Opinion
16-P-1000
07-13-2017
Thomas EDDY v. Kenia FRANCO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties have a daughter who was born in November, 2011. The father, Thomas Eddy, filed a complaint for support, custody, and visitation. The mother, Kenia Franco, filed a counterclaim for custody and child support, and to establish a parenting schedule. She was allowed to amend her counterclaim to include a request to remove the child to Florida where her extended family resides. After a three-day trial, a judge of the Probate and Family Court allowed Franco's request to remove the child to Florida, awarded sole legal and physical custody to Franco, provided Eddy with a parenting schedule, and ordered Eddy to pay both past and present child support. Eddy appeals, claiming that the judge abused his discretion (1) in calculating the amount of his ongoing child support obligation; (2) in calculating the amount of past child support obligation; (3) by failing to set a holiday or vacation schedule; and (4) by reallocating the expenses of the guardian ad litem investigation. Because we conclude that the judge did not abuse his discretion, we affirm the amended judgment. See note 4, infra.
We do not review Eddy's claim that he is also appealing from the order denying his Mass.R.Civ.P. 59, 365 Mass. 827 (1974), and Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), motions because he did not include these motions in the record appendix and has not presented any legal argument in support of this claim. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-86 (1995).
Background. The parties dated for approximately one year between 2006 and 2007 when they both lived in New York. Franco works in the hospitality industry, while Eddy is self-employed as a paralegal. When Franco left New York and returned to Massachusetts, the relationship ended. In 2010, Franco decided to have a child and she asked Eddy, who was still living in New York, to help her conceive a child. Although Franco investigated other options and other friends to help her conceive, she chose Eddy because he agreed to a de minimus role in the child's life and because of his representations about himself. These representations turned out to be false. For example, Eddy told Franco that he was a criminal defense attorney and that he had no criminal history. However, Eddy is not a member of the bar, and he was convicted of multiple drug related felonies and served fifteen years in prison.
Franco did not discover the truth about Eddy's claims until the pendency of this litigation.
The parties did not marry. Throughout Franco's pregnancy, she updated Eddy on her progress but he never attended any medical appointments or contributed to the medical costs. Although Eddy came to the hospital when the child was born, Franco took herself to the hospital and her mother brought her home from the hospital. With the exception of a three-month period following the birth of the child spent with family in Florida, Franco and the child have always lived in Massachusetts, while Eddy continued to live in New York. After Franco and the child returned from Florida in January, 2012, Eddy expressed interest in spending time with the child and began to visit her, using Franco's home as a "home base" and staying with her overnight, until August, 2013.
In August, 2013, because of his verbally abusive and insulting behavior toward her, Franco asked Eddy to propose a parenting plan that was not based on his parenting time occurring in her home. That same month Eddy filed a complaint seeking custody of the child or, alternatively, a set parenting schedule. Franco counterclaimed seeking child support, and on January 17, 2014, she amended her counterclaim, seeking to move to Florida with the child.
Eddy did not include a copy of his initial complaint in the record appendix. However, the judge's memorandum of decision states that Eddy sought "custody of the [p]arties' minor child ... and visitation rights with [her]." From this we assume that Eddy asked for a set parenting schedule in the event he was not awarded custody of the child.
The case was tried over three days between September of 2014 and February of 2015. On April 9, 2015, the judge ordered the entry of judgment and issued a memorandum of decision containing 218 findings of fact and a ten-page, single-spaced, rationale. The judgment awarded Franco legal and physical custody of the child, allowed her to move with the child to Florida, where she has an extensive family network and greater career opportunities, and provided Eddy with a set parenting schedule. Eddy does not contest these provisions. Rather, he argues that the judge abused his discretion when he (1) ordered Eddy to pay Franco $289 per week in child support, (2) ordered Eddy to pay past child support for the time between the child's birth and the initial temporary order for child support, (3) failed to provide a set holiday and vacation parenting schedule, and (4) reallocated the guardian ad litem fee so that he was responsible for one-half of the cost. We address each issue in turn.
On May 21, 2015, Franco's motion to amend the judgment to reflect the total cost of the guardian ad litem's fees was allowed.
