Opinion
No. 11–P–203.
2012-09-14
Unsuk IZAT v. Andrew B. DESIERVO.
By the Court (RAPOZA, C.J., SMITH & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Andrew B. Desiervo (father), appeals from a judgment of modification in which a judge of the Probate and Family Court declined to order the plaintiff, Unsuk Izat (mother), to pay weekly child support. The judge did, however, order her to pay fifty percent of the children's reasonable and necessary medical, dental, prescriptive, ocular, orthodontic, and psychological expenses not covered by insurance. The father asserts that the judge abused her discretion (1) by failing not only to examine all relevant financial information in determining child support, but also to apply the Massachusetts Child Support Guidelines (guidelines) properly, and (2) by requiring the mother to report a change in her income only upon her working thirty or more hours per week. We affirm.
Child support. The father presses several arguments in support of his contention that the judge abused her discretion by not ordering the mother to pay weekly child support. The father argues that the evidence before the judge demonstrated that the mother has substantial resources available to her that should have been considered in fashioning a child support order. The father also asserts that the mother has the ability to work and the judge's deviation from the guidelines is not supported by the evidence. These arguments are unavailing. “We review child support orders ... to determine if there has been a judicial abuse of discretion.” Department of Rev. v. C.M.J., 432 Mass. 69, 75 (2000). We discern no such abuse of discretion here as the judge's findings are supported by the record, and those findings, in turn, support the judge's order. The judge based her decision on the fact that the mother has no income of her own and is no longer able to pursue her previous profession as an exotic dancer. The judge observed, however, that the mother's life-style has been significantly improved by the contributions of her current husband. The judge also noted that the mother and her current husband jointly own a house and several bank accounts, although it reasonably can be inferred that the judge did not consider these assets in determining child support, as the income and the assets involved are the products of the husband's efforts alone.
While the current husband's income and assets are relevant to determine the ability of the mother to use her own resources to contribute to child support, here the mother has no income or assets of her own. See Silvia v. Silvia, 9 Mass.App.Ct. 339, 342 (1980). Moreover, having no income, she does not contribute to the acquisition or the accumulation of any joint assets such as the house or the bank accounts. Indeed, the mother defers to her husband in all aspects of their financial planning, even if it is to withdraw relatively small amounts of cash from the bank or to pay expenses. In such circumstances, had the joint assets been considered on the issue of child support, the burden of any resulting order would have fallen on the mother's current husband, who has no obligation to support her children from her prior marriage. See ibid.
The father also claims that the judge's deviation from the guidelines after attributing minimum wage income to the mother was erroneous. Although the judge concluded that under the guidelines a minimum wage job ordinarily would require the mother to pay sixty-five dollars in weekly child support, the judge took into account the mother's significant travel expenses to visit with her children, along with her payment of half of their uninsured medical expenses. Doing so was an appropriate exercise of the judge's discretion and her decision not to order child support on that basis was not error.
Finally, the father also asserts that, aside from the attribution of minimum wage income to her, the mother is capable of earning actual income in her own right. The record, however, supports the judge's finding that the mother has “aged out” of her profession and has significant barriers to other employment, such as her lack of English language skills. The judge acknowledged the mother's efforts to obtain a paralegal certificate from a community college, but she has not yet completed the necessary course of studies. These findings also are supported by the record.
Reporting employment. To the extent the father argues that the judge erred when she ordered the mother to report her gross weekly income upon her working thirty or more hours per week, we find no abuse of discretion. He asserts that the use of a thirty-hour threshold for reporting the mother's income amounts to an arbitrary predetermination of what would constitute a material change in circumstances, citing LoStracco v. LoStracco, 32 Mass.App.Ct. 1 (1992).
Unlike in LoStracco, supra at 4, here there is a “rational connection” between the judge's order and the support needs of the children. Upon working thirty hours per week, the mother has the potential to earn a significant amount of income. If nothing else, supplying the required information would provide an opportunity to reassess her ability to pay child support.
Ordering the mother to report such a change in income to the father, however, does not constitute a predetermination of what constitutes a material change in circumstances. Rather, the reporting requirement simply fixes a point at which the father is to be provided information that could relate to the children's support needs. The father still can request a modification based on any material change in circumstances of which he is aware. This would include any material change in the mother's income, including one that involves a work schedule comprising less than thirty hours per week.
Judgment of modification affirmed.