Introduction

This appeal arises out of a post‑divorce child‑support dispute that sits at the intersection of guideline modification, deviation to preserve a negotiated educational arrangement, and the allocation of federal child tax credits. The parents share legal and physical rights and responsibilities over two minor children. In their stipulated 2021 final orders, they agreed to a zero‑support arrangement conditioned on the father paying 20% of private school tuition while the mother’s employment benefit covered the remaining 80%.

In 2023, father moved to modify child support and sought a judicial allocation of federal child tax credits, asserting both changed incomes and a more‑than‑10% variation from the guidelines. The magistrate denied his motions, the family division affirmed, and father appealed to the Vermont Supreme Court. The Supreme Court affirmed, holding (1) any error in the magistrate’s threshold analysis under 15 V.S.A. § 660(b) was harmless because a deviation under 15 V.S.A. § 659 independently supported continuation of the existing zero‑support/tuition arrangement; and (2) father’s attempt to reallocate prior or future child tax credit claims through a post‑judgment motion was properly treated as a Rule 60(b) request and was time‑barred.

Parties:

• Mother: Catherine Hutchings, custodial parent (57.3% of overnights), employed at children’s independent elementary school with an 80% tuition benefit.
• Father: Justin Bramhall, noncustodial parent (42.7% overnights), co‑owns a farm; recently took a voluntary pay cut; lives with a partner contributing $975/month to household expenses.

Summary of the Opinion

The Vermont Supreme Court affirmed the denial of father’s motions to modify child support and to allocate federal child tax credits:

• Child support modification: The Court did not reach whether the 10% variation clause in 15 V.S.A. § 660(b) was satisfied because any error was harmless. Even assuming the modification threshold, the magistrate properly deviated under 15 V.S.A. § 659 to maintain the original zero‑support order with father’s obligation to pay 20% of private school tuition. The deviation was supported by multiple statutory factors, including the parties’ financial resources, the standard of living enjoyed during the marriage (including attendance at the Grammar School), and other relevant factors such as the parties’ original bargain and mother’s reliance on it.
• Private school tuition and in‑kind employment benefits: While an employment‑related tuition benefit is not “gross income” for guideline calculation purposes, it may be considered as part of the custodial parent’s “financial resources” in the deviation analysis under § 659(a)(2).
• Tax credits: Father’s motion to allocate child tax credits functioned as a request for relief from the final orders under V.R.C.P. 60(b) and was time‑barred (one‑year limit for 60(b)(1)–(3)). The magistrate also correctly recognized that, absent a contrary, timely, and enforceable order, the custodial parent was permitted under federal law to claim the children. Father’s further argument that the credits’ allocation should be factored into deviation (see Merchant) was not preserved.

Analysis

Key Facts and Figures

• Time sharing at divorce: 57.3% with mother; 42.7% with father.
• Guidelines at divorce: $279.35/month from father to mother; parties stipulated to a downward deviation to $0 support with father paying 20% of tuition.
• Grammar School tuition: $16,000 per child per year; mother’s employment benefit covers 80% for two children (worth $25,600/year).
• New guideline at modification: $144.52/month payable by father.
• Father’s partner’s contribution: $975/month to household expenses.
• Mother’s assistance during 2023–2024: $135/month toward father’s share of tuition.

