M.C. v. T.K.

• Decision Date: 15 August 2012
• Docket Number: SJC–10910.
• Citation: 973 N.E.2d 130,463 Mass. 226
• Parties: M.C. v. T.K.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 226

973 N.E.2d 130

M.C.

v.T.K.

SJC–10910.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 5, 2011.

Decided Aug. 15, 2012.

David M. Friedman for the father.

Brian J. Kelly for the mother.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

We are asked to address whether, and in what amount, child support may be ordered with respect to parents who never married, but who share legal and physical custody of their child, enjoy comparable standards of living, and have incomes that exceed the levels to which the Massachusetts Child Support Guidelines (guidelines) presumptively apply. A judge in the Probate and Family Court ordered that the father pay the mother $454 in weekly child support, which had the effect of equalizing the parties' net incomes. In deciding whether it was within the judge's discretion to fashion a child support award based on an income-equalization formula, we must address two underlying questions: (1) in what circumstances child support may be ordered where the parents share physical custody; and (2) whether child support may be used to equalize incomes. We conclude that it was within the judge's discretion to award support on finding that the child's reasonable needs could not otherwise be met and that, although the guidelines in effect at the time of trial did not apply to shared physical custody arrangements, see Massachusetts Child Support Guidelines (effective Feb. 15, 2006) (2006 guidelines), the calculation of such support was required to be consistent with principles embodied in the guidelines.

Because we conclude that income equalization is inconsistent with principles that inform child support orders in the Commonwealth, and because the judge made no findings that the child's reasonable needs were not being met in the absence of an award of child support, the judgment must be vacated insofar as it orders the father to pay weekly child support to the mother. The portions of the judgment obligating the mother to pay certain child-related expenses must also be vacated, as they may be affected by the judge's further consideration whether, and in what amount, child support is appropriate.

1. Background and prior proceedings. The parties to this paternity action, who never married, lived together when their daughter was born in December, 2004. They separated in June, 2006. In October, 2006, the mother filed a complaint in the Probate and Family Court seeking child support from the father, as well as retroactive payment of support and expenses. As part of the mother's pending action, the parties entered into a written stipulation in December, 2006, that established a joint legal and shared physical custody arrangement that continued until the time of trial.¹ Following a three-day trial in January and February, 2008, the judge issued findings and a judgment, which was later amended.

The judge ordered a continuation of joint legal custody and shared physical custody of the parties' three year old daughter, and a parenting schedule under which each parent would have substantially equal time with the child. The judgment also obligated the father to pay weekly child support of $454, an amount that, when deducted from what the judge found to be the father's net income and added to the mother's, effectively equalized their incomes. The judgment required that the mother continue to provide medical and dental insurance for the child if available through her employer and that she be responsible for the costs of the child's uninsured medical and dental expenses, child care, and extracurricular activities. The order provided also that the child was to attend public school in the school district in which the mother resides, and that if the mother wished the child to attend private school instead, she would bear the cost. The judgment also provided that if the father wished to send the child to private school but the mother did not, he would be solely responsible for the cost.

The parties filed cross appeals in the Appeals Court, which affirmed the judgment in an unpublished memorandum and order pursuant to its rule 1:28. See M.C. v. T.K., 78 Mass.App.Ct. 1110, 2010 WL 4676260 (2010). We granted the father's application for further appellate review.

The father claims that he should not have been ordered to pay child support because he and the mother share physical custody equally, can provide the child with comparable homes, and are able to address her needs from their respective resources. He argues also that the judge erred in attributing income to him, and that the judge failed to make the requisite findings on which imputed income might have been based. He further asserts error in the denial of his request for attorney's fees incurred as a result of the mother's claim, made on the morning of trial, seeking sole legal and physical custody. The mother argues that provisions in the judgment requiring her to pay all child care costs, as well as all expenses related to the child's private school enrollment and extracurricular activities, are inconsistent with the judge's rationale and are inequitable. She also sought an award of attorney's fees for her defense of the father's appeal.

