Opinion
No. 15–P–480.
09-08-2016
Robert D. CLARK v. Susan M. CLARK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert D. Clark, appeals from a modification judgment of the Probate and Family Court, prospectively reducing his child support obligation, but maintaining his alimony obligation. He also appeals from the denial of his motion pursuant to Mass.R.Dom.Rel.P. 52, requesting findings of fact. We affirm.
Background. A judgment nisi entered on January 9, 2013, incorporating the parties' separation agreement, which survives as an independent contract, except for those provisions related to medical insurance and their four children, who, at the time of the hearing, ranged in age from seven to almost fifteen. Under the terms of the agreement, Robert was to pay his former wife, Susan, alimony of $200 per week and child support of $800 per week. At the time of the judgment, Robert was earning approximately $140,000 to $150,000 annually. However, he had concerns about his job security, and, believing that his employment was likely to be terminated, Robert voluntarily left his job for one that paid only $100,000 annually as a base salary, with potential commissions and bonus compensation. In March, 2014, based on his change in job and reduction in salary, Robert filed a complaint for modification requesting that the judgment be modified in accordance with the child support guidelines as applied to his new salary and, also, that his alimony obligation be terminated.
We use the first name of the parties to avoid confusion.
After a trial, the judge found that Robert's change in employment was justified and appropriate in the circumstances; the judge agreed that a reduction in child support was warranted, and reduced Robert's child support obligation to $550 per week. “[G]iven the needs of the four children,” the child support reduction was to be prospective only. The judge declined to modify the alimony award, however, finding that Robert “did not sustain his burden with regard to the issue of alimony. In fact, there was virtually no probative evidence regarding the alimony issue by either party.” The modification judgment was entered on the docket on December 23, 2014, and Robert timely appealed.
On February 20, 2015, Robert filed a pro se motion for findings of fact pursuant to Mass.R.Dom.Rel.P. 52(a). By order dated March 2 and entered on March 31, 2015, the judge denied the motion with the endorsement: “The judgment contains a rationale for decision (albeit not specifically noted as such). As a result the judgment serves as the Court's view as the findings of fact.” On March 27, 2015, Robert filed a notice of appeal from the denial of the motion for findings, the prospective award of $550 in child support, and the judge's failure to modify the existing alimony award.
This second notice of appeal was filed after the judge had issued his order, but before it was docketed almost one month later. Neither party raises the issue of timeliness and, as a result, we see no prejudice to either party in the premature filing. See Sarkisian v. Concepts Restaurants, Inc., 471 Mass. 679, 681 n.3 (2015).
Discussion. Rule 52 motion. Robert first argues that his rule 52 motion was erroneously denied because, when a judgment is entered pursuant to G.L. c. 208, § 34, the judge is required to issue findings of fact and conclusions of law within sixty days of the filing of a notice of appeal. However, this modification judgment was not entered pursuant to § 34, but rather, pursuant to G .L. c. 208, § 28, relating to child support orders, and G.L. c. 208, § 37, relating to the modification of an existing alimony order. A judge is required under rule 52 to issue written findings and conclusions of law when entering a judgment pursuant to either of these sections only if a written request is made prior to final argument. Mass.Dom.Rel.P. 52(a). Robert failed to make a timely request and, as a result, we see neither error nor an abuse of discretion in the judge's decision to deny the motion.
Child support. Next Robert claims that the modified child support order should be vacated because the judge failed to make the specific findings required under G.L. c. 208, § 28. He contends that, because income was not attributed to him, the judge should have adopted the child support calculation he submitted. Robert asserts that the judge's deviation from that calculation is arbitrary and capricious as the judge did not explain how that amount was determined. He also claims that the judge erred in making the order prospective only.
