Opinion
No. 16–P–220.
12-05-2016
Amanda ST. JEAN v. Gregory Paul BARCELO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (mother) appeals from a modification judgment of the Probate and Family Court reducing the child support obligation of the defendant (father). The mother argues that the trial judge erred by ordering her to provide healthcare coverage for the child and by declining to make further upward deviations from the Child Support Guidelines (guidelines). We affirm in part and vacate in part.
The parties are proceeding pro se. The father has not filed a brief on appeal.
Background. In 2014 the mother filed a complaint for determinations of paternity and child support. After a hearing a judge entered an order declaring the father to be the biological father of the child and requiring him to pay $245 per week in child support. Although this exceeded the amount provided by the guidelines, the judge did not make any written findings explaining the reasons for the deviation. The judge also ordered the father to provide health insurance for the benefit of the child "if and when it becomes available at a reasonable cost."
In October of 2015, the father filed a complaint for modification seeking to reduce child support based on his changed employment circumstances. His complaint did not seek to modify the requirement that he provide healthcare coverage for the child. In response the mother filed a counterclaim and "motion for modification of child support and health insurance," requesting among other things that "[the father] provide health insurance to [the child] as his new place of employment offers affordable health insurance and the court order requires he provide it to the child."
On December 1, 2015, after a hearing, a second judge entered a modification judgment reducing the father's child support obligation to $185 per week. The judge made a written finding that he was deviating upwards from the guidelines "as did the prior order, in light of the fact that the [father] sees the child less than 30% of the time." Unlike the earlier order, however, the modification judgment requires the mother, not the father, "to maintain/obtain health insurance for the child, if and when available at reasonable cost through her employment." The judge dismissed the mother's counterclaim without prejudice on the ground that "[t]he issues were addressed in the Judgment of 12–1–15."
Discussion. We review a trial judge's modification of child support for an abuse of discretion. See Pierce v. Pierce, 455 Mass. 286, 293 (2009). "Error of law apparent on the record, such as the failure of a judge's findings to support the judge's action or findings that have no support in the evidence, would constitute an abuse of discretion." Freedman v. Freedman, 49 Mass.App.Ct. 519, 521 (2000).
We agree with the mother that the second judge abused his discretion by ordering her to provide healthcare coverage for the child. The father did not ask to modify the requirement that he provide coverage, and he presented no evidence to support the modification. Further, under G.L. c. 119A, § 12(b ) (5), the mother's agreement was required before the judge could order her, as the recipient of child support, to obtain health insurance for the child. As explained in the guidelines, "[c]urrent statutory language permits the Recipient of child support to provide health insurance if there is agreement, but absent agreement the Court lacks authority to require the Recipient to provide health insurance ." Guidelines § II.G.1 n. 5 (2013).
Specifically, G.L. c. 119A, § 12(b)(5), as amended by St.1998, c. 64, §§ 100–106, provides that:
"Each such judgment or order [for child support] shall also include a provision requiring the obligor to obtain health care coverage for his child or children, if such coverage is available to the obligor through his employer or is otherwise available to the obligor at reasonable cost, unless the obligor and obligee agree in writing that the obligee shall obtain health care coverage for his child or children or that such coverage will be provided by other means; provided that the cost of such coverage does not create an undue hardship upon the obligor...."
We acknowledge that there is some factual ambiguity in the record regarding whether the first judge awarded the mother extra child support to provide, or whether the mother was already providing, health insurance for the child. At the modification hearing, the father testified that the original judgment exceeded the presumptive guidelines amount because "the judge at that time felt that due to the fact that [the father] couldn't give healthcare for the child at a reasonable cost that she was going to add additional monies to support [the child]." Accepting the father's explanation, a representative from the Department of Revenue stated that she "ran the guidelines today based on the parties['] financial statement; the child support order would go down to 169 a week with mother providing the medical insurance for the child." The mother disagreed with the father's explanation, however, testifying that the first judge "deviated from the guidelines because [the mother is] the sole provider."
In addition, for the first time on appeal, the mother challenges the guidelines worksheet, which reflects a $31 weekly deduction from the mother's income for "[h]ealth insurance cost paid." The mother claims that she is not currently providing health insurance to cover the child, the cost for which she says would greatly exceed $31 per week. Regardless, the $31 deduction worked to the mother's benefit, as it reduced her available income for purposes of calculating her proportional share of child support. For this reason, and because the father has not filed a brief challenging the deduction, this issue is not before us.
On the present record, we are unable to determine whether or how the second judge resolved these factual disputes. Further, apart from the factual issues, we are unable to determine whether the judge considered the requirement of G.L. c. 119A, § 12(b)(5), that there be a written agreement of the parties before the judge can impose the obligation to provide health insurance on the recipient of child support. It appears, at least on this record, that the mother did not agree, given that she filed a counterclaim seeking an order that the father provide healthcare coverage through his new employer. Remand is warranted for consideration of these issues.
We find the mother's remaining arguments unpersuasive. Although the modification judgment exceeded the presumptive guidelines amount, the mother contends that the judge should have deviated further because application of the guidelines leaves the mother without the ability to self-support and would result in a gross disparity in the standard of living between the two households, and because she is absorbing child care costs that are disproportionate to her income. The mother did not raise these arguments to the judge, and there is no evidence in the record demonstrating that he abused his discretion in this respect.
Conclusion. We vacate so much of the December 1, 2015, modification judgment that shifts the obligation to provide health insurance from the father to the mother. We affirm the judgment in all other respects and remand the matter to the Probate and Family Court for further proceedings consistent with this memorandum and order. Until a new judgment enters, the December 1, 2015, modification judgment shall remain in full force and effect.
So ordered.