Quinn v. Quinn

• Decision Date: 20 April 2000
• Docket Number: No. 97-P-678,97-P-678
• Citation: Quinn v. Quinn, 727 N.E.2d 92, 49 Mass. App. Ct. 144 (Mass. 2000)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: (Mass. 2000) JOAN M. QUINN <A HREF="#fr1-1" name="fn1-1">1 v. SEAN J. QUINN Appeals Coooutr of Massachusetts, Essex County

Page 92

727 N.E.2d 92 (Mass. 2000)

JOAN M. QUINN¹ v. SEAN J. QUINN

No. 97-P-678

Appeals Coooutr of Massachusetts, Essex County

Argued December 14, 1999.

Decided April 20, 2000

Divorce and Separation, Child support, Modification of judgment.Contempt.

Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on September 16, 1992.

An amended complaint for contempt, filed on October 2, 1996, was heard by William Highgas, Jr., J.

Patricia S. Johnstone for Joan M. Quinn.

Gregory C. Howard for Sean J. Quinn.

Jacobs, Porada, & Greenberg, JJ.

PORADA, J.

On October 2, 1996, the plaintiff filed in the Probate and Family Court an amended complaint for contempt alleging that the defendant had failed to comply with an order of the court to pay child support in the sum of $350 weekly for the parties' minor children.The defendant filed an answer to the complaint in which he alleged as one of his defenses the plaintiff's agreement of April 9, 1993, to accept the lesser sum of $275 weekly for child support.At a nonevidentiary hearing, the Probate Court judge dismissed the contempt complaint based on his belief that the plaintiff's agreement constituted a bar to her complaint for contempt.The judge also reduced prospectively the order of child support from $350 weekly to $322.50, based on the Massachusetts Child Support Guidelines (guidelines).SeeG. L. c. 208, § 28.

On appeal, the plaintiff claims that the judge erred in ruling that the plaintiff's agreement to accept less child support than the amount set forth in the court's order for child support operates as a bar to her complaint for contempt and that the plaintiff had the burden of proving that the defendant had wilfully and intentionally disobeyed the court order.The plaintiff also claims the judge erred in modifying the order for child support without proof that a change of circumstances had occurred.

We address each of the issues.²

1.Parties' agreement.

The plaintiff argues that the judge erred in dismissing the complaint based on the plaintiff's agreement because the agreement had not been approved by the court.Because the postdivorce agreement in this case predates the amendment to G. L. c. 119A, § 13,³as amended bySt. 1993, c. 460, § 53, andG. L. c. 208, § 28,⁴as amended bySt. 1993, c. 460, § 61, we do not believe court approval was required.SeeMcCarthy v. McCarthy, 36 Mass. App. Ct. 490, 493 & n.5(1994)(divorce and agreement entered into in 1987).Nevertheless, because "[p]arents may not bargain away the rights of their children to support from either one of them,"Knox v. Remick, 371 Mass. 433, 437(1976), the Legislature has placed certain limits on the ability of parents to enter into binding contracts relating to child support.G. L. c. 208, § 28. G. L. c. 209, § 37.At the time of the parties' judgment of divorce and the agreement at issue, G. L. c. 119A, § 13(a), as inserted by St.1987, c. 714, § 1, was in effect.Section 13(a) provided as follows: "Any payment or installment of support under any child support order issued by any court of this commonwealth . . . shall be on or after the date it is due, a judgment by operation of law, with the full force, effect, and attributes of a judgment of this commonwealth including the ability to be enforced; shall be entitled as a judgment to full faith and credit; and shall not be subject to retroactive modification except with respect to any period during which there is pending a complaint for modification . . . ."Prior to its passage, a judge had the power to eliminate arrearages for child support retroactively in proceedings for contempt.Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233, 234-235(1979).Because of this power, we had held that an agreement between the parents relating to child support, which was fair and reasonable and free from fraud, and which was entered into after the entry of their divorce judgment, could constitute a defense to a complaint for contempt.Gridley v. Beausoleil, 16 Mass. App. Ct. 1005, 1007-1008(1983).In light of the passage of G. L. c. 119A, § 13(a), this action raises the issue whether an agreement between the parties relating to child support made subsequent to the entry of their divorce judgment and without court approval continues to constitute a defense to a complaint for contempt.We conclude it cannot for the reasons discussed below.

In enacting G. L. c. 119A, § 1, inserted by St. 1986, c. 310, § 10B, the Legislature declared that it was "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.The existing remedies pertaining to the support of dependent children are to be augmented by the additional remedies provided in this chapter so as to establish a comprehensive and effective child support enforcement program through expedited processes for obtaining and enforcing support orders and establishing paternity.This chapter shall be liberally construed to effectuate the policy stated herein."Commensurate with this policy, the Legislature limited the power of a judge to reduce retroactively any arrearages in child support based on child support orders and cast the imprimatur of a judgment upon any child support order, including the ability to be enforced as such.G. L. c. 119A, § 13(a).Further, the Legislature specifically provided that the provisions of § 13(a) shall apply "to all actions for establishment, modification or enforcement of a judgment or order for child support pursuant to or adjudicated under the provisions of chapters . . . two hundred and eight, [and] two hundred and nine . . . ."G. L. c. 119A, § 13(d), as amended bySt. 1993, c. 460, § 53(emphasis supplied).

Here, the plaintiff brought a complaint for civil contempt.The purpose of such action is "intended to achieve compliance with the court's orders for the benefit of the complainant."Furtado v. Furtado, 380 Mass. 137, 141(1980).It is the usual means for enforcement of a judgment or order for child support and, thus, all the provisions of G. L. c. 119A, § 13, apply to this action.G. L. c. 119A, § 13(d).Under § 13(a), an action to enforce a child support order takes on the semblance of an action on a judgment.In an action on a judgment, an agreement to accept less money than due, absent proof of new consideration, does not constitute a defense to the action.Emerson v. Deming, 304 Mass. 478, 481(1939).The same principle should apply to a civil proceeding to enforce a child support order.Of greater import, however, is the fact that G. L. c. 119A, § 13(a), no longer permits a judge to moot or reduce arrearages for child support except for any period during which there is pending a complaint for modification.Thus, the ground on which we based our decision in part in Gridley v. Beausoleil, 16 Mass. App. Ct. at 1007-1008, is no longer valid.We therefore conclude that the plaintiff's agreement to accept less money than provided by the court order in this case did not constitute a defense to the plaintiff's complaint for contempt.The judgment must be reversed and the action remanded to the Probate Court for further proceedings to establish the arrearages due under the adjudication of contempt.⁵

2.Modification of child support.

The plaintiff claims the judge erred in modifying the child support order without any evidence of a substantial change of circumstances.The judge apparently modified the order prospectively based on the defendant's income and the defendant's payment of health insurance under the child support guidelines promulgated by the Chief Justice for Administration and Management.A judge may modify prospectively a child support order.Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 406(1998).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.However, this presumption may be overcome by a party.Ibid."The presumption establishing a...