonable. A parent ought to be able to pursue employment opportunities for the
purpose of increasing future earning capacity and occupational fulfillment as
long as that pursuit does not unreasonably compromise that parent's ability to
provide support for his children. The trial court in this instance failed to
address a fundamental issue-how specifically did Moylan's change of employment
impact the financial well being of his children. The court cannot determine the
reasonableness of Moylan's change in employment without one side of the balance.
Thus, the lower court abused its discretion by imputing income to Moylan without
making any findings as to the detrimental impact that would be suffered by his
children as a result of his change of employment. E.
Free housing [38]
Moylan contends that the trial court erred in failing to include as gross income
the value of free housing to Leon Guerrero. He argues that living rent free
constitutes a gift, and is therefore income under 19 GAR § 1203(a)(1). The
trial court declined to attribute such income to Leon Guerrero because Moylan
failed to provide authority in support of his position. [39]
This court has before it no record as to the manner in which Moylan raised this
issue below or how Moylan argued his position before the trial court. Moylan
cites in his brief to "page 4, footnote 7," an apparent reference to a
record from the court below, but he fails to identify or provide the document to
which he is citing. Appellant's Opening Brief, p. 41. In our review, we are left
only with the lower court's statement that, "[t]he Defendant has provided
no authority for this proposition and thus the Court will deny that
request." Appellant's Excerpts of Record, p. 68 (Decision and Order, March
6, 2001). [40]
Relying on the lower court's brief statement and its use of the term
"authority," we can only infer that the lower court found Moylan
failed to establish a sufficient legal basis to attribute free housing as
income. Thus, the issue before the trial court, whether free housing may be
classified as income, is a question of law and reviewed de novo. [41]
The Guidelines state that gross income may include gifts, but do not further
specify what items constitute a gift. See 19 G.A.R. § 1203(a)(1). FN2.
There are several jurisdictions which adhere to the position that the principal
amount of gifts should not be considered as income. However, unlike [42]
[I]f
a parent is relieved of some of these [basic living] expenses through outside
contributions, it may be appropriate under certain circumstances to increase the
parent's actual income to account for such contributions. Manifestly, these
benefits may have the effect of freeing up other income that may not have
otherwise been available to pay a child support award. [43]
Clearly, there is legal authority to support Moylan's position that the court
may impute income to Leon Guerrero for her free housing. Petrini serves as an
example of when free housing may constitute a gift, and pursuant to 19 GAR §
1203(a)(1), a gift may be included as income. Therefore, we remand this issue to
the lower court so that it may apply its discretion and determine whether the
facts of this case warrant such an attribution of income. F. Order effective [44]
Next, Moylan challenges the effective date of the child support order. Moylan
filed his motion for modification on December 29, 2000 and the matter was set
for hearing on February 7, 2001. When the court issued its decision, it stated,
"The motion was heard by the Court on February 7, thus the court will make
the order of support retroactive to the monthly support due in February,
2001." Appellant's Excerpts of Record, pp. 74-75 (Decision and Order, March
6, 2001). Moylan argues that the court should have ordered his child support
payments retroactive to the date he filed his motion for modification. [45]
Modification of a child support order may take effect any time after the filing
of the motion to modify. See Title 5 GCA § 34121 (1996). Setting the effective
date is left to the discretion of the trial court, and thus we review such a
determination for an abuse of discretion. Harris v. Harris, 168 [46]
In Boone v. Boone, 960 P.2d 579 ( FN3.
Although [47]
The reasoning of Boone is persuasive. As recognized by the Indiana Court of
Appeals, granting modification from later dates "detracts from the purposes
of the changed circumstances rule and serves to encourage and benefit dilatory
tactics." Kruse, 464 N.E.2d at 939. Moreover, a motion to modify child
support indicates that a change in circumstances has occurred at the time the
petition is filed. Thus, it is reasonable for a court to establish a preference
that orders granting modification be made effective from that date. Therefore,
we find that the trial court abused its discretion by failing to justify making
the child support order retroactively apply to February 2001 instead of December
2000. G. AG disqualified [48]
Moylan's final argument is that the trial court erred by allowing the AG to
participate in the proceedings based on an apparent conflict of interest.
Specifically, Assistant Attorney General Kathryn Montague
("Montague"), who had previously represented Leon Guerrero while in
private practice, was permitted to appear in the lower court on behalf of the
AG. Moylan asserts that such appearances by Montague violated Guam Rules of
Professional Conduct ("GRPC") 1.7, 1.9, and 1.11. Moreover, Montague's
failure to separate herself from the rest of the AG's office imputed that
disqualification on the entire office. Therefore, the AG should have been
disqualified from participating in any of the lower court proceedings. [49]
GRPC 1.7 and 1.9 both address an attorney's conflict of interest, and prohibit
an attorney from representing a client whose interests are adverse to the
interests of another former or current client. Initially, this court may
question whether Moylan has standing to assert a conflict of interest and
disqualify opposing counsel. Some jurisdictions find that without an
attorney-client relationship or some other relationship imposing a duty of
confidentiality, a party has no standing to bring a motion to disqualify based
on a conflict of interest. DCH Health Services Corp. v. Waite, 115 Cal.Rptr.2d
847, 850, 95 Cal.App.4th 829, 833 (Ct.App.2002); Johnson v. Prime Bank, 219
Ga.App. 29, 464 S.E.2d 24, 26 (Ga.Ct.App.1995). However, irrespective of
standing, GRPC 1.7 and 1.9 are not applicable in the matter before us. The
interests of Leon Guerrero, Montague's former client, and the interests of the
AG's office, are not directly adverse to one another, and so there is no
conflict. [50]
GRPC 1.11 addresses Montague's transfer from the private sector to a public
office. Section (c) prohibits successive government and private employment. The
concern in these situations is the sacrifice of the public interest for private
gain. Prosecutors cannot be permitted to utilize their public office to benefit
their private clients. [51]
However, "a violation of professional ethics rules does not alone trigger
disqualification, rather, a trial judge should primarily assess the possibility
of prejudice at trial that might result from the attorney's unethical act."
Papanicolaou v. Chase Manhattan Bank, 720 F.Supp. 1080, 1083 (S.D.N.Y.1989)
(internal citations omitted). We find no showing of prejudice to Moylan as a
result of Montague's prior appearances; they appear to be few and preliminary in
nature. We also find no showing that the AG's office in its entirety was
compromised. Therefore, we find no abuse of discretion by the lower court in
refusing to disqualify the AG from these proceedings. IV. [52]
The Guidelines as a whole are valid and can be applied to joint and equal
custody arrangements. However, sections 1203(i) and 1203(q) of the Guidelines
are ultra vires in that they attempt to bind the court's discretion with respect
to shared custody. [53]
In calculating the parties' child support obligations, the lower court committed
three different errors. First, the lower court set the basic child support
obligation at $1,714.51 without making a corresponding finding of need on the
part of the children. Second, the lower court imputed income to Moylan without
showing how Moylan's change of employment detrimentally affected his children.
Last, the lower court found there was no legal authority for it to consider
attributing income to Leon Guerrero for her free housing. [54]
However, the lower court did not abuse its discretion in refusing to disqualify
the AG from participating in further proceedings. [55]
Therefore, the matter is REVERSED and REMANDED for further findings consistent
with this opinion and for the recalculation of child support.
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