Opinion
11-P-627
04-03-2012
JOSEPH F. SORENTI, JR. v. KELLI LIETUVIETIS.
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
The plaintiff and defendant-in-counterclaim, Joseph F. Sorenti, Jr. (father), appeals from a judgment of the Probate and Family Court on his amended complaint for modification and on a counterclaim for modification brought by the defendant and plaintiff-in-counterclaim, Kelli Lietuvietis (mother). We affirm.
Discussion. The pertinent facts are as follows, with other material facts reserved for discussion of specific issues. The parties divorced in 2001. The divorce judgment provided, among other things, for joint legal and shared physical custody of their two children and the payment of child support by the father. On February 1, 2010, however, the parties entered into a partial stipulation transferring sole physical custody of the children to the father. The father does not include that stipulation in his record appendix.
Pursuant to the divorce decree, the father was to pay $175 per week in child support to the mother, which amount included a $25 per week contribution to the cost of medical insurance. The mother was required to maintain health insurance through her employment to benefit the children and the father 'so long as a policy is available through the Wife's employment and so long as the Husband is eligible under [G. L. c. 175, § 110(l)].' By stipulation entered April 5, 2010, the parties agreed to end the father's child support obligations. As with the February 1, 2010, agreement, the father likewise does not include this stipulation in his record appendix.
Regarding the mother's obligation to provide health insurance coverage for the father, the judge determined that although insurance benefits for the father through the mother's employment were terminated on December 31, 2003, she did not notify him of this fact, and the father continued his $25 per week health insurance contributions.
The children were covered by MassHealth from January 1, 2004, until May, 2005, when the mother remarried and the children began receiving health and dental insurance coverage through her husband's employer. The judge concluded that the mother incurred no expense for the MassHealth coverage.
On May 3, 2010, the father filed an amended complaint for modification regarding various financial matters. The mother filed a counterclaim for modification and an amended counterclaim for modification that the father has not included in the record before us. The matter was tried on August 17, 2010. Judgment issued September 13, 2010, nunc pro tunc to February 18, 2010.
The judge ordered the mother to pay the father $105 per week in child support from September 24, 2010, onward and determined that the order was to be retroactive to February 1, 2010. The judge arrived at this total, as here relevant, by deducting $25 per week from the mother's support obligation to account for the father's required contribution to the children's health insurance coverage and his obligation to pay half of the children's uninsured medical and dental care expenses. In doing so, the judge credited the mother's testimony that she had paid for such uninsured medical expenses since the divorce.
The 2001 divorce decree also required the parties to share equally the cost of their children's uninsured medical and dental expenses. In allowing this deduction, the judge ordered the mother to assume sole responsibility for all uninsured medical expenses going forward.
Accordingly, the mother was required to pay the father $3,570 in 'back' child support payments covering the 34-week retroactivity period. She also was ordered to reimburse him $1,350 for child support he paid after the February 1, 2010, stipulation that memorialized the transfer of custody, and to refund the father's weekly $25 health care contributions for the period between January, 2004, and May, 2005. The father then brought the present appeal.
1. The mother's child support order. Both parties filed financial statements at trial indicating that each then earned far less than at the time of their divorce. The judge, who had also presided over the parties' divorce, discounted both statements and concluded that neither party had presented sufficient evidence to warrant a conclusion that their respective incomes had changed since the 2001 divorce judgment. The judge also specifically concluded that the father's portrayal of his income 'is simply not credible, and thus is incredible' (emphasis original).
The father now disputes the amount of the mother's child support obligation, arguing that the judge should have imputed a lower income to him and a higher income to her. Although the father's record appendix includes his financial statement and that of the mother, it contains none of the other related exhibits, such as the father's tax returns, that were before the judge. We are thus constrained in our review of the father's claim of error. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Regardless, it is clear that the judge's conclusions regarding the income of the parties hinged largely on his evaluation of their credibility.
It is well settled that, when a probate judge is asked to determine whether an asserted material change in circumstances warrants a modification order, it is up to the judge to weigh the relevant circumstances. See Bush v. Bush, 402 Mass. 406, 411 (1988) ('Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial '); see also Downey v. Downey, 55 Mass. App. Ct. 812, 815-816 (2002), and cases cited. On this record, we discern no basis upon which to upset the judge's determination as to the amount of the order.
2. Order to reimburse child support. The father also argues that the judge should not have rejected his claim that he is due reimbursement for child support payments dating back to April, 2007, at which time he asserts the transfer of custody occurred. We disagree.
Whether to give retroactive effect to a modification order for child support is a decision within the sound discretion of the judge. See Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999). On the record provided to us by the father, we perceive no abuse of discretion here. Compare id. at 811-812. The best we can deduce is that the judge's determination was based on his evaluation of the parties' credibility and the fact that the stipulation memorialized the transfer as occurring in February, 2010. In any event, the mother disputed the father's claim as to when the children began residing with him, and the judge concluded that the mother's testimony 'was by far more credible' (emphasis original). The father provides us with no basis upon which to conclude that the judge erred with regard to the reimbursement order.
3. Health insurance contributions. Finally, the father argues that the judge erred in reducing the mother's weekly child support obligation by $25 per week and in ordering her to refund the $25 health insurance contributions he paid, but only between January 1, 2004, and May 15, 2005. The father bases these appellate arguments on various inferences he draws from the trial testimony and the judge's decision. It does not appear, however, from the sparse and disjointed record before us that either claim was raised below. Consequently, we do not reach them. See Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 848 (2002), citing Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000).
Even if we were to assume these claims had not been waived, they would be unavailing. The father has not shown that the judge's factual findings concerning health insurance contributions were clearly erroneous or that the judge impermissibly exercised his discretion. See Connolly v. Connolly, 400 Mass. 1002, 1003 (1987); Richards v. Mason, 54 Mass. App. Ct. 568, 572-573 (2002), and cases cited.
The amended consolidated judgment dated September 13, 2010, is affirmed.
So ordered.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),