Opinion
20-P-323
06-07-2021
ELLEN S. ROBBINS v. STEWART W. KEMP.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ellen S. Robbins (mother) and Stewart W. Kemp (father), the never married parents of one child, both appeal from a Probate and Family Court modification judgment dated August 9, 2019. The mother principally challenges the reduction of the father's child support obligation (retroactive to November 29, 2016, the date of service of his complaint for modification), and the order requiring her to reimburse the father for his overpayment of child support during the pendency of the modification proceedings. The father principally challenges the amount of his modified child support obligation, the denial of his request for sole legal and primary physical custody, and certain rulings made by the judge pertaining to the guardian ad litem (GAL). We vacate so much of the modification judgment as pertains to child support and remand the case for further proceedings consistent with this memorandum and order. The modification judgment is otherwise affirmed.
Background.
We summarize the relevant facts found by the judge, supplementing them with undisputed evidence in the record and reserving other facts for later discussion. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). Pursuant to a 2007 judgment, as modified in 2009, the parties received joint legal custody, the mother received primary physical custody, and the father received liberal parenting time with the child.
In December 2013, following a modification trial, a judge of the Probate and Family Court (first judge) issued an amended modification judgment (2013 judgment) ordering the father to pay weekly child support of $625. In arriving at that amount, the first judge calculated the minimum presumptive order required by the Child Support Guidelines (guidelines) of $525 per week, based on the father's reported gross weekly income of $5,261, and the mother's reported gross weekly income of $3,081.90. The judge found, however, that the "mother ha[d] borne the entire burden of extracurricular and enrichment expenses incurred on behalf of [the child]," thus it was "equitable and reasonable for [the] father to pay $625.00 per week, an additional $5,200.00 per year to contribute to the types of enrichment activities that [the child] has enjoyed and will likely continue to engage in." The father appealed from the 2013 judgment, which a different panel of this court affirmed in an unpublished memorandum and order. See Kemp v. Robbins, 87 Mass.App.Ct. 1123 (2015) .
In 2016, the father filed a complaint for modification seeking to terminate or, alternatively, reduce his weekly child support obligation on the alleged basis that his income had decreased. The father also requested sole legal and primary physical custody of the child. At the father's request, a GAL was appointed to investigate and make recommendations regarding custody and an appropriate parenting plan for the child. The father later moved to strike the GAL's report, primarily because he disagreed with the GAL's recommendations. By that time, the case had been assigned to a different judge (second judge), who denied the father's motion to strike. A two-day trial was held before the second judge in September 2018. The judge informed the parties that "the GAL report would be marked as an uncontested [e]xhibit subject to cross examination by either party"; however, neither party called the GAL as a witness.
On August 9, 2019, the second judge issued a modification judgment. The judge retroactively reduced the father's weekly child support obligation of $625 to $508 between November 2016 and January 2017, $526 between February 2017 and December 2017, and $535 as of January 2018.' In addition to reducing the father's weekly child support obligation, the judge granted the father a credit of $303.02 per week for social security dependency benefits received by the mother for the child based on the father's eligibility for social security on February 25, 2017 (his seventieth birthday). The judge ordered the mother to reimburse the father by October 2019 for a portion of his child support overpayments made since November 2016, and suspended the father's net child support obligation for 169 weeks to account for the remainder of the father's overpayments since November 2016.
The modification judgment stated that the weekly amount of $535 would commence in January 2019; however, 2019 appears to be a scrivener's error, as the judge indicated in her findings that this amount would commence in January 2018.
In reducing the father's weekly child support obligation, the second judge "eliminated" the "provision that Father pay $100 per week for extracurricular activities . . ., retroactive to November 29, 2016," and recalculated the minimum presumptive order required by the guidelines using the parties' current incomes. Although the second judge apparently treated the father's child support obligation as a base obligation of $525 per week, with a separate obligation to contribute $100 per week for extracurricular expenses, no separate provision was made for the payment of extracurricular expenses in the 2013 judgment. Rather, the first judge simply ordered the father to pay weekly child support of $625 -- an amount that the first judge arrived at by making an upward adjustment from the minimum presumptive amount required by the guidelines ($525). See Child Support Guidelines, § II.C (2013). Accordingly, the second judge's decision to "eliminate" the upward adjustment of $100 per week represented a downward modification of the father's weekly child support obligation, rather than a termination of a separate obligation to pay for extracurricular expenses.
