Opinion
No. 12–P–360.
2013-01-14
LI LI v. PENG ZHANG.
By the Court (KAFKER, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife appeals from a modification judgment with respect to the amount of child support that was set pursuant to the parties' divorce proceedings. We affirm.
Background. The husband and wife were divorced in 2000 pursuant to a decree that was entered in China. In 2007, the wife filed a complaint in Probate and Family Court seeking to modify the amount of child support that the husband was required to pay. At the time of the trial, the couple's daughter (their only child together) was a high school student living with the wife, but she was expected to attend college the following year. On May 22, 2009, a judge entered a modification judgment that increased the amount of child support from $200 per month to $796 per week, retroactive to August of 2007. The judgment also required the husband to pay all of the daughter's upcoming college expenses. On the husband's appeal, a panel of this court remanded the matter for the judge to reconsider the basis of the award and whether the husband was being required to pay too much. See Li v. Zhang, 77 Mass.App.Ct. 1110 (2010). On remand, a different judge entered a new modification judgment dated November 14, 2011, made retroactive nunc pro tunc to September 1, 2011. This judgment retained the requirement that the husband pay the college expenses (capped at $1,058 per week), but reduced the additional amount the husband had to pay to $200 per week, retroactive to September of 2009 (when the daughter began college). This meant that because the husband in fact had been paying a higher rate of child support since September of 2009, then—even accounting for significant arrearages the wife had been owed—the husband had overpaid child support in an amount the judge calculated to be $13,150. To make up this difference, the judge suspended the husband's obligation to pay the $200 per week going forward for a period of sixty-five and eight-tenths weeks (which would mean that his obligation was set to resume at about the current date).
The wife appealed. Discussion. Pursuant to G.L. c. 208, § 28, a probate judge has considerable discretion in setting appropriate child support. In view of the fact that the daughter was now living at college during most of the year, and the husband was required to pay all of her rather substantial college expenses (including room and board), the judge required the husband to pay a relatively modest amount of additional child support. The judge specifically determined that the child support guidelines were inapplicable, because “the child is over 18, is in college, and the parties' combined income exceeds $250,000 annually.” That determination is correct. See Child Support Guidelines §§ II(C) & (F) (2009).
Both judges have ably sought to render fair and equitable rulings under extremely difficult circumstances. The challenges they faced were exacerbated significantly by the fact that the parties, who are not indigent, choose to represent themselves notwithstanding their lack of understanding of the relevant rules, standards, and procedures, and by the parties' difficulties with English.
The course of action followed by the judge was prompted by, and is consistent with, this court's earlier ruling on appeal. See Li v. Zhang, supra. The wife has not demonstrated that the judge abused her discretion in requiring the husband to pay $1,258 total per week toward the daughter's college and living expenses. See Wasson v. Wasson, 81 Mass.App.Ct. 574, 576 (2012) (court reviews modification of child support for abuse of discretion). Nor has the wife demonstrated clear error in the computations that the judge made. The wife does make a good argument that the judge should modify the judgment to establish a date certain for the resumption of child support payments so that the wife can ensure that these are properly enforced. However, the wife should make that request directly to the Probate and Family Court judge through a proper motion, especially given that the precise determination of that date may depend on facts not currently before us.
Judgment of modification dated November 14, 2011, affirmed.