Precedents and Authorities Cited

• Statutes and rules:
  • 15 V.S.A. § 650 (purposes of the guidelines: reflect true child‑rearing costs; standardize awards; efficiency/predictability)
  • 15 V.S.A. § 653(4), (5) (definitions: extraordinary expenses; gross income)
  • 15 V.S.A. § 659(a) (deviation factors and presumption)
  • 15 V.S.A. § 660(b) (10% variation threshold)
  • 15 V.S.A. § 663 (contents of final support orders)
  • 4 V.S.A. § 465 (appeals from magistrate to family division; ability to take additional evidence)
  • V.R.C.P. 60(b) (relief from judgment; one‑year limit for (1)–(3))
  • V.R.C.P. 61 (harmless error)
  • V.R.A.P. 33.1(d) (nonprecedential nature of unpublished panel decisions)
• Standards of review:
  • Patnode v. Urette, 2015 VT 70, ¶ 6, 199 Vt. 306 (record on appeal; additional evidence under § 465)
  • Stone v. Henneke, 2024 VT 26, ¶ 12, 219 Vt. 291 (factual findings vs. legal conclusions)
  • Merchant v. Merchant, 2015 VT 72, ¶ 7, 199 Vt. 406 (legal conclusions reviewed de novo)
• Deviation and guideline purposes:
  • Tetreault v. Coon, 167 Vt. 396, 405 (1998) (presumption; deviation as an “escape valve” constrained by statute’s purposes)
  • LaMothe v. LeBlanc, 2015 VT 78, ¶ 15, 199 Vt. 448 (guideline calculation error harmless where deviation independently supports result)
• Income, in‑kind benefits, and extraordinary expenses:
  • Kelly‑Whitney v. Kelly‑Whitney, 2011 VT 12, ¶ 4, 189 Vt. 572 (mem.) (tuition benefit not “gross income” for guideline calculation)
  • Mitchinson v. Mitchinson, 173 Vt. 483, 484 (2001) (mem.) (guideline calculation uses “gross income” and adjustments)
  • McCormick v. McCormick, 159 Vt. 472, 481 (1993) (private school tuition as “extraordinary expense” only when tied to special needs)
• Allocation of tax exemptions/credits:
  • Merchant v. Merchant, 2015 VT 72, ¶¶ 15, 19–20 (dependent exemption assumptions are “baked into” guideline statute; mismatch may justify deviation)
• Unpublished panel decisions discussed (nonbinding):
  • Coyle v. Coyle, No. 2007‑380, 2008 WL 2793871 (Vt. Apr. 1, 2008) (focus in deviation is whether new guideline amount would be unfair)
  • Haser v. Graham, No. 2008‑461, 2009 WL 2411560 (Vt. May 29, 2009) (tuition as extraordinary expense only if related to special needs)
• Briefing/preservation principles:
  • In re S.B.L., 150 Vt. 294, 297 (1988) (appellant bears burden to show reversible error)
  • In re Snyder Group, Inc., 2020 VT 15, ¶ 26 n.10, 212 Vt. 168 (inadequately briefed arguments not considered)
  • V.R.A.P. 28(a)(4)(A) (issue presentation and preservation)
  • In re Eastview at Middlebury, Inc., 2009 VT 98, ¶ 25, 187 Vt. 208 (preservation required)

The Court’s Legal Reasoning

1) Threshold vs. Deviation: Harmless Error Controls

Father argued that the magistrate misapplied 15 V.S.A. § 660(b) by reading the 10% variation rule as available only when the change benefits the moving party. The Supreme Court sidestepped the statutory interpretation question. It held that even if the § 660(b) threshold were met, the magistrate’s alternative ruling—to deviate under § 659 back to the original arrangement—made any error harmless. The family division correctly declined to reach § 660 because the deviation ruling independently sustained the result. See V.R.C.P. 61; LaMothe (affirming on deviation without reaching potential guideline error).

2) A Deviation that Preserves a Negotiated Educational Arrangement

Section 659(a) establishes a presumption that the guideline amount is correct, but permits deviation when applying the guidelines would be unfair after consideration of statutory factors and other relevant considerations. Guided by Tetreault’s purposes (true costs, standardization, efficiency), the magistrate considered:

• Financial resources of the custodial and noncustodial parents (§ 659(a)(2), (3)): Father had a partner contributing $975/month; he had taken a voluntary pay cut. Mother had modest raises and no cohabiting adult contributor.
• Standard of living during the marriage (§ 659(a)(3)): The children’s standard of living included attendance at the Grammar School, enabled by mother’s 80% tuition benefit and the parties’ ability to fund the remaining 20%.
• Children’s conditions and needs (§ 659(a)(4)–(5)): The children were thriving; no unusual or special needs.
• Inflation (§ 659(a)(7)): No disproportionate impact established.
• Other relevant factors (§ 659(a)(10)): The parties’ original stipulation to zero support in exchange for father’s 20% tuition share, mother’s continued employment and reliance on the arrangement, and the mutual benefits accrued to the family from the children’s ongoing enrollment.

