Pearson v. Pearson

• Decision Date: 12 January 2001
• Docket Number: P-1672
• Citation: 751 N.E.2d 921,52 Mass.App.Ct. 156
• Parties: (Mass.App.Ct. 2001) KARIN H. PEARSON vs. ANTHONY E. P. PEARSON 98-
• Court: Appeals Court of Massachusetts

751 N.E.2d 921 (Mass.App.Ct. 2001)

KARIN H. PEARSON vs. ANTHONY E. P. PEARSON

98-P-1672

Massachusetts Court of Appeals

January 12, 2001

July 27, 2001

County: Essex.

Present: Armstrong, C.J., Greenberg, & Rapoza, JJ.

Divorce and Separation, Modification of judgment, Child support, Attorney's fees.

Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on November 1, 1983.

A complaint for modification, filed on July 22, 1996, was heard by Edward J. Rockett, J.

Allen C. B. Horsley for Karin Pearson.

William M. Levine (Marc J. Cooper with him) for Anthony E.P. Pearson.

Patricia A. Cantor & Maureen P. Hogan for Women's Bar Association, amicus curiae, submitted a brief.

GREENBERG, J.

When the parties were divorced in 1985, their separation agreement, which was incorporated but not merged into their divorce judgment, provided that the former husband was to pay alimony to the former wife in the amount of $1,000 per month and child support for two children in the amount of $666 per month. The former wife also received a lump sum property settlement in the amount of $475,000 that was placed into an irrevocable trust, a portion of which was used by her for the purchase of a new home. The agreement further provided that the former husband pay all reasonable college expenses for the children "to the extent not otherwise provided for by any amounts paid or payable to the Minor Child by the Husband, his family or any other source." The former wife, who was given physical custody of the children, was responsible for routine medical and dental expenses, while the former husband was to pay for the children's medical insurance as well as any extraordinary medical costs.

The parties continued to reside in Massachusetts until, in 1986, the former wife obtained employment in New York and sought the Probate Court's permission to move the children there. As a result, the parties executed a modification to their separation agreement. One of its new terms acknowledged the former wife's motive to take the children to New York to further her career goals. The agreement also provided that any increased living expenses for her or the children occasioned by the move would become her sole responsibility. The modification agreement also amended that part of the parties' 1985 agreement pertaining to the children's education, and stated that costs not otherwise paid by the former husband, family, or another source "shall be borne by the parents with reasonable contribution from each party given their relative financial circumstances." A modified judgment, incorporating but not merging the modified separation agreement, entered in 1987.

Unfortunately, the former wife's prospects for a more independent life in New York soured. Although she sold her house at a $300,000 profit, she lost $50,000 in one ill-advised investment and reduced her work hours to spend more time with the children, both of whom had developed emotional problems. In the meantime, the former husband's assets increased substantially. As a result, the former wife filed a complaint for modification. After a trial in July, 1996, a judge of the Probate Court increased the total monthly child support payment that the former husband was to pay, from $666 to $2,817.¹ The new judgment also included a general order requiring that the former husband pay the former wife's attorney's fees in the amount of $115,652.07.

In all other respects, the judge affirmed the 1987 modified judgment. It is apparent from his underlying findings of fact and conclusions of law that the judge considered inappropriate the former wife's principal demand for child support payments beyond the $2,817 monthly order. He wrote that "any additional monies granted to the plaintiff, in excess of the [$2,817.00 monthly] child support order[,] would essentially be utilized as alimony for the plaintiff."²

The former wife has appealed, challenging the amount of child support as inadequate (including the judge's denial of her demand that her former husband pay the children's educational expenses from his own funds) and the judge's findings as contrary to the evidence and the law, and asserting that he failed to fashion an award consistent with the needs of the children and the resources of the parties. For his part, the former husband cross-appeals, but disputes only the judge's award of counsel fees to his former wife.

It is undisputed that the former husband's income derives primarily from inherited wealth placed in trust by his parents and other relatives. These assets have substantially increased in value over the ten years from the entry of the 1987 modified judgment to the November, 1997, trial on the complaint for modification.³ The former husband has the ability to pay greater sums for child support, should the law require him to do so. The former wife argues on appeal that the judge considered neither the former husband's existing assets nor his ability to control the amount of income he draws from the trusts established for his benefit. Because the former husband does not challenge the modification, we assume (without deciding) the standards for modification were met, and do not reach the question of how much deference should have been accorded to the parties' child support agreement. The narrow question before us is whether the judge erred with respect to the amount of child support ordered.

