Opinion
No. 15–P–1501.
07-26-2016
Leah ELY v. Aaron SCOLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant father appeals from a modification judgment entered in the Probate and Family Court which increased his weekly child support payment. He also appeals the order denying his motion for reconsideration of that judgment. We affirm.
Following a hearing on the plaintiff mother's complaint for modification, the judge made findings of fact regarding the incomes of the father and the mother from 2010 through June of 2014. The judge applied the child support guidelines to her findings and increased the father's child support by certain amounts for various time periods. She ordered the father to pay an arrearage of $16,255 at the rate of one hundred dollars per week and, effective June 1, 2014, increased the weekly child support payment from $198 to $255.
A judgment as to the care, custody, and support of a minor child may be modified if there is a material and substantial change in the circumstances such that modification is necessary in the best interests of the child. See G.L. c. 208, § 28 ; Katzman v. Healy, 77 Mass.App.Ct. 589, 593 (2010). We review for abuse of discretion with deference to the judge who heard and saw the evidence. Pierce v. Pierce, 455 Mass. 286, 293 (2009).
The father claims that the judge should have credited him with child support payments made for a different child. The judge considered this argument, raised for the first time in a posttrial memorandum, and rejected it, reasoning that the father had produced no evidence that he had made such payments or was under any obligation to do so. Despite the father's assertion on appeal that he provided supporting materials after the judgment of modification entered, the appendix does not include these materials. Accordingly, on the record before us, we discern no abuse of discretion.
The father also claims that the case should have been dismissed for inactivity under rule 408(2) of the Supplemental Rules of the Probate and Family Court (2012). Because he failed to raise this argument in the Probate and Family Court, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). Moreover, the record before us does not show inactivity for six months, or that the register of probate mailed a notice of inactivity to the parties, events that trigger application of rule 408(2). In short, the record does not support the father's argument and we see no reason to disturb the modification judgment.
Modification judgment affirmed.
Order denying motion for reconsideration affirmed.