Opinion
No. 12–P–1584.
2013-08-30
E.L.E. v. A.M.A.
By the Court (BERRY, WOLOHOJIAN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a paternity and custody judgment that established joint legal custody of the nonmarital child, granted the mother sole physical custody, established a visitation and parenting schedule, ordered the father to pay child support, and did not award the mother attorney's fees. The mother claims error with respect to all aspects of the Probate and Family Court judgment except the grant of sole physical custody. We affirm.
Joint legal custody. The mother contends that the judge abused his discretion when awarding joint legal custody because the evidence does not support a finding that the parties exercised joint responsibility for the child prior to litigation, or that they have the ability to communicate regarding the child. Section 10( a ) of G.L. c. 209C, inserted by St.1986, c. 310, § 16, provides that a court may grant joint legal custody if “the court finds that the parents have successfully exercised joint responsibility for the child ... and have the ability to communicate and plan with each other.” The overriding consideration is the best interests of the child. J.S. v. C.C., 454 Mass. 652, 656 (2009). The best interests determination “rests within the discretion of the judge,” and “findings in a custody case ‘must stand unless they are plainly wrong.’ “ Custody of Kali, 439 Mass. 834, 845 (2003), quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). “[D]ue regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Mass.R.Dom.Rel.P. 52(a). The judge's findings on both joint responsibility and the ability to communicate are supported by the evidence. The evidence showed that the parties prepared together for the birth of the child, agreed on the items to be purchased before the birth, coparented for six months after the child's birth, agreed about where the child would live, formulated a visitation schedule and modified the schedule twice by agreement, took trips together, and agreed that the child would be raised in the mother's faith. This is not a case where the parental relationship was “dysfunctional, virtually nonexistent, and one of continuous conflict.” Carr v. Carr, 44 Mass.App.Ct. 924, 925 (1998).
The judge also found that the parties have the present ability to communicate and to plan regarding the child, though the mother has from time to time withheld cooperation.
The finding is fully supported by the record. To be sure, there was evidence of regrettable moments, particularly during the pendency of the litigation. The mother had restricted the father's visitation both prior to suit as well as after onset of the suit, despite court orders encouraging her to cooperate voluntarily in increasing visitation. The father stopped visitation at one point because he felt that, absent a court order, there was increasing tension, which he believed was emotionally harmful for the child. The father, for his part, telephoned the police to settle a dispute about a car seat. However, both parents expressed a desire to see their communication improve for the sake of the child. Although the mother initially restricted the father's visitation, she ultimately did agree to the father's overnight visits, expanding his overnight visits in the future, the father's inclusion in parent-teacher conferences, providing the father with information about the child's school and extracurricular activities, and the father's participation in taking the child to those activities. She also allowed the child to celebrate the Greek Orthodox Easter, even though the child is being raised Catholic.
The judge found that the parties' ability to communicate was not “rendered non-existent,” but that the mother, despite being well educated and intelligent, “has made a personal choice to figuratively fold her arms and say, ‘NO!’ Otherwise put, [the mother] has focused on her negative feelings about [the father], perhaps from the broken engagement and the negative interactions with his mother, rather than focusing on what is best for their child.”
In sum, the evidence supports the finding that both parents love the child, had cooperated before the filing of the suit, do not disagree on any major child-raising issue, and have the present ability to communicate and to cooperate. Contrast Smith v. McDonald, 458 Mass. 540, 553–554 (2010). The grant of joint legal custody recognizes the parents' mutual responsibility for the child, and provides both parents the opportunity to continue to cooperate in the future for her benefit. Id. at 553. In striking this balance, a balance clearly intended to foster the best interests of the child, the judge did not abuse his discretion or err as a matter of law.
Parenting plan. The mother contends that the judge abused his discretion in establishing a parenting schedule, making transportation of the child a reciprocal obligation, and authorizing international travel. She contends that the judge adopted the father's proposed schedule without making supporting findings, and that the provisions of the parenting schedule are unsupported by the judge's findings of fact. A judge has significant discretion in formulating a parenting plan, and we do not disturb a judge's order absent an abuse of that discretion. Austin v. Austin, 62 Mass.App.Ct. 719, 722 (2004), S. C., 445 Mass. 601 (2005).
The judge did not abuse his discretion in devising the parenting plan. The judge found that the child is active and has a “wonderful relationship with both parents and she will benefit from their active involvement in her life.” The parenting plan, which contains no unique or remarkable provisions, embodies this objective by gradually increasing contact between the father and the child on weekends, school vacations, and holidays, and permitting international travel when the child reaches the age of seven years. The mother supports many of her arguments by pointing to the fact that the judge did not follow all of the guardian ad litem's recommendations. The best interests of the child are paramount, see Freedman v. Freedman, 49 Mass.App.Ct. 519, 522 (2000), and the judge was not required to follow the recommendations of the guardian ad litem in all respects, Mason v. Coleman, 447 Mass. 177, 186 (2006). The judge took into consideration the fact that contact with both parents is in the child's best interests, and crafted a parenting plan to that effect.
Child support. The judge awarded child support of $1,306.50 paid twice per month starting from a date two weeks after judgment. The mother contends that the judge erred in basing the child support order on the father's voluntarily reduced salary and failing to attribute income to him based on his earning potential, and erred in failing to award retroactive support. Our review is for abuse of discretion. Department of Rev. v. C.M.J., 432 Mass. 69, 75 (2000).
The child support guidelines (guidelines) applicable at the time of trial provided that attribution of income is appropriate where the judge finds that a party is capable of working and is underemployed. See Massachusetts Child Support Guidelines II–H (2009). If a judge finds that a party is “earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order.” Ibid.
