Crowe v. Fong, 97-P-0013

• Decision Date: 05 November 1998
• Docket Number: No. 97-P-0013,97-P-0013
• Parties: Elizabeth J. CROWE v. Michael FONG.
• Court: Appeals Court of Massachusetts

Page 359

701 N.E.2d 359

45 Mass.App.Ct. 673

Elizabeth J. CROWE v. Michael FONG.

No. 97-P-0013.

Appeals Court of Massachusetts,

Bristol.

Argued March 26, 1998.

Decided Nov. 5, 1998.

Paul F. Lorincz, Attleboro, for defendant.

Paul M. Cronan, Attleboro, for plaintiff.

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

WARNER, Chief Justice.

Following a trial on a complaint for modification of child support under G.L. c. 209C, §§ 9, 20, a judge of the Probate and Family Court ordered a 100 per cent increase in the father's, Michael Fong's, weekly child support payment, from $75 to $150. On appeal from the judgment and certain postjudgment rulings, Fong contends that the judge erred in finding that the parties' circumstances had undergone a material change sufficient to warrant a modification since entry of the earlier order, and in attributing certain unclaimed income to him. For the reasons explained below, we affirm.

We take the facts from the judge's uncontested findings of fact and the uncontroverted evidence in the record before us. The parties, Elizabeth Crowe and Michael Fong, were never married. Their daughter was born on October 25, 1989, and resides with her mother. Neither Fong nor his parents have ever seen the child or made any attempt to establish a relationship with her. The child's parents met when Crowe was hired to work as a waitress at one of two Chinese restaurants managed by Fong. At the time, Fong owned fractional interests in the restaurants, as well as corresponding interests in the realty corporations that owned the land on which the restaurants were located. Between 1980 and 1989, he worked at the restaurants somewhere between eighty and ninety hours per week, and he testified he had been paid $1,500 per month for his services. During those years, Fong owned (or at least "drove") several luxury automobiles, including a Porsche, for which he paid $18,000, and a $22,000 Limited Edition Nissan 300ZX. He also leased a Lotus for $989 per month. In addition, in 1985, Fong lived in a single family home in Attleboro, which he and his sister purchased for $65,000.

Immediately after learning that Crowe was pregnant in the spring of 1989, Fong quit his job and moved, temporarily, to Florida. Approximately three months later, he returned to Massachusetts and began working at Art's 3-Hour Cleaners, Inc., a business owned and operated by his mother. He worked thirty hours per week and was paid a salary of $275. In December, 1989, Fong's father, Arthur Fong, purchased a three-bedroom, two-bath, waterfront home with a two-car garage in Mansfield. Shortly thereafter, Fong moved into the house and lived there on a rent-free basis. Despite testifying at trial that he was "broke," Arthur Fong paid $49,000 in cash toward the $163,000 purchase price of the home. In 1990, Fong married his present wife. In 1991, a judgment of paternity was entered by the Bristol County Probate and Family Court establishing Fong as the father of Crowe's daughter. At that time, the parties stipulated to a weekly child support order of $75, with Fong providing medical insurance for the child, and physical and legal custody going to Crowe. At that time, Crowe was disabled and earning $17 per week in dividends and interest. She had recently received a worker's compensation settlement of approximately $28,000. The settlement made up a portion of her Shawmut Bank savings account which totaled $45,692.80. Crowe also owned an automobile with an equity value of $5,525. Her weekly expenses were $438, including rent.

Fong is a high school graduate. At the time the $75 support order went into effect, he was employed in his mother's dry cleaning business earning $275 weekly. His stated assets included $35 in a savings account, a one-seventh interest in Chinatown Gardens, Inc., a Chinese restaurant located in Attleboro, and two-thirds of a one sixth interest in the North Attleboro Chinatown Restaurant, Inc., both of "undetermined" value, as well as corresponding interests in the aforementioned realty corporations. He lived with his wife and their son in the home owned by Arthur Fong, and listed his expenses as $252 per week.

Between 1991 and the time she filed her complaint for modification, Crowe earned a bachelor's degree from the University of New Hampshire and a master's degree in early childhood education from Bridgewater State College, and, in 1996, she was earning $440 per week as a teacher and administrator. She also received $2.50 in dividend and interest income, and $75 per week in child support. Her weekly expenses were $427, and included rent for an apartment and day care for the child. Her assets consisted of approximately $5,500 in savings and an automobile valued at approximately $1,500. She was also carrying a college loan in the amount of $3,000. Crowe anticipated that her expenses would increase to $497 as a result of having to leave the apartment in which she was living, and which had been provided by her employer at a reduced rate.

