Opinion
20-P-553
10-28-2021
Simon P. ALCIERE v. Beth A. SIFTAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Simon Peter Alciere (father), filed a complaint for modification, seeking to reduce his $300 weekly child support obligation. Following a trial in the Probate and Family Court, a judge determined the incomes of the father and the mother, Beth Siftar, for purposes of calculating child support, and ordered a reduction in the father's obligation to $251 per week in accordance with the Massachusetts Child Support Guidelines, effective September 15, 2017, as amended June 15, 2018 (Guidelines). The father appeals from the modification judgment. We conclude, based on the record before us, that the judge's determination of the parties’ incomes did not rely on any clearly erroneous findings and was not an abuse of discretion. We therefore affirm.
All references to the Child Support Guidelines in this decision are to the 2018 version that was in effect at the time of trial.
Background. We set forth the facts as found by the judge, reserving additional details for discussion in the context of the issues raised. The mother and father divorced in December 2013, pursuant to a judgment of divorce nisi incorporating their separation agreement. The separation agreement required the father to pay $500 per week to the mother for the support of their minor daughter, an amount the agreement deemed a "slight deviation from the Child Support Guidelines." In May 2018, the parties agreed to reduce the father's weekly child support obligation to $300 per week but reserved the right to seek further modification. The agreement was incorporated into a modification judgment dated May 21, 2018.
On September 4, 2018, the father filed a complaint for modification of the 2018 judgment, seeking a further reduction in his child support obligation. After reviewing the limited financial records presented at trial, the judge determined the respective incomes of the father and mother. She relied on 2018 tax records to conclude that the father received $30,840 a year in income as president and owner of Simon's Stamps, Inc. (Simon's Stamps), a subchapter S corporation, and $45,769 as the proprietor of an Airbnb rental in his home. Thus, she found a total income of $76,609 annually for the father. She found the mother received $7,500 in annual rental income and $11,448.32 in annual social security income, for a total annual income of $18,948.32. Applying the Guidelines, the judge arrived at a presumptive child support order of $251 per week and entered a judgment of modification accordingly. This appeal followed.
We note that the failure of the parties to submit competent evidence of their financial records to the court and to each other left the judge with limited information upon which to make this determination.
The judge relied on Simon's Stamps's 2018 schedule K-1 and a Form 1099 issued by Airbnb, Inc. At the time of trial, the father had not filed his 2018 personal tax returns.
Discussion. The father's briefing has certain deficiencies, including a consistent failure to cite relevant authorities or citations to the trial court record. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). While "some leniency" may be appropriate when reviewing the father's appellate efforts, he remains, "as all other litigants," bound by the rules of procedure. Brown v. Chicopee Fire Fighters Ass'n, Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990). Nonetheless, we review his arguments and conclude they do not warrant appellate relief.
1. Standard of review. "When assessing a decision regarding a modification of child support, an appellate court ‘review[s] for an abuse of discretion’ " (citation omitted). P.F. v. Department of Revenue, 90 Mass. App. Ct. 707, 708 (2016). In addition, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996), quoting Mass. R. Dom. Rel. P. 52 (a) (1995).
2. Deduction of business expenses. "In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice of the trial court." G. L. c. 208, § 28. Section I(C) of the Guidelines, governing self-employment and other business income, provides that:
"[i]ncome from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely-held corporation is defined as gross receipts minus ordinary and necessary expenses required to produce income. In general, income and expenses from self-employment or operation of a business should be carefully reviewed to determine the appropriate level of gross income available to the parent to satisfy a child support obligation. In many cases, this amount will differ from a determination of business income for tax purposes."
Generally, the Guidelines and our case law "leave the definition of income flexible and the judge's discretion in its determination broad." Casey v. Casey, 79 Mass. App. Ct. 623, 634 (2011).
The father contends that the judge's determination of his income was improper because the judge did not deduct his claimed business expenses from the gross income as appearing in his 2018 tax records. He also contests the judge's conclusion that the financial documents he presented to the court were inaccurate. His arguments are unavailing.
In her findings, the judge discredited the financial documents prepared directly by the father, giving them "little weight" because the father "included debt payments that he [was] not paying, incorrectly reported a debt as being owed by the [m]other, and did not [properly disclose] self-employment income from Airbnb." Moreover, the financial documents purporting to show the father's business expenses were not included in the appellate record. Accordingly, they are not properly before us. See Yoffa v. National Shawmut Bank of Boston, 288 Mass. 422, 426 (1934). See also Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) ("When a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document"). Where, as here, the trial judge is given wide latitude to make credibility determinations, and the documents at issue are not before us, we cannot conclude that the judge's decision to discredit the financial documents was clearly erroneous. Likewise, the judge's computation of each of the father's sources of income did not constitute an abuse of discretion.
a. Simon's Stamps's income. We discern no merit to the father's claim that the judge erred in calculating his income from Simon's Stamps. When calculating the amount of gross income available for child support, a party's
"lack of records substantiating claimed business expenditures and ... commingling of business and personal expenditures [can make] it reasonable for the judge to disregard certain claimed items ... or to substitute a reasonable figure for others.... Absent substantiation of [the current year's] income, the judge could properly assume it approximated [the previous year's] income."
Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 406-407 (1998). See also M.C. v. T.K., 463 Mass. 226, 240 (2012) ("The imputation of income is appropriate where a party has made vague, misleading, or untruthful entries on a financial statement"); J.S. v. C.C., 454 Mass. 652, 664-665 (2009) ("burden of proof in relation to the treatment of an S corporation's undistributed earnings for purposes of determining income available for child support" rests on shareholder-parent).
