Opinion
15-P-536
03-31-2016
MARY J. FEELEY v. MARK S. FEELEY.
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
Following a trial in the Probate and Family Court on the mother's complaint for modification of child support, the father's child support obligation was increased to $170 per month. Appearing pro se, the father appeals from the modification judgment challenging the judge's findings as to his financial condition and ability to pay. We affirm.
Mother and father were divorced in 2007. They had a shared parenting plan, but the two minor children resided with the mother. On March 12, 2013, mother filed a complaint for modification seeking an increase in the monthly child support payment of $100. In the complaint for modification the mother stated that there were changed circumstances because she had lost her job and was not eligible for unemployment benefits.
Father's brief and appendix do not make clear the amount of the monthly child support payment before modification. We take this amount from the complaint for modification in the mother's record appendix, which states that in lieu of child support each party is to pay fifty dollars per child per month into a clothing fund. On August 1, 2013, the judge issued a temporary order that father shall pay one hundred dollars weekly as child support pending pretrial.
Following a trial at which mother and father appeared pro se, on September 23, 2014, the judge issued a written modification judgment in which he stated that he had "serious concerns regarding the veracity of the father's financial disclosure." He concluded that the father's life-style and spending indicated a higher annual income than the $20,000 disclosed by the father. After considering the evidence presented at trial, the judge imputed income of $50,000 to the father and calculated the $170 monthly child support based on that amount.
On appeal, the father argues that his financial situation has not changed from the time of the original agreement except for a diminution of assets to meet legal bills and living expenses. He claims the judge erred when he imputed to him annual income of $50,000. In fashioning an appropriate modification judgment, the judge enjoys "considerable discretion, and the judgment will not be reversed unless it is 'plainly wrong.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). Because the father has failed to provide us with a transcript of the hearing on the modification action or copies of the exhibits admitted in evidence, we cannot conclude that the judge was plainly wrong. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (when party fails to include documents in a record appendix, appellate court is not required to look beyond the appendix); O'Meara v. Doherty, 53 Mass. App. Ct. 599, 606 (2002) (court cannot conclude factual findings clearly erroneous without complete copy of trial transcript). Accordingly, we discern no abuse of discretion.
Judgment dated September 23, 2014, affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 31, 2016.