With respect to custody, the second judge left the previous custody and parenting time provisions largely unchanged, with the mother retaining primary physical custody and the parties continuing to have joint legal custody. The judge, however, granted the mother sole decision-making authority regarding the child's orthodontia treatment, provided that the mother paid for the entirety of such treatment. The judge also made the father solely responsible for payment of the GAL's fee. Both parties timely appealed.
Discussion.
1. Modification of child support.
"Our review of a child support modification judgment is limited to whether the judge's factual findings were clearly erroneous, whether there were other errors of law, and whether the judge appears to have based [the] decision on the exercise of sound discretion." Lizardo v. Ortega, 91 Mass.App.Ct. 687, 691-692 (2017). The mother contends that it was error to reduce the father's child support obligation because he failed to meet his burden of demonstrating that such a reduction was warranted. We agree.
As the party seeking a downward modification of child support, the father had the burden of showing that a "material and substantial change in circumstances ha[d] occurred" since the entry of the prior judgment. Child Support Guidelines, § III.A.5 (2018). See G. L. c. 209C, § 20; Schuler v. Schuler, 382 Mass. 366, 368 (1981) ("To be successful in an action to modify a judgment for . . . child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment"). The change may be in the financial circumstances of the parties or in the needs of the child. See Brooks v. Piela, 61 Mass.App.Ct. 731, 734-735 (2004).
The father neither argued nor demonstrated that he was entitled to a modification on the alternate ground of an inconsistency between the amount of the existing child support order and the amount resulting from an application of the current guidelines to the parties' combined available income (inconsistency standard). See Child Support Guidelines, § III.A.l (2018). See also Morales v. Morales, 464 Mass. 507, 511-512 (2013) (inconsistency standard creates rebuttable presumption of modification). Furthermore, the inconsistency standard applies only in cases -- unlike the present case -- where the parties' combined available income is under $250,000. See Id. at 510 n.4.
Here, the judge did not expressly find that there had been a material and substantial change in circumstances justifying a reduction in child support, nor can such a conclusion be drawn from the judge's subsidiary findings or the record. To the contrary, the judge found that the father's income had "substantially increased since the 2013 [J]udgment" (emphasis added). See Whelan v. Whelan, 74 Mass.App.Ct. 616, 623 (2009) (error to reduce father's child support obligation where "evidence at trial established that . . . father's earnings had not decreased but indeed had increased substantially" since prior judgment). The father claims, however, that this finding is clearly erroneous. We disagree.
The judge did not find a material and substantial change in the mother's income that might otherwise justify the reduction in child support.
At the time of the 2013 modification trial, the father reported earning total gross weekly income of $5,261. The father claimed that his income had decreased since 2013, reporting total gross weekly income of $4,931 on his September 2018 financial statement. The judge did not find this amount credible, instead finding the father's total gross weekly income to be $7,249.02 (comprising his base salary, social security income, net rental income, investment income, bonus income, and the social security dependency credit for the parties' child). Insofar as the father claims error in the judge's finding that he underreported his income, the father is, in essence, challenging the judge's assessment of his credibility -- an assessment that we decline to disturb. See Johnston v. Johnston, 38 Mass.App.Ct. 531, 536 (1995) (credibility is "quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings").
The second judge found that, based on the father's 2013 tax return (which was not in evidence at the time of the 2013 trial), the father had "substantially underreported" his income in 2013. However, the first judge appeared to rely on the father's reported income when calculating the $625 per week child support order.
We are likewise unpersuaded by the father's contention that the judge erred when calculating various aspects of his income. As an initial matter, we note that the father did not provide any citations to relevant legal authorities in support of these arguments. See Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996). Moreover, we discern no merit in the father's claims. It was not error for the judge to consider the father's gross salary before deductions for retirement contributions, see Child Support Guidelines, § I.A (2018) ("income" is defined as "gross income from whatever source, regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority" [emphasis added]), nor was it error to include the father's rental income and disregard any claimed expenses that the father failed to support with credible evidence. See Whelan, 74 Mass.App.Ct. at 627 (judge must determine whether claimed business expenses "are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes"); Child Support Guidelines, § I.C (2018) ("Income from self-employment, rent, . . . [or] proprietorship of a business, ... is defined as gross receipts minus ordinary and necessary expenses required to produce income. ... In many cases, this amount will differ from a determination of business income for tax purposes"). We therefore discern no error in the judge's finding that the father's income had "substantially increased since the 2013 [j]udgment."
