Opinion
No. 11–P–1647.
2013-01-29
John BUSH v. Jane May HAN & others.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendants, Jane May Han (mother), Chia Ling Huang, and Yu Pin Ho, from a judgment of the Probate and Family Court dated March 31, 2011, after a trial, which ordered in part that the sum of $57,878.90 contained in a fund established by the parties in 2002 be paid to the plaintiff, John Bush (father), to reimburse the father for costs he incurred in connection with post-secondary education expenses of the two sons of the father and mother.
For the reasons that follow, we affirm. Background. The mother and father were married in 1986 and divorced in 1995 pursuant to a separation agreement which made no provision for college expenses for their two children, I.H. Bush and J.H. Bush. In 1998, the father was awarded legal and physical custody of the children. Thereafter, the father filed a civil action in the Probate and Family Court seeking equitable relief based on allegations of a tangle of transactions between the mother and the other defendants involving transfers of real property and cash that were enabled by pre-divorce assets which the mother did not report in her financial statements filed with the court.
The judgment in question specifies payments to be made from the fund as follows: (1) $35,831.76 to the father for expenses relating to son I.H. Bush prior to January 1, 2009; (2) $6,911.78 to the father for expenses relating to son I.H. Bush after January 1, 2009; (3) $1,772.00 to the father which represents fifty percent of the cost of son I.H. Bush's unpaid spring 2010 semester tuition at SUNY Albany University upon proof of payment; (4) $4,894.50 to the father for expenses relating to son J.H. Bush prior to January 1, 2009; (5) $8,468.86 to the father for expenses relating to son J.H. Bush after January 1, 2009; (6) fifty percent of the invoices rendered by Queen's College or other accredited institution for tuition, books, fees, and the like incurred by son J.H. Bush (or if invoices are paid by the father then disbursement should be paid to the father as reimbursement); (7) fifty percent of the payments made by the father for son J.H. Bush's rent and food after August 6, 2010 (replacing room and board and books if not already covered) and to do so quarterly (June, September, January, and April) upon submission by the father of amounts paid and documentation thereof to the fund manager.
On October 3, 2002, this litigation was resolved by the entry of an “equity judgment” which ordered the parties to comply with the terms of an agreement for judgment dated October 2 and 3, 2002, that was signed by the parties and filed with the court, and was “incorporated and made a part of” the equity judgment. The agreement for judgment provided that certain escrowed funds contributed by the defendants and held by the court would be dispersed in accordance with a written “Agreement and Release” (agreement) of the same date also signed by the parties but not filed with the court.
In 1998, the judge in the original divorce proceeding found that the father's financial reporting was “forthright and credible,” while the mother's financial statements though signed under the penalties of perjury were “fraudulent over a lengthy period of years.” The judge also found that the assets the mother placed in the names of family members were her own property, and that the mother had placed bank accounts and real estate in the names of family members “to deceive the [c]ourt and others.” The judge also found that the mother had no need for alimony based on an annual income of between $100,000 and $200,000 and had the capacity to earn “a very sizable income.”
The agreement, which is part of the record on appeal, states that it is a “binding contractual agreement.” It provides in relevant part that $338,300 of the escrowed funds should be placed in an account for the benefit of the two children on terms that called for biannual payments of $16,900 to the father “representing six months of child support per payment.” The agreement also provides that the fund administrator, Aurora Financial Advisors, LLC (Aurora), is required to “[d]isburse any additional monies as may be ordered by the [c]ourt.” Finally, the agreement provides that “[u]pon emancipation of both children,” the balance of the fund should be disbursed to defendants Chia Ling Huang and Yu Pin Ho.
The term “emancipation” is defined in the agreement as follows:
The judge in the instant case, who was not the same judge as in the divorce action, found that the testimony of the mother and her sister as to the ownership of the assets used to fund the account was not credible.
“(1) Attaining the age of eighteen (18) or graduation from high school, whichever occurs last, unless a child is between ages 18 and 21 and is primarily dependent on John Bush for support. Additionally, if a child is a full-time student in a post secondary school program at an accredited educational institution, then emancipation shall be deferred to age twenty three (23) or the completion of such program of instruction, whichever occurs first;
“(2) Marriage;
“(3) Permanent residence away from the residence of the Husband. Residence at boarding school, camp or college is not to be deemed a residence away from the Husband;
“(4) Death;
“(5) Entry into the military service of the United States (provided that emancipation shall be deemed to terminate upon discharge from such service; thereafter, emancipation shall be determined in accordance with other applicable provisions of this paragraph).”