Discussion. 1. Current child support. We review the child support award for abuse of discretion. J.S. v. C.C., 454 Mass. 652, 660 (2009). The judge's findings are to stand unless they are clearly erroneous. Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014).
a. Eddy's income. Eddy claims that the judge abused his discretion when he determined Eddy's income to be $122,000 per year. Specifically, Eddy argues error because (1) the judge considered transfers from Eddy's brokerage account to his checking account as income, (2) the judge failed to consider Eddy's 2014 income, (3) the judge failed to consider four years of Eddy's credit card statements, brokerage statements, and bank records, and (4) the judge failed to consider business expenses as well as total deposits in determining Eddy's historical gross income. We are unable to review the first three of these claims because the relevant documents have not been included in the record appendix. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). While two volumes of uncontested exhibits were submitted at trial, not all of these exhibits were included in the record appendix nor is it clear what was admitted at trial. We do, however, consider the judge's decision to consider total deposits as equivalent to gross income.
Eddy did not include his credit card and brokerage statements in the record appendix and included only select and mostly incomplete bank statements. Nor does the record appendix include his financial statements or child support guidelines worksheets from either April 30, 2014, or September 8, 2014.
Eddy is a self-employed, freelance paralegal. The judge made thorough findings relating to Eddy's income and his lack of credibility. The judge considered Eddy's financial statements and tax returns and found them not to be credible; the judge also found that "throughout this action and trial, [Eddy] provided self-contradictory and unreliable testimony." The judge concluded:
"Given the difficulty of determining whether [Eddy's] income is limited by the amount of demand for his services or his own diligence and [his] history of incomplete and inaccurate financial reporting, the Court finds taking a three (3) year average of [Eddy's] total deposits received to be an acceptable attribution of income for the application of child support moving forward."
The judge considered the deposits received by Eddy in 2011, 2012, and 2013.
In normal circumstances, considering total deposits to be the equivalent of gross income would be an error. See Whelan v. Whelan, 74 Mass. App. Ct. 616, 626-627 (2009) ("[I]n determining income from self-employment, a judge must determine whether claimed business deductions are reasonable and necessary to the production of income"). Section IC of the 2013 Child Support Guidelines (guidelines) provides that "[i]ncome from self-employment ... is defined as gross receipts minus ordinary and necessary expenses required to produce income."
Section IC of the guidelines further notes:
"In general, income and expenses from self-employment or operation of a business should be carefully reviewed to determine the appropriate level of gross income available to the parent to satisfy a child support obligation. In many cases this amount will differ from a determination of business income for tax purposes. The calculation of income for purposes of this section may increase gross income by certain deductions or other adjustments taken for income tax purposes."
However, § IE of the guidelines also provides for the possibility of attributing income "where a finding has been made that either party is capable of working and is unemployed or underemployed." Here, we cannot say that the judge abused his discretion in attributing income to Eddy. First, we are hampered in our review by the inadequate record appendix. Second, the decision is supported by findings regarding Eddy's lack of financial credibility, his inadequately explained "[s]udden and drastic shifts in income and expenses," and his lack of transparency regarding his business expenses and record-keeping. See Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 406-407 (1998). Accordingly, we agree with the judge's decision to attribute annual income to Eddy of $122,000.
b. Reduction for travel costs. Eddy next argues that the judge abused his discretion by not further reducing Eddy's child support obligation because of his travel expenses. Section IV of the guidelines provides that a judge "may deviate from the guidelines" when "a parent has extraordinary travel ... expenses related to parenting." Here, after calculating Eddy's child support obligation under the guidelines to be $389 per week, the judge considered Eddy's travel related expenses and reduced his child support obligation by $100 per week. The judge noted that while the child was residing in Massachusetts, Eddy incurred a number of travel related expenses and that the major additional expense Eddy would incur after the child relocated to Florida was airfare.
Eddy argues that in light of the $100 reduction in child support he was afforded for travel expenses while the child resided in Massachusetts, it was an abuse of discretion not to increase that reduction upon the relocation to Florida. We disagree. While the judge "may" deviate from the guidelines to assist Eddy with his travel expenses, the judge was not required to eliminate Eddy's child support obligation by subtracting all of his claimed future expenses from the child support order. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 205-206 (1992) ; Guidelines § IV. Accordingly, we discern no abuse of discretion in the $100 per week reduction.
