Opinion
14-P-71
05-12-2015
[REDACTED] v. JERRY B. CLEWS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
[REDACTED] appeals portions of a judgment entered following trial in the Middlesex Probate and Family Court, which, among other things, granted her sole legal and physical custody of her two nonmarital children, established a visitation and parenting schedule, ordered the father, Jerry Clews, to pay child support, and did not award her attorney's fees. She claims error with respect to the child support order, both in amount and in the extent of retroactivity of that order, and the decision not to award her attorney's fees. We affirm.
[REDACTED] filed a complaint in the Middlesex Probate Court, designated as No. 07W0028, which sought to establish Clews's paternity of [REDACTED]'s son, and also sought child support, custody, and visitation determinations. Clews had filed in the same court a complaint seeking to establish child support, custody, and visitation rights as to [REDACTED]'s daughter, in response to which [REDACTED] filed a counterclaim; that action was designated as No. 06W2018. The judge considered the two actions jointly, held a ten-day trial, and issued findings and a judgment jointly as to both actions. [REDACTED] filed a timely notice of appeal from the judgment in both actions and docketed both appeals. The appeals have been consolidated in this court under this docket number. Clews has not challenged any portion of the judgment below. A related action filed by [REDACTED] against Clews's mother, seeking child support payments from the mother, is pending in a separate appeal, No. 14-P-70.
We review child support orders to determine if there has been an abuse of discretion. Department of Rev. v. C.M.J., 432 Mass. 69, 75 (2000). See Whelan v. Whelan, 74 Mass. App. Ct. 616, 625 (2009) (the guidelines and our case law leave the definition of income flexible and the judge's discretion broad). Under the Massachusetts Child Support Guidelines (2009) (guidelines), the amount of the child support award is determined by the parent's income, which is defined as "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service." Guidelines (I)(A). The guidelines provide a nonexhaustive list of sources of income, and does not specifically include gifts as one such source. See ibid. However, the list includes a catch-all provision for "any other form of income or compensation not specifically itemized above." Ibid.
The guidelines were amended in 2013. We refer to the guidelines in place at the time of the judgment.
Here, we discern no abuse of discretion in the judge's child support award. The judge determined that Clews had two sources of income: a $3,500 monthly stipend paid to Clews from Elissa Hickey, his mother, and an additional $463.50 per week paid by Hickey to Clews, representing living expenses and utilities associated with the home in which he lives. At issue here is the judge's decision not to include as income numerous past gifts from Hickey to Clews, including but not limited to cars, a boat, loans to Clews's businesses, and luxury travel expenses. The judge determined that "the large-scale gifts provided to [Clews] by [Hickey] . . . do not translate into available income for [Clews]. Aside from the $3,500 monthly stipend, [Clews] does not actually receive money from [Hickey]. [Hickey] pays vendors directly."
We agree with this reasoning. As an initial matter, because gifts are not specifically designated as income under the guidelines, and (as [REDACTED] concedes) no Massachusetts court has explicitly acknowledged that gifts should be treated as such, the judge necessarily did not abuse his discretion in not considering gifts as income under the guidelines. Even if gifts could, in some instances, qualify as income under the guidelines, it would not be under the facts presented here. As the judge noted, most of these gifts did not provide Clews with actual cash value, such that he could use the gifts to support the children. Perhaps more importantly, Hickey's past gifts to Clews are not evidence of present or future gifts that Clews may reasonably expect to receive. It would be purely speculative to calculate Clews's income based on singular and isolated gifts where there is no discernible pattern of giving. Although [REDACTED] argues that the frequency of the gifts proves a pattern, we cannot infer such a pattern given that the nature and amount of each gift varied substantially. In sum, because the guidelines are silent on gifts such as the ones at issue here, and because we conclude that the judge's reasoning on this issue is sound, we discern no abuse of discretion.
While some jurisdictions consider gifts as income in calculating a parent's income, this is of no help to [REDACTED] because we are not concerned here with how the Massachusetts guidelines (which, as noted, omit gifts as an explicit source of income) should treat gifts. Rather, the only issue before us in regard to the child support amount awarded by the judge is whether the judge abused his discretion in refusing to consider Hickey's gifts to Clews as income in light of the fact that the guidelines and case law are silent on the matter. Therefore, how other jurisdictions determine income under their own guidelines is completely inapposite to the issue at hand. Moreover, we note that [REDACTED] relies on cases from other jurisdictions in which gifts are explicitly designated as a source of income, which is not the case here. See, e.g., Perini v. Petrini, 336 Md. 453, 462 (Ct. App. Md. 1994).
We share the judge's concern about "the discrepancy in the standard of living between [Clews] and his children when they reside with [[REDACTED]]." However, we likewise agree with the judge that he had no power to "enter an award of child support that [Clews] had no ability to pay." Ibid.
Next, we reject [REDACTED]'s contention that the judge erred in not awarding child support retroactively for any period prior to the conclusion of the trial. Section 9(a) of c. 209C provides that, upon the petition of a party, the court "shall also order past support from the period from the birth of the child to the entry of the order, taking into consideration the parent's ability to pay under subsection (c) and any support provided by the parent during such period." The judge declined to award further retroactive support because (1) [REDACTED] and the children remained in a house purchased for Clews's use by Hickey until February, 2008, without paying utilities, rent, or maintenance, and (2) [REDACTED] withdrew $60,000 from an account linked to a business owned in majority by Clews and in minority by [REDACTED], whether approved by Clews or not. In essence, the judge determined that "the benefit realized by [[REDACTED]] and the minor children" from the living arrangement and the $60,000 withdrawal exceeded what Clews would have been obligated to pay during that time. Because we discern no error in this finding, we decline to revisit it.
The judge ordered that Clews's child support obligation apply retroactively to the final day of trial.
Finally, the judge's refusal to award [REDACTED] the attorney's fees that she requested was a proper exercise of his discretion. See Kendall v. Kendall, 426 Mass. 238, 251-252 (1997). The judge found that there was no evidence that Clews could pay this amount and, further, [REDACTED] had engaged in "overly-litigious conduct" that "unnecessarily complicated and prolonged the case, and caused both parties to incur significant legal fees." The judge was "in a position to observe first hand the [parties'] conduct; therefore we shall not disturb [his] assessment on the basis of a printed record." Kendall, supra at 252. See also Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 546-547 (2011).
Judgment dated March 30, 2011, affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 12, 2015.