The father's “complaint for modification” of the equity judgment came before the court for trial in 2010. Based on the testimony and exhibits, the judge made findings of fact which include specific findings concerning the post-secondary educational expenses incurred by each of the children and paid by the father, as well as those that were anticipated. Although the father filed a financial statement, the mother did not. The judge found that at no time had the father sought additional monies from the fund beyond the biannual payments of $16,900 until he filed the complaint for modification. The judge did not credit testimony offered by the defendants about the renovations alleged to have been made at the mother's residence. The judge also found that “[i]t is not disputed that there is no stipulation, order, agreement or judgment referring or relating specifically to payment of post-secondary educational expenses by either party.”
Since the divorce, both children were principally dependent for support upon their father. In addition to tuition, books, fees, and room and board, the father provided them with spending money and paid a variety of expenses including medical, dental, therapy, clothing, automobile insurance, and travel insurance. The mother has not had the children in her care for more than occasional overnights in over fifteen years and has made no direct financial contribution to or for the benefit of the children. The father is a documentary film maker, age sixty-six at the time of trial, who receives $20,400 per year in Social Security income and $12,480 per year in royalty income. He resides in a one-bedroom apartment in New York and shares living expenses with a partner.
He has all but depleted his retirement accounts and owes a substantial amount of money in the form of credit card debt which he incurred in contributing to the children's expenses. The father owns no real estate.
The judge took into account the living arrangements of the two children and the father between 2002 and the date of the trial and noted that the father did not move into his current one-bedroom apartment until January, 2009.
Discussion. The mother's argument is that the probate judge overstepped his bounds in ordering money to be paid from the 2002 fund to the father because it amounted to the modification of a final judgment in an independent civil proceeding between the mother and father as to which the court lacked subject matter jurisdiction.
The brief answer is that the judge properly exercised his discretion under G.L. c. 208, § 28, as amended by St.1991, c. 173, § 1, which expressly confers jurisdiction on the Probate and Family Court to make “appropriate orders of maintenance, support and education” for any child up to the age of twenty-three who is domiciled in the home of a parent and principally dependent upon that parent for maintenance as a result of the child's enrollment in a program of education, excluding post-undergraduate costs.
Insofar as the mother claims that the judge disregarded an independent contract between the parties that addressed child support, G.L. c. 208, § 28, as amended by St.1993, c. 460, § 61, provides that “[a] modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance.” Under the mode of analysis in § 28, the father's assumption of the expenses of the children's post-secondary education not otherwise provided for by the parties and the deterioration of the father's financial condition may properly be considered a material and substantial change in circumstances, and the payment of such expenses may properly be viewed as in the best interests of the children.
In reviewing a judge's exercise of discretion under G.L. c. 208, § 28, after a trial, we uphold the judge's decision unless there is no basis for it in the record. See Bush v. Bush, 402 Mass. 406, 411 (1988). Here, as the judge specifically found, there was no order in effect prior to the 2011 judgment with respect to the payment of the expenses of post-secondary education. See Passemato v. Passemato, 427 Mass. 52, 54 (1998) (“[A]s a general rule, support orders regarding the future payment of post-high school educational costs are premature”). The 2002 agreement addresses child support and makes reference to post-secondary education only as a guideline for determining when the children reach the age of emancipation. Thus, the judge was authorized under G.L. c. 208, § 28, to apportion educational expenses on an equitable basis.
See Mandel v. Mandel, 74 Mass.App.Ct. 348, 354–355 (2009). This authority encompassed expenses incurred in the past as well as those to be incurred in the future. See Whelan v. Whelan, 74 Mass.App.Ct. 616, 627 (2009). The judge was entitled to draw all reasonable inferences against the mother because she failed to provide financial statements to the court and to the father. See Grubert v. Grubert, 20 Mass.App.Ct. 811, 822 (1985). He was also entitled to rely on the findings in the divorce and custody case in which the earlier judge found not credible the testimony by the mother that assets that once belonged to her were now owned by her family. There is ample support in the record for the judge's orders regarding reimbursement to the father of education expenses he paid and the payment of certain future education expenses. And, for the reasons noted, see note 4, supra, the judge was warranted in treating the funds managed by Aurora as an asset of the mother.
Contrary to the mother's argument, the general release contained in the agreement did not deprive the Probate and Family Court of the power to act under G.L. c. 208, § 28.
Judgment dated March 31, 2011, affirmed.