Robbins v. Kemp

• Decision Date: 07 June 2021
• Docket Number: 20-P-323
• Citation: 170 N.E.3d 352 (Table),99 Mass.App.Ct. 1127
• Parties: Ellen S. ROBBINS v. Stewart W. KEMP.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 1127

170 N.E.3d 352 (Table)

Ellen S. ROBBINS

v.Stewart W. KEMP.¹

20-P-323

Appeals Court of Massachusetts.

Entered: June 7, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Ellen S. Robbins (mother) and Stewart W. Kemp (father), the never married parents of one child, both appeal from a Probate and Family Court modification judgment dated August 9, 2019. The mother principally challenges the reduction of the father's child support obligation (retroactive to November 29, 2016, the date of service of his complaint for modification), and the order requiring her to reimburse the father for his overpayment of child support during the pendency of the modification proceedings. The father principally challenges the amount of his modified child support obligation, the denial of his request for sole legal and primary physical custody, and certain rulings made by the judge pertaining to the guardian ad litem (GAL). We vacate so much of the modification judgment as pertains to child support and remand the case for further proceedings consistent with this memorandum and order. The modification judgment is otherwise affirmed.

Background. We summarize the relevant facts found by the judge, supplementing them with undisputed evidence in the record and reserving other facts for later discussion. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). Pursuant to a 2007 judgment, as modified in 2009, the parties received joint legal custody, the mother received primary physical custody, and the father received liberal parenting time with the child.

In December 2013, following a modification trial, a judge of the Probate and Family Court (first judge) issued an amended modification judgment (2013 judgment) ordering the father to pay weekly child support of $625. In arriving at that amount, the first judge calculated the minimum presumptive order required by the Child Support Guidelines (guidelines) of $525 per week, based on the father's reported gross weekly income of $5,261, and the mother's reported gross weekly income of $3,081.90. The judge found, however, that the "mother ha[d] borne the entire burden of extracurricular and enrichment expenses incurred on behalf of [the child]," thus it was "equitable and reasonable for [the] father to pay $625.00 per week, an additional $5,200.00 per year to contribute to the types of enrichment activities that [the child] has enjoyed and will likely continue to engage in." The father appealed from the 2013 judgment, which a different panel of this court affirmed in an unpublished memorandum and order. See Kemp v. Robbins, 87 Mass. App. Ct. 1123 (2015).

In 2016, the father filed a complaint for modification seeking to terminate or, alternatively, reduce his weekly child support obligation on the alleged basis that his income had decreased. The father also requested sole legal and primary physical custody of the child. At the father's request, a GAL was appointed to investigate and make recommendations regarding custody and an appropriate parenting plan for the child. The father later moved to strike the GAL's report, primarily because he disagreed with the GAL's recommendations. By that time, the case had been assigned to a different judge (second judge), who denied the father's motion to strike. A two-day trial was held before the second judge in September 2018. The judge informed the parties that "the GAL report would be marked as an uncontested [e]xhibit subject to cross examination by either party"; however, neither party called the GAL as a witness.

On August 9, 2019, the second judge issued a modification judgment. The judge retroactively reduced the father's weekly child support obligation of $625 to $508 between November 2016 and January 2017, $526 between February 2017 and December 2017, and $535 as of January 2018.^{3 ,4} In addition to reducing the father's weekly child support obligation, the judge granted the father a credit of $303.02 per week for social security dependency benefits received by the mother for the child based on the father's eligibility for social security on February 25, 2017 (his seventieth birthday). The judge ordered the mother to reimburse the father by October 2019 for a portion of his child support overpayments made since November 2016, and suspended the father's net child support obligation for 169 weeks to account for the remainder of the father's overpayments since November 2016.

With respect to custody, the second judge left the previous custody and parenting time provisions largely unchanged, with the mother retaining primary physical custody and the parties continuing to have joint legal custody. The judge, however, granted the mother sole decision-making authority regarding the child's orthodontia treatment, provided that the mother paid for the entirety of such treatment. The judge also made the father solely responsible for payment of the GAL's fee. Both parties timely appealed.

Discussion. 1. Modification of child support. "Our review of a child support modification judgment is limited to whether the judge's factual findings were clearly erroneous, whether there were other errors of law, and whether the judge appears to have based [the] decision on the exercise of sound discretion." Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692 (2017). The mother contends that it was error to reduce the father's child support obligation because he failed to meet his burden of demonstrating that such a reduction was warranted. We agree.

As the party seeking a downward modification of child support, the father had the burden of showing that a "material and substantial change in circumstances ha[d] occurred" since the entry of the prior judgment. Child Support Guidelines, § III.A.5 (2018).⁵ See G. L. c. 209C, § 20 ; Schuler v. Schuler, 382 Mass. 366, 368 (1981) ("To be successful in an action to modify a judgment for ... child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment"). The change may be in the financial circumstances of the parties or in the needs of the child. See Brooks v. Piela, 61 Mass. App. Ct. 731, 734-735 (2004).

Here, the judge did not expressly find that there had been a material and substantial change in circumstances justifying a reduction in child support, nor can such a conclusion be drawn from the judge's subsidiary findings or the record.⁶ To the contrary, the judge found that the father's income had "substantially increased since the 2013 [j]udgment" (emphasis added). See Whelan v. Whelan, 74 Mass. App. Ct. 616, 623 (2009) (error to reduce father's child support obligation where "evidence at trial established that ... father's earnings had not decreased but indeed had increased substantially" since prior judgment). The father claims, however, that this finding is clearly erroneous. We disagree.

At the time of the 2013 modification trial, the father reported earning total gross weekly income of $5,261.⁷ The father claimed that his income had decreased since 2013, reporting total gross weekly income of $4,931 on his September 2018 financial statement. The judge did not find this amount credible, instead finding the father's total gross weekly income to be $7,249.02 (comprising his base salary, social security income, net rental income, investment income, bonus income, and the social security dependency credit for the parties’ child). Insofar as the father claims error in the judge's finding that he underreported his income, the father is, in essence, challenging the judge's assessment of his credibility -- an assessment that we decline to disturb. See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) (credibility is "quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings").

We are likewise unpersuaded by the father's contention that the judge erred when calculating various aspects of his income. As an initial matter, we note that the father did not provide any citations to relevant legal authorities in support of these arguments. See Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996). Moreover, we discern no merit in the father's claims. It was not error for the judge to consider the father's gross salary before deductions for retirement contributions, see Child Support Guidelines, § I.A (2018) ("income" is defined as "gross income from whatever source, regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority" [emphasis added]), nor was it error to include the father's rental income and disregard any claimed expenses that the father failed to support with credible evidence.⁸ See Whelan, 74 Mass. App. Ct. at 627 (judge must determine whether claimed business expenses "are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes"); Child Support Guidelines, § I.C (2018) ("Income from self-employment, rent, ... [or] proprietorship of a business, ... is defined as gross receipts minus ordinary and necessary expenses required to produce income.... In many cases, this amount will differ from a determination of business income for tax purposes").⁹ We therefore discern no error in the judge's finding that the father's income had "substantially increased since the 2013 [j]udgment."

Despite this finding, however, the judge reduced the father's weekly child support obligation. The sole basis articulated by the judge for the downward modification of child support was the decrease in the child's extracurricular expenses since 2013. Although a material and substantial change in the child's needs may be an appropriate basis for modifying child support, see Brooks, 61 Mass. App. Ct. at 734-735, there is no indication that the existing child support order of...