P.F. v. Dep't of Revenue

• Decision Date: 06 December 2016
• Docket Number: No. 15–P–771.,15–P–771.
• Citation: 90 Mass.App.Ct. 707,64 N.E.3d 940
• Parties: P.F. v. DEPARTMENT OF REVENUE.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 707

64 N.E.3d 940

P.F.

v.DEPARTMENT OF REVENUE.

No. 15–P–771.

Appeals Court of Massachusetts, Norfolk.

Argued May 12, 2016.

Decided Dec. 6, 2016.

P.F., pro se.

Benjamin K. Golden, Assistant Attorney General, for the defendant.

Present: COHEN, RUBIN, & HANLON, JJ.

COHEN, J.

The plaintiff, an incarcerated father, filed a complaint for downward modification of child support payments ordered following his divorce from the child's mother. A judge of the Probate and Family Court denied the request, reasoning that the father's loss of income was a foreseeable consequence of his conviction of indecent assault and battery on the child for whom he owes support. Before us is the father's appeal. We conclude that, on the record before us, the judge's refusal to reduce the father's child support payments in accordance with the Massachusetts Child Support Guidelines (2013) (guidelines) was outside the range of his discretion. We therefore vacate the judgment and remand the case for further consideration.¹

1. Background. The father and the mother were married in September, 2000, and had one child together, a daughter. The marriage was short-lived. The father and the mother divorced in April, 2004, and the father subsequently was ordered to pay weekly child support of $72. In March, 2010, the father was convicted of indecent assault and battery on the child and was sentenced to five to seven years in State prison.²

In 2012, the father filed a complaint seeking modification of his child support obligation, citing his inability to pay child support while incarcerated. On September 9, 2014, following a hearing at which the father represented himself,³ and at which the child support enforcement division of the Department of Revenue (DOR) appeared on behalf of the mother,⁴ a judge of the Probate and Family Court issued a judgment denying the father's modification request, stating that "[i]t should have been a foreseeable consequence of [the father's] criminal conduct that he would be incarcerated, lose his employment and thus lose his ability to earn income to pay support." The intended "effect of this denial [was] that [the father] [would] have to someday reimburse the [mother] for the expenses being incurred at this time." However, the judge also requested that DOR "waive the penalties that accrue on the unpaid arrears" during the father's incarceration.

The father filed a timely notice of appeal from the judgment. Thereafter, on December 8, 2014, the judge entered a "Supplemental Rationale" further explaining the basis for his decision on the father's complaint for modification. This appeal followed.

2. Discussion. "When assessing a decision regarding a modification of child support, an appellate court ‘review[s] for an abuse of discretion.’ " Wasson v. Wasson, 81 Mass.App.Ct. 574, 576, 965 N.E.2d 882 (2012), quoting from Richards v. Mason, 54 Mass.App.Ct. 568, 572, 767 N.E.2d 84 (2002). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives."

L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27, 20 N.E.3d 930 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir.2008).

"The method for calculating and modifying child support orders is governed by statute and by the guidelines." Morales v. Morales, 464 Mass. 507, 509–510, 984 N.E.2d 748 (2013).⁵ See G.L. c. 208, § 28. "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." M.C. v. T.K., 463 Mass. 226, 231, 973 N.E.2d 130 (2012), citing 42 U.S.C. § 667 (2006). "Although the guidelines have been subject to periodic revision since their enactment, an essential premise has remained constant: that child support should be calculated as a percentage of parental income...." Id. at 232, 973 N.E.2d 130.

There is 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." G.L. c. 208, § 28, as amended through St. 1998, c. 64, § 194. See guidelines, preamble. "Except as otherwise stated therein, the guidelines have presumptive application to actions to modify existing orders," Hoegen v. Hoegen, 89 Mass.App.Ct. 6, 8, 43 N.E.3d 718 (2016) (quotation omitted), and an existing order "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" (emphasis supplied). Morales v. Morales, supra at 511, 984 N.E.2d 748, quoting from G.L. c. 208, § 28. "This presumption may be rebutted, and a judge ... may deviate from the amount of support dictated by [the guidelines], provided the judge makes written findings specifying that ‘the guidelines amount’ would be unjust or inappropriate, that departure from the guidelines is justified by the facts of the case, and that departure is consistent with the child's best interests." Id. at 510 n. 6, 984 N.E.2d 748.