The father claimed in a financial statement that he received negative income from Simon's Stamps, ostensibly based on the corporation's 2018 business losses. At trial, he was unable to substantiate this calculation and indicated a pervasive commingling of his business and personal assets. As such, the judge declined to deduct these alleged corporate business losses from the father's gross income, instead relying on the corporation's 2018 tax return. Nothing in the record suggests the judge's determination of the father's income was an abuse of discretion, and without reviewing the financial statement at issue, we cannot conclude otherwise. See Smith-Clarke, 44 Mass. App. Ct. at 406.
b. Airbnb income. The father's contention that the exclusion of all his claimed Airbnb expenses was improper is also unavailing. When calculating self-employment or other business income, "a judge must determine whether claimed business deductions are reasonable and necessary to the production of income." Whelan v. Whelan, 74 Mass. App. Ct. 616, 626-627 (2009). Further, each party in a child support proceeding is "obligat[ed] to provide adequate financial data to the other [parent] and to the court. A judge is entitled, barring special circumstances, to draw all reasonable inferences against a party who fails to do so." Salten v. Ackerman, 64 Mass. App. Ct. 868, 873 (2005), quoting Grubert v. Grubert, 20 Mass. App. Ct. 811, 822 (1985).
The judge noted that the father filed "a list of expenses [related to his Airbnb income], but provided no testimony about whether these expenses [were] reasonably necessary for running the business." While not included in the father's financial statement, the expenses were provided in "a document that it appear[ed] he produced, which purport[ed] to show his income and expenses for [the Airbnb] business." The judge, therefore, "disregarded all of the expenses and ... included the full" gross receipts listed on the father's 2018 Airbnb Form 1099 in her calculation of the father's income. Where the list of expenses claimed by the father is not before this court, we cannot say this determination was an abuse of discretion. See Salten, 64 Mass. App. Ct. at 873.
The judge also noted a discrepancy between the income listed on the father's self-prepared document and the income listed on the father's Form 1099 issued by Airbnb.
We note that the judge made the same determination when declining to deduct business expenses claimed by the mother related to her rental income.
3. Airbnb income as a second income. The father further argues that his income from Airbnb should be excluded as income from a second job. The Guidelines define income, with an exception not relevant here, "as gross income from whatever source." Child Support Guidelines, § I(A). They permit a judge to disregard "none, some, or all overtime income or income from ... a secondary job" if "due consideration" is given to several enumerated factors. Guidelines, § I(B)(1). However, if the payor obtains a secondary job after the child support order is entered, "there shall be a presumption that the ... secondary job income should not be considered in a future support order." Guidelines, § I(B)(2).
Here, the father asserts that he began running his Airbnb after the initial child support order was entered and that his Airbnb is a second job. Thus, he contends, he should benefit from the presumption that this income is not considered in this modification order. However, the judge found that the Airbnb activities were not a secondary job, as she concluded, inter alia, that the father was asking her to "disregard the fact that he is now earning more from Airbnb than he [did] from Simon's Stamps."
Even assuming, arguendo, that the Airbnb income stemmed from a "secondary job," the judge implicitly determined that the presumption that the income should not be considered in the child support calculation had been overcome. Indeed, the judge found that discounting the Airbnb income was "unreasonable under the circumstances and is clearly not in the child's best interest." See Guidelines, § I(B)(1) (in determining whether to disregard income from a secondary job, due consideration must be given, inter alia, to the "economic needs of ... the children, [and] the impact of the ... secondary job on the parenting plan"). In view of these findings, we conclude that the judge did not abuse her considerable discretion.
We note that the father simultaneously claims that the judge should have disregarded his Airbnb income as secondary income but considered the hours he dedicates to that job when determining whether he is fully employed for purposes of attributing income to him due to underemployment. Such a reading of the Guidelines would allow payors to reduce their support obligation by maintaining an unprofitable business or reducing hours at their primary job while earning ever greater excluded income at a "second" job that prevents the court from attributing further income to them. A mere presumption of exclusion does not compel such a result.
4. Attribution of income to the mother. Finally, we discern no merit to the claim that the judge erred by refusing to attribute income to the mother. A judge may attribute income to a parent if a finding is made that the "parent is capable of working and is unemployed or underemployed." Guidelines, § I(E)(1). The judge noted the mother's "diagnosis of Meniere's Disease and an underactive thyroid" and her doctor's opinion that she was unable to work at the time, as well as the lack of any evidence showing that the mother could earn more money through reasonable efforts or that employment for which the mother would be suited was available. Where the evidence did not demonstrate the mother's underemployment, it was not an abuse of discretion for the trial judge to decline to attribute income to her. See Casey, 79 Mass. App. Ct. at 631 (attribution improper when, among other things, the record lacked "any evidence about the availability of other full-time or part-time employment in the same geographic area").
The father contends that this conclusion was based on hearsay evidence. However, this objection was not raised below and is therefore waived. Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997).
For the foregoing reasons, we conclude that the father has not carried his burden of showing that the judge abused her discretion or made a clearly erroneous finding.
We note, and the appellee conceded at trial, that nothing precludes the father from filing a subsequent complaint for modification predicated on a showing of a material and substantial change in circumstances. See G. L. c. 208, § 28.
Judgment entered September 4, 2019, affirmed.
We deny the mother's request for costs and appellate attorney's fees.