Opinion
No. 11–P–1840.
2012-11-16
Kristin M. INFORZATO v. Michael P. CONTOIS.
The mother argues that the new parenting scheduling constitutes a substantial change in circumstances and that, as the parent in whose house the children primarily reside, she is entitled to receive (rather than pay) child support. In other words, in a case such as this one, where a material and substantial change in circumstances has occurred warranting modification of the divorce judgment in the best interests of the children, a judge is required to modify the child support arrangements if the existing arrangement is inconsistent with the Massachusetts Child Support Guidelines (guidelines). The language of the statute is clear and mandatory. See Weidmann v. The Bradford Group, Inc., 444 Mass. 698, 710 (2005) (“may” is permissive; “shall” is mandatory). The plain language of the statute does not make the judge's obligation to modify child support contingent upon the existence or terms of a separation agreement. See Water Dept. of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010) (court looks to plain language of statute to understand legislative intent). Given the plain language of the statute, we reject the mother's argument that the terms of the separation agreement precluded the judge from modifying the child support arrangement. 5
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties entered into a separation agreement that provided, among other things, that its provisions concerning their children would merge into the divorce judgment. The parties also agreed that they would share physical and legal custody of the children. Neither was to pay child support to the other while this arrangement remained in place. The probate judge found that the separation agreement was fair and reasonable, and judgment of divorce nisi entered.
The father was to be primarily responsible for the children Tuesday, Wednesday and Thursday, and the mother was to be primarily responsible for the children the rest of the week.
In July, 2009, the mother filed a complaint for modification seeking sole legal custody of the children and seeking to change the parenting schedule. The father counterclaimed, seeking sole legal and physical custody. In broad summary, the cross complaints were precipitated by the parents' inability to make the existing parenting arrangement work, to the detriment of their children. After trial, the judge awarded the mother sole legal custody of the three children because he found that the parents were unable to coparent successfully. However, the judge also concluded that “the evidence does not support a finding that the shared physical custodial arrangement should be modified.” The judge also found that the evidence did not warrant a reduction in the father's parenting time. That said, the judge credited the testimony of the school adjustment counselor that “the children needed to be in one home for the school week” and, accordingly, he concluded that the parenting schedule should be altered. He thus ordered that the children remain in the mother's home during the school week, with weekends at the father's. The judge also ordered that “[p]ursuant to the child support guidelines, the Mother shall pay $97.00 per week in child support to the Father each Friday by wage assignment.” The mother appeals from this aspect of the judge's order. The mother argues that the terms of the separation agreement precluded the judge from ordering her to pay child support to the father because, under the modification order, the children reside principally with her. The mother bases this argument on the following provision of the separation agreement:
After the mother's earlier contempt complaint, the parties entered into an agreement which became a final judgment on that complaint. The agreement provided in part that “[b]oth parties agree that they shall revisit the parenting time that each has per the divorce agreement once [the father] vacates the home and determines where he will permanently reside.”
The trial included testimony from both parties and another witness and a number of exhibits.
More precisely, the judge ordered that, during the school year, the mother would have the children from Sunday at 6:00 P.M. until Friday, with the father having them from Friday after school until Sunday at 6:00 P.M. and on Wednesdays from after school until 7:00 P.M.
“If two or more children reside principally with one parent as opposed to in a shared physical custody arrangement, a substantial change in circumstances shall be deemed to have occurred. The term ‘reside principally’ as used in this Exhibit shall mean 20 or more nights out of 30 at the home of one parent in each of 4 consecutive months.
“In that event ....[c]hild support shall be calculated according to the then-current child support guidelines. The guidelines shall be applied in a customary fashion and in proportion to the number of children residing with each parent in order to determine what if any amount of child support shall be paid and to whom.”
The mother argues that the new parenting scheduling constitutes a substantial change in circumstances and that, as the parent in whose house the children primarily reside, she is entitled to receive (rather than pay) child support.
We begin our analysis with G.L.c. 208, § 28, as amended by St.1993, c. 460, §§ 60–61, which provides in relevant part:
“Upon a complaint after a divorce, ... the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children. In furtherance of the public policy that dependent children shall be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of divorce, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines ...”(emphasis added).
In other words, in a case such as this one, where a material and substantial change in circumstances has occurred warranting modification of the divorce judgment in the best interests of the children, a judge is required to modify the child support arrangements if the existing arrangement is inconsistent with the Massachusetts Child Support Guidelines (guidelines). The language of the statute is clear and mandatory. See Weidmann v. The Bradford Group, Inc., 444 Mass. 698, 710 (2005) (“may” is permissive; “shall” is mandatory). The plain language of the statute does not make the judge's obligation to modify child support contingent upon the existence or terms of a separation agreement. See Water Dept. of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010) (court looks to plain language of statute to understand legislative intent). Given the plain language of the statute, we reject the mother's argument that the terms of the separation agreement precluded the judge from modifying the child support arrangement.
We also note that, even were we to accept the mother's premise that the separation agreement trumps the guidelines, we would be led to the same practical result. The agreement states that, in the event that the children reside primarily with one parent, then child support shall be calculated according to the guidelines. In other words, under both the separation agreement and G.L.c. 208, § 28, the judge was required to calculate under the guidelines.
The mother also argues that the judge was not warranted in ordering her, as the parent in whose house the children would primarily reside, to pay child support to the father. She argues that the guidelines require her, as the parent with primary custody, to receive (not pay) child support. The mother is correct that parenting time is a factor to be considered under the guidelines. See Massachusetts Child Support Guidelines § II.D (2009). Different calculations are to be made depending on whether the children reside primarily with one parent or whether the parents share equally, or approximately equally, in the parenting and financial responsibility for the children. Ibid. Here, although the judge's order states that child support was awarded “pursuant to the [g]uidelines,” neither his order nor his memorandum and findings of fact details his calculation or reasoning with respect to the amount of child support. Although it is possible to infer from certain of the judge's findings that he determined that the parents would continue to share equally in the parenting of the children, that inference alone is not sufficient to understand how the judge calculated child support.
The judge explicitly found that the evidence did not support a reduction in the father's parenting time and his memorandum reflects that he intended to reschedule, but not reduce, either party's parenting time. The fact that the children will reside with the mother during the school week does not mean that the judge intended to—or did—increase her parenting time given that the children are in school on those days, that all school-year weekends are to be spent with the father, and all summers and holidays are evenly divided.
We retain jurisdiction and remand the matter so that the judge can make written findings within the next sixty days explaining his calculation and allocation of child support.
So ordered.