Opinion
19-P-630
04-28-2020
Kimberly LAPINE v. David LAPINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kimberly Lapine (mother) appeals from a modification judgment of the Probate and Family Court dated February 12, 2019, in which the trial judge dismissed her complaint for modification and awarded attorney's fees to her former husband, David Lapine (father). On appeal, the mother contends that the judge (1) erred in concluding that there had been no material and substantial change since the parties' first modification judgment, (2) failed to justify a deviation from the child support guidelines, and (3) erred in awarding attorney's fees to the father. We affirm.
Background. The separation agreement and divorce judgment. The parties were divorced by a judgment nisi on April 10, 2015, that incorporated the parties' separation agreement. That separation agreement included, as relevant here, an agreement that the parties would establish a "basic shared 50/50 custodial arrangement," once the father moved out of the marital home and the children began their summer break from school in summer 2015; a child support payment of $365 per week from the mother to the father based on the father's attributed income of $60,000; and for the mother to continue to pay for health insurance for both parties and the children.
Contempt order and first modification judgment. On November 20, 2017, a judge of the Probate and Family Court entered an order of contempt against the mother, who had ceased paying child support to the father sometime in 2017. On November 10, 2017, during the contempt proceedings, the mother sought a modification of the 2015 divorce judgment. As of January 19, 2018, the parties agreed to a modification that included, in pertinent part: cessation of the mother's child support payment obligation, the father's waiver of the mother's child support arrearage, and the continued attribution of $60,000 in income to the father, who had no earnings from employment at the time, but who was working on a commission basis. In addition, the parties agreed that changes to the parties' incomes would not constitute a material change in circumstances unless either began earning " ‘substantially’ in excess" of their current earnings (either real or attributed). The judge incorporated the parties' stipulation into a modification judgment that entered that day.
Judgment also entered on the complaint for contempt.
The second modification judgment. Some seven months later, on August 14, 2018, the mother sought a second modification, founded on her allegation that the father had a new job with a $70,000 salary in addition to his previous sales position, and that her family health insurance premiums had increased substantially since the time of the divorce. She sought $325 a week in child support from the father.
Following a trial in 2019, the judge issued an amended modification judgment. In her rationale, the judge found that the father's $70,000 salary would decrease to $55,000 in accordance with his employment contract, and that he had not received any commissions from either of the sales positions he held. The judge reasoned that the father would earn an average of $62,500 for the year, plus a $500 bonus. The judge found that "[a]t the present time there is no evidence that [f]ather has earned substantially more than $60,000 which was what the parties agreed would be the basis for a [m]odification. The Court therefore does not find that there has been a substantial change in either [party's] income that would warrant the calculation of a child support order."
The judge also rejected the mother's argument that her health insurance premiums had increased substantially since the time of the parties' divorce. The judge considered only those premium increases that had occurred since the time of the first modification judgment, and found that those increases amounted to only $4.66 a week. She concluded "that this is not a basis for a support order from [f]ather or to order [f]ather to contribute to these expenses." Finally, the judge found that the mother had no basis to pursue her second complaint for modification, and ordered that she pay the father $3,500 for attorney's fees.
Discussion. 1. Second modification. General Laws c. 208, § 28, provides a court discretion to modify "its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred," but also requires a judge to consider a modification of child support "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice of the trial court." G. L. c. 208, § 28. See Child Support Guidelines § III.A(5) (2018) (material and substantial change standard), and § III.A(1) (inconsistency standard). See also Morales v. Morales, 464 Mass. 507, 508 (2013). The mother contends on appeal that the trial judge erred by failing to find that there had been a material and substantial change in circumstances, and by deviating from the child support guidelines without providing a written explanation.
