Opinion
No. 11–P–1431.
2012-07-13
Judith INGALLS v. Richard ALLEN.
By the Court (KANTROWITZ, KAFKER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Judith Ingalls, the former wife of Richard Allen, appeals from a modification judgment of the Probate and Family Court which, among other things, continues an earlier parenting plan of the parties and, in lieu of “traditional” child support, directs each party to pay certain enumerated expenses of the children. We vacate the portion of the judgment that pertains to the payment of the children's expenses and remand the matter to the Probate and Family Court for further proceedings.
1. Background. The parties were married in 1999. Two children were born of the union. In July, 2007, the mother filed a complaint for divorce. As part of the divorce litigation, the parties were faced with a “somewhat unusual situation” in that the mother's employer had offered her the opportunity to spend two years at the employer's office in India. Although the father originally opposed the relocation, he eventually agreed to it and, in October, 2007, the parties entered into an “agreement for judgment.” Among other things, the agreement for judgment provided that the parties shall have joint legal custody of the children and that the mother shall have the right to remove the children to India for a period of two years. In paragraph 9, the parties agreed that during the two-year period, the mother “will pay for the expenses of the minor children and the [father] will be responsible for the expenses of the children when they are with him.” Paragraph 10 provides that “[n]either party will pay child support to the other.”
The agreement for judgment was incorporated into an order of the court dated October 19, 2007.
The agreement for judgment further recites that nothing therein shall be interpreted as prejudicial to either party in any future negotiations or agreements.
By a separation agreement dated November 4, 2007, the parties agreed that the order on the agreement for judgment shall become a partial judgment at the time the judgment of divorce nisi is entered, and that the terms of the partial judgment shall be incorporated in the separation agreement. With respect to child support, the separation agreement recites for purposes relevant here: “There will be no order for child support. The parties' Agreement for Judgment ... states that, during the two (2) year period that the Wife and children reside in India, the Wife will pay for the expenses of the minor children and the Husband will be responsible for the expenses of the children when they are with him.”
On November 5, 2007, the judge entered findings and an order of approval under G.L. c. 208, § 1A, stating that the separation agreement “ does make proper provisions for custody—for support and maintenance—for alimony—for the disposition of the marital property.”
By a judgment of divorce nisi dated December 5, 2007, the parties' separation agreement was incorporated in the divorce judgment and survived with independent legal significance, except for the provisions of the agreement relating to the unemancipated children, which were incorporated and merged in the judgment.
In 2007, the year of the parties' divorce, the husband earned $59,900; the wife earned $141,392.
In February, 2008, the mother left for India with the children. During her stay in that country her income increased dramatically as she enjoyed a temporary increase in pay and virtually all of her expenses and those of the children (e.g., housing, transportation, “maid/cook services,” the children's schooling) were paid for by the mother's employer.
In 2008, the mother's annual income was $494,551; in 2009 her income was $490,207. While the mother and the children were in India, the father visited regularly and remained actively involved in the children's lives. Indeed, the father, a consultant, deliberately shifted his clients and jobs towards Asia so he could combine business travel and visiting the children.
The mother testified that all of the benefits she received were reflected on her W–2 forms.
By July, 2009, the mother and the children had returned to the United States. The parties voluntarily resumed to their parenting schedule wherein the father would have the children in week “A” from Thursday after school until Sunday evening, and in week “B” from Thursday after school until Friday evening.
In October, 2009, the mother filed a complaint for modification alleging that, upon her return from India, the parties had reached agreement with respect to a parenting plan, but no agreement had been reached with regard to child support. The mother requested that the judge modify the divorce judgment by adopting the parenting plan agreed to by the parties and ordering the father to pay child support on a weekly basis. On the mother's motion for temporary orders seeking child support in the amount of $317 per week in accordance with the Child Support Guidelines (Guidelines), the judge, on February 2, 2010, ordered that the parties shall continue their parenting schedule, and, “[i]n lieu of ‘traditional’ child support,” the payment of the children's expenses was to be divided between the parties.
