Opinion
20-P-378
12-17-2020
KENNETH A. LUCE v. ANNE-MARIE FOLINO-INADOLI.
NOTICE: 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
Following a nonevidentiary hearing, a judge of the Probate and Family Court entered a modification judgment that, in pertinent part, reduced the father's child support obligation to one hundred dollars per week. The father appeals, principally claiming that the judged erred in the amount of the child support order and in failing to enter the order retroactively. We affirm.
A judgment of divorce nisi entered on September 27, 2012, incorporating the parties' separation agreement. As is relevant here, the judgment provided that the father pay $149 per week in child support to the mother. Shortly thereafter, the father filed a complaint for modification seeking to reduce his child support obligation. The mother filed two complaints for contempt alleging that the father failed to pay child support and a counterclaim for modification. A consolidated judgment entered on the complaints that required the father to continue to pay $149 per week in child support to the mother.
On October 5, 2018, the father filed the complaint for modification at issue here. He sought an order eliminating his child support obligation based on the following change in circumstances: "The [f]ather is struggling to keep up with all his financial obligations plus pay child support and arrears. It would require the father to work additional employment and severely interfere with his parenting time and is not in the children's best interest." Following a hearing, the judge entered a modification judgment that reduced the father's child support obligation to one hundred dollars per week plus an additional twenty-five dollars per week towards support arrears. He declined to enter the order retroactive to the date of service on the complaint. The judge also approved the parties' stipulation that modified the father's parenting time to every Monday evening through Wednesday at 8 A.M. and every other Saturday at 5 P.M. through Wednesday at 8 A.M.
"In reviewing a modification judgment, we examine whether the factual and legal bases for the decision are in error, or whether the judge otherwise abused his discretion." Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017), citing Pierce v. Pierce, 455 Mass. 286, 293 (2009). See Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012) (modification of child support reviewed for abuse of discretion).
"The method for calculating and modifying child support orders is governed by statute and by the [Massachusetts Child Support] Guidelines." Morales v. Morales, 464 Mass. 507, 509-510 (2013). There is a "rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered." G. L. c. 208, § 28. "Except as otherwise stated therein, the guidelines have presumptive application to actions to modify existing orders." Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 8 (2016), quoting Wasson, 81 Mass. App. Ct. at 576. "This presumption may be rebutted, and a judge . . . may deviate from the amount of support dictated by [the Guidelines], provided the judge makes written findings specifying that 'the guidelines amount' would be unjust or inappropriate, that departure from the Guidelines is justified by the facts of the case, and that departure is consistent with the child's best interests." Morales, supra at 510 n.6.
Here, the father contends that the judge abused his discretion by failing to calculate child support based on a shared custody arrangement. This was not error because, as the judge found, the schedule is not a fifty-fifty schedule and is something more than a two-third one-third schedule. Here, the judge ran the guidelines assuming that the children were in the primary care of their mother for two-thirds of the time and in the primary care of their father for one-third of the time. This calculation resulted in a presumptive order of $229 per week payable from the father to the mother. The judge then ran the guidelines assuming the parties shared custody equally. That calculation resulted in a presumptive order of one hundred dollars per week payable from the mother to the father. The judge entered an order that did not adopt either approach and required the father to pay a reduced child support order of one hundred dollars per week to the mother. This hybrid approach reflects a deviation that is grounded in the circumstances of the parties and the best interests of the children. On this record, the judge did not abuse his discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The father has the children twelve out of every twenty-eight nights. The judge found the children are in the primary care of the mother fifty-three percent of the time and in the primary care of the father forty-seven percent of the time.
Because the mother did not cross-appeal, we pass on the question whether there was a material change of circumstances that warranted a modification of the child support order. We note that at oral argument, the father focused his claims of financial hardship on his desire to preserve his late grandmother's home; a liability for which he is not legally obligated.
As to the father's claim that the judge erred in failing to enter the modified support order retroactively, we conclude that the judge did not abuse his discretion. See Boulter-Hedley v. Boulter, 429 Mass. 808, 810-811 (1999). The judge properly considered the child support arrears that at the time of the hearing exceeded $14,000 and the father's acknowledgement that he had not paid any child support in more than one year.
The father's remaining claims require little discussion. He contends that the judge did not consider certain discovery but failed to specify the alleged errors, instead broadly referencing bank statements, bills, correspondence, and receipts for child related expenses. Without more, these claims do not rise to the level of appellate argument. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions of error, lacking legal argument and authority," do not rise to level of appellate argument); Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000) (conclusory statements in brief do not rise to level of appellate argument).
The father raises issues in his brief concerning uninsured medical and dental expenses and extracurricular activity costs of the children. As these issues were not raised in the trial court, they are waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal" [citation omitted]).
The mother's request for attorney's fees is denied.
October 9, 2019 judgment affirmed.
By the Court (Wolohojian, Blake & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 17, 2020.