Opinion
16-P-1195
06-12-2017
Kate E. SEIM v. Jason R. ESTES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from (1) a Probate and Family Court July 24, 2015, judgment on the mother's April 2, 2015, complaints for contempt and for modification and his counterclaim for modification; and (2) a November 23, 2015, judgment on the mother's September 14, 2015, complaint for contempt. The father challenges the judge's determination of his share of the parties' son's college costs and the judge's decision not to order the son to apply for an unsecured loan. We affirm.
Background. The parties, who never married, are the parents of a son born in 1996. On March 30, 2000, the parties entered into an agreement for judgment that provided, in part, for shared legal custody and for physical custody with the mother. After some years the son moved from the mother's home in Massachusetts to live with the father in Harrison, New York. On January 26, 2012, the parties entered into a stipulation that was incorporated into a modification judgment of the same date. It provided, in part, that the son "shall continue to reside with the Father" and that the father would have physical custody. In November of 2014, after turning eighteen and while a senior in high school, the son moved to a friend's house in Harrison because of a conflict with the father.
On April 2, 2015, the mother filed a complaint for contempt, alleging that the father had failed to pay various college-related and other expenses. She also filed a complaint for modification, seeking child support, on the ground that the father had stopped financially supporting the son as of November of 2014, leaving her as the only source of support. The father answered and counterclaimed, seeking to have the son declared emancipated and to terminate the father's obligations to the son, including payment of the father's share of the college costs.
The 2012 judgment required the parties to split the cost equally for the son's scholastic aptitude test (SAT) preparation courses, SAT fees, and college application fees.
After a trial, the judge issued a memorandum and an order for judgment on July 24, 2015. She found that in the spring of 2015, the son completed his senior year of high school in Harrison and was accepted to Bryant University (Bryant) in Rhode Island, which awarded him $20,000 in scholarships, leaving a remaining freshman year college cost of $35,614. At the time of trial, the father was earning $5,288 per week as a sales director for a corporation and the mother was earning $1,051 per week as a nurse. Relying on a provision in the parties' 2000 agreement for judgment, the judge ordered the father to pay eighty percent, and the mother twenty percent, of the son's freshman year college costs. The father appealed.
The judge determined: "In their Agreement for Judgment dated May 3, 2000, the parties agreed to share [the son's] college expenses ‘in proportion to the parties[’] ... gross income as defined by the Internal Revenue Code and as reported in the last previous tax year to the due date of the educational obligation.' " Based on the parties' financial statements filed at trial, the judge calculated "that Father's responsibility for [the son's] college expenses is eighty percent (80%, or $28,291.20) and Mother's responsibility is twenty percent (20% or $7,322.80)."
We understand the judge's reference to the May 3, 2000, agreement for judgment as referring to the agreement dated March 30, 2000, and stamped as filed in the Probate and Family Court on May 2, 2000, as included in the record appendix. No judgment dated May 3, 2000, nor any docket sheet covering the period prior to June, 2008, was included in the record appendix.
On September 14, 2015, the mother filed a complaint for contempt asserting that the father had violated the July 24, 2015, judgment by, inter alia, failing to pay his share of the college costs. After a hearing, the judge issued an order for judgment on November 23, 2015, which ruled on the father's obligation for the son's college costs and denied the father's request for an order requiring the son to apply for a loan. The father again appealed. The two appeals were consolidated in this court.
Discussion. 1. College costs. On appeal, the father does not challenge the ruling that he pay eighty percent of the son's college costs and the mother pay twenty percent, but he challenges the judge's determination of the total amount of the college costs, $35,614, for which the parties were responsible. The father argues that the judge improperly applied the following provision incorporated in the January 26, 2012, judgment:
Our review has been complicated by deficiencies in the record appendix and the father's brief. In addition to the issues mentioned in note 2, supra, the record appendix does not include the mother's April 2, 2015, complaint for contempt, the parties' financial statements, an exhibit list, or exhibit numbers for the purported exhibits contained therein. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). The father's brief contains neither Massachusetts case citations nor proper citations to his record appendix. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-86 (1995). See also Mass.R.A.P. 16(a), as amended, 428 Mass. 1603 (1999).
"Regardless of what college/university [the son] attends, the parties agree that their financial obligation for college education expenses set forth herein shall not exceed an amount corresponding to a four year college education at the University of Massachusetts at Amherst [UMass Amherst] in each year of [the son's] attendance at college."
The father asserts that the judge should have compared the costs for one year at UMass Amherst to the costs for one year at Bryant, and that the parties are not responsible for any amount in excess of the costs for one year at UMass Amherst.
This argument was not made in the trial court and thus is waived. See Trapp v. Roden, 473 Mass. 210, 220 n.12 (2015). The father's position in his counterclaim for modification was that he should not be held responsible for the son's college expenses at all, because the son was emancipated. His position at trial, contrary to the provision in the January 26, 2012, judgment, was that he "want[ed] the parties to share the family's share of tuition and costs equally." We find no indication in any of the materials included in the record appendix, including the judge's memorandum and order for judgment, that the father questioned the total amount for which he and the mother are responsible.
In any event, the father's interpretation of the provision in question is not supported by its literal language—quoted, supra, but not substantively addressed in the father's appellate argument—which limits the parties' total college cost obligation in any one year to an amount equal to the cost for four years at UMass Amherst. Even if his interpretation calling for a one-year-to-one-year comparison were correct, it would make no difference here, because the judge found that the total cost to the parties of the son's freshman year at Bryant, $35,614, was less than the cost for one year at UMass Amherst, $37,914, a figure that the father furnished to the mother.
We do not reach the father's argument that the appropriate measure is the annual cost of UMass Amherst for a resident, rather than the higher, nonresident cost to which the father asserts the $37,914 figure corresponds, because there is no indication that he raised this argument in the trial court, let alone established that the son would qualify for resident tuition and other costs in 2015-2016.
2. Son's obligation to apply for loan. The father argues that the judge erred by not requiring the son to apply for an unsecured loan to defray college costs. The judge determined that the judgment of July 24, 2015, requiring the father to pay eighty percent and the mother to pay twenty percent of college expenses for the 2015-2016 year, had modified the provisions of the 2000 and 2012 judgments concerning the parties' and the son's "cooperat[ion]," and the parties' "encouragement" to the son, in seeking scholarships, loans, and other sources of financial assistance for college costs. The father argues that the judge misinterpreted the effect of her own judgment of July 24, 2015—which was issued based on a complaint for modification that he argues did not address the 2000 and 2012 judgments—and that the provisions of those earlier judgments regarding loans remained in effect. Even if that were the case, however, we do not read the 2000 and 2012 judgments as requiring the son to apply for loans of any particular type.
Nor, despite the confusing arguments in the father's brief, was there any evidence—as opposed to representations of the father's counsel at trial—that the son had been finally determined eligible for, had obtained, or had refused, the unsecured loan that is the subject of the father's argument. The only evidence on that issue in the materials before us is an electronic mail message from 2014 indicating that the son "may be eligible" for such a loan.
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3. Appellate attorney's fees. We grant the mother's request for appellate attorney's fees with regard to the appeal of the July 24, 2015, judgment only. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). The mother is invited to file a verified and itemized application for fees and costs within fourteen days of the date of the rescript, and the father will have fourteen days thereafter in which to file any opposition to the amounts requested. See Fabre v. Walton, 441 Mass. 9, 10 (2004).
Judgments affirmed.