The judge also ordered that each party shall pay seventy dollars per week into a college fund for the children.
The mother was ordered to pay one hundred percent of the following costs: all summer and spring clothing for the children, all sports/gymnastics registration fees and all uniforms and equipment associated with the sport, health insurance premiums for the children, haircuts for the children, and all birthday gifts the children take to birthday parties. The father was ordered to pay one hundred percent of the following costs: all fall and winter clothing for the children, all school supplies for the children, school lunch costs, summer camp costs, YMCA/YWCA membership for the children, cellular telephones and cellular telephone costs for the children, and Girl Scouts expenses.
After a trial, at which the mother sought child support pursuant to the Guidelines,
the judge entered a modification judgment directing the parties to continue with their week “A” and week “B” parenting schedule. In lieu of “traditional” child support the judge ordered the parties to divide payment of the children's expenses in a manner substantially the same as the allocation set out in the temporary order (see note 4, supra ). The judge also continued the order for the payment by each party of seventy dollars per week into a college fund for the children. In addition, the judge ordered that the parties share equally any tutoring expenses for the children as well as the children's uninsured medical expenses.
There was evidence, and the judge found, that in 2010 the father earned $69,000, and the mother earned $238,621.
In support of the judgment, the judge found that the parties had a “shared parenting arrangement” which was working well and was in the children's best interests. The judge indicated that the “quality time” (excluding the time the children are asleep or in school “and thus not with either parent”) the children spent with each parent was approximately equal. Continuing, the judge found that both parents were deeply involved in raising the children and enjoy a broad range of child care activities.
The judge also found that the parties had never had a “traditional” arrangement or a “traditional” family which, in the judge's view, “connotes one parent (most often the mother) doing the lion's share of the childcaretaking, with the other parent (most often the father) doing the lion's share of the wage earning.” Moreover, the judge found that the father wants to stay involved in such things as clothes shopping with the children, buying school supplies with them, working with their tutors, and other such activities. He does not want, the judge stated, simply to write the mother a weekly check, leaving her to execute all the tasks and purchases. On the other hand, the judge found, the mother does not want the father to be highly involved with the children and “would prefer to just collect a weekly check from him and be done with it” as she does not like the bookkeeping she says is required or the process of asking the father for reimbursements if she pays for something he should have.
The judge stated: “I find that Father and Mother are both equally capable, and involved, with the daily routine activities of child care-feeding, clothing, transporting, entertaining, attendance at school events and parent-teacher conferences, attendance at medical and dental appointments, etc. Neither parent wants to be a ‘secondary’ caretaker to the other; neither parent wants the other to be the ‘primary’ caretaker.”
The judge summarized her position as follows: “I find that the evidence stands in stark contrast to Mother's claim that the current shared custody arrangement should be seen as ‘traditional,’ and that she should receive ‘traditional’ child support in the form of a weekly payment from Father to her. I further find that Mother's true motivation in making this request is her desire to have the most possible control over all the purchasing and expenditure decisions and activities, with minimal involvement of father.”
The judge's conclusions of law provide further insight into her thought processes. Specifically, the judge appeared to conclude that the Guidelines did not have application in the present case as the children did not have a primary residence with one parent. The judge also stated that application of the Guidelines would be unjust or inappropriate in this matter as it would diminish the active role the father has established and wishes to maintain in the lives of the children. In the judge's view, “[a]ctually making purchases with and for the children is a more active form of parenting than simply writing a check to their mother each week, and the children benefit from having two equally involved parents raising them.”
2. Discussion. a. Child support. “[C]hild support is controlled by G.L. c. 208, § 28, and the Massachusetts Child Support Guidelines.” Korff v. Korff, 64 Mass.App.Ct. 94, 95 n. 5 (2005); Croak v. Bergeron, 67 Mass.App.Ct. 750, 754 (2006); Wasson v. Wasson, 81 Mass.App.Ct. 574, 576 (2012). “A child support judgment may be modified on a finding ‘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.’ “
Brooks v. Piela, 61 Mass.App.Ct. 731, 734 (2004). See Kernan v. Morse, 69 Mass.App.Ct. 378, 383 (2007); LaBrecque v. Parsons, 74 Mass.App.Ct. 766, 769 n. 3 (2009).