2. Facts. We summarize the judge's unchallenged findings of fact, derived from her written decision in support of the judgment. See Bowring v. Reid, 399 Mass. 265, 267, 503 N.E.2d 966 (1987).²

The parties cohabited intermittently from February, 2002, until December, 2004. When not separated, they resided in the father's condominium unit in Boston, although the mother also owned a residence. The parties lived together continuously from the child's birth in December, 2004, until their final separation in June, 2006. At the time of trial, the mother, who was forty-three years old, worked as a physician earning approximately $150,000 per year and was negotiating a salary increase of approximately $10,000 to $15,000. The father, a retired stockbroker, was sixty-three years old and supported himself through “savings, dividends and interest.”

The financial statement submitted by the father on February 18, 2008, listed gross weekly income of $444 derived from dividends and interest, and weekly expenses of $1,403, or $72,956 annually.³ That statement reflected the total value of the father's assets as $1,331,621, exclusive of his condominium unit and certain assets whose value he listed as “uncertain.” ⁴ The condominium unit was assigned an assessed value of $1,647,660, with no mortgage, though that figure was noted to be “[u]nder [a]ppeal.” Including the assessed value of the condominium, the value of the father's assets was $2,979,281. The statement identified no liabilities, other than an “uncertain” liability for attorney's fees.

Based on the father's bank records, the judge found the $1,403 in weekly expenses listed on his financial statement not reflective of his actual expenses, as he had also paid for, but not listed, items such as entertainment, vacations, clothing, dental work, upkeep of his yacht, repairs to his condominium unit, and funding of the child's college account. Based on these expenditures, the judge concluded that the father had “a minimum of $147,000 [in] net income” per year. In the absence of any evidence regarding his tax liabilities, the judge was apparently unable to ascertain an amount for the father's gross income.

On the basis of a financial statement submitted at the time of trial, the judge found that the mother had $46,022 in net assets consisting of equity in her home, an individual retirement account (IRA), bank accounts, jewelry, and home furnishings; she also had credit card debt of $52,000. The judge determined that, accounting for State and Federal tax withholding and deductions for health insurance premiums, the mother's net income was $99,744.32 per year.⁵

The judge determined that the guidelines, which create a “rebuttable presumption that [they] apply in all cases establishingor modifying a child support order,” did not apply in the parties' circumstances, because their combined gross income exceeded $135,000. See 2006 guidelines, preamble, II.C. She decided that child support should be ordered “on the premise that each home will have an equal amount of income for the benefit of the child.” Based on her findings that the father's net income was $147,000 per year and that the mother's was $99,744.32,⁶ the judge arrived at an award of $454 in child support to be paid weekly by the father to the mother.⁷

3. Discussion. a. Applicability of child support guidelines. Public policy dictates that children be supported by the financial resources of their parents insofar as is possible. See G.L. c. 119, § 1. In the matter of child support, nonmarital childrenare “entitled to the same rights and protections of law as all other children.” G.L. c. 209C, § 1. See Department of Revenue v. G.W.A., 412 Mass. 435, 438–439, 590 N.E.2d 176 (1992). The Chief Justice of the Trial Court is authorized to promulgate guidelines establishing presumptive child support awards, based on articulated principles and calculated according to specified mathematical formulas. ⁸ See G.L. c. 209C, § 9 ( c ). See also 42 U.S.C. § 667 (2006) (requiring States to establish child support guidelines). Such guidelines are subject to periodic review and revision. See 45 C.F.R. § 302.56 (2011).

The Commonwealth's guidelines “were promulgated with several fundamental social policies in mind, including (1) to ‘encourage joint parental responsibility for child support in proportion to, or as a percentage of income’; (2) to ‘meet the child's survival needs in the first instance, but to the extent either parent enjoys a higher standard of living to entitle the child to enjoy that higher standard’; ... and [ (3) ] to ‘take into account the non-monetary contributions of both the custodial and non-custodial parents.’ ” Department of Revenue v. Mason M., 439 Mass....