“ ‘[C]hild support is controlled by G.L. c. 208, § 28, and the Massachusetts Child Support Guidelines.’ ... Except as otherwise stated therein, the guidelines have presumptive application to actions to modify existing orders.” Wasson v. Wasson, 81 Mass.App.Ct. 574, 576 (2012), quoting from Croak v. Bergeron, 67 Mass.App.Ct. 750, 754 (2006). See G.L. c. 208, § 28. If, after taking into consideration the best interests of the children, the judge deems it advisable to depart from the guidelines amount, the resulting order shall be made on findings based on specific facts justifying the deviation as well as the specific facts which make the deviation appropriate. Ibid. “[J]udges have considerable discretion under the guidelines, and the exercise of this discretion may result in a range of proposed support orders.” Richards v. Mason, 54 Mass.App.Ct. 568, 572 (2002). We review for an abuse of discretion. Wasson, supra.
Here, the judge determined, due to a change in employment, that a modification to Robert's child support obligation was warranted; he declined, however, to grant Susan's request to attribute income to Robert. Although the basis for the modification is not clear from the judge's findings, there was a considerable disparity between the existing order of $800 and Robert's guidelines calculation of $530. See Morales v. Morales, 464 Mass. 507, 511 (2013). See also Child Support Guidelines III.A (2013). This inconsistency alone permitted the judge to modify the existing child support order. Ibid.
Susan did not appeal from the modification judgment.
Although more detailed findings by the judge would have been preferable, the facts in this record support the de minimis deviation from Robert's offered guidelines calculation, particularly when considering the costs involved in raising four children. In addition, there was evidence that Robert's new job requires frequent travel, resulting in less parenting time for him and more responsibility for Susan; in the two months preceding the trial, he had the children in his care only one weekend. Also in evidence was the fact that, with the exception of hockey for the oldest child, Susan paid for all of the children's many extracurricular activities. The judge is permitted to make an upward adjustment to the guidelines amount based on the monetary and nonmonetary contributions, and the involvement of each parent. See Guidelines Principles and Section II.D. Although the findings do not explicitly state that the guidelines would yield an inappropriate support payment, that conclusion may be implied from the entirety of the judge's findings. See Buckley v. Buckley, 42 Mass.App.Ct. 716, 723 (1997).
The judge's findings do indicate that “given the needs of the four children” the modified child support order was to be effective prospectively. The judge was not required to make the order retroactive; based on the evidence, it was reasonable for him to find retroactivity would not be in the “child[ren]'s best interests....” Whelan v. Whelan, 74 Mass.App.Ct. 616, 627 (2009), quoting from Boulter–Hedley v. Boulter, 429 Mass. 808, 812 (1999).
In all of the circumstances here, the judge permissibly issued a more equitable child support order than would have resulted under the guidelines. We are satisfied that he did not abuse his discretion in doing so, and for that reason, we perceive no reason to remand the matter to the Probate and Family Court.
Alimony. Lastly, Robert argues that the judge erred in failing to modify or terminate his alimony obligation. He contends that it appears that, in considering the alimony award, the judge utilized all of Robert's income, engaging in impermissible “double dipping” under G.L. c. 208, § 53(c )(2), of the Alimony Reform Act. Robert also asserts that, because there were no written findings, it is impossible to ascertain the basis of the judge's decision declining to modify Robert's alimony obligation.
The judge did, in fact, include in his findings his reasoning for not issuing an order modifying or terminating alimony; “there was virtually no probative evidence [presented at trial] regarding the alimony issue by either party” and Robert failed to meet his burden in proving that a reduction in, or elimination of, his alimony obligation was warranted. We are satisfied that the judge, after hearing, properly weighed the legal criteria required of a party in supporting a modification of alimony. See Pierce v. Pierce, 455 Mass. 286, 298 (2009) ; Kelley v. Kelley, 64 Mass.App.Ct. 733, 739 (2005). See also G.L. c. 208, § 37.
Robert did not make any argument concerning the application of G.L. c. 208, § 53(c)(2), or any other aspect of the alimony provision, at the hearing. The focus of the hearing was child support.
Modification judgment affirmed.
Order denying motion for issuance of findings of fact affirmed.