Both the parties in their briefs, and the judge in her conclusions of law, invoke the material change in circumstances standard. Neither party addresses any potential differences between G.L. c. 208, § 28, and the Guidelines. Cf. Croak v. Bergeron, 67 Mass.App.Ct. at 754 n. 9.
The mother argues that she demonstrated a material change in circumstances (i.e., her return to Massachusetts from India and her substantial decrease in income through the loss of her expatriate benefits), and that the judge erred by failing to award her weekly child support pursuant to the Guidelines. The mother also argues that the judge failed to make the specific findings mandated by G.L. c. 208, § 28, to support her departure from the application of the Guidelines. In response, the father asserts that the mother failed to meet her burden to demonstrate a material and substantial change in circumstances warranting a modification of the earlier “no child support” order.
In the circumstances, the father states, an application of the Guidelines is “immaterial” and “inapplicable” to this case.
The father states that “the measure of changed circumstances to be considered for a possible modification of the ‘no child support’ order is not arrived at by contrasting the Wife's 2009 reportable income (two years after the [divorce] judgment), with her 2010 income.” Rather, the father asserts that any change in circumstances properly is measured by comparing the mother's $141,392 income at the time of the divorce judgment in 2007, to her 2010 income of $238,621, during the time of the filing of her complaint for modification. The father states that there is a net increase in the mother's income of sixty-eight percent.
At the outset, both parties acknowledge that the judge failed to make a specific finding that there was a material and substantial change in circumstances. Indeed, the father points to the absence of such a finding in arguing that “there was no abuse of discretion on the part of the Judge in denying the Wife's request for a weekly support order in accordance with the ... Guidelines, since the Wife has not met her burden to demonstrate a material and substantial change in circumstances.” Even in the absence of an explicit finding, we think the judgment, findings, and conclusions, viewed in conjunction and in their entirety, make apparent the judge's implicit determination that there was a material and substantial change in circumstances that warranted a modification of the judgment.
We note that the Guidelines provide that “[a] child support order may be modified if any of the following circumstances exist: 1) the existing order is at least three years old; or ... 4) any other material change in circumstances has occurred.” In her reply brief, the mother states that because the divorce judgment and the existing child support order were more than three years old at the time of the modification trial, the passage of three years would have been sufficient for the judge to consider her modification claim. The judge made no reference in her findings or conclusions of law to the three-year provision of the Guidelines and the mother did not argue the point in her principal brief.
Here, the judge referred specifically in her conclusions of law to the material and substantial change in circumstances standard (citing both to case law and statute) and other principles governing the modification of judgments. Moreover, the judge stated in her procedural history of the case:
“[C]ertain terms were incorporated into the Separation Agreement specifically to address the intended two year residence of wife and children in India.
“ In particular, the Separation Agreement provided that neither party would pay child support to the other. The parties agree that this provision was acceptable to both because wife and children would have virtually no expenses while living in India (the ‘ex-pat’ life was comfy ... ).”
The father, who did not appeal the modification judgment, argues that the judge was “mistaken” in her understanding of the separation agreement. In particular, he asserts that there is nothing in the record to support the judge's “assertion” that he “agreed” that the “no order of child support” provision was in any way related to the mother's and children's two-year removal to India. Invoking Bercume v. Bercume, 428 Mass. 635, 644 (1999) (where provision of agreement does not survive, “[a] judge who modifies a divorce judgment does not write on a tabula rasa [;][t]o the extent possible, and consistent with common sense and justice, the modified judgment should take into account the earlier, expressed desires of the parties”), the father also asserts that “it is the expressed intent of the parties that this is a ‘No Child Support’ case.” Even were we to assume that the father is in a position to raise these points, his argument does not address the fact that there was uncontradicted evidence at
trial, through the testimony of the mother, that the “no child support” provision was meant to apply to the two-year expatriate period when the parties would have few expenses with respect to the children. The father offered no testimony at trial regarding his intent in agreeing to the “no child support” provision.
