Opinion
No. 11–P–2060.
2012-10-9
Mark Anthony SCARLETT v. ANDREA DaCOSTA.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the March 24, 2011, judgment on the father's June 28, 2007, complaint for modification, claiming that her motion to amend the judgment to include an order for retroactive payment of $2,200 in child support should have been allowed.
“A child support judgment may be modified on a finding ‘that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.’ “ Brooks v. Piela, 61 Mass.App.Ct. 731, 734 (2004), quoting from G.L. c. 208, § 28. See Kernan v. Morse, 69 Mass.App.Ct. 378, 383 (2007). Here, the father introduced no evidence at the March 24, 2011, hearing that the daughter no longer was a full-time student either as of June 18, 2010, or as of March 24, 2011. To the contrary, a letter from Fitchburg State University showed that the father's assertion prior to and at the July 6, 2010, hearing that the daughter was no longer a full-time student was incorrect. Where the father sought a modification alleging that the daughter was no longer a full-time student, and where the daughter continued to be a full-time student, there was no change of circumstances since the entry of the March 28, 2007, judgment.
Leaving aside the uncertainty, on the present record, as to whether the mother was served with the father's modification motion, where it was established that the daughter was in college during the spring and fall semesters of 2010 and the spring semester of 2011, where the judge's July 6, 2010, temporary order terminating child support was based on the father's misrepresentation that the daughter was not enrolled as a full-time student during these periods, and where the July 6, 2010, temporary order was nullified by the March 24, 2011, modification judgment, we think that the judge erred in failing to order retroactive child support. See Whelan v. Whelan, 74 Mass.App.Ct. 616, 627 (2009).
The March 24, 2011, judgment therefore is modified to include a provision for retroactive payment of child support by the father in the amount of $2,200, and as so modified, the March 24, 2011, judgment is affirmed.
So ordered.