Opinion
15-P-406
03-24-2016
JENNIFER EILE v. ANDREW BRAUNSTEIN.
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
Ignoring the procedural history of the case and his own previous requests, the father appeals from the November 25, 2014, order changing the father's child support obligation for the daughter to $294 per week and eliminating the mother's child support obligation for the son. We affirm.
Background. The material facts are undisputed. The parties were married in 1995. They had two children, a son born in 1998, and a daughter born in 2000. In 2008, the mother filed a complaint for divorce. On April 6, 2011, the parties entered into a separation agreement, which gave the father physical custody of the son and shared physical custody of the daughter between both parents. The child support provisions of the separation agreement merged into the judgment of divorce issued on the same date. The mother's November 16, 2011, complaint for modification, followed by the father's answer, resulted in the October 10, 2013, modification judgment. That judgment provided that the daughter was to spend the majority of the time with the mother and that the son was to continue living with the father, but left open the issue of child support. The modification judgment was followed by additional pleadings and decisions culminating in the November 25, 2014, modified child support order that is the subject of this appeal. We refer to additional facts below.
Discussion. "When assessing a decision regarding a modification of child support, an appellate court 'review[s] for an abuse of discretion.'" Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012), quoting from Richards v. Mason, 54 Mass. App. Ct. 568, 572 (2002).
The father argues that the judge's November 25, 2014, order modifying the amount of child support was invalid because it was issued without an evidentiary hearing. However, following the September 5, 2014, hearing the father sought a decision by the judge based only on the parties' submissions to avoid the necessity of coming back to court. The father never requested an evidentiary hearing. The issue is waived. See BPR Group Ltd. Partnership v. Bendetson, 453 Mass. 853, 869 n.24 (2009).
Father's counsel stated, "These people could literally be in court every week on the changes in circumstances in this case. Enough is enough." Counsel also stated, "We want an end to this. So I would ask . . . that we do a briefing, that Your Honor enters an actual order that it's made retroactive or whatever, specifies a specific start date so that we don't have to come back here and argue over . . . what the amount should be from week to week."
The father also argues that the order was invalid because there was no pending complaint for modification of child support. This argument is without merit as the child support issue expressly remained open until the issuance of the November 25, 2014, order, with the father agreeing to and requesting continued court involvement for the purpose of redetermination of child support. See Kennedy v. Kennedy, 17 Mass. App. Ct. 308, 312 (1983) ("A Probate Court has power to modify a support order in the context of either a complaint for contempt or a complaint for modification").
The father argues that the judge should not have recalculated child support without consent of the parties as required by the separation agreement. This argument is without merit. Both parties sought recalculation of child support. Furthermore, the child support provisions of the agreement merged into the divorce judgment and the provision now relied on by the father in support of his argument was applicable only to those provisions that did not merge and retained independent legal significance.
The father also argues that the judge should not have modified child support retroactive to November 13, 2013. This argument fails for the reason, if no other, that the father requested retroactive relief to that date.
The father made the request for retroactive modification of child support in his September 2, 2014, memorandum and both parties made that request at the September 5, 2014, hearing.
The father argues that the judge deviated from the child support guidelines by eliminating child support for the son without making supporting factual findings. First, because the son was no longer living with the father, it is far from clear that failure to order child support for the son constituted a deviation from the guidelines. Even were we to assume that the judge deviated from the guidelines, the deviation would be supported because the judge made supporting findings of fact.
In this context the father also argues that the judge eliminated the mother's child support obligation "without finding that the [so]n would not return to [h]usband's home following the conclusion of his educational treatment placement." No evidence was presented at the hearing or in the father's subsequent submissions when the son would be discharged from his residential placement to the father's home. The judge could not make a child support determination based on speculation of future changes to circumstances.
The judge found that the son was no longer living with the father, that he was now living in a therapeutic residential placement, that the cost of this placement was borne by the town of Weston and the Commonwealth of Massachusetts, that the father failed to state with any specificity the amounts he incurred for the son's care while the son was so placed, and that the father offered no information that would allow the judge to conclude that he had to continue to maintain a home in Weston in order for the town of Weston to continue paying fifty percent of the cost of the son's placement.
Finally, the father argues that the judge did not make findings to support the amount of child support for the daughter, and also challenges other related findings. The judge did make findings of fact and we perceive no error in those findings, both with respect to the father's imputed income and the amount of parenting time spent with his daughter. See Goodman v. Atwood, 78 Mass. App. Ct. 655, 657-658 (2011).
For all of the above reasons, we conclude that the judge did not abuse her discretion in determining child support and affirm the November 25, 2014, order.
In the exercise of our discretion, we decline to award appellate attorney's fees.
So ordered.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 24, 2016.