Here, because the father had no income while he was incarcerated, the presumptive amount that followed from the application of the guidelines was the minimum order of eighty dollars per month. As the judge acknowledged, this was inconsistent with the existing child support order of seventy-two dollars per week and, therefore, "[i]n most cases this would result in a reduction of support." The judge nevertheless denied the father's modification request, concluding that (a) it was appropriate to attribute income to the father as his loss of employment was a "foreseeable" consequence of his crime against the child, and (b) regardless of the father's income, the circumstances of the case justified an upward deviation from the presumptive amount. The father argues that neither of these rationales is valid in the circumstances and, therefore, the judge's refusal to modify his child support obligation was an abuse of discretion. For the following reasons, we conclude that the father's position has merit.

a. Attribution of income. "What is significant for purposes of the guidelines is the amount of the [payor's] present gross income." Department of Rev. v. Foss, 45 Mass.App.Ct. 452, 459, 698 N.E.2d 1285 (1998). However, in certain circumstances, "[t]he earning capacity rather than the actual income of [the payor] may be considered." Flaherty v. Flaherty, 40 Mass.App.Ct. 289, 291, 663 N.E.2d 280 (1996). "Income may be attributed where a finding has been made that [the payor] is capable of working and is unemployed or underemployed," guidelines, I(E),⁶ or where the payor owns "substantial assets." Wasson v. Wasson, 81 Mass.App.Ct. at 581, 965 N.E.2d 882, quoting from Flaherty v. Flaherty, supra. See Schuler v. Schuler, 382 Mass. 366, 374–375, 416 N.E.2d 197 (1981) (ownership of valuable assets may be considered when determining payor's ability to pay child support).

The criteria for attribution of income were not met in this case. It was undisputed that the father had no income or assets from which to pay child support, and the judge acknowledged that the father "[c]learly ... cannot obtain employment while incarcerated." Nevertheless, the judge "attribut[ed] an income to [the] [f]ather [equal] to that of his previous job,"⁷ on the basis that the father "acted voluntarily when he sexually abused his daughter," and the "loss of his employment" was a "foreseeable" consequence of his crime. In doing so, the judge cited to cases from other jurisdictions for the proposition that it is appropriate to "attribute[ ] income to parents who have committed sex offenses and are facing a significant reduction in income as a result of their criminal conduct." These cases are inapposite, however, as they do not involve attributing income to a presently incarcerated payor.⁸ Furthermore, in Massachusetts, the relevant inquiry for attribution of income is not whether the payor's unemployment was " foreseeable"; it is whether the payor is presently able to obtain employment through "reasonable efforts." See guidelines, I(E) ("If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order"). See also Flaherty v. Flaherty, supra (attribution of income not appropriate where husband was laid off involuntarily). Compare Croak v. Bergeron, 67 Mass.App.Ct. 750, 752, 856 N.E.2d 900 (2006) (appropriate to deny father's request for a reduction in child support where he "carefully orchestrated his periods of unemployment to coincide with court appearances"). As the judge recognized, a payor serving a criminal sentence cannot obtain gainful employment through " reasonable efforts" while he is incarcerated.⁹ Accordingly, it was not a proper exercise of the judge's discretion to attribute income to the incarcerated father based on his prior earning capacity.

b. Deviation from guidelines. "Although a purpose of the guidelines is to encourage joint parental responsibility for child support in proportion to, or as a percentage of, income ... a judge is to consider the totality of the parties' circumstances in determining their support obligations." Croak v. Bergeron, 67 Mass.App.Ct. at 754–755, 856 N.E.2d 900 (quotations omitted). To that end, a judge may "deviate" from the guidelines upon

"enter[ing] specific written findings stating: 1) the amount of the order that would result from application of the guidelines; 2) that the guidelines amount would be unjust or inappropriate under the circumstances; 3) the specific facts of the case which justify departure from the guidelines; and 4) that such departure is consistent with the best interests

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