Opinion
No. 12–P–996.
2013-04-19
Thomas CESSO v. Cheryl CESSO.
By the Court (GRAHAM, BROWN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Thomas Cesso (father) appeals from a Probate and Family Court judgment that modified the amount of child support and alimony he owes to his former wife Cheryl Cesso (mother). On appeal, the father asserts that the trial judge erred by failing to address his request for retroactive modification of his child support and alimony obligations.
Below, the mother also filed a notice of appeal from the modification judgment as clarified, but has not entered a cross-appeal in this court. Thus we do not address her arguments seeking to overturn the modification judgment. See Wheeler v. Springfield Sugar & Prods. Co., 15 Mass.App.Ct. 979, 981 (1983). The mother has the ability to seek a modification of the child support order in the Probate and Family Court at any time based on changed circumstances. See Brooks v. Piela, 61 Mass.App.Ct. 731, 734 (2004), citing G.L. c. 208, § 28.
Background. By a judgment of divorce nisi dated May 22, 2009, the mother was awarded primary physical custody of the parties' minor child and father was ordered to pay child support and alimony in the amount of $1,730 per week.
On August 5, 2009, in response to the mother's complaint for contempt, the father filed a counterclaim seeking modification of the alimony and child support awards on the ground that he had become unemployed.
The father previously appealed the divorce judgment and we affirmed the support orders, but remanded for redetermination of the amount of waste of marital assets attributable to the father and, if necessary, adjustment of the property division. Cesso v. Cesso, 79 Mass.App.Ct. 1131 (2011).
On January 11, 2011, the Probate and Family Court judge entered a temporary order that directed the father to pay $800 per week to the mother, $500 allocated as child support and $300 for alimony.
The father subsequently filed a separate complaint for modification on October 29, 2009, reasserting the same grounds for modification.
The modification and contempt actions were tried over six days between May 18, 2010, and March 21, 2011. There was evidence at trial that the father had lost his new job and expected to receive eight weeks of severance pay, after which his only income would consist of unemployment benefits. The court entered a modification judgment dated June 13, 2011, directing the father to pay $750 per week to the mother in child support during the duration of his eight-week severance pay. After the end of the eight-week period, the modification judgment directed the father to pay thirty percent of his then-existing gross income to the mother. The father filed a motion to amend or alter the judgment, or alternatively, for clarification, on June 24, 2011. The court denied the motion to alter or amend, but allowed the motion to clarify in part to confirm that all payments required by the modification judgment were for child support only. The requirement of alimony was eliminated as of the date of the modification judgment. The father appealed from the modification judgment as clarified.
The father was unemployed at the time he filed his counterclaim for modification; however, in October, 2010, he found new employment and was earning $130,000 annually. The temporary order was based on his new salary.
Discussion. The father asserts that the trial judge was required to make findings to support his decision not to modify child support and alimony obligations retroactively to the date of his modification counterclaim. The mother asserts that the judge's modification order, in fact, granted the father retroactive relief beginning March 18, 2011. Our review of the record supports the father's characterization.
We review the judge's decision not to award retroactive modification of child support and alimony to determine whether there was abuse of discretion. See Boulter–Hedley v. Boulter, 429 Mass. 808, 811 (1999), citing Department of Revenue v. Foss, 45 Mass.App.Ct. 452, 460 (1998). In Boulter–Hedley, the Supreme Judicial Court found the trial judge's decision to deny retroactive modification was an abuse of discretion where the judge failed to explain how he reached his conclusion. Id. at 812. The court stated that “[t]he judge should have provided an explanation for his conclusion, both for the benefit of the parties, and to enable an appellate court effectively to review the ruling.” Ibid. See Pierce v. Pierce, 455 Mass. 286, 306 (2009) (remanding modification order to Probate and Family Court for consideration of father's request for retroactive alimony relief with instructions that such considerations be supported by findings and a statement of reasons).
Here, the trial judge did not make any findings or provide a rationale for denying the father retroactive modification of his child support or alimony obligations. The order did not address the father's request for retroactive modification at all and, despite the trial lasting six days and spanning almost a year, the judge made no findings of fact to support his judgment. We conclude that findings and explicit rulings should have been provided both for the benefit of the parties and to enable effective appellate review. Boulter-Hedley v. Boulter, supra at 811–812.
Conclusion. The portions of the modification judgment concerning retroactivity of the modification of the child support and alimony orders are vacated, and the case is remanded to the Probate and Family Court for findings and rulings on that issue. The judgment is otherwise affirmed.
So ordered.