Opinion
No. 11–P–2178.
2013-05-16
James SMITH v. Mary JONES.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case was argued on a footing that the “material and substantial change” standard applied to the circumstances of this case. See and compare Schuler v. Schuler, 382 Mass. 366, 368, 373–374, 416 N.E.2d 197 (1981); Winternitz v. Winternitz, 19 Mass.App.Ct. 228, 232–233, 473 N.E.2d 209 (1985). See also Pierce v. Pierce, 455 Mass. 286, 293–297, 916 N.E.2d 330 (2009). Accordingly, for purposes of current review, we take the case in the posture presented to us. But see Morales v. Morales, 464 Mass. 507, 508, 510–515, 984 N.E.2d 748 (2013); G.L. c. 208, § 28, as amended through St.1998, c. 64, §§ 194, 195.
Upon review of the briefs, record appendix, and transcript, and after oral argument, we are constrained to vacate the amended judgment of modification, and remand the matter to the Probate and Family Court, as it has not been shown on the record whether a modification was warranted in the particular circumstances presented here. The findings and rationale reflect the judge's reliance on the former husband's incarceration.
Incarceration is, of course, a factor to be considered. However, it is not necessarily the controlling factor. Moreover, it must be viewed in context.
The former wife represents in her brief that the judge who issued the amended judgment of modification has retired; further findings and explication are not an option. We note that the former wife has requested, as an “alternative” disposition in this case, that the judgment be vacated and the matter be remanded to the Probate and Family Court for a new trial.
See also Massachusetts Child Support Guidelines § IV (2009). At the new trial, the judge should take into account the current circumstances of the parties as well as any relevant developments in the law.
For instance, where an individual's unwillingness to work and pay support leads to his being incarcerated, a situation from which by his compliance he could be released at any time, such incarceration cannot generally be deemed a sufficient change in his circumstance.
The amended judgment of modification is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.