Morales v. Morales, SJC–11104.

• Decision Date: 12 March 2013
• Docket Number: SJC–11104.
• Parties: Marlene MORALES v. Richard Louis MORALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 507

984 N.E.2d 748

Marlene MORALES

v.Richard Louis MORALES.

SJC–11104.

Supreme Judicial Court of Massachusetts,

Worcester.

Submitted Nov. 5, 2012.

Decided March 12, 2013.

Ruthanne Withers for the plaintiff.

The following submitted briefs for amici curiae:

Marilyn Ray Smith, Cambridge, pro se.

Stephanie E. Goldenhersh, Shira C. Hoffman, & Jennifer Ramos for Harvard Legal Aid Bureau.

Martha Coakley, Attorney General, & Iraida J. Álvarez, Assistant Attorney General, for Department of Revenue.

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

BOTSFORD, J.

This case concerns the modification of a child support order, and in particular, the standard to be used by a Probate and Family Court judge in reviewing a complaint for modification. The child support order at issue is included in a 2008 divorce judgment that requires the defendant, Richard Louis Morales (father),¹ to make weekly child support payments to the plaintiff, Marlene Morales (mother), for support of their minor child. In 2009, approximately one year after the divorce judgment, and following the father's job promotion, the mother filed a complaint requesting the modification of the child support order to reflect the father's increase in income. Following a trial before a judge in the Probate and Family Court, the judge found that there was no “material and substantial change of circumstances and no modification [was] warranted,” and dismissed the complaint.

We conclude that the trial judge, in ruling on the mother's modification complaint, erred in applying a standard requiring a material and substantial change in circumstances (material and substantial change standard) rather than the standard set forth in G.L. c. 208, § 28, as amended through St. 1998, c. 64, §§ 194, 195 (§ 28),² which provides that a child support order shall be modified “if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines” ³ (inconsistency standard). Accordingly, we remand for the judge to consider the child support modification request under the statutory inconsistency standard.

1. Background. The parties' child was born on August 4, 1998. The mother and father were divorced by a judgment of divorce nisi dated May 5, 2008, that granted shared legal custody of the child and physical custody to the mother. The judgment included a child support order directing the father to pay $172 per week in child support to the mother. In August, 2008, the father, a correction officer at the Massachusetts Correctional Institution at Shirley, received a promotion to the position of inner perimeter officer, resulting in an increase in his salary and his average weekly income from overtime. On April 29, 2009, the mother filed a complaint for modification of the child support order in the Probate and Family Court, claiming that the father's new position and increased salary had changed the circumstances underlying the original support order and requesting an increase in the amount of weekly support to reflect the amount required by application of the Massachusetts Child Support Guidelines (2009) (guidelines, or 2009 guidelines).

The modification complaint was tried in December, 2009. At the trial, in response to the suggestion of the mother's counsel that the guidelines permit the judge to consider overtime in calculating income, the judge stated: “Well, I don't. I just don't. So everybody should know that right up front. I do not include overtime.” Following the trial, the judge dismissed the modification complaint on December 21, 2009, finding that the increase in the father's income was “not ... a material and substantial change of circumstances and no modification is warranted.” Some months later, the judge issued her opinion containing findings of fact and conclusions of law in support of the previously entered judgment of dismissal. The judge found that the father's change in income, combined with a decrease in living expenses of the mother and an increase in living expenses of the father, did not amount to “a substantial or material change in circumstances” to warrant an increase in the father's child support obligation under § 28. The judge also declined to include the father's overtime pay in her calculation of his weekly income because “[overtime] is not always available to him and is not a requirement of his employment,” and because the father had parenting responsibilities to other children.

The Appeals Court affirmed the dismissal in an unpublished memorandum and order issued pursuant to its rule 1:28. Morales v. Morales, 80 Mass.App.Ct. 1110, 2011 WL 4905515 (2011). The court agreed with the judge that the material and substantial change in circumstances standard was the correct legal standard to apply and that she had correctly determined that there was no material change in circumstances. We granted the mother's application for further appellate review.

2. Discussion. The method for calculating and modifying child support orders is governed by statute and by the guidelines.⁴ General Laws c. 119A sets forth the Commonwealth's general policy governing child support enforcement.⁵

Section 13 ( c ) of that chapter provides:

“[i]n any proceeding to establish or modify an amount of child support, the child support guidelines promulgated by the chief justice of [the trial court] shall apply. There 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.” ⁶

G.L. c. 119A, § 13 ( c ). This same presumption is incorporated in other sections of the General Laws pertaining to child support orders that arise in different contexts, including § 28. See G.L. c. 208, § 28 (child support orders for children of divorced parents); G.L. c. 209, § 37 (orders for children of separated parents); G.L. c. 209C, § 20 (orders for children born out of wedlock). Because the order in this case was issued as part of a divorce judgment, § 28 governs. With respect to modifications of child support orders, § 28 provides in relevant part:

“In furtherance of the public policy that dependent children shall be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of divorce, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines promulgated by the chief justice [of the trial court] or if there is a need to provide for the health care coverage of the child” (emphasis supplied).

“We start with the proposition that where the statutory language is clear, the courts must give effect to the plain and ordinary meaning of the language.” Victor V.v. Commonwealth, 423 Mass. 793, 794, 672 N.E.2d 529 (1996), and cases cited. The “plain and ordinary” meaning of the quoted language is that when a complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines.⁷ See, e.g., Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983), citing Johnson v. District Attorney for the N. Dist., 342 Mass. 212, 215, 172 N.E.2d 703 (1961) (“The word ‘shall’ is ordinarily interpreted as having a mandatory or imperative obligation”). Nothing here or elsewhere in § 28 establishes a separate and additional requirement that the discrepancy or inconsistency between the existing order and the guidelines amount of child support result from a material and substantial change in circumstances.⁸ The quoted language embodies the inconsistency standard, and it properly governs consideration of a child support modification request to which § 28 applies.⁹

The judge did not apply the inconsistency standard in this case. Instead, althoughshe cited § 28 as the basis for her decision, she applied the material and substantial change standard. This was error, and remand of the case is necessary to permit consideration of the mother's modification request under the appropriate legal standard. See, e.g., Smith v. McDonald, 458 Mass. 540, 550, 941 N.E.2d 1 (2010) (remanded for reconsideration of custody and visitation orders under correct legal standards). However, before discussing specific claims of the mother that may arise on remand, we consider the provisions in the 2009 guidelines governing modification requests, because, as the Appeals Court concluded, these provisions clearly purport to apply in the present case.

The 2009 guidelines state in pertinent part:

“A child support order may be modified if any of the following circumstances exist:

(1) the existing order is at least three years old; or

(2) health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost); or

(3) health insurance not previously available to a party at reasonable cost has become available; or

(4) any other material change in circumstances has occurred” (emphasis supplied).

2009 guidelines III.A. These modification provisions appear to provide that any child support order less than three years old may be modified only if there has been either (1) a change in health insurance coverage, or (2) a material change in circumstances.¹⁰ In so limiting the availability of modification, the 2009 guidelines are themselves not consistent with the inconsistency standard set out in § 28, at least with respect to modification requests filed less than three years after the date of the original child support order.

This discrepancy between statute and guidelines may have a historical explanation. Under applicable provisions of Federal stat...