Opinion
10-P-2237
03-13-2012
LEE ANNE HEGARTY v. BARRY LEE COLEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from the May 18, 2010, judgments on the mother's complaints for modification and for contempt, challenging the orders relating to child support and college costs.
The father's two complaints for contempt are not included in the record appendix, nor does he present an argument regarding their dismissal.
Similarly, the father does not include in the record appendix his motions for reconsideration, nor does he raise any argument regarding the denial of these motions.
The parties were divorced on August 24, 1994. They have two daughters - Sarah, born on February 6, 1986, and Rachel, born on November 21, 1989. On September 13, 1994, they changed the amount of the father's child support obligation by stipulation which was incorporated and merged into the divorce judgment.
On January 31, 2008, the mother filed a complaint for modification, requesting that the father resume paying child support and contribute to the children's college expenses. On April 29, 2008, the mother filed a complaint for contempt, alleging that the father accumulated a substantial child support arrearage. A hearing on the complaints was held on April 21, 2010.
On May 18, 2010, the judge issued a judgment on the mother's complaint for contempt, finding the father in contempt for failing to pay the court-ordered child support and establishing the arrears at $7,472.66. On the same day, she issued a judgment of modification, ordering the father to pay $10,597.99 of the children's college costs and to pay child support for the younger daughter for the January 1, 2009 - February 1, 2010 period. On the same date, she issued findings in support of the judgments.
The judge found that the father was not in contempt for failing to provide certain commission and tax information to the wife.
The two judgments at issue, and the judge's findings, though all dated May 18, were docketed on June 2, 2010.
Discussion. As a pro se litigant, the father is held to the same standards as a litigant represented by counsel. See Maza v. Commonwealth, 423 Mass. 1006 (1996). The father failed to include the docket sheets and most of the exhibits in the record appendix, while improperly including various materials that were not before the judge at trial. Many of his arguments do not constitute proper appellate arguments supported by citations to relevant legal authorities. Although these problems are sufficient to warrant dismissal of his appeal, Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-86 (1995), we nevertheless address his arguments below.
1. Legal representation. The father argues that he was denied the right to legal counsel. This argument is without merit because the father expressed his wish to proceed pro se and agreed to have attorney Socha present solely as a consultant.
At the start of trial, attorney Socha told the judge that the father wanted to proceed pro se and that she was not appearing as his attorney, but that the father wanted her to advise him on certain issues. The judge indicated that the attorney could either appear on his behalf or act solely as a consultant, in which case the father could request a break to consult with her, but that this would not constitute an appearance.
2. Contempt judgment. The divorce judgment provided that child support was to continue 'until the youngest child graduates from high school, provided however, if any child is a full time college student, residing with the plaintiff and dependent on her for their support their support shall continue but not beyond the age of twenty-three (23) years.'
The father does not argue that this provision was not clear and unequivocal or that there was no evidence of clear and convincing disobedience. See Birchall, petitioner, 454 Mass. 837, 851-852 (2009).
The judge found that the older daughter, Sarah, graduated from the University of Massachusetts in December of 2008 when she was twenty-two years old. Sarah 'worked part time and at times she lived in apartments with other students, she came home between housing arrangements and in the summers. She continued to be domiciled with and dependent upon [the mother] for her support].'
While the father disputes the judge's finding as to Sarah's domicile and dependency status by challenging the mother's testimony on the subject, it is well settled that it is for the judge to decide on the credibility of witnesses and the weight to be given to their testimony. See Custody of Eleanor, 414 Mass. 795, 800 (1993). See also Downey v. Downey, 55 Mass. App. Ct. 812, 816 (2002), quoting from Bush v. Bush, 402 Mass. 406, 411 (1988)('Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial'). Based on the evidence before her, the judge could conclude that Sarah was in college, domiciled with the mother and dependent on her until December 31, 2008. Therefore, under the terms of the divorce judgment, the father was obligated to pay child support until that time and the finding of contempt against him for his failure to do so was proper.
The father has not claimed an inability to pay.