It is apparent that the judge, upon review of the separation agreement (which, with respect to child support, is not a paradigm of clarity) and the evidence, construed the “no child support” order as one of limited duration, tied to the mother's temporary relocation to India with the children, that could be revisited upon her return to the United States and the loss of her numerous expatriate benefits. We cannot say on this record that the judge was “mistaken” in her characterization of the order.
Finally, it is to be emphasized that the judge, in fact, entered a modification judgment wherein she modified the “no child support” provision of the divorce judgment to provide for the parties' payment of certain specified expenses of the children. The judge explained in her findings that the mother's “request for ‘traditional’ weekly child support was denied; but [her] request to be granted child support (by way of requiring [the father] to pay for certain enumerated expenses of the children) was allowed.”
We note also that if the judge was of the view, as the father suggests, that there was no material change in circumstances, it is unclear why the judge would explain that the application of the Guidelines would be unjust or inappropriate in this case.
We turn to the mother's argument that the judge erred by allocating certain expenses of the children between the parties rather than awarding her weekly child support pursuant to the Guidelines. A review of the findings indicates that the judge viewed the parties “shared parenting arrangement” as one in which (1) the parties shared approximately equal “quality time” with the children, and (2) the children did not have a primary residence with one parent. It is ostensibly for these reasons that the judge determined that the Guidelines did not have application in this case.
Under the “A” week/”B” week parenting schedule, which the parties initially implemented upon the mother's return from India, the mother is responsible for the children for ten out of fourteen days. The parenting time shared by the parties thus falls within the parenting time structure on which the Guidelines rest. See Child Support Guidelines II.D (effective January 1, 2009) (“[t]hese guidelines are based upon the child[ren] having a primary residence with one parent and spending approximately one-third of the time with the other parent”). The judge's finding that the children do not have a primary residence with one parent for purposes of the Guidelines is clearly erroneous. Moreover, the finding is not saved by the judge's determination that the children spend approximately equal “quality time” with each parent (excluding time when the children are asleep or at school).
In Katzman v. Healy, 77 Mass.App.Ct. 589, 594 (2010), we rejected such an approach stating:
In stating that application of the Guidelines would be unjust or inappropriate, the judge also made reference to the children benefiting from having two “equally” involved parents raising them.
“The law has not, however, neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it. Disregarding sleep or school time ignores that children get sick, have nightmares, and otherwise require their parent's assistance at unexpected times. See Kawatra v. Kawatra, 182 S.W.3d 800, 803 (Tenn.2005) (‘The responsibilities of a parent do not end when a child is asleep, at school or day care, or otherwise outside of the parent's presence’). An important part of parenting is being available to children whenever needed, night or day. Under the separation agreement, that role was primarily provided by the mother who had sole physical custody.”
As the judge's rationale for refusing to enter a “traditional” child support order appears to rest in significant part on her mistaken conclusion that the mother is not the children's primary caretaker, and that the parenting plan is not consistent with the two-thirds/one-third parenting time upon which the Guidelines are based, these errors, alone, would require that the payment of expenses provisions (and the “no child support” order) of the modification judgment be vacated and the matter remanded. At the same time, given the judge's findings that neither parent wished to be a secondary caretaker to the other, and that the father should not be relegated to simply writing child support checks to the mother, we note that with a proper rationale based on parties' circumstances, a payment of expenses provision would not be improper.
There are other aspects of the judge's findings that are problematic and further support an order of remand. The judge accepted as credible the testimony of both parties as to what the temporary order of February 2, 2010 (concerning allocation of the children's expenses), had cost the parties in “real dollars.” The judge found that over the prior calendar year the father had paid $173 per week towards the children's expenses, while the mother had paid $231 per week towards their expenses.
Presumably, the judge viewed the expenses paid by each party as reflecting a fair and equitable arrangement that should continue on through the modification judgment.