At the time the complaint for modification was filed by Crowe, Fong claimed to be performing the same job he had in 1991 and earning the same salary. He continued to reside, with his wife and their now three sons, in the home owned by his father. In addition, his father had given him the use of a 1983 Volvo. Fong listed his weekly expenses at $142, exclusive of child support payments for his daughter. This figure represented a $110 decrease from 1991, and included expenses for Fong's two additional children born since that time, one of whom was autistic and therefore attended a "special" school. Fong testified that his son's special needs prevented him (Fong) from working more than thirty hours per week.

Approximately two years after the 1991 support order went into effect, Fong sold his interests in the restaurants for $115,000. ¹ At trial, he admitted receiving $110,000 as a result of the sale but testified that, of the proceeds, $40,000 was repaid to the cousin who had originally loaned him the money to acquire the interests, $23,000 was paid in legal fees in connection with the sale, and $35,000 was paid to his parents for loans they had made to him in the past. Fong's testimony regarding the existence of these loans was, however, unsupported by documentation. Although Fong's parents also testified to the existence of the loans, they similarly could not produce any supporting documentation.

In addition to being unable to account for his share of the proceeds from the sale of the restaurants, Fong's testimony regarding his financial affairs was consistently evasive and unsubstantiated. For example, with respect to the house he purchased with his sister, Fong testified at his deposition that the down payment was $3,000 but at trial stated that it was closer to $10,000. The documentary evidence, however, indicated the downpayment was $22,500. Fong also denied ever having the North Attleborough restaurant appraised until a copy of a written appraisal requested by him was presented to the court. He also denied that he and his father had offered to purchase their partners' interests in the restaurants for $600,000, until a copy of the signed offer was produced.

The judge found that Fong's testimony and that of his parents were not credible, and that "through maneuvering of ... assets, [the family had] arranged it such that with minimal reported income, [Fong] and his household [were able to] live in a large waterfront home, drive a Volvo (albeit a 1983 Volvo); spend $7,500 for wedding rings, and allegedly dispose of approximately $115,000 in a three-year period." Specifically, the judge found that Fong had received $110,000 from the sale of the restaurants, that the loans he claimed to have repaid out of the proceeds did not exist, and that the legal fees from the transaction were smaller than he claimed. She also found that Fong was financially astute as a result of his work in the family-owned restaurants and rejected his testimony that he earned only $275 per week from Art's Cleaners after being employed in the same job for six years. Instead, she concluded that Fong worked thirty hours per week "at his own choosing" and that he was intentionally underemployed. Accordingly, she attributed an additional $97.10 in weekly income to him. The judge also found that Fong's rent-free occupancy of his parents' home was "perquisite income" from his employer and attributed an additional $350 per week, the fair market rental value of the home, to him as income. We review for an abuse of discretion. Canning v. Juskalian, 33 Mass.App.Ct. 202, 205, 597 N.E.2d 1074 (1992).

The Massachusetts child support guidelines (1996) (guidelines) apply to Crowe's request for modification. See G.L. c. 209C, § 9(c ). The guidelines provide a mathematical formula for computing noncustodial parents' support obligations. See Guideline III. ² According to their preamble, the guidelines are intended to "encourage joint parental responsibility for child support in proportion to, or as a percentage of, income ... [and, among other things] [t]o protect a subsistence level of income of parents at the low end of the income range...." "Income" is defined broadly in Guideline I-A as "gross income from whatever source ... includ[ing], but ... not limited ... to ... salaries and wages ... [and] perquisites or in kind compensation to the extent that they represent a regular source of income." See Rosenberg v. Merida, 428 Mass. 182, 187, 697 N.E.2d 987 (1998) (describing definition of income contained in Guideline I-A as "broad").

Pursuant to the preamble to the guidelines, a court may modify a child support order "upon showing a discrepancy of 20% or more between an established order and a proposed new order calculated under [the] guidelines"; this rule does not apply, however, if the twenty per cent discrepancy "is due to the fact that the amount of the current support order resulted from ... an allowance of an...