Opinion
13-P-1566
02-04-2015
D.E. v. F.G.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
In this matter concerning child support and college costs, the mother, F.G., appeals from the April 8, 2013, judgment on the February 16, 2010, complaint of the father, D.E., for modification and on her counterclaim for modification docketed December 17, 2010. We affirm.
First, we note that the mother's record appendix is insufficient. For example, she did not include the father's complaint, her counterclaim, the father's answer, the last modification judgment, or the parties' August 15, 2012, stipulation and temporary order in the record appendix. Other than the parties' 2013 financial statements, she did not include the exhibits, e.g., the parties' 2010 financial statements. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). See also Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998). Our review is necessarily based on the limited record before us.
Facts. The judge made thirty numbered findings of fact. We summarize these findings, supplemented by undisputed facts from the record. The parties have never been married and never lived together. Their son was born on June 23, 1989. Since the adjudication of paternity, the father had been paying child support. The father was not included in any aspect of the son's college education. The mother and the son made all the college decisions without any notice to him. The son attended McGill University from the fall of 2007 through the fall of 2009. In March of 2010, he moved to South Carolina, where he lived with his girlfriend and worked. After March of 2010, except for several overnight visits, the son did not return to the mother's home in Beverly, Massachusetts. In June of 2010, the son turned twenty-one. In August of 2010, he enrolled in Broward College in Florida. He lived in an apartment in Florida year-round and worked. He received an associate's degree from Broward in May of 2012. He did not receive a bachelor's degree.
There was no evidence that the son was a full-time student when he attended college from 2007 through 2012. The mother paid the amount of the son's tuition and board at McGill University that was not covered by financial aid. The mother also paid the son's college and housing expenses while he was at Broward College. The father paid the mother child support of $230 per week, or almost $12,000 per year, continuously, including during the periods when the son was not attending college, until August 15, 2012, when the son was over twenty-three years old. The father made no separate direct payments of college costs.
It does not appear that the mother introduced any documentation regarding college costs and payments. At any rate, no such materials are included in the record appendix.
In his February 16, 2010, complaint, the father sought to modify the December, 1996, modification judgment and to terminate his child support obligation of $235 per week. At that time, the son was twenty years old. In her December, 2010, counterclaim, filed after the son turned twenty-one and began attending Broward College, the mother apparently sought, for the period from the counterclaim's filing until the son's twenty-third birthday, increased child support in accordance with the Massachusetts Child Support Guidelines (Guidelines) (2009) and contribution toward college costs. On August 15, 2012, after the parties agreed that the son became emancipated as of June 23, 2012, when he turned twenty-three years old, the father stopped paying child support. The hearing on the father's complaint for modification and the mother's counterclaim was held on January 14, 2013. Both parties were represented by counsel and testified at the hearing.
It appears that the 1996 modification judgment, not included in the record appendix, provided for child support of $235 per week, but the father's payments were actually for $230 per week. The judge found that the mother has never complained of this discrepancy.
The judge denied the father's request for a retroactive reduction of child support, but allowed his request to terminate child support nunc pro tunc to June 23, 2012, the son's twenty-third birthday. She dismissed the mother's counterclaim for an increase in child support, finding that the "father's child support obligation of $230 weekly from the child's [eighteenth] to [twenty-third] birthdays is fair and reasonable for the child's maintenance, support and education while he was principally dependent upon the [m]other and enrolled in an educational program." The mother appeals.
Discussion. On appeal, the mother argues that the judge erred in not increasing the father's child support obligation from the date of the filing of her counterclaim, i.e., December 17, 2010, until June 23, 2012, when the son turned twenty-three years old.
The mother's reliance on G. L. c. 209C, § 9, appears misplaced. This section provides, in part:
In her brief the mother instead cited to G. L. c. 208, § 28, but the material standards of the two statutes do not differ.
"The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is
principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree" (emphasis supplied).Ibid., as amended by St. 1996, c. 199. Here, the judge found that since March of 2010, when the son moved to South Carolina to work and live with his girlfriend, he did not return to the mother's home except for several overnight visits, and that since August of 2010 he lived in an apartment in Florida year-round.
In any event, even assuming the statute is applicable we see no error in the judge's decision, which, indeed, required child support to continue until the child's twenty-third birthday. The mother's arguments that the judge should have ordered an increase in child support to conform with the Guidelines fails. Section II-F of the 2009 Guidelines provides, in part: "In establishing support orders for children over 18, to the extent permitted by law, the Court shall exercise its discretion . . . ." Likewise, we see no support for the mother's argument that the judge erred in not making the father responsible for any of the college costs. There was neither an agreement nor a judgment requiring the father to pay any part of the college costs. Cf., e.g., Mandel v. Mandel, 74 Mass. App. Ct. 348, 348-349 (2009) (parties' separation agreement, which was merged into divorce judgment, addressed child's college education expenses). Based on the record, we perceive no error of law or abuse of discretion by the judge in declining to find a material and substantial change in circumstances or in finding that requiring the father to continue his weekly child support payment of $230 until the child turned twenty-three was fair and reasonable.
The 2013 Guidelines, which were promulgated after the entry of the modification judgment now on appeal, similarly provide.
Modification judgment dated April 8, 2013, affirmed.
By the Court (Green, Rubin & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 4, 2015.