Opinion
No. 12–P–1880.
2013-11-6
Kimberly K. ROBINS v. Michael J. ZERO.
By the Court (KANTROWITZ, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kimberly K. Robins appeals from a judgment of the Probate and Family Court that, among other things, ordered Michael J. Zero, Robins's former husband, to pay child support in the amount of $335 per week, retroactive to May 21, 2011. Robins also appeals from the order denying her motion for reconsideration. We affirm.
“When assessing a decision regarding a modification of child support, an appellate court reviews for an abuse of discretion.” Wasson v. Wasson, 81 Mass.App.Ct. 574, 576 (2012) (citation omitted). “In assessing whether a judge has abused his discretion, ‘we do not simply substitute our judgment for that of the judge, rather, we ask whether the decision in question rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.’ “ Chan v. Chen, 70 Mass.App.Ct. 79, 84 (2007), quoting from Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266 (2001). See Wasson, supra. “Unless the judge's order is totally without basis in the record we give deference to her firsthand evaluation of the testimony, presence, and demeanor of the parties.” Heistand v. Heistand, 384 Mass. 20, 27 (1981).
Robins argues that the judge should have allowed her to impeach Zero's current wife, Rhonda Zero (Rhonda), as a biased witness, based on her status as Zero's wife and business partner. Robins points to two instances where the judge sustained objections when inquiry was made of Rhonda regarding the “sales” of Stadium Fuel and Services and the “sales” of Stadium Oil. Additionally, she claims the judge erred by not allowing the introduction of evidence regarding the profitability of Zero's business and the extent of his benefits.
Robins posits that “if the companies were generating revenues of $5,000,000.00 in sales with profits of $2,000,000.00, and if the main producer Appellee (one of two employees) is only earning $69,999.00, the trial court's error would be patently obvious.”
As an initial matter, to the extent Robins's argument is grounded in part on her assertion that Zero is essentially a coowner of the business entities, it is apparent that the judge, on all the evidence, rejected that position. The judge found that Rhonda maintained ownership of all business entities, and that Zero, having no ownership interest in the entities, was paid as a W–2 employee of Stadium Oil. We cannot say that these findings were clearly erroneous.
Rhonda testified that she is the sole shareholder of the business entities as well as the “officer, president, and director” of the companies. Robins points out, however, that Rhonda stated during trial that “we bought the company.” That testimony is taken out of context. Rhonda went on to explain immediately that she purchased the company from her brother's estate. While Rhonda acknowledged that she once heard Zero state on the telephone, “I own the company with my wife,” she admonished him not to say that again.
Furthermore, Rhonda's testimony concerning the economic factors giving rise to Zero's salary, which, in Robins's view, opened the floodgates in the present case, occurred after she had been questioned concerning the sales made by her three companies. There is no indication that, at the time of the rulings, counsel for Robins informed the court that the testimony she sought to elicit concerning the companies' sales was for impeachment purposes. There is nothing in Robins's additional arguments to this end that would cause us to disturb the judgment.
In fact, the judge may have had difficulty perceiving the testimony's relevance as it seemed to pertain to the gross sales of Stadium Oil and Stadium Fuel and Services.
Robins also argues that in the peculiar circumstances of this case the judge was required to scrutinize closely, for example, the “true compensation” which Zero received, the manner in which Rhonda operated the businesses, and the extent of Zero's duties for these corporations. See Child Support Guidelines I–C (2000). In Robins's view, the judge erred by overlooking and failing to consider the many perquisites and benefits received by Zero, consisting largely of the corporate credit card purchases, in determining his income.
Robins states in her brief that records of the corporate credit card, which Zero was authorized to use, identify a number of personal expenditures for Boston Bruins tickets, Boston Red Sox tickets, a country club membership, gas charges, tires, car repairs, restaurants, and parking fees.
The judge's findings indicate careful consideration of Robins's position. The findings provided sufficient explanation of the decision not to impute the value of the alleged benefits, except as related to the automobile and the cellular telephone use, to the calculation of Zero's child support obligations. Additionally, contrary to Robins's assertion, this case is distinguishable from Kane v. Kane, 13 Mass.App.Ct. 557, 558–559 (1982). There, the findings strongly supported the conclusion that, despite the lack of a formal ownership interest in the business, the husband, who engaged in a practice of skimming cash from the gross daily receipts, had a measure of control over the cash flow of the business, a fact which was not present here.
We note, in addition, that both Zero and Rhonda testified that the corporate credit card charges were not personal expenses, but were in fact for the benefit of the businesses. There was also uncontroverted evidence that the company had not renewed its Boston Bruins season tickets.
Finally, we fail to discern error in this case arising from the judge's failure to draw an adverse inference against Zero for his alleged “concealment” of certain financial records.
We have examined all of the arguments of the plaintiff and find them to be without merit.
The defendant's request for attorney's fees and costs is denied.
Judgment affirmed.
Order denying motion for reconsideration affirmed.