Opinion
15-P-1432
03-10-2017
Jose M. VILLAFRANCA v. Kari M. VILLAFRANCA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father, Jose M. Villafranca, appeals from a judgment of the Probate and Family Court, modifying the terms under which he is permitted to travel internationally with his children and retroactively increasing his weekly child support obligation. We affirm.
Background . On July 11, 2011, the parties filed a joint petition for divorce. On October 25, 2012, they entered into a separation agreement; the judgment of divorce nisi entered on November 14, 2012.
The agreement was incorporated, but not merged, into the judgment of divorce, except as to the terms and provisions relating to the minor children. A copy of the divorce judgment is not included in this record.
On July 1, 2014, the mother filed a complaint for modification. She sought sole physical custody of the two children; supervised visitation by the father; and an increase in child support, because the father, who had been unemployed, was now working. She also sought an order that the father not be permitted to travel abroad with the children. In his July 21, 2014, answer and counterclaim, the father asked that the divorce judgment "be modified by allowing [him] joint physical custody, [and] to travel with the children abroad without the [mother]...." The parties entered into a partial stipulation on December 4, 2014, leaving for trial the remaining unresolved issues of child support and international travel with the children. The trial was held on May 5, 2015; the father was represented by counsel, and the mother proceeded pro se.
The parties' December, 2014, stipulation is not included in this record.
On May 11, 2015, the judge issued a modification judgment and findings of fact. She (a) ordered that the parties abide by the terms of the December 4, 2014, stipulation; (b) allowed the father to "travel with both minor children without the Mother to the country of Peru for a period of time not to exceed 10 consecutive days during school vacation periods once both children have attained the age of seven (7) years"; (c) increased the father's child support obligation from $72 per week to $213 per week starting July 25, 2014, the Friday after the father's filing of his counterclaim for modification; and (d) ordered that the resulting child support arrears of $4,922 be paid at a rate of $27 each week. The father appeals.
Discussion . 1. International travel . A judge has broad discretion in formulating a parenting plan, and we will not disturb an order concerning custody or visitation, absent an abuse of discretion. Austin v. Austin , 62 Mass. App. Ct. 719, 722 (2004). A judge may modify a judgment relating to custody and a parenting plan where a material and substantial change of circumstances has occurred and a judgment of modification is necessary in the best interests of the children. Bower v. Bournay-Bower , 469 Mass. 690, 706 (2014), citing G. L. c. 208, § 28. "The determination of the extent and palpability of such change" lies in the discretion of the trial judge. Heistand v. Heistand , 384 Mass. 20, 26 (1981). "Absent clear error, we review the judge's determination of the child[ren's] best interests only for abuse of discretion." Smith v. McDonald , 458 Mass. 540, 547 (2010).
The father challenges the provision regarding international travel because he wishes to take his children to visit his family in Peru. He argues that the applicable terms of the separation agreement were part of an independent contract that could not be modified. This argument fails, as the separation agreement specifically provided that the terms and provisions relating to the care, custody, support, and education of the minor children would merge in the divorce judgment, remaining modifiable upon a showing of a change of circumstances. See, e.g., Hernandez v. Branciforte , 55 Mass. App. Ct. 212, 213 (2002).
The father also argues that the new travel provision constitutes an improper modification because there was no material and substantial change of circumstances. The separation agreement stated, "Father shall be allowed to travel internationally with the minor children (for 10 days) each year and mother shall be allowed to join father and children." In her complaint for modification, the mother asked that the father not travel abroad with the children. In his counterclaim, the father asked, in part, that the judgment be modified to allow him to travel abroad with the children, but without the mother. The father's counterclaim shows his understanding that, under the separation agreement, he could only take the children abroad if the mother was traveling with him.
The judge, who heard from the mother, the father, and father's counsel, learned that the parties have made trips to Peru with the children in the past; that the father has never traveled with the children to Peru without the mother; that, at the time of the modification trial, the parties' son was seven years old and the daughter was three years old; that the mother was no longer "ok" about traveling with the father "because of the last incident [they] had"; that the mother now had two younger children, who were fifteen months and nine weeks at the time of trial; and that the mother would be more comfortable having their children travel to Peru without her once the son was older and the daughter was seven years old.
