Canning v. Juskalian, 90-P-863

• Decision Date: 21 August 1992
• Docket Number: No. 90-P-863,90-P-863
• Citation: 33 Mass.App.Ct. 202,597 N.E.2d 1074
• Parties: Joan G. CANNING v. Richard P. JUSKALIAN.
• Court: Appeals Court of Massachusetts

Page 1074

597 N.E.2d 1074

33 Mass.App.Ct. 202

Joan G. CANNING v. Richard P. JUSKALIAN.

No. 90-P-863.

Appeals Court of Massachusetts Hampshire.

Argued Sept. 5, 1991.

Decided Aug. 21, 1992.

Robert J. Lefebvre, Springfield, for plaintiff.

Wendy Sibbison, Greenfield, for defendant.

Before WARNER, C.J., and PERRETTA and JACOBS, JJ.

JACOBS, Justice.

The parties were divorced in 1981. The former wife (Joan) appeals from a 1989 judgment of modification of the Probate Court, contending that the child support obligation of her former husband (Richard) for their thirteen year old son (Brett), who is in her custody, was not increased sufficiently. The judgment increased the child support order from $45 per week to $115 per week. ¹ Joan argues that the judge erred in attributing income to her at a time when she was the custodian of a two year old child of a subsequent marriage. She also claims that the amount of income attributed to her is not supported by the evidence. We affirm.

The facts as found by the judge and amplified by uncontroverted information in the record are as follows. As of the time of the modification hearing, each of the parties had remarried. Joan's household was located in California and, in addition to Brett, included her husband and their two year old daughter. Richard's household was located in Massachusetts and included his wife and their two children, aged four and seven. Richard and his wife were both employed as school teachers with annual combined earnings of $72,000, approximately $37,000 of which was attributable to Richard. In addition to their residence, they owned a house, which was not held for investment purposes and which they were attempting to sell. Joan was unemployed by choice and at home caring for her two year old child. Her husband's annual income was $63,000. In addition to their residence, they owned two parcels of real estate from which they derived income and tax benefits (the amounts of which the judge found were not accurately disclosed to him). Joan possessed a bachelor of science degree in human development. Three years after moving to California from Massachusetts in 1982, she became employed as a real estate agent, earning $11,000 in 1985, $15,600 in 1986, and $14,870 during 1987, the latter amount having been earned during the first six months of 1987 and prior to the birth of her child in the summer of that year. She has not sought employment since that time.

After the judgment of modification was entered in this case, the judge filed a form on which he indicated that he found the "presumptiveness of the Child Support Guidelines ha[d] been rebutted" for the reason that "their application would be unjust or inappropriate because: The non-custodial parent will incur extraordinary expenses (e.g., uninsured medical; travel related visitation) as follows: payment of airplane travel as provided in Judgment."

Several weeks later, the judge filed findings of fact wherein he indicated that the parties had stipulated to Brett's visiting with Richard in Massachusetts for five weeks each summer and during alternate Christmas school vacation periods. The judge explained that he "considered whether the support order should be reduced or eliminated during the summer visitation, and concluded the amount ordered paid each week year-round was the fairest approach." He also indicated that he "deducted $20 a week to offset the actual expenses to be incurred by [Richard] in connection with transportation, resulting from [Joan's] moving to California." The judge's findings also reflect that he concluded that Joan was "earning substantially less than she could ... through reasonable efforts" and that he considered both Joan's "potential earning capacity based upon her prior earnings in California, and a sum attributable to income from rental property when making computations in accordance with the guideline suggestions. The combined amount used is $30,000." He also stated that "[i]n considering the totality of the parties' circumstances as suggested by the guidelines, the Court also considered the existence of subsequent families."

The Massachusetts Child Support Guidelines ² made effective on October 1, 1989, have presumptive application "in all cases seeking the ... modification of a child support order." The guidelines also state: "A specific, written finding that the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case." ³ Here, the judge made just such a finding, implicitly concluding that the basic support order of approximately $204 to $237 per week called for by the guidelines ⁴ was either unfair or inappropriate. We test that determination under an abuse of discretion standard. Department of Rev. v. G.W.A., 412 Mass. 435, 441, 590 N.E.2d 176 (1992), citing Camillo v. Camillo, 31 Mass.App.Ct. 286, 292-293, 577 N.E.2d 310 (1991).

