Opinion
11-P-49
09-19-2011
ERIK ALFRED VANDERLEEDEN v. LYNN ANNE O'GRADY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff Erik Alfred Vanderleeden (father) and the defendant Lynne Anne O'Grady (mother) obtained a divorce. They also, on the same day, entered into a separation agreement under which they agreed to share legal and physical custody of their three sons. Neither the mother or father paid child support, and the agreement stipulated that they were to share all expenses of the children.
A year later, the father filed a complaint for modification, seeking sole physical custody of the three children. A temporary order issued, under which the parties agreed to a new parenting plan for the eldest son that allowed him to spend more time with his father. Six days later, the judge issued a temporary order requiring that the mother pay the father $80 per week in child support. The mother's motion for reconsideration was denied.
The mother did not comply with the order to pay child support. The father filed a complaint for contempt, alleging arrears of $560. The judge consolidated the contempt and modification actions.
After trial, at which the two issues identified were whether the payment support arrears were warranted and whether there had been a sufficient 'change in circumstances to modify the child support order,' the judge modified the judgment of divorce and ordered the mother to pay $50 per week in child support to the father, retroactive to January 1, 2010. The judge also found the mother to be in arrears in the amount of $680, and ordered her to pay an extra $25 per week until the arrears were paid. The father filed this appeal.
Discussion. The single issue in this appeal is whether the judge abused his discretion when he deviated from the Massachusetts Child Support Guidelines (guidelines) and modified the presumptive monthly support payment of $111 per week to one of $50 per week.
The guidelines 'have presumptive application in all cases seeking the modification of a child support order.' Buckley v. Buckley, 42 Mass. App. Ct. 716, 723 (1997). See Canning v. Juskalian, 33 Mass. App. Ct. 202, 204 (1992). Pursuant to G. L. c. 208, § 28, inserted by St. 1998, c. 64, § 194,
'[T]here shall be a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered. If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines; that the guidelines amount would be unjust or inappropriate under the circumstances; the specific facts of the case which justify departure from the guidelines; and that such departure is consistent with the best interests of the child.'
Here, the judge determined the support amount by applying a 'cross guidelines calculation,' where the support amount was calculated as if the mother paid the father for three children and the father paid the mother for three children. This gave a presumptive weekly support payment from the mother to the father of $91. The judge then adjusted this number upward to $111 because the eldest son spent 'somewhat more time' with his father.' Finally the judge considered various 'other relevant factors' including the mother's increase in income, the change to the eldest child's schedule, and the mother's additional child from a subsequent relationship, and modified the mother's payment to $50 per week, retroactive to January 1, 2010.
We review a judge's modification of a support order for an abuse of discretion, Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999), and set aside the judge's findings only if they are clearly erroneous. See Mass.R.Dom.Rel.P. 52(a); O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 150 (2003). '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).
The father argues that the judge's memorandum of decision does not contain the requisite findings, is not properly grounded in the evidence, and fails to show that the support amount determined is in the best interests of the children. We agree.
Although the judge's decision does reference in passing some of the evidence presented at trial, it makes no explicit findings. The judge only briefly discusses the facts he relied upon to justify his departure from the guidelines, and does not discuss at all why the presumptive amount from the guidelines would be unjust or inappropriate, or most importantly, in the best interests of the children. G. L. c. 208, § 28.
The judge's failure to make sufficient findings in accordance with the statutory mandate of G. L. c. 208, § 28, or to ground his modification in the evidence, qualifies as an abuse of discretion, and we therefore vacate the judgment of modification and remand the case to the Probate and Family Court for further findings.
So ordered.
By the Court (Trainor, Brown & Carhart, JJ),