The father testified, and the judge found, that during the prior calendar year he had spent about $9,000 for the children of which $3,640 represented the court-ordered seventy dollars per week payments to the college fund, and $800 represented his share of the tutoring expenses for the children. This resulted in a figure of $173 per week. The mother testified, and the judge found, that she had spent about $231 per week for the children (i.e., clothing—twenty dollars per week; sports—eighty dollars per week; health insurance premiums-$120 per week; haircuts—four dollars per week, and birthday gifts—seven dollars per week). However, this latter sum does not include the mother's payment of $3,640 to the college fund and her payment of at least $800 for tutoring costs.
The judge's comparison of the expenses paid by each party is illusory as the judge credited the father with the court-ordered college fund and tutoring payments made by him but did not credit the mother with her payment of the same expenses. If the judge had included the amounts the mother spends for the college fund and the tutoring (as she did for the father), the cost of the expenses allocated to the mother under the temporary order would be about $316 per week (compared to $173 for the father inclusive of such expenses).
Conversely, the removal of the college fund and tutoring costs from each party's expenses would result in the mother's payment of $231 per week towards the children's expenses and the father's payment of approximately eighty-eight dollars per week towards their expenses. It is to be noted that the judge stated at one point during the trial: “My intention was certainly not to give [the father] an eighty-dollar a week child support obligation [through the temporary order].”
Finally, though we need not, in view of all that we have said, dwell at length on the judge's characterization of a “traditional” family, the fact that both parties work, or that the mother may earn more than the father, cannot ordinarily be viewed as an impediment to the issuance of an order for child support under the Guidelines. See, e.g., Child Support Guidelines, preamble (2009) (referring, inter alia, to the “relative income levels of the parties”); Child Support Guidelines, principles par. 2 (2009) (“to encourage joint parental responsibility for child support in proportion to, or as a percentage of, income”); and Child Support Guidelines, worksheet (which contemplates that both parties may be working).
b. College fund contributions. The mother argues that the judge erred by ordering each party to contribute seventy dollars per week into a college education fund for the children (who were seven and nine years old at the time of the modification trial) as neither party pleaded the issue and, in all events, the order was premature. See, e.g., Passemato v. Passemato, 427 Mass. 52, 54 (1998); Lang v. Koon, 61 Mass.App.Ct. 22, 25–26 (2004); Ketterle v. Ketterle, 61 Mass.App.Ct. 758, 765 (2004). The judge originally fashioned the college expenses order after a hearing on the mother's motion for temporary orders. We have not been provided with the transcript of that hearing and, consequently, are unable to determine whether the judge acted of her own volition, or upon the request of a party or the agreement of the parties.
In the circumstances, and on this record, we decline to disturb the college expenses order.
Although the temporary order was in place at the time of the modification trial, no argument was raised by either party relative to their contributions to the college fund.
3. Conclusion. So much of the modification judgment (paragraph 2) as orders no child support and as directs each party to pay certain enumerated expenses of the children is vacated, and the matter is remanded to the Probate and Family Court for further proceedings with respect to the issue of child support.
In view of the passage of time, and the evidence at the modification trial concerning potential imminent changes in the parties' circumstances,
We recognize that the judge in this case is no longer sitting in the Probate and Family Court.
the judge, if requested, may consider evidence of changes in circumstances since the modification trial. See Cherrington v. Cherrington, 404 Mass. 267, 273 (1989); Bercume v. Bercume, 428 Mass. 635, 645 (1999); Hale v. Hale, 12 Mass.App.Ct. 812, 821 (1981). Unless the judge for good written reason decides otherwise, pending further proceedings and the entry of a new order, the existing order directing that the parties pay certain expenses of the children shall remain in place as a temporary order.
The mother testified, for example, that she had received notification from her employer that her job would be terminated on March 31, 2011 (some eight weeks after the modification trial).
In all other respects, the modification judgment is affirmed.
Any proceedings necessary to enforce the temporary order are to be brought in the Probate and Family Court. See Kennedy v. Kennedy, 400 Mass. 272, 276 (1987); Casey v. Casey, 79 Mass.App.Ct. 623, 636 n. 19 (2011).
So ordered.