Weighing these, the magistrate found that application of the new $144.52 monthly guideline would be unfair to mother and the children. The Supreme Court concluded father had not shown reversible error in this multi‑factor analysis.

3) Considering In‑Kind Tuition Benefits in Deviation (But Not as Gross Income)

Father argued that the court could not count mother’s tuition benefit in assessing her financial resources. The Court distinguished Kelly‑Whitney: although an employment‑related tuition benefit is not “gross income” for guideline calculation under § 653(5), it is relevant to a parent’s financial resources when deciding deviation under § 659(a). That distinction preserves the statutory definition of gross income while recognizing the real‑world effect of an in‑kind benefit on the family’s educational costs.

4) Private School Tuition: Not Recast as “Extraordinary Expense” Here

Father invoked Haser/McCormick to argue that tuition can only be addressed as an “extraordinary expense” if tied to special needs. The Court noted the magistrate did not classify tuition as an extraordinary expense for guideline calculation; rather, the court treated Grammar School attendance as part of the “standard of living” and a factor within deviation. That use is consistent with § 659(a).

5) Budget Surplus of Custodial Parent Is Not Dispositive

Father emphasized mother’s surplus. The Court explained that § 659(a) directs courts to consider a constellation of factors. Had the Legislature wanted a single‑factor dispositive test, it would not have enumerated multiple considerations, plus a catch‑all for “any other” relevant factor.

6) Allocation of Child Tax Credits: Rule 60(b) and Timeliness Control

Father’s separate motion alleged an informal verbal agreement to split child tax credits and sought compensatory allocation for future years. The magistrate correctly treated the request as seeking relief from the prior final orders under V.R.C.P. 60(b) because the orders were silent on allocation—i.e., father wanted to alter the final order’s silence into an affirmative allocation provision. Motions under Rule 60(b)(1)–(3) carry a one‑year time limit, which had passed. The father did not successfully invoke any other Rule 60(b) path or demonstrate extraordinary circumstances for relief beyond the one‑year window.

The magistrate also reasoned that mother, as the custodial parent, was within her federal rights to claim the children absent a contrary state court provision requiring a Form 8332 release (or similar). The family division and Supreme Court found no basis to disturb that conclusion.

7) “Baked‑In” Tax Assumptions and Deviation: Waived Here

Merchant recognizes that the guideline statute assumes typical allocation of dependent exemptions/credits, and a mismatch between those assumptions and the parties’ actual allocation may be considered in deciding deviation. Although father argued on appeal that actual tax credit allocation should have been considered in deviation, he did not preserve that argument before the magistrate. The Supreme Court declined to reach it due to lack of preservation and briefing sufficiency.