The judge found the father's net rental income to be $200 per week, based on the father's 2013, 2014, and 2015 tax returns, rather than $30 per week as reported on the father's September 2018 financial statement. Although the trial took place in September 2018, the father did not provide tax returns more recent than 2015, nor did he provide any other documentation to support the claimed expenses on his financial statement. The judge declined to credit much of the father's claimed expenses, including his assertion that he would incur losses due to ongoing vacancies at his rental properties.
The father's contention that it was "completely wrong" for the judge to include his passive interest income for purposes of child support is equally unavailing. See Child Support Guidelines, § I.A (2018) (included in definition of "income" to be considered for purposes of child support is "interest and dividends" and "any other form of income or compensation").
Despite this finding, however, the judge reduced the father's weekly child support obligation. The sole basis articulated by the judge for the downward modification of child support was the decrease in the child's extracurricular expenses since 2013. Although a material and substantial change in the child's needs may be an appropriate basis for modifying child support, see Brooks, 61 Mass.App.Ct. at 734-735, there is no indication that the existing child support order of $625 per week was contingent on a certain spending threshold for the child's extracurricular expenses. Rather, the first judge exercised his discretion to make an upward adjustment above the minimum presumptive order required by the guidelines, in light of the child's standard of living and the father's financial resources. See Id. at 735. Where, as here, the father's income had substantially increased since the 2013 judgment and the child continued to participate in various extracurricular activities in 2018 (albeit fewer than in 2013), the reduction of the father's child support obligation solely on the basis of the child's reduced extracurricular expenses leaves us "with the definite and firm conviction that a mistake has been committed." Whelan, 74 Mass.App.Ct. at 624, quoting Guardianship of Clyde, 44 Mass.App.Ct. 767, 774 (1998). Neither the judge's findings nor the record demonstrate that the father met his burden of showing a material and substantial change in circumstances warranting a downward modification of child support. See Whelan, supra. Accordingly, so much of the modification judgment as reduced the father's weekly child support obligation of $625 must be vacated.
Although we conclude that the second judge erred in granting the father's request for a downward modification of child support, it was not error to grant the father's request for a credit against his child support obligation for the social security dependency benefits. The father became eligible for i n social security benefits upon turning seventy on February 25, 2017, at which time the child began receiving a monthly dependency benefit of $1,303 (pretax), which is sent directly to the mother. The second judge properly applied the rule set forth in Rosenberg v. Merida, 428 Mass. 182, 185 (1998), by treating the child's dependency benefits as part of the father's gross income and then applying "a dollar-for-dollar credit (equal to the amount of the . . . dependency benefits) against the [father's] support obligation." See L.W.K. v. E.R.C., 432 Mass. 438, 451-452 (2000).
Accordingly, the father's weekly child support obligation of $625 must be reinstated, retroactive to November 29, 2016; as of February 25, 2017, the father is entitled to a social security dependency credit of $303.02 per week against his child support obligation, with the balance of $321.98 per week owed from the father to the mother. Because the modification judgment suspended the father's child support payments and required the mother to reimburse the father for certain overpayments by October 2019, on remand, the parties shall submit evidence of any reimbursement payments made by the mother to the father, and the judge shall determine the amount of child support owed by the father to the mother as a result of our disposition. The judge shall order the father to repay that amount to the mother; however, we leave to the judge's discretion the appropriate manner for repayment, whether by a lump sum or periodic installments.
2. The GAL.
The father also argues that the judge erred in admitting the GAL report into evidence, refusing to allow him to file a written rebuttal to the report and a motion in limine about the report, and by allocating the GAL costs to the father. A Probate and Family Court judge is authorized to appoint a GAL pursuant to G. L. c. 215, § 56A. "Guardian ad litem reports may properly contain hearsay information" and "[a]11 that is required is that the guardian ad litem be available to testify at trial" (citation omitted). Pizzino v. Miller, 67 Mass.App.Ct. 865, 876 (2006). Here, neither party called the GAL as a witness at trial. There is nothing in the record before us to indicate that the GAL was unavailable. While the father also argues that the GAL report is unreliable and biased in favor of the mother, he points to no prejudice resulting from this alleged bias and unreliability. Indeed, the trial judge specifically stated that she "considered the GAL report but [made] independent findings." We therefore discern no error in the judge's decision to admit the GAL report.