"We review a judge's decision denying or allowing modification of a child support order for abuse of discretion" (citations omitted). Bobblis v. Costa, 94 Mass. App. Ct. 264, 266 (2018). "An abuse of discretion may be found where a trial judge has made a clear error in weighing the relevant factors for a modification, so that the ‘decision falls outside the range of reasonable alternatives.’ " Id., quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
a. Material and substantial change standard. The mother argues that the father's income is $70,975, and contends that this amount is substantially more than the $60,000 income attributed to him in both the divorce judgment and first modification judgment. The father's contract called for payment of $70,000 in the first year, and $55,000 in the second, but he began the new position midyear. The judge, crediting the father's testimony, averaged the two rates, and found that the father would make $62,500 in 2019, plus a $500 bonus. See Whelan v. Whelan, 74 Mass. App. Ct. 616, 623 (2009) (averaging parent's fluctuating income where there was "compelling evidence" to support averaged level). The judge did not abuse her discretion when she found that the father's $2,500 increase above his previously agreed upon attributed income was not a material and substantial change in circumstances.
The mother also contends that her health insurance premiums have increased substantially since the 2015 divorce judgment, and that these increased costs constitute a material and substantial change in circumstances. The judge declined to consider evidence of the cost of health insurance premiums before the first modification judgment dated January 19, 2018, and found that the mother's health insurance premiums had increased only $4.66 a week thereafter. On appeal, the mother now argues that, to evaluate whether there has been a material and substantial change, the judge should look to the first modification judgment for issues addressed by that judgment, and to the original divorce judgment for issues not addressed in the first modification judgment, such as health insurance costs.
The mother offers no support for this interpretation of G. L. c. 208, § 28, and we can find none. Modification judgments are judgments. G. L. c. 208, § 28 ("the court may make a judgment modifying its earlier judgment"). Moreover, divorce judgments are an area where "public policy supports enforcement of [court-authorized] agreements that lend ‘finality and predictability ... and [to] avoid[ ] recurrent litigation in the highly charged emotional area of divorce law.’ " White v. Laingor, 434 Mass. 64, 68 (2001), quoting Ames v. Perry, 406 Mass. 236, 240-241 (1989). See Mass. R. Dom. Rel. P. 60. The parties' agreement regarding the first modification was the occasion to address rising health insurance costs between the time of the original divorce judgment and the first modification. Contrast Malachi M. v. Quintina Q., 483 Mass. 725, 732-736 (2019) (permitting consideration of evidence of abuse predating previous judgment in custody proceedings).
Finally, the mother argues that her bankruptcy constitutes a substantial change in circumstances. The judge found that the evidence regarding the mother's bankruptcy was insufficient to permit the court to distinguish between marital debt and after-acquired debt, but held that, because the mother was required at the time of the first modification judgment to pay a portion of the marital debt, her bankruptcy did not constitute a substantial change in circumstances. This was not error. The first modification judgment states that "[a]ll prior judgments and orders, not otherwise modified herein, shall remain in effect," thus incorporating any unchanged provisions from the original divorce judgment, including the mother's obligation to pay her agreed-upon share of the marital debt.
b. Inconsistency standard. The mother next contends that the child support guidelines require that the father pay her $325 a week, and that the second modification judgment denying both parties child support was a deviation, which the judge failed to support with specific written findings. See Morales, 464 Mass. at 511 ("modification is presumptively required whenever there is an inconsistency between the amount of child support ... under the existing support order and the amount ... under the guidelines"); G. L. c. 119A, § 13 (c ) ; G. L. c. 208, § 28. See also Child Support Guidelines § IV.A (2018).
When deviating from the guidelines, "the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines, that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines and that such departure is consistent with the best interests of the child." G. L. c. 119A, § 13 (c).
"There shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child. The order shall be modified accordingly unless the inconsistency between the amount of the existing order and the amount of the order that would result from application of the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that there has been no change in the circumstances which resulted in such rebuttal; provided, however, that even if the specific facts that justified departure from the guidelines upon entry of the existing order remain in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the child. A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance." G. L. c. 208, § 28.
