Opinion
No. 15–P–1346.
11-18-2016
Elizabeth FALCONE v. Carmen FALCONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Carmen Falcone (husband), appeals from an amended judgment of divorce nisi that ordered him to pay $285 per week as child support and to pay additional child support in an amount equal to fifteen percent of his gross annual bonuses to the plaintiff, Elizabeth Falcone (wife). He contends that the trial judge abused his discretion by ordering the award absent the requisite findings to support a deviation from the Massachusetts Child Support Guidelines (2013) (guidelines) and failing to account for the parties' equal responsibility for child care. We vacate the portions of the amended judgment related to child support and remand.
The judge found that the "parties shall equally share in the reasonable cost of childcare ... not includ[ing] the cost of babysitters."
Background. Before trial, the parties had resolved most of the issues between them by agreement. The parties had agreed to split equally the significant assets of the marital estate, the marital residence, the husband's 401K account, and his rollover individual retirement account (IRA). The parties also resolved the issue of parenting time, allocating forty-five percent of time to the husband and fifty-five percent of time to the wife. Trial was limited to the issue of the husband's child support obligation.
The husband and wife earn approximately equal base salaries of about $161,000 per year. These combined incomes total an amount which significantly exceeds the ceiling of the guidelines. In addition to their base salaries, the husband has been regularly receiving bonuses of approximately $46,000 annually, while the wife has received one bonus since she began working for her present employer.
The judge initially adopted the parties' stipulation and agreement for partial judgment on child support. The judge ordered the husband to pay $285 per week in child support, which was only one dollar more than the $284 per week that the husband had argued for at trial. , As confirmed by the parties at oral argument, these virtually identical figures were derived from the guidelines' formula for situations where the parenting time of the party paying support is greater than one-third but less than one-half. The judge then added the requirement that the husband share equally in the reasonable costs of child care, observing that the allocation of parenting time was very close to a "shared custodial plan." Finally, the judge ordered that the husband pay, as additional child support, an amount equal to fifteen percent of his gross annual bonuses. The bonuses had not been included in calculating the husband's income.
The child support order of $285 per week appears to be based on the initial assumption that the wife would bear all child care costs.
The judge initially proposed that some portion of the husband's annual bonuses be dedicated to a fund for the children's education. The parties did not agree to this proposal, however, and without agreement, the judge could not order it because of the children's ages. See Lang v. Koon, 61 Mass.App.Ct. 22, 25 (2004).
The husband argues that the judge's order of $285 per week does not reflect the judge's order that the husband and wife will share equally all reasonable child care expenses. The husband further argues that the order requiring the husband to pay fifteen percent of his gross annual bonus, without findings or explanation, is an unjustified upward departure from the guidelines and, quite possibly, an indirect way of doing what the judge could not do directly, i.e., requiring that the husband contribute additional money for the purpose of saving for the children's higher education. We have rejected the idea of income equalization where the combined incomes exceeded the guidelines' ceiling and the parents enjoy a similar standard of living. See M.C. v. T.K., 463 Mass. 226, 234–236 (2012). If the guidelines are intended to determine what is necessary for support and not as a means to transfer assets, awards made outside of the guidelines require analysis and findings that focus on the support needs of the children. Here, the judge provided no analysis and made no findings in support of an above-the-guidelines award of child support. He also gave no rationale for the additional award of the fifteen percent of the husband's yearly bonuses. Without such additional findings and explanation, we are unable to conclude that the judge appropriately exercised his discretion.
This assumes that the wife would put this money away for such educational uses even after she rejected the idea when initially proposed by the judge. Otherwise such an award would appear to be an attempt to equalize the husband's and the wife's income.
"Concerns about the effects of income equalization will be greater still where parents have similar standards of living and share physical custody." 463 Mass. at 236.
We can find no evidence in the record that would indicate that the children's reasonable needs would not be met by the guidelines' amounts. Nor does the record contain any evidence that would indicate a significant disparity in the postmarital lifestyles of the husband and wife.
The portions of the amended judgment dated June 29, 2015, related to child support are therefore vacated. The case is remanded to the Probate and Family Court for additional findings and rationale consistent with this memorandum and order. The judge may, in his discretion, hear additional arguments or consider additional evidence. The wife's requests for costs is denied.
We do not intimate what the judge should or should not do upon remand.
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So ordered.