Opinion
11-P-63
02-16-2012
WILLIAM H. PRYOR v. ELIZABETH I. DELEMOS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a postdivorce proceeding in which the issue in dispute involves the amount of child support payable by the husband. The 1999 judgment of divorce nisi incorporated the parties' 1998 settlement agreement and set the amount of child support payable by the husband, but given fluctuations in the parties' incomes, that amount has been adjusted over time. In 2001, the parties entered into a hand-written agreement for judgment (2001 agreement) that reset the amount of child support. Through the 2001 agreement, the parties also sought to resolve how future adjustments would be handled with limited need for court involvement. Specifically, the 2001 agreement stated:
'The parties shall exchange Federal income tax returns, including all supporting forms and schedules, immediately upon filing with the IRS. The parties shall then recalculate the Child Support Guidelines based on the tax returns; and child support shall be adjusted to the new amount as of July 1 of the applicable year.'
This agreement did not work as designed, and the parties continued to argue over these issues. In 2006, they were ultimately able to agree on a further adjustment in child support going forward, but they were soon back in court, with each party accusing the other of contempt. In the context of these contempt proceedings, the husband argued for a reduction in child support based on the fact that his employer had slashed his salary. The judge indicated that such an argument should be raised in a complaint for modification. The husband subsequently filed a complaint for modification, and the judge found a material change in circumstances and reduced the child support payments accordingly as of the date of the judgment. The judge expressly made no award for retroactive relief.
The wife raises a host of procedural arguments as to why this was improper, none of which we find convincing. While it may be true that the judge gave the husband -- who was acting pro se -- the benefit of the doubt as to such things as the form of his papers, there is no merit to the wife's argument that she had inadequate notice of what was being contested or that the judge's sensitivity to the husband's pro se status amounted to reversible error.
Cf. Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants § 3.2 (2006) ('Judges shall adhere to the applicable rules of evidence, but may use their discretion, when permissible, to provide self-represented litigants the opportunity to meaningfully present their cases').
Regarding the merits, at oral argument the wife conceded the probate judge's authority to adjust the amount of child support based on the reduction in the husband's income. It is also worth noting that '[a] modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance.' G. L. c. 208, § 28, as amended by St. 1993, c. 460, § 61. The wife focused on arguing that the judge improperly nullified the parties' 2001 agreement about the process by which they would set the amount of child support going forward. However, both parties acknowledged their view that they remained bound to honor their previous agreement to exchange tax returns, and they both reported that they have continued to do so. Further, it is uncontested that both parties remain free to seek court intervention in the event they cannot agree on future adjustments. Especially in light of robust evidence that the parties' 2001 agreement was not working, it is difficult to discern how any modification that the judge made to the process makes any material difference. In any event, the judge did not abuse his discretion in granting the requested relief. See Cabot v. Cabot, 55 Mass. App. Ct. 756, 765 (2002) (recognizing probate judge's considerable discretion in allowing relief on a complaint for modification). See also Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 737 (1995), and cases cited.
The judge's allowing child support to be calculated based on the husband's current income might be said to have resulted in a reduction in child support that occurred earlier than it would have under the parties' 2001 agreement (which was keyed to tax returns for the previous year). However, upon questioning at oral argument, the wife's counsel expressly disavowed making a 'time lag' argument, and any such argument has been waived.
The wife's request for attorney's fees on appeal is denied.
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Judgment dated May 17, 2010, on complaint for modification affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),