Opinion
16-P-458
07-27-2017
David Michael GREIN v. Kristen Marie GREIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a modification judgment of the Probate and Family Court dated February 18, 2016. David Michael Grein (husband) challenges the amount of income attributed to his former wife, Kristen Marie Grein (wife), for purposes of calculating child support. For the reasons set forth below, we affirm.
Background. The parties were divorced on October 3, 2014, pursuant to a judgment of divorce nisi that incorporated a separation agreement of the parties approved by a judge of the Probate and Family Court (divorce judge). The judgment of divorce required the husband to pay $328 per week to the wife for the support and maintenance of the parties' three minor children. When determining the parties' respective incomes for purposes of calculating child support, the divorce judge disregarded the wife's actual income of $200 per week ($10,400 per year), which she earned working part-time for her mother's company, Occupational Health Services. Rather, the divorce judge attributed income to the wife of $360 per week ($18,720 per year) on the basis that the wife was capable of working forty hours per week "earning at least the minimum wage" of nine dollars per hour. The divorce judge further noted that the wife has a master's degree in social work and had "worked as a social worker from 1998 to 2002."
A copy of the separation agreement was not included in the record appendix.
The divorce judgment required the father to initially pay child support of $368 per week, which was then automatically reduced to $340 per week "[b]eginning with the payment due on November 28, 2014," and to $328 per week "[b]eginning with the payment due on January 9, 2015." These automatic reductions were tied to the judge's attribution of a minimum wage income to the mother of $320 per week beginning in November, 2014, and $360 per week beginning in January, 2015. See note 3, infra.
The divorce judge found that by "the latter part of November, 2014, the wife "should be earning at least the minimum wage for [forty] hours per week." The divorce judge noted that the minimum wage in Massachusetts was eight dollars per hour as of October, 2014, and it was slated to increase to nine dollars per hour as of January 1, 2015.
Not long after the divorce, the husband filed a complaint for modification (as amended on November 27, 2015) seeking, among other things, a reduction in his child support payments on the asserted basis that the wife was capable of earning more income as a full-time social worker. A trial on the husband's complaint for modification was held before a different judge of the Probate and Family Court (modification judge) on January 5, 2016. The modification judge issued a judgment and supporting memorandum of decision dated February 18, 2016, reducing the husband's weekly child support payments to $266 on the basis that the wife's earning capacity had increased to $31,200 per year ($600 per week). The modification judge declined to attribute "a full-time social worker income" to the wife, instead finding that she was capable of working full-time, rather than part-time, in her current position as a technician for her mother's company. The present appeal followed.
Both parties were self-represented at the modification trial.
Discussion. On appeal, the husband claims that the judge abused her discretion by declining to attribute "a full-time social worker income" to the wife. We disagree.
We review the modification of child support "for an abuse of discretion." Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
When determining a party's income for purposes of setting or modifying a child support order, "[i]n the proper circumstances, ‘[a] judge is not limited to a party's actual earnings but may ... consider potential earning capacity’ when attributing income." C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 152 (2008), quoting from Heins v. Ledis, 422 Mass. 477, 485 (1996). Before attributing income to a party, the judge must "consider all relevant factors including without limitation the education, training, ... past employment history of the party, and the availability of employment at the attributed income level." Massachusetts Child Support Guidelines § I(E) (2013) (guidelines).
"The method for calculating and modifying child support is governed by statute," see G.L.c. 208, § 28, "and by the [Massachusetts Child Support] Guidelines." Morales v. Morales, 464 Mass. 507, 509-510 (2013). The guidelines permit a judge to modify an existing child support order if "there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines." Massachusetts Child Support Guidelines § III(A) (2013).
In declining to impute "a full-time social worker income" to the wife, the modification judge noted that the wife "testified that she has never worked as [a] social worker and her last full-time job was in 2011 as a job placement counselor for which she earned $22,000 [per] year." To the extent the judge appears to have implicitly credited this testimony, we will not disturb the judge's credibility determination "unless we are convinced [it is] plainly wrong." Zaleski v. Zaleski, 469 Mass. 230, 237 (2014), quoting from Felton v. Felton, 383 Mass. 232, 239 (1981). Here, we cannot say that the judge's credibility assessment is "plainly wrong." The husband has failed to provide us with a copy of the trial transcript, and, thus, our review is hampered by an incomplete record.
"Without a record of the testimony or representations at the hearing, we have no basis for concluding that the evidence did not support the judge's findings." R.J.A. v. K.A., 34 Mass. App. Ct. 369, 372 n.6 (1993), quoting from Kunen v. First Agric. Natl. Bank, 6 Mass. App. Ct. 684, 689 (1978). "The burden is on the appellant ... to furnish a record that supports [his] claims on appeal." Ibid. See Mains v. Commonwealth, 433 Mass. 30, 36 (2000) ("A pro se litigant is bound by the same rules of procedure as litigants [represented by] counsel").
Moreover, assuming arguendo that it was error to credit the wife's testimony, we still could not say that it was an abuse of discretion for the modification judge to decline to impute a full-time social worker income to the wife. In any case, whether the wife was employed as a social worker from 1998 to 2002, it appears undisputed that she has not worked in that field for well over a decade. Moreover, there is no indication that the wife has maintained the training and licensure requirements necessary to secure employment as a social worker. Likewise, there is no competent evidence in the record demonstrating (1) the availability of employment as a social worker in the wife's geographic area, or (2) the typical salary for a social worker with a background (including education and work experience) comparable to that of the wife. See Casey v. Casey, 79 Mass. App. Ct. 623, 631 (2011) (attribution improper when, among other things, the record lacked "any evidence about the availability of other full-time or part-time employment in the same geographic area, any evidence about the wife's skill level or specialized training, or what salaries were commonly paid to someone in her situation"). Indeed, as reflected in the judge's findings, it appears that most of the evidence at trial regarding the wife's employment history pertained to her training and experience working as a technician for her mother's company. Accordingly, the judge did not abuse her discretion when declining to attribute a "full-time social worker" income to the wife.
The husband claims the wife is capable of earning $54,660 per year as a school adjustment counselor; however, there is no competent evidence in the record to support this assertion. The husband has included in the record appendix a printout from a job search Web site purporting to show an average annual salary of $61,000 for social workers in Massachusetts, along with a printout purporting to show an annual salary of $54,660 for a fourth-year adjustment counselor in the Brockton public school system. The husband asserts that these documents were part of the "[e]vidence submitted for trial." However, there is no indication, either in the modification judgment or the accompanying memorandum of decision, that these documents were part of the evidence considered by the modification judge. Moreover, we are unable to ascertain whether these documents were ever admitted as exhibits at trial because the husband has failed to furnish a copy of the transcript. Accordingly, to the extent that these documents may not be part of the record, we decline to consider them. We nevertheless note that, even if these documents were clearly part of the record, their inclusion would not change the disposition of this appeal.
The modification judge found that the wife "continues to be employed by her mother's company called Occupational Health Services as a technician doing drug and alcohol testing." The judge found that the wife travels "out of state to be trained to do drug testing and that she is certified," and that she "is also certified to train other people to do testing." The judge also found that the wife "does billing for the company on the computer and is trained in HIPAA laws." In addition, the judge found that the wife currently works for her mother's company three days per week, earning $15 per hour, and that "[t]he company also employs another person part-time." The judge concluded that the wife "has the ability to work full-time at her current hourly rate and could earn $31,200 if she chose to do so."
To the extent that we do not address the husband's other contentions, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Modification judgment dated February 18, 2016, affirmed.