The statute governing support modification requires an analysis of both the changed circumstances of the parties and the best interests of the children. See G. L. c. 208, § 28. When setting an amount of support, judges are granted discretion to award sums beyond the guideline amount where, as here, one or both of the parents exceed certain income levels. See Massachusetts Child Support Guidelines II-C (effective January 1, 1994) (requiring noncustodial parent to pay a "minimum presumptive level of support" based on a $75,000 annual income when his or her income exceeds that amount).⁴ Where a noncustodial parent's income level exceeds the children's basic needs, the minimum amount provided in the guidelines is presumptively correct, and the court may deviate upwards in the amount warranted by the circumstances. See J.C. v. E.M., 36 Mass. App. Ct. 446, 450 & n.6 (1994) (affirming support award meeting child's needs and exceeding what it would have been at $75,000 guideline level). See also Quinn v. Quinn, 49 Mass. App. Ct. 144, 148 (2000) (rebuttable presumption exists that child support guidelines are appropriate).

Some States considering the question of gross disparity of income have applied an "income-sharing" method that is designed to maintain the pre-divorce standard of living of the children after an intact family splits into two households. See White v. Marciano, 190 Cal. App. 3d 1026, 1031-1032 (1987); Galbis v. Nadal, 626 A.2d 26, 31 (D.C. 1993); Zak v. Zak, 629 So. 2d 187, 188-189 (Fla. Dist. Ct. App. 1993); Boyt v. Romanow, 664 So. 2d 995, 996-999 (Fla. Dist. Ct. App. 1995); Pratt v. McCullough, 100 Ohio App. 3d 479, 481-482 (1995); Branch v. Jackson, 427 Pa. Super. 417, 419-420 (1993).⁵ In this case, a pure income-sharing approach is problematic because it does not account for the noncustodial parent whose income far exceeds any reasonable needs the child might have. See Baron, Comment, The Many Faces of Child Support Modification, 16 J. Am. Acad. Matrimonial Law. 259, 260 (1999). Courts have generally rejected pure income-sharing because this approach may constructively distribute the noncustodial parent's estate, provide a windfall to the child and custodial spouse, and infringe upon the noncustodial parent's right to direct the lifestyle of his or her children. See Morgan, Child Support and the Anomalous Cases of the High-Income and Low-Income Parent: The Need to Reconsider What Constitutes "Support" in the American and Canadian Child Support Guideline Models, 13 Can. J. Fam. L. 161, 192-196 (1996) (collecting cases).⁶ Most of our cases involving modification requests contemplate a deterioration in the economic situation of the more dependent spouse, such that the former spouse and children have become impoverished and may require public assistance. See McCarthy v. McCarthy, 36 Mass. App. Ct. 490, 493-494 (1994). See also G. L. c. 119A, § 1, as amended by St. 1987, c. 490, § 13 (noting the "public policy of the commonwealth that dependent children shall be maintained, as completely as possible, from the resources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the citizens of the commonwealth").⁷ Here, nothing in the record shows that the children lacked anything money can buy. For example, the former husband purchased the daughter a car, paid for the son's music camp tuition, and gave the children expensive gifts, as well as paid for them to travel abroad.

As to the former wife's doubtfully relevant claim that the children -- ages twenty and seventeen at the time of the trial -- were physically and emotionally abused by their father, the record contains vividly contrasting versions of what happened and why. Doctor Paul R. Duffly, a psychologist appointed by the court with consent of the parties, found, based on interviews with the children, that post-divorce conflict between the parents has contributed to the children's deteriorating emotional states. In any event, adequate provisions exist under the agreement to cover the children's pre-emancipation needs for psychotherapy.⁸ The judge found that, in addition to maintaining health insurance for both children, the father paid for their therapy and other uninsured health care expenses. No trust instrument or security is warranted. Contrast Passemato v. Passemato, 427 Mass. 52, 54-57 (1998). Furthermore, when the children reached the age of twenty-one, each received over $100,000 from trusts, described below, established by the former husband.

The judge was...