We observe at the outset that the mother has not shown that the guidelines are applicable. The reported income of the mother and the father, as found by the judge, totaled approximately $220,000. The judge found that the mother had received substantial "perks," including reimbursed meal expenses for meals out and meals while on vacation, and reimbursed travel expenses for trips on which she was permitted to bring her children. The judge also found that she had refused to provide any documentation of the value of those benefits. In the absence of that documentation, the mother failed to establish that the parties combined income was below the $250,000 guideline threshold. See Child Support Guidelines § II.C.2 (2018).
Even if the guidelines did apply, we conclude that the written findings made by the judge establish a basis for a continued deviation. Although the mother contends that the inconsistency standard in § III.A of the guidelines controls, we conclude that the second modification judgment was a modification of an existing deviation, and that § III.B therefore governs. Section III.B provides that the existing deviation controls over the amounts otherwise due under the guidelines if "1. the facts that gave rise to deviation still exist; and 2. deviation continues to be in the child's best interest; and 3. the guidelines amount would be unjust or inappropriate under the circumstances." Id.
The first modification arose under the 2017 guidelines; the proposed 50:50 custody arrangement resulted in a deviation. See Child Support Guidelines § II.D.1-3 (2017). Although the judge in the first modification judgment did not "enter[ ] specific written findings" supporting deviation, see § IV.A, neither party appealed the first modification judgment, which is now final. G. L. c. 215, § 9. See generally Heacock v. Heacock, 402 Mass. 21, 22 (1988).
Although the judge did not specifically address these three prongs of the guidelines, her findings demonstrate that each prong was satisfied. The mother's failure to fully disclose her income impeded the judge's ability to do an accurate comparative guideline calculation. See G. L. c. 119A, § 13 (c ). Turning to the findings the judge could make, it follows from the judge's finding that there had not been a material and substantial change since the first modification judgment and that the facts giving rise to that judgment still existed. Neither party claimed that the existing deviation no longer served the children's best interests. Finally, the judge did not abuse her discretion by declining to permit the mother to obtain a new modification judgment a scant seven months after the father agreed to waive significant child support arrearages and to forgo future child support in the first modification judgment. "A judge who modifies a divorce judgment does not write on a tabula rasa. To the extent possible, and consistent with common sense and justice, the modified judgment should take into account the earlier, expressed desires of the parties." Katzman v. Healy, 77 Mass. App. Ct. 589, 598 (2010), quoting Bercume v. Bercume, 428 Mass. 635, 644 (1999). The equities did not compel the judge to revisit the deviation agreed upon in the first modification judgment after the father gave up his right to unpaid and future child support. The second modification judgment was, accordingly, a permissible continued deviation under § III.B of the guidelines.
The same judge, who has since retired, considered both the first and second complaints for modification, and was familiar with the facts underlying both actions. While we agree that it would have been preferable to include a written finding explicitly referencing the inconsistency standard, see G. L. c. 119A, § 13 (c ), and G. L. c. 208, § 28, we conclude the findings that were made demonstrate that the judge determined that a continued deviation was warranted.
2. Fees and costs. The mother argues that the judge erred in awarding the father $3,500 in attorney's fees. Under G. L. c. 208, § 38, "[a] judge has discretion to award fees even in the absence of bad faith or frivolous claims or defenses." Wasson v. Wasson, 81 Mass. App. Ct. 574, 582 (2012), citing Cooper v. Cooper, 62 Mass. App. Ct. 130, 141-142 (2004). Contrast G. L. c. 231, § 6F. "We will not disturb an order awarding attorney's fees except upon a showing of an abuse of ... discretion" (citation omitted). Brooks v. Brooks, 65 Mass. App. Ct. 129, 132 (2005).
The judge did not abuse her discretion. Although the judge's rationale for her award of attorney's fees was brief, she had knowledge of "all relevant factors, including the ability of the [father]'s counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties." She was in a particularly good position -- as the judge who presided over the parties' first modification less than a year earlier -- to determine whether the mother's complaint attempted to relitigate issues the parties had just resolved. See Downey v. Downey, 55 Mass. App. Ct. 812, 819 (2002).
Judgment affirmed.