Opinion
10-P-2122
10-17-2011
MARLENE MORALES v. RICHARD LOUIS MORALES.
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
This is an appeal by the plaintiff former wife (wife) from a judgment dismissing her modification complaint, which sought an increase in child support from the defendant former husband (husband). The wife's complaint was filed approximately one year after the divorce decree.
The husband has not appeared in the appeal.
After a trial, the Probate and Family Court judge dismissed the wife's complaint, generally reasoning that, since the entry of the divorce decree, a modest increase in the husband's salary of $.87 per hour as a correction officer at the Massachusetts Correctional Institute, Shirley, and an approximate $100 decrease in the wife's supplemental security income (SSI) (from roughly $701 to $603 per month) did not constitute a material and substantial change in circumstances sufficient to justify a child support modification. The judge also found that the husband's weekly expenses had increased by $300.16, while the wife's expenses had decreased from $542 to $421, due to her sharing expenses with the man with whom she lived.
The primary issue advanced by the wife is that the judge erred by applying the material change in circumstances standard, instead of what the wife describes as an 'inconsistency' standard, where she would be entitled to modification if the child support level is not in accord with the presumptive levels of the Massachusetts Child Support Guidelines (guidelines). Specifically, the wife cites G. L. c. 208, § 28, which provides in pertinent part that '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). G. L. c. 208, § 28. The wife contends that application of the guidelines, as a presumptive figure, should yield child support of $304.23 per week, and therefore the existing child support order of $172 per week is an 'inconsistency.'
Procedural background. The parties were divorced by a judgment of divorce nisi dated May 5, 2008. The wife filed several unsuccessful contempt complaints, and on May 4, 2009, approximately one year after the divorce judgment, she filed the modification complaint at issue, seeking an upward adjustment in child support payments.
We are not persuaded by the wife's argument that the material and substantial change in circumstances standard does not apply in this case and that review should be governed by the inconsistency reference in G. L. c. 208, § 28. '[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). In construing these authorities, the courts have long maintained that '[t]o be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.' Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). This has been so even where this court has recognized a discrepancy between the standard set forth in the guidelines and G. L. c. 208, § 28. See Crowe v. Fong, 45 Mass. App. Ct. 673, 677-678 & n.3 (1998).
In any event, even if a probate judge should consider an inconsistency from the presumptive levels in a complaint for child support modification, there is a threshold obstacle to the wife's argument that the inconsistency standard should govern this case. Section III.A of the guidelines, governing modification, states as follows:
'A. 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(Emphasis added.) Here the existing child support order was not three years old. Therefore, it is clause (4), and the material change in circumstances standard, that applies to this case. Based on the judge's comprehensive findings, we are persuaded that the judge correctly determined that there was no material change in circumstances.
'2) health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost); or
'3) health insurance not previously available to a party at reasonable cost has become available; or
'4) any other material change in circumstances has occur red.'
As to the husband's income, the judge found that at the time of divorce decree, his weekly income was $1,117.72, including $56.74 per week in SSI dependency benefits received on behalf of another child from a prior relationship. His expenses at the time of divorce were $538.82 plus his required child support payment of $172 per week. The judge then found that at the time of trial on the modification complaint, the husband's gross weekly income was $1,292.17, which included his base salary plus roll call and longevity payments, and SSI dependency benefits for a child. His weekly expenses were $838.98 per week, not including the $172 per week in child support. The judge also noted that, in addition to these expenses, the husband paid the living and vehicle expenses for his two other children, provided occasional support for the wife's other child from a prior relationship, and maintained a health insurance family plan covering all of his children for $63.33 per week. The judge concluded that the husband's promotion earned him a wage increase of 'eighty-seven (87) cents [per hour], or approximately $34.80 per week.' The judge reasoned that this 'minimal' increase did not constitute a substantial or material change in circumstances and therefore did not warrant a child support modification. We agree.
The wife contends that the judge did not include the husband's overtime income. The judge declined to include the overtime because she found the average overtime income of $100 per week was not always available to the husband and was not a requirement of his employment.
At to the wife, the judge considered that her SSI income had been reduced by approximately $100 per month. However, as previously noted, the judge also considered a corresponding expense reduction from $542 to $421 concerning the wife because of shared expenses with the man with whom she resided.
The wife points out an error appearing at one point in the judge's findings, in paragraph 11 of the findings, wherein the judge states that, at the time of the modification trial, the wife's income was $315.99 per week ($1,369.29 per month), and this did not include child support. However, from all that appears of record, the $315.99 figure does include the $172.00 child support payments the wife was receiving. This $315.99 figure is approximately the same as that which appears as the total gross weekly income in the wife's 2009 financial statement. This particular misstatement is not material and does not change the result. Throughout the findings, the judge used correct income figures and was perfectly clear in that there had been a reduction in the wife's income from SSI benefits, and that the wife's lower income consisted of $603 in SSI benefits and $21 per month in SNAP benefits, all as described above.
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The judge summarized her conclusions as follows:
'[A]lthough Mother's income has decreased, she enjoys decreased expenses and additional income by way of contributions from her live-in boyfriend. While Father's income has slightly increased since the Judgment of Divorce, his expenses have substantially increased at a much higher rate than his income increase.'
We discern no error in these conclusions or in the probate judge's dismissal of the wife's child support modification complaint.
Judgment of dismissal affirmed.
By the Court (Berry, Meade & Milkey, JJ.),