Impact and Practical Implications

• Deviation can preserve educational bargains: Courts may deviate from the guideline to maintain stability where the parents’ negotiated structure—here, a zero‑support order offset by a tuition‑sharing arrangement leveraging an employment benefit—continues to serve the children’s best interests and is fair under § 659(a). Practitioners should build a clear evidentiary record on reliance, benefits to the children, and the parties’ respective financial resources.
• In‑kind benefits matter in deviation analysis: Even if not “gross income,” in‑kind employment benefits that directly reduce a core child‑related expense (e.g., tuition) can be weighed as part of a custodial parent’s financial resources for deviation purposes.
• Voluntary income reductions invite scrutiny: The court took note of father’s voluntary pay cut and his household contribution from a partner. Parties should be prepared to address voluntariness and the practical effect of third‑party contributions when seeking or opposing modifications and deviations.
• Harmless error doctrine can decide appeals: If a deviation ruling independently sustains the outcome, appellate courts may affirm without resolving potentially thorny threshold or guideline‑calculation questions.
• Tax credit allocation is time‑sensitive and must be explicit: If the final order does not address dependency exemptions/credits, a later attempt to add or change allocation is likely a Rule 60(b) request and subject to a one‑year limit for most grounds. Best practice is to include clear allocation provisions in the final order and, if allocating to a noncustodial parent, to require execution of IRS Form 8332 (recognizing a state court cannot bind the IRS absent a proper release).
• Preserve “tax mismatch” arguments early: If the actual allocation of tax benefits deviates from statutory assumptions baked into guideline calculations, raise that explicitly as part of the deviation analysis in the trial court, with evidence quantifying the mismatch (see Merchant).
• Unresolved question flagged, not answered: The magistrate read § 660(b)’s 10% clause to apply only when the change would benefit the moving party. The Supreme Court expressly declined to resolve that interpretation, leaving the issue open for a precedential case.
• Nonprecedential, but instructive: Although this is a three‑justice entry order and not precedential, its careful application of § 659(a), treatment of in‑kind benefits, and Rule 60(b) timeliness analysis are likely to be influential in practice.

Complex Concepts Simplified

• Child support “guidelines” vs. “deviation”: The guidelines produce a presumptive amount based on the parents’ incomes and parenting time. A court may “deviate” from that amount if, after considering statutory factors, applying the guidelines would be unfair to the child or a party.
• Real, substantial, unanticipated change (§ 660): A prerequisite to modifying an existing order, often shown when the guideline amount changes by at least 10%. The precise scope of the 10% clause (e.g., whether the change must help the moving party) remains unsettled here.
• “Gross income” vs. “financial resources”: “Gross income” is a defined term used in guideline calculations; many in‑kind benefits do not count unless they reduce personal living expenses. “Financial resources” is broader and can capture non‑income advantages (e.g., tuition benefits) when courts assess whether to deviate.
• “Extraordinary expenses” vs. deviation: Private school tuition qualifies as “extraordinary expense” for guideline purposes only if tied to a child’s special needs (McCormick). Independently, private school enrollment can still be considered in deviation under the “standard of living” and “other relevant factors” prongs.
• Harmless error (V.R.C.P. 61): An appellate court will disregard errors that do not affect the parties’ substantial rights—e.g., where a deviation ruling independently supports the outcome.
• Rule 60(b) relief and time limits: A vehicle to seek relief from a final judgment (e.g., for mistake, newly discovered evidence, fraud). Requests under 60(b)(1)–(3) must be filed within one year. Untimely 60(b) motions typically fail absent extraordinary circumstances under 60(b)(6).
• Dependency exemptions vs. child tax credits: Although “dependency exemptions” were set to $0 under federal law from 2018 through 2025, related tax benefits like the Child Tax Credit remain. The “custodial parent” (based on overnights) generally claims the child unless a proper release (IRS Form 8332) is executed. State courts can order a parent to sign Form 8332 but cannot bind the IRS without it.
• Preservation: To raise an issue on appeal, it must be presented to and ruled on by the trial court, with sufficient specificity and supporting evidence.

Conclusion

This entry order underscores three practical points in Vermont child support litigation. First, a well‑supported deviation analysis can sustain a support outcome—here, preserving a zero‑support order coupled with a tuition‑sharing arrangement—even if a movant invokes the 10% modification threshold. Second, courts may consider in‑kind employment benefits as part of the custodial parent’s financial resources when deciding deviation, while respecting the statutory definition of gross income for guideline calculation. Third, efforts to retroactively or prospectively judicially reallocate child tax credits after a final order are constrained by Rule 60(b)’s one‑year time bar and by federal law’s custodial‑parent presumption absent a proper release.

While nonprecedential, the Court’s reasoning offers a roadmap: build a record on the § 659(a) factors (including reliance on educational arrangements), raise and quantify any tax‑allocation mismatches at the trial level, and address timeliness rigorously when seeking post‑judgment relief. The unresolved interpretive question about § 660(b)’s 10% clause awaits a precedential decision—but, as this case shows, deviation can be outcome‑determinative regardless.