The father was not prevented from calling the GAL as a witness and cross-examining her on any alleged bias and inconsistencies in her report. See Gilmore v. Gilmore, 369 Mass. 598, 605 (1976) ("To promote a fair fact-finding process, cross-examination of the investigator should be permitted, subject to the rules of evidence, so that the credibility, bias, or prejudice of the investigator may be tested and the weight to be given to [the] report may be determined").
We likewise discern no error in the judge's decision to decline the father's request to file a written rebuttal to the GAL report or a motion in limine to exclude the report. Trial judges have "extensive discretion" in admitting evidence and we accord their decisions "great deference." Beaupre v. Cliff Smith & Assocs., 50 Mass.App.Ct. 480, 485 (2000). The father has not shown that the judge's rulings were an abuse of discretion or that any prejudice resulted from these decisions. Id. Furthermore, the father admits that he had the opportunity to testify "extensive[ly]" about the GAL report and its perceived shortcomings. Had the father wished to further challenge the guardian ad litem or her report, he could have called her as a witness at trial, but he did not.
The father's brief states that this motion in limine "set[ ] forth in detail the shortcomings of the GAL Report." While the record does not contain the exact contents of this motion, the discussion in this paragraph applies equally to the denial of father's attempt to file his motion in limine and his rebuttal to the guardian ad litem report.
As for the father's argument that the judge erred by requiring him to pay for the entire GAL fee of $9,400, it is not supported by any citation to relevant legal authority and therefore does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Even if we were to consider this argument, we would discern no basis for reversing the judge's order. The father alone requested the appointment of the GAL. Moreover, there is no question that the father has the means to pay the fee, as the judge found his income to exceed $7,000 per week and he reported assets exceeding $7 million on his financial statement. See practice XXXII(D) of the Uniform Practices of Probate and Family Courts ("The Court shall examine the financial ability of the parties to pay for all or a portion of the fees of the guardian ad litem so appointed and the parties shall be notified by the Court of its intention to assess the cost . . . against either or both of them"). We therefore discern no abuse of discretion in the allocation of the GAL's fee to the father.
The court notified the father of his obligation to pay for the first forty hours of the GAL investigation in a temporary order dated January 19, 2018.
Conclusion.
The second paragraph of provision numbered 11 (extracurricular activities) is vacated. Provision numbered 13 (child support) is vacated, and the provision shall be modified to provide that the father's weekly child support obligation of $625 shall be reinstated, retroactive to November 29, 2016, and that as of February 25, 2017, the father is entitled to a social security dependency credit of $303.02 per week against his child support obligation, with the balance of $321.98 per week owed from the father to the mother. The matter is remanded for the limited purpose of determining the amount and manner for the father's repayment to the mother of child support reimbursements owed to her, consistent with this memorandum and order. In all other respects, the modification judgment dated August 9, 2019, is affirmed.'
We do not address the father's arguments regarding custody and parenting time that are not supported by legal citations, as they do not rise to the level of appellate argument required under Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Gray, 423 Mass. at 296-297. See also Commonwealth v. DiRenzo, 52 Mass.App.Ct. 907, 909 (2001) (claim not supported by cogent reasoning or citation to authority deemed insufficient and waived). The father's argument section contains twenty-nine separate, unnumbered headings, some of which are arguments and most of which are merely statements of asserted facts. We have done our best to discern and address all of the actual arguments presented. Furthermore, we have considered all of the assertions made in the father's brief. Although we have not addressed every single one, we conclude that none of them merit reversal.
The father, an attorney who is representing himself on appeal, has requested an award of appellate attorney's fees and costs, arguing that the mother's appeal is frivolous. Setting aside the question whether the father may be awarded fees for representing himself, the mother's appeal is not frivolous. The father's request for appellate fees and costs is denied.
So ordered.
The panelists are listed in order of seniority.