Opinion
16-P-871
02-09-2017
Kathleen A. MCWILLIAMS v. John M. FITCH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from a judgment of the Probate and Family Court that the husband assume half the cost of college education for one of the parties' children. We affirm.
The parties' marriage produced four children before it ended in 2005. A separation agreement, apparently incorporated into the judgment, provided that each of the parties would provide for the children's college expenses (net of any outside financial assistance) "in proportion to his or her respective gross taxable incomes computed for Federal Income Tax purposes for the calendar year immediately preceding the commencement of the school year in question."
We regard the provision for educational expenses as a form of child support that would merge with the judgment, although the record is unclear.
The wife filed a complaint for contempt alleging that the husband failed to pay tuition for two of the children. The judge did not find the husband in contempt and, moreover, reduced his child support payments. By judgment dated January 6, 2016, the judge did, however, order the husband "to assume ½ [the] cost of [one child's] college education minus all aid and loans available to the child. To be paid in a timely fashion." We affirm.
The husband has failed to provide a record supporting his factual assertions, and has not presented legal argument complying with the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The wife noted that the husband failed to file a transcript of the proceedings in the Probate and Family Court, and moved for permission to file a supplemental appendix. That motion was allowed, but she has not done so.
The husband has produced no transcript of the proceedings, no financial statements, and no citation of authority.
We acknowledge that both parties have appeared pro se; they must nevertheless comply with the basic rules of appellate procedure. See Buckmore v. Czelusniak Funeral Home, Inc ., 427 Mass. 1014 (1998). The husband as the appealing party has "[t]he burden of presenting [the] court with a record which shows the alleged error." Allen v. Christian , 408 Mass. 1007, 1008 (1990), quoting from Giacobbe v First Coolidge Corp ., 367 Mass. 309, 317 (1975). The husband's brief and appendix either fail to support his factual assertions (e.g., lack of income) or, alternatively, manage to call them into question. Finally, to the extent he has not demonstrated that he was justified in failing to pay previous educational expenses, he has no cognizable basis to appeal, as the judge did not find him in contempt.
The husband attached copies of electronic messages to his brief that suggest communications with the wife and with the child over the choice of a college, contrary to his assertions that he was precluded from participating in the selection process. These were not before the trial judge. In view of our decision, we need not address the wife's motion to strike portions of the husband's record appendix.
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Judgment dated January 6, 2016, affirmed .