The father earned $488,000 at a job he held in 2011, of which two-thirds was commission based on sales. That employer changed its commission formula, effective January 1, 2012, a change that would have resulted in income to the father of around $200,000 per year.
The employer also changed its management structure, effectively demoting the father. The employer denied the father's requests for a promotion and an opportunity to make an equity purchase. The father then took a position as executive director for a new employer at an annual salary of $160,000. The new position permits him greater flexibility in his schedule and requires less international travel.
The father also testified that he would make $250,000 in 2012 if he included an “overhang of commissions which I negotiated a settlement on earlier this year.”
The judge found that, in these circumstances, the father's reduced income was not a result of a “voluntary quit or reduction.” The judge did not abuse his discretion in declining to attribute income to the father where the reduction in income essentially was imposed by market conditions. See Casey v. Casey, 79 Mass.App.Ct. 623, 630–634 (2011) (attribution of income in fashioning alimony and child support orders inappropriate where employer reduced hours). Contrast Cooper v. Cooper, 43 Mass.App.Ct. 51, 53–54 (1997) (attribution appropriate in fashioning alimony order where husband resigned from position to begin joint venture with no salary).
The mother next contends that the judge erred in failing to order $47,913.14 in retroactive child support, an amount that reflects the difference between the presumptive amount of support under the guidelines and the amount paid.
Section 9( a ) of c. 209C, inserted by St.1995, c. 38, provides that, upon the petition of a party, the court “shall also order past support from the period from the birth of the child to the entry of the order, taking into consideration the parent's ability to pay under subsection (c) and any support provided by the parent during such period.” In reviewing the order, we are mindful that “[t]here is a greater need for retroactive orders to protect children born out of wedlock than other children because the paternity of a father of a child born out of wedlock is not presumptively established by the fact of marriage and may take some time to be established.” O'Meara v. Doherty, 53 Mass.App.Ct. 599, 605 (2002), quoting from Department of Rev. v. Roe, 29 Mass.App.Ct. 967, 968 (1990). A judge may take into consideration the parent's previous support and other “additional equitable factors where appropriate.” Id. at 606.
The father contends that this argument was waived because the mother did not “petition” for retroactive child support below. See G.L. c. 209C, § 9( a ). However, although the mother did not provide us with her filings in the case, the judge was aware that there was an issue as to past child support because he made specific findings on the point. Contrast Smith v. McDonald, 458 Mass. at 552. Thus, assuming without deciding that the claim is not waived, we address the argument on the merits.
Here, although a formal determination of paternity was not made until the entry of an order in this action, see G.L. c. 209C, § 10( b ); Smith v. McDonald, 458 Mass. at 545–546, the father acknowledged paternity from the outset, was listed on the birth certificate, and provided support. This case is therefore distinguishable from those in which an order of retroactive support is necessary to make a child whole because there has been a delay in acknowledging paternity. Cf. O'Meara v. Doherty, supra at 605. In declining to order retroactive support, the judge considered that the father regularly and voluntarily had paid support, twice had voluntarily increased his support payments, was up to date with payments at the time of trial, and had supplied all transportation for nearly five years, assuming all gasoline, toll, vehicle depreciation, and maintenance costs. Above all, the judge found that the “monies paid by father have been completely adequate to meet the needs of the child.”
The mother argues that principle 3 of the guidelines sets the goal of providing the child with the higher standard of living where parental income is materially different. While the father's income exceeds that of the mother, there is no showing in this record that the five year old child, who attended swimming, gymnastics, and horseback riding lessons, wanted for anything in any way. The purpose of child support is to insure that the reasonable needs of the child are met. M.C. v. T.K., 463 Mass. 226, 234 (2012). The mother's primary argument on appeal is that the father, prior to the entry of an order of paternity, did not voluntarily share his full income, and that his income vastly exceeds hers.
“Nothing in the guidelines or in our decisional law, however, espouses the view that child support should be used to equalize living standards in the parental households through a mechanistic equalization of the parties' incomes. See, e.g., Pearson v. Pearson, 52 Mass.App.Ct. 156, 160–161 (2001) (rejecting ‘pure income-sharing approach’).” Ibid. The judge did not abuse his discretion in determining that retroactive child support was not warranted in this case.
The judge found that the parties did not share financial statements or W–2 forms before the action was initiated by the father. The mother also argues that the financial statements filed during the litigation underreported his 2011 income, which exceeded prior and subsequent years, and that she first learned of the 2011 income at trial. The bonuses that formed the basis of his 2011 compensation came at the “end of 2011,” and the financial statements filed with the court were filed in mid-December of that year. The judge specifically found that the father did not misrepresent his income, or deceive the mother in any way. We do not disturb the judge's credibility determinations. The judge did increase the amount of support to be paid based on the father's income at the time of trial.
Attorney's fees. The mother's final contention is that the judge abused his discretion in declining to award her attorney's fees. A judge's authority under G.L. c. 209, § 38, to shift fees in marital custody disputes has been extended to disputes involving nonmarital children under c. 209C. J.S. v. C.C., 454 Mass. at 665 n. 19, citing, e.g., Doe v. Roe, 32 Mass.App.Ct. 63, 68–69 (1992). The award of attorney's fees is within the sound discretion of the judge. Kendall v. Kendall, 426 Mass. 238, 251–252 (1997). The judge found that the litigation was prolonged, that litigation costs were driven up by the mother's conduct, and denied fees to her on this basis. The judge was “in a position to observe first hand the defendant's conduct; therefore we shall not disturb [his] assessment on the basis of a printed record.” Id. at 252. See Wolcott v. Wolcott, 78 Mass.App.Ct. 539, 546–547 (2011).
The father's request for appellate attorney's fees is denied.
Judgment affirmed.