Opinion
No. 16–P–224.
10-31-2016
Inna DAVIDSON v. Adam DAVIDSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this divorce case, the husband was required to pay $304 per week in child support for the period between April 24, 2015 (the date of the divorce judgment, which was subsequently entered on May 7, 2015) and January 21, 2016 (the date the amount of child support going forward was reduced through a modification judgment). On appeal from paragraph eight of the judgment, the husband argues that in setting this amount, the judge failed to apply the proper calculation method set forth in the child support guidelines. For the reasons set forth below, we vacate paragraph eight of the May 7, 2015, judgment and remand this matter to the Probate and Family Court.
We agree with the husband that the modification of the judgment does not moot his appeal. It does, however, significantly reduce the amounts at stake. As a result, both sides would be well advised to explore resolving this matter by agreement.
The notice of appeal erroneously identifies paragraph seven. The husband also appeals from the absence of an award of counsel fees.
As the husband accurately points out, under the child support guidelines, the amount of support is determined in part by how much parenting time each parent has been allocated in the divorce judgment. The base amounts in the guidelines (included in the guidelines worksheet) are “based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.” Mass. Child Support Guidelines § 11(D) (2013) (2013 Guidelines). Where the circumstances of a case deviate from that assumption, alternative computation methods are prescribed.
Here, the husband asserts that the parenting time he was granted under the divorce judgment significantly exceeds the “one-third of the time” assumption on which the guidelines are based. Specifically, by counting the “overnights” he was allowed under the divorce judgment, he claims he was allocated 159 days per year, or 43.6 percent. He argues that 43.6 percent is so close to one-half that the judge should have used the calculation method that applies “[w]here two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren).” 2013 Guidelines, § II(D). According to the husband, this method would have generated a child support award of $49 per week (including $42 per week for a pro rata share of certain uninsured medical and other expenses). In the alternative, the husband argues that the judge should have used the calculation method that applies “[w]here parenting time and financial responsibility are shared in a proportion greater than one-third, but less than 50%.” 2013 Guidelines, § II(D). According to the husband, this would have generated child support in the amount of $142 (again, including a $42 share of medical and other expenses). On the limited record before us, there appears to be some merit in the husband's arguments. Although the specific basis of the $304 figure adopted by the judge is not clear, it appears that, to arrive at that figure, the judge must have rejected the husband's argument that child support could not be calculated using the presumptive method that assumes one-third parenting time. In the alternative, if the judge accepted the husband's argument, but nevertheless decided to deviate from the child support guidelines, he did not explain his reasons for doing so or support them by findings. Murphy v. Murphy, 82 Mass.App.Ct. 186, 194 (2012). We therefore remand this matter for recalculation of the husband's child support obligations for the relevant period and for the judge to explain his reasoning.
The question of how judges should calculate the respective shares of parenting time under the guidelines appears to be one not addressed by our case law. The husband has cited various out-of-State cases in support of his position that counting the number of overnights is appropriate. See, e.g., Rubin v. Della Salla, 107 A.D.3d. 60, 70 (N. Y.App.Div.2012).
In that circumstance, “the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parent as the Recipient [and t]he difference in the calculations shall be paid to the parent with the lower weekly support amount.” 2013 Guidelines, § II(D).
In that circumstance, “the child support guidelines shall be calculated first with one parent as the Recipient, and second as if the parties shared custody equally [and t]he average of the base child support and the shared custody cross calculation shall be the child support amount paid to the recipient.”
The husband has requested that we approve the calculation of his parenting time based on “overnights,” that we determine which of the two potentially applicable calculations methods applies, and that we set the amount of child support ourselves. We decline to do so. For any number of reasons, it is appropriate that the trial court make the first cut on such issues (and on whether any deviation from the standards is appropriate). Drawing on the insights of the trial court on such issues is particularly appropriate given the state of the briefing before us.
In that remand, the judge can also address the husband's request that the wife pay $2,244.60 in attorney's fees as a discovery sanction (the judge had reserved that request earlier in the proceedings but did not expressly address it in the judgment, despite the renewal of the husband's request).
We state no position on the merits of that motion, which lies in the judge's sound discretion. We note that the husband also complains that the judge did not reimburse him for $5,300 in attorney's fees incurred in defending a criminal complaint. That request involves different litigation and therefore falls outside the scope of the current appeal.
Paragraph eight of the judgment entered on May 7, 2015, is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.