Department of Revenue v. G.W.A.

• Decision Date: 13 April 1992
• Citation: 412 Mass. 435,590 N.E.2d 176
• Parties: DEPARTMENT OF REVENUE v. G.W.A., Third.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 176

590 N.E.2d 176

412 Mass. 435

DEPARTMENT OF REVENUE v. G.W.A., Third.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 7, 1991.

Decided April 13, 1992.

Jon Laramore, Asst. Atty. Gen., for plaintiff.

Mary P. Harrington, Salem, for defendant.

Jacquelynne J. Bowman, Boston, for Greater Boston Legal Services, amicus curiae, submitted a brief.

John P. Rupp, William T. O'Neil, Nancy Ebb & Diane Dodson, Washington, D.C., for Children's Defense Fund & another, amici curiae, submitted a brief.

Holli Ploog, Washington, D.C., for National Child Support Enforcement Ass'n, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

The complaint of the plaintiff (department on behalf of the mother) requests an adjudication that the defendant is the father of a child born out of wedlock and an order for the child's support. In his answer to the complaint, the defendant admits that he is the father of the child. The only issue before the Probate and Family Court was the amount of child support to be ordered. The trial judge ordered the defendant to pay $160 per week and to maintain medical insurance for the child. Both parties appealed. We allowed the plaintiff's application for direct appellate review. We affirm the order below. ¹

The judge did not follow the child support guidelines issued by the Chief Administrative Justice of the Trial Court pursuant to G.L. c. 211B, § 15 (1990 ed.). A significant issue on appeal is whether the judge's reason for not doing so was impermissible, thus invalidating his order. The judge set forth his reasoning in a memorandum dated May 10, 1990, which we quote almost in its entirety as follows:

"The issue in this paternity case is whether the child support guidelines should be applied. The Paternity Statute, [G.L. c.] 209C, would seem to mandate that the guidelines be followed. See §§ 1 and 9(c). However, the guidelines themselves are presumptive, and the presumption may be overcome by findings that their imposition [is] unjust or inappropriate. Before analyzing the facts of this case I must confess that I have a philosophical difference with those who believe the guidelines should automatically be applied in paternity cases. My reasons are these:

"My objection to applying the guidelines to paternity cases rests upon my belief that support orders are not in fact 'child support' orders at all but rather are 'family' support. The money paid is not segregated for the child. It goes into one pot and is used for all the normal household expenses.... In the case of a married couple, the husband does have a general obligation to support his wife and children. In a paternity case however, there is no obligation to support the mother. In this case, the parties never lived together. There is no 'Marvin case' theory, or any other, which would require the defendant to support the [mother]. In fact, however, he is made to support her by simply labelling the money 'child support.' I think the distinction between a married and an unmarried couple is a valid one. Unfortunately, the statute fails to recognize this difference, and imposes exactly the same economic burden on the father in both cases. The theory of not treating children differently is praiseworthy per se. Its application in a paternity case where the mother seeks support is based on a false premise, namely that the money paid by a father is 'child support' when in fact it is family support.

"Aside from my views as expressed above, are there reasons in this case why I should not follow the guidelines? The essential facts are these: The child was born on May 31, 1982. At that time neither the Paternity Statute nor the Child Support Guidelines existed. The mother went on AFDC [Aid to Families With Dependent Children] at once. Since then, the father has paid $45.00 a week pursuant to an agreement with the Department of Welfare. He has not missed a payment. When the child was conceived, the father was married and had three children (now 20, 19 and 16). He now is divorced and pays $240.00 a week for the support of the family, plus $122.00 a week towards the children's education. The mother gets $172.00 a week from AFDC, including food stamps. Her listed expenses are $144.00 a week. She is 37 years old (the father is 46) and has a degree in education. She chooses not to work. However she has been offered employment with the Division of Employment [ & ] Training beginning July 1, 1990, with a projected salary of $395.00 a week. The father is an attorney who makes $1,135.00 a week, gross. If the guidelines were to be followed, he would pay $264.00 a week to the mother. His expenses are listed at $891.00 a week, including the $240.00, the $122.00, and the $45.00 a week current support payments. His net expenses are $484.00 a week for himself. His taxes, etc. are $200.00 per week. If he were ordered to pay $264.00 a week to the mother in lieu of the $45.00 he now pays, he would have $309.00 left over to meet his $484.00 weekly expenses. The mother's income would increase from $172.00 a week (including food stamps) to $264.00 a week, tax free. The question is whether or not it is just to increase his support to the mother by almost six times under the circumstances. On the one hand an argument can be made that he has had pretty much of a 'free ride' for eight years and now should pay what others pay, based on the same numbers. On the other hand he has paid what he was ordered to pay for eight years and during all of that time no one sought to increase the order. His net income, expenses, budget, life style, etc. all depend, in part, on the $45.00 a week he pays. Does he have any right to rely on the $45.00 a week order remaining essentially the same after eight years? I can easily envision a scenario where a man marries, has children, buys a home and, like most people, lives from pay check to pay check. He is then ordered to pay support that is so much higher than he was paying that he can't pay his mortgage, and he loses his home. Should this devastating impact on his life be considered? From the mother's point of view her income will rise substantially if the guidelines are followed. Should this factor be considered by the Court? My own feeling is that these two factors (the effect on each party) should be considered and given some weight. There is, in my mind, an element of either 'unfairness' or 'inappropriateness' here. Each case is different and all the facts...