Opinion
21-P-265
07-06-2022
MARK CRAVOTTA v. CHRISTINE L. BATTISTA.[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
The plaintiff father appeals from a Probate and Family Court judgment modifying his child support obligation. The father's principal argument is that the judge abused her discretion in failing to reduce his child support arrearage by the Social Security Disability Insurance (SSDI) benefits paid to the mother for the benefit of their minor children. We affirm.
Background.
The mother and father were divorced in August 2009. The mother was awarded custody of their three children and the father was ordered to pay $200 per week in child support. In late 2018, the father, who is described in the pleadings as a "severely disabled veteran," began receiving SSDI disability benefits. Subsequently, the mother's application for SSDI benefits based on the father's disability was allowed. As a result, in March of 2019, the mother began receiving SSDI dependency benefits as the representative payee for the children.
The nature of the father's disability is not clear from the record.
On May 27, 2020, the father filed a complaint for modification of his support obligation alleging changed circumstances including a decrease in his ability to pay child support due to his disability and an increase in the mother's income from the SSDI dependency benefits. The children were twenty-four, nineteen, and seventeen when the father's complaint was filed. Father requested that he be relieved of his weekly support obligation and that he receive an equitable credit of $21,466 toward his arrearage for all prior SSDI payments the mother had received on behalf of their children.
The judge found that the father's total child support arrearage was $42,744. The father's proposed modification order requested an equitable credit of $23,234, but at the hearing on September 2, 2020, counsel for the father stated that the correct amount was $21,466.
After a hearing, the judge modified the father's support obligation to $227 per week retroactive to July 14, 2020, which the judge determined to be the date that the mother received notice of the complaint for modification. Because the mother was receiving $281.16 per week in SSDI dependency benefits, the judge ordered that
There is conflicting information in the record regarding the dates of service and filing of the complaint. The complaint and accompanying certificate of service are dated May 27, 2020. The father's appellate brief and the judge's memorandum of decision indicate that the complaint was filed on June 9, 2020. The Probate and Family Court docket reflects that the complaint was docketed on July 1, 2020. The father does not challenge the judge's finding that the mother was served with the complaint on July 14, 2020.
"[t]he father's child support payments shall be suspended for so long as the mother is receiving SSDI benefits for the minor child. . . . The parties' youngest child . . . shall turn [eighteen] years old on [July 7, 2021], at which time it is anticipated that the SSDI benefits shall terminate, and the father's child support payment shall resume."
The judge also allowed a partial credit of $4,936 toward the father's child support arrearage for SSDI payments that the mother received during the pendency of the father's complaint for modification. The judge did not allow a credit for the full $21,466 that the father claimed the mother had received prior to the filing of the complaint, reasoning that such a credit would be a retroactive modification of child support in violation of G. L. c. 119A, § 13 (a).
Discussion.
A judgment as to the care, custody, and support of minor children may be modified if there is a material and substantial change in the circumstances such that modification is necessary and in the best interests of the child. See G. L. c. 208, § 28; Katzman v. Healy, 77 Mass.App.Ct. 589, 593 (2010). We review a modification judgment for abuse of discretion with deference to the judge who heard and saw the evidence. See Pierce v. Pierce, 455 Mass. 286, 293 (2009) .
Equitable credit.
The Supreme Judicial Court has held that "a noncustodial spouse who is receiving disability income benefits from the Social Security Administration should receive a credit against his child support obligation for the benefits paid by the Social Security Administration to his minor children as a result of his disability." Rosenberg v. Merida, 428 Mass. 182, 182-183 (1998). However, to receive credit for SSDI benefits against a child support obligation, the noncustodial spouse must first seek and obtain a modification judgment. Id. at 188, citing G. L. c. 208, § 28.
General Laws c. 119A, § 13 (a.), prohibits retroactive modification of child support judgments "except with respect to any period during which there is pending a complaint for modification." See Rosen v. Rosen, 90 Mass.App.Ct. 677, 682 n.8 (2016) (discussing legislative purpose of prohibiting retroactive modification). In Rosen, however, we held that an equitable credit toward a child support arrearage is not a retroactive modification prohibited under G. L. c. 119A, § 13 (a.) . Id. at 688. Rather than modifying the amount originally owed, an equitable credit acknowledges that the obligor has "fulfill[ed] . . . his or her child support obligation 'in a manner other than as directed by the original order' but which nevertheless accomplishe[d] the maintenance of the child as envisioned by the original order." Id., quoting T.M. v. L.H., 50 Mass.App.Ct. 856, 861 (2001). While an equitable credit is an exception to the general rule that "a support obligor must make his or her payments in the manner required by the support . . . judgment," T.M., supra at 860, the exception is "extremely narrow." Rosen, 90 Mass.App.Ct. at 689.
In determining whether there are compelling circumstances warranting an equitable credit toward a child support arrearage, "we favor a clearly delineated standard that relies on objectively verifiable facts." Rosen, 90 Mass.App.Ct. at 688.
"[T]o receive an equitable credit against a child support arrearage, the support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor's direct support of the child as an alternative method of satisfying the payor's child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor's home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child's best
interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient."Id. at 688-689. We adopted this "rigorous set of clearly identified requirements ... to prevent a support payor from modify[ing] unilaterally a support order or interfer[ing] with the right of the custodial parent to decide how support money should be spent" (quotation omitted). Id.
The father argues with some force that his were "compelling circumstances of an equitable nature." First, the mother's receipt of the SSDI benefits was the result of her voluntary application, not a unilateral effort by the father to modify the support order. Second, the weekly SSDI benefits exceeded the original child support order and were in the children's best interests. Finally, nothing in the record suggests that an equitable credit to the father would cause any undue hardship to the mother. While these facts meet many of Rosen's requirements for an equitable credit offsetting a child support arrearage accrued before the filing of a modification complaint, they do not meet them all. We cannot ignore Rosen's clear language requiring a transfer of custody. Because the facts of this case do not meet Rosen's clearly delineated standard, we are constrained to conclude that the judge's denial of an equitable credit of $21,466 toward the father's child support arrearage was not an abuse of discretion.
The father also argues that the judge erred in ruling prospectively that his child support obligation of $227 per week would resume automatically on July 7, 2021, when the parties' youngest child turned eighteen. According to the father, the judge's order was premature because the date of the termination of SSDI benefits was uncertain, and the parties' incomes on the date of termination were unknown. In light of counsel's representation at argument that a separate modification complaint on this issue is pending before the Probate and Family Court judge, we need not resolve it.
Postjudgment temporary order.
Finally, the father argues that the judge lacked jurisdiction to issue a temporary order once the modification judgment entered and the father filed a notice of appeal. We disagree. "[T]he determinative jurisdictional date is the date of entry of the appeal in the appellate court and not the date of filing of . . . the notice of appeal in the trial court." Commonwealth v. Montgomery, 53 Mass.App.Ct. 350, 351 n.2 (2001). Here, the appeal was entered on the Appeals Court docket on March 25, 2021, and the judge retained jurisdiction until that time. The judge's temporary order issued December 11, 2020, and the subsequent memorandum of decision issued December 22, 2020, were well within the jurisdictional period.
Modification judgment affirmed.
The panelists are listed in order of seniority.