3. Modification complaint. On a complaint for modification, the moving party 'must demonstrate a material change in circumstances since the entry of the earlier judgment.' Bercume v. Bercume, 428 Mass. 635, 643 (1999), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). We review a judge's ruling on a modification complaint for abuse of discretion. See Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004).
A judge has discretion to 'modify retroactively a support order 'with respect to any period during which there is pending a complaint for modification." Department of Revenue v. Foss, 45 Mass. App. Ct. 452, 460 (1998), quoting from G. L. c. 119A, § 13.
a. Child support. Because the judge correctly found that child support was due pursuant to the divorce judgment until December 31, 2008, when Sarah graduated from college at age twenty-two, the question on the complaint for modification was whether there was a material change of circumstances justifying a child support order starting in January 1, 2009, when Rachel was nineteen years old, and continuing until February 1, 2010, when Rachel, then twenty, left home. The judge found that Rachel, who has battled drug abuse and depression since high school, did not finish her first semester in college and was domiciled with and dependent on her mother until February of 2010, when she left home. Although the father questions the mother's testimony regarding Rachel's domicile, as was discussed above, it was for the judge to make determinations of credibility.
The father does not challenge the amount of child support, nor would he be in a position to do so in light of his failure to include any of the financial exhibits in the record appendix.
The judge found that Rachel was expelled from high school, was readmitted, but did not graduate. She was a patient in a ninety-day inpatient treatment program and has been treated by a therapist. In January of 2008, she got her GED and enrolled in Springfield Technical Community College, but did not finish any of her classes that semester and did not continue. She began to earn spending money through parttime work, continued to live with her mother and to battle the symptoms of depression and drug abuse. In the spring of 2009, she went away with a band for six weeks, spent most of the following month in a psychiatric hospital, was brought home by the mother, remained very ill, slept twelve to eighteen hours a day and was unable to work or go to school. Since September of 2009, she worked ten to fifteen hours a week at Dunkin Donuts, continued to live with her mother and was covered by her health insurance.
Based on her subsidiary findings, which are supported in the record, the judge concluded that because 'there has been a material change of circumstance since the time of the divorce, specifically Rachel's ongoing mental health issues which have sabotaged her attendance at college, but rendered her still unemancipated, the provisions of G. L. c. 208, § 28, apply and allow for imposition of a child support obligation on the father.' See generally Tatar v. Schuker, 70 Mass. App. Ct. 436, 447 (2007).
This section provides, in part: '[t]he court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance.'
b. College costs. The judge found that because the divorce agreement indicated that the parties generally contemplated college for the children and because the children's college expenses were limited, the father, the mother, and each of the children should pay a third of such expenses.
'Although college for the children was contemplated to some extent by the parties in that their agreement provided that support would continue through college, they did not make any specific provisions for payment of the children's college expenses which, given that the children were 5 and 8, was appropriate. See Ketterle v. Ketterle, 61 Mass. App. Ct. 758 (2004), quoting Passemato v. Passemato, 427 Mass. 52 (1998). . . . Given that both children attended very inexpensive schools and the evidence does not suggest that Sarah or [the mother] incurred any excessive or unwarranted expenses, it is reasonable for [the father and the mother] to share the cost of the girls' education with them. See generally, Mandel v. Mandel, 74 Mass. App. Ct. 348, 355 (2009). The children shall be responsible for one-third of the costs incurred, and [the father and the mother] shall be responsible for one-third each of the remainder.'
For Rachel, the cost of her first and only college semester was $2,021. The judge ordered the father to pay one third of these expenses - $673.66. While the father argues that Rachel's failing performance should have excused him from payment, he cites no Massachusetts case in support of this argument.
In his brief, the father presents no legal argument regarding the payment of Sarah's college costs, thereby waiving any challenge to the order to pay them.
Furthermore, the father does not challenge the judge's findings that he knew of Sarah's college plans because Sarah spoke to him about them and that his and the mother's disagreement over the filing of the FAFSA application derailed the filing and was tantamount to a waiver of either party's right to object to the cost of college.
To the extent the father raises other arguments on appeal, those are without merit.
Conclusion. The judgments dated May 18, 2010, are affirmed. So ordered.
By the Court (Graham, Rubin & Milkey, JJ.),