The father's counsel did not seek to cross-examine the mother regarding that incident.
In her findings the judge wrote:
"Both of the parties['] children are fairly young and have not spent significant time away from the Mother. However, the Father's family of origin is from the country of Peru and Peru is a signatory to the Hague convention. Although Father's international travel with the children for up to 10 days was agreed-upon by the parties in the prior Judgment, it appears that the parties understood that the Mother would accompany the Father during such travel. This has not happened. Once the children are slightly older, absent any further court order, travel with the Father for up to 10 days is consistent with their best interests."
Where the mother was no longer willing and able to travel with the father and the children, and the father wanted to travel with the children but without the mother, the judge reasonably concluded that a modification was necessary in the best interests of the children because a material and substantial change of circumstances had occurred. G. L. c. 208, § 28. See Hoegen v. Hoegen , 89 Mass. App. Ct. 6, 11 (2016). See also Smith , 458 Mass. at 547 ("The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit"). We see no abuse of discretion in modifying the divorce judgment.
2. Retroactive child support . The father does not challenge the May 11, 2015, modification of child support to $213 per week, but, rather, challenges its retroactive application to July 25, 2014. However, his claim that the judge could not make the child support order retroactive is made for the first time on appeal and, thus, is waived. See Carey v. New England Organ Bank , 446 Mass. 270, 285 (2006).
The judge noted that July 25, 2014, was the Friday after the father's July 21, 2014, filing of his counterclaim for modification.
Even if the argument were not waived, it is well settled that a judge may, in her discretion, make a modification order retroactive to "any period during which a complaint for modification is pending." Whelan v. Whelan , 74 Mass. App. Ct. 616, 627 (2009). See Boulter-Hedley v. Boulter , 429 Mass. 808, 809 (1999) ("[T]he decision whether to give retroactive effect to such orders rests in the sound discretion of the judge"). Here, the child support order of $72 per week, agreed upon in the 2012 separation agreement and ordered in the divorce judgment, was determined at the time the father was unemployed. In her July, 2014, complaint for modification, the mother alleged that the father was then working. His April, 2015, financial statement shows a weekly salary of $1,057.69. In his counterclaim for modification, the father did not dispute that he was currently employed. In addition, he did not argue below that his 2014 earnings were different from his 2015 earnings, nor could he do so in light of his failure to include in the record any of his financial statements other than the financial statement dated April 14, 2015.
The trial court docket shows that the father filed financial statements on June 28, 2012; August 31, 2012; September 25, 2012; October 25, 2012; August 6, 2014; December 4, 2014; March 17, 2015; April 14, 2015; and May 5, 2015.
The father further contends that, where child support was paid through the Department of Revenue, no retroactive modification could be ordered within three years of the November 14, 2012, divorce judgment, and that the judge, therefore, erred when she ordered the modification on May 11, 2015. He is incorrect.
"The method for calculating and modifying child support orders is governed by statute and by the guidelines." Morales v. Morales , 464 Mass. 507, 509-510 (2013). Under G. L. c. 208, § 28, as appearing in St. 1993, c. 460, § 61, a child support order "shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines...." Section IIIA of the 2013 Child Support Guidelines similarly allows for modification where there is an inconsistency between the existing order and the support amount resulting from application of the guidelines. See Guidelines § IIIA(1). Citing Morales , supra , § IIIB further provides: "In the event that the Department of Revenue is providing IV-D services, the provisions of G. L. c. 119A, § 3B(g ) appear to apply to modification requests made within 0-3 years from the entry of the last order in which case the requesting party must demonstrate a substantial change in circumstances in addition to an inconsistency."
Here, because the father became employed after the November 14, 2012, divorce judgment and before the mother filed her July 1, 2014, complaint for modification, there was both an inconsistency and a material and substantial change of circumstances justifying a modification. The judge was permitted to exercise her discretion in deciding to make the modification retroactive to any date during which the modification complaint was pending. See Whelan , 74 Mass. App. Ct. at 627. We see no error and certainly no abuse of discretion.
The judge noted the divorce judgment support order of $72 per week. In calculating the amount of the new order, she considered the father's income at the time of trial based on his latest financial statement, and the mother's attributed income of $500.
The mother's request for appellate attorney's fees and costs is denied.
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Modification judgment affirmed .