Child visitations involving the expense of coast-to-coast travel each summer and every other Christmas are not common to ordinary divorce arrangements. The guidelines style themselves as being "based upon traditional ... visitation arrangements," Guideline II-D(1), and expressly authorize a judge to consider extraordinary travel-related expenses in fashioning a support order. ⁵ The five weeks' summer visitation agreed upon by the parties and specifically linked to the support order by the judge provides further justification for deviation from the guidelines as does his finding that he "considered the existence of subsequent families." See Guidelines II-D(2) and II-J. See also Smith, Grounds for Deviation, Checklist for Cases Outside Support Guidelines, 10 Fam.Advoc.J. 22, 26 (Spring, 1988). The judge did not abuse his discretion in concluding that, in the circumstances, strict application of the guidelines would yield unfair and inappropriate results.

Having made a finding which rebutted the presumptive applicability of the guidelines, the judge was obliged "to fashion a more equitable order" than would result from mere mechanistic calculation and to base that effort on "all the relevant considerations." Department of Rev. v. G.W.A., supra 412 Mass. at 439-440, 590 N.E.2d 176. In the absence of any provision in the guidelines expressly suggesting how a fairer support order is to be constructed, ⁶ we measure the factors and adjustments considered by the judge against the relevant common law background.

Given the importance which attaches to "both parents hav[ing] frequent and continuing association with their child," DiRusso v. DiRusso, 12 Mass.App.Ct. 892 893, 422 N.E.2d 463 (1981), and the broad recognition of the "interests of the non-custodial parent and the child in visiting with each [other]," Kindregan & Inker, Family Law and Practice § 1171 (1990), extensive adjustment of a support order to accommodate extended long-distance visitation is generally warranted and in the child's best interest. Thus, adjusting the support order to reflect the actual cost of coast-to-coast transportation and the economic relief to Joan represented by a five-week visit by Brett with his father was clearly within the judge's discretion.

The concept of joint parental responsibility for child support is well established. ⁷ "[T]here is no question that G.L. c. 208, § 28 [authorizing child maintenance orders in divorce and modification actions], imposes a duty of child support on the wife as well as on the husband." Silvia v. Silvia, 9 Mass.App.Ct. 339, 341, 400 N.E.2d 1330 (1980). "Accordingly, [a wife's] assets and income, if any, must be considered in assessing [a complaint] for modification." Id. at 342, 400 N.E.2d 1330. Also reflected in the case law is the principle that earning capacity of a parent rather than actual income may be considered in determining child support orders. Schuler v. Schuler, 382 Mass. 366, 372-374, 416 N.E.2d 197 (1981). Diver v. Diver, 402 Mass. 599, 601-602, 524 N.E.2d 378 (1988). The inclusion of both custodial and noncustodial parents within the sweep of that principle is fully consistent with the concept of joint parental responsibility for child support. The broad discretion historically accorded trial judges in actions to modify child support orders, see Buchanan v. Buchanan, 353 Mass. 351, 352, 231 N.E.2d 570 (1967), amply permits the consideration and balancing of all relevant factors in the application of the principle of attribution of income. ⁸ To the extent, therefore, that the judge's preliminary finding may have rendered the guidelines inapplicable, existing law did not prevent his considering Joan's earning capacity in fashioning the child support order, notwithstanding that she was living at home with a child of a subsequent marriage.

Joan, implicitly, and we believe correctly, assumes that the preliminary finding, focused as it was upon travel expenses, permits deviation from, but not total disregard of, the guidelines, and grounds her argument upon Guideline II-H which states:

"H. ATTRIBUTION OF INCOME

"If the court makes a determination that either or both parties is earning substantially less than he or she could through reasonable effort, the court may consider potential earning capacity rather than actual earnings. In making this determination, the court shall take into consideration the education, training, and past employment history of the party. These standards are intended to be applied where a finding has been made that the party is capable of working and is unemployed, working part-time or is working a job, trade, or profession other than that for which he/she has been trained.

"This determination is not intended to apply to a custodial parent with children who are under the age of six living in the home."

She maintains that, since her two year old daughter was "living in the home" with her, the last sentence of Guideline II-H precluded the attribution of income to her. While a weighing of general policy...