Opinion
16-P-1735
06-16-2017
David S. THORNTON v. Leslie L. THORNTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a twenty-six-year marriage, the parties were divorced in 2012. In 2015, the plaintiff (father) filed a complaint for modification through which he sought to terminate alimony and to reduce his child support obligation. Following trial, a Probate and Family Court judge ordered the entry of a judgment allowing the father some, but not all, of the relief he was seeking. On the father's appeal, we affirm.
Background. The judgment of divorce nisi incorporated the parties' separation agreement, in which they had agreed upon the division of marital assets, alimony, and child support. In particular, the parties had agreed that the father would pay the defendant (mother) alimony of $200 per week (to continue until either party died, the mother remarried, or the father reached full retirement age), and child support of $800 per week (to continue until the younger child was emancipated). The alimony and child support provisions merged into the judgment.
In June of 2015, the father filed a complaint for modification in which he sought, inter alia, termination of alimony and a reduction in his child support obligation. He alleged that such reductions were warranted because his income "has [been] drastically reduced since the Judgment of Divorce Nisi dated December 18, 2012," especially as a result of an industrial accident that he suffered on May 12, 2015. In July of 2015, the father unilaterally reduced his child support payment to $500 per week, which required the mother, a nurse, to work additional hours and prompted her to file for contempt.
The judge consolidated the father's modification action with the mother's contempt action. Following trial, the judge reduced the father's weekly child support payments from $800 per week to $650 per week, retroactive to July 3, 2015. The judge did not eliminate or reduce the alimony payments. The judge explained his reasoning in a detailed and thoughtful memorandum of decision. Based on his careful review of the evidence that the father put forward, the judge found that despite the father's 2015 injury and the other economic challenges he faced, his income actually had increased significantly since the divorce. It bears noting that the judge expressly discredited much of the father's testimony and specifically faulted his lack of candor with regard to his income, including as reported on his financial statement. The judge discredited the testimony of the father's expert that sought to demonstrate that the mother could be earning significantly more than she already was. Nevertheless, the judge recognized that the mother's income had increased since the divorce, and this was one of the factors on which the judge relied in reducing the father's child support obligation.
The judge also adjudicated how much in arrears the father owed and set a payment plan. He relieved the father of certain other obligations, either because they were due to expire or by agreement of the parties.
The judge also cited the fact that even though the children were not yet emancipated, they had both reached the age of eighteen by the time of trial.
Discussion. We accept a trial judge's findings of fact unless they have been demonstrated to be clearly erroneous. Whelan v. Whelan, 74 Mass. App. Ct. 616, 619 (2009). The father has not demonstrated any clear error with regard to the findings as to how the parties' economic circumstances have changed since the divorce. Indeed, such findings are well supported by the record, and they establish the father's failure to abide by his obligations to disclose his full economic circumstances. See Maillet v. Maillet, 64 Mass. App. Ct. 683, 690 (2005) (discussing divorcing party's "obligation to provide an accurate and current statement of his income"). To the extent that the father is arguing that a substantial and material change in circumstances compelled a further reduction in payment obligations, his argument necessarily fails.
The father additionally argues that a reduction in child support is necessary in order to bring it in line with the formula set forth in the Massachusetts Child Support Guidelines (2013) (guidelines). See Morales v. Morales, 464 Mass. 507, 510-512 (2013). As an initial matter, we note that the father's complaint for modification did not cite deviation from the guidelines as the basis for his requested modification. In addition, the guidelines have at most a limited application to this case, affecting only the brief period between the date the complaint for modification was filed and the date (prior to trial) when the younger child turned eighteen.
The father states in his appellate brief: "The Guidelines no longer apply, and any order for support is at the court's discretion, subject to consideration of certain specified factors [set forth in § II-F of the guidelines]."
In any event, the parties themselves had agreed—less than three years earlier—to an upward deviation from the presumptive guidelines support, and the guidelines themselves recognize that an agreed-to deviation continues to apply so long as three conditions are met: (1) "the facts that gave rise to deviation still exist"; (2) "deviation continues to be in the child's best interest"; and (3) "the guidelines amount would be unjust or inappropriate under the circumstances." Guidelines § III-C. The judge specifically found that the parties agreed to that deviation (and alimony) in consideration of the father's receiving "a significantly larger portion of the marital assets and the Mother's assumption of the entirety of the business-related mortgage debt" on the marital home (requiring payments of $1,700 per month).
Neither party has raised, much less briefed, the question as to which of them bears the burden of proof regarding the existence of these three factors, as between the party seeking to deviate from the amount of child support that specifically was agreed upon (in this case, the father), or the party seeking to preserve the agreed-upon amount that deviates from the guidelines formula (in this case, the mother). Because it makes no difference to the outcome of this appeal, we pass over that question.
The father is left to argue that the judge's finding as to the reason for the original deviation is clearly erroneous. The father points out that the only testimony regarding the reason for the deviation was his own. Specifically, in response to a question on cross-examination that sought confirmation that the mother's agreeing to assume the business-related mortgage debt was the reason for the award of child support in an amount greater than the guidelines, the father denied this and testified that the reason he agreed to pay the specified amounts "was because I thought if I gave [the mother] more than the guidelines, I would be able to see my daughter now." Of course, the judge was not required to accept the father's explanation. Although the parties' separation agreement did not explicitly address the reason for setting child support in an amount greater than the formula set forth in the guidelines, we discern no clear error in the judge's inferring that intent from the unusual structure of the agreement.
The father notes in passing that the judge's analysis did not take into account the father's obligation to pay a portion of the younger daughter's college expenses. However, as the mother points out, the father did not submit evidence of what such expenses might be and the judge therefore hardly can be faulted for not addressing the issue.
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Consolidated judgment affirmed.