2. Past child support. Eddy next argues that the judge erred in awarding any past child support and that the methodology used to calculate the amount due was flawed. As to the first point, the judge was clearly within his authority to award retroactive child support. See Department of Rev. v. Roe, 29 Mass. App. Ct. 967, 968 (1990). General Laws c. 209C, § 9(a ), as amended through St. 1996, c. 199, expressly provides for an order for "past support for the period from the birth of the child to the entry of the order, taking into consideration the parent's ability to pay ... and any support provided by the parent during such period."
Contrary to Eddy's claim, the judge calculated Eddy's child support obligation for years 2011, 2012, and 2013 separately.
As to how the judge calculated the past support owed by him, Eddy does not challenge the judge's determination of the amount of support he in fact contributed to the child's upkeep as compared to the amount he should have contributed. Rather, Eddy argues that the judge erred by not crediting Eddy for the iPad and toys he purchased for the child, the annual memberships at the zoo, aquarium, and town beach that he purchased, and the money he set aside for the child in a college savings account. This argument is unavailing.
As to toys, the judge found that Eddy provided the child "with toys which were inappropriate for her age and represented a potential safety hazard" and that Franco's "repeated requests that he desist in purchasing such toys went unheeded." As to college expenses, the judge wrote in the judgment that "[g]iven [the child's] age, it is premature for the Court to address the payment of her college expenses."
"As a general rule, a support obligor must make his or her payments in the manner required by the support order or judgment. The reasons for the rule are manifest: a support obligor should not be allowed to modify unilaterally a support order or interfere with the right of the custodial parent to decide how support money should be spent."
T.M. v. L.H., 50 Mass. App. Ct. 856, 860 (2001) (citations omitted). While no judgment or order had yet entered when Eddy provided the child with these gifts, the underlying rationale remains the same. Eddy's decision to provide the child with certain gifts does not offset or diminish the necessary expenses such as housing, food, clothing, and medical care. To the extent that the child may one day benefit from Eddy's saving for her college expenses, that does not address her present needs. Accordingly, we find no abuse of discretion in the judge's calculation of past due child support.
3. Holiday and vacation schedule. Eddy claims that it was an abuse of discretion to omit a set holiday schedule from the judgment, to omit a provision for vacation time, and to omit a provision allowing him to bring the child to New York for extended visitation. Eddy misrepresents the judgment, which provides that "[h]oliday parenting time shall occur as agreed to by the [p]arties ... to accommodate their work schedules and [the child's] daycare and/or school schedule." We cannot say such a provision is an abuse of discretion given the judge's finding that "the parties have demonstrated a consistent ability to communicate with each other to arrange parenting time" and that they "are better positioned than the Court to arrange their holiday schedule so as to adapt to [their] needs." This same reasoning applies to vacation time.
To the extent that Eddy argues this decision is contrary to the recommendation of the guardian ad litem, the judge did not have to adopt that recommendation. See Mason v. Coleman, 447 Mass. 177, 186 (2006) ; A.H. v. M.P., 447 Mass. 828, 841 (2006).
Nor, given the circumstances, did the judge abuse his discretion in declining to award Eddy extended parenting time with the child in New York. At the time of the judgment, the child was three years old, Eddy had not yet completed the parenting class he was ordered to attend approximately nine months before the conclusion of the trial, the depth of Eddy's parenting ability was uncertain at best, and Eddy would only be allowed overnight visits with the child three months after the date of the judgment and his completion of the parenting class. In the circumstances, there was no error.
4. Guardian ad litem fees. Eddy also challenges the provision in the amended judgment ordering him to reimburse Franco for one-half of the total amount of the guardian ad litem's fees. However, as the temporary order appointing the guardian ad litem, which according to Eddy provides that the appointment was at Franco's sole expense, is not included in the record appendix, we are unable to review this claim. Cameron v. Carelli, 39 Mass. App. Ct. at 83-84.
We also note that Eddy cited no authority in support of his proposition.
Amended judgment affirmed.