TM v. LH

• Decision Date: 12 October 2000
• Docket Number: No. 99-P-376.,99-P-376.
• Citation: TM v. LH, 50 Mass. App. Ct. 856, 742 NE 2d 89 (Mass. App. 2000)
• Parties: T.M. v. L.H.
• Court: Appeals Court of Massachusetts

50 Mass. App. Ct. 856

742 NE 2d 89

T.M. v.L.H.¹

No. 99-P-376.

Court of Appeals of Massachusetts, Hampden.

October 12, 2000.

February 12, 2001.

Present: BROWN, SMITH, & LENK, JJ.

John Connor, for the defendant, submitted a brief.

LENK, J.

By judgments of paternity dated August 29, 1991, the defendant was adjudged to be the father of two children, Philip (born July 18, 1978) and Sarah (born April 30, 1981), and was ordered to pay $35 per week ($17.50 per child) for the support of the children.²On January 29, 1998, Philip committed suicide.

On March 10, 1998, the plaintiff(mother) filed two complaints for contempt alleging that the father had failed to comply with the support order³ and was in arrears in his support payments for both children.After a hearing on the contempts, a judge of the Probate Court entered a "temporary order" on the mother's complaint as to Philip, directing the father to provide a headstone for Philip's grave.The order recites that, if the father complied with the court's directive by a specified date, the mother's complaint for contempt would be dismissed.No attorney's fees were awarded in connection with this complaint.The judge also entered a "temporary order" on the mother's complaint as to Sarah, adjudging the father guilty of contempt, fixing arrearages at $1,295.50, and ordering the father to pay sheriff's costs of $25 and attorney's fees in the amount of $250.From these orders, the mother appeals.⁴

As the mother's challenge to the temporary orders is directed, in part, at the judge's calculation of arrearages and the reductions thereto, we set out in detail the methodology employed by the court.The judge found that, from the entry of the support order in August, 1991, until Philip's eighteenth birthday in July, 1996, the father was obligated to make payments for Philip's support in the amount of $4,439.75.⁵Continuing, the judge found that, from August, 1991, until April, 1998, the father was obligated to make payments for Sarah's support in the amount of $6,020.The father's total obligation for the support of the two children (i.e., the amount that would have accrued if no payments were made and if payments were not suspended under the terms of the original judgment) thus amounted to $10,459.75.

The judge then made certain adjustments to the father's total support obligation.Specifically, she found that the father had made his support payments in 1991 and 1992, in the amount of $2,408, and was not in arrears for those periods.(The judge noted that the father stopped paying child support in 1993 and that arrears then began to accrue.)The judge also found that, pursuant to the 1991 support order, the father's support obligation was suspended during those periods when the children resided with him and that he did not owe support for those periods in the amount of $376.25.Finally, the judge found that the father had paid all of Philip's funeral and burial expenses in the amount of $6,000 and was responsible for the purchase of the headstone for Philip's grave at a cost of $380.⁶The judge treated these amounts as payments toward the father's "overdue child support obligation."

The judge determined that the father had paid $9,164.25 toward the support of his children since the entry of the 1991 order and credited that amount against the total support obligation of $10,459.75.As we have stated, the judge concluded that the father was guilty of contempt for his failure to comply with the support order as to Sarah and fixed arrearages at $1,295.50.⁷

1.General Laws c. 119A, § 13(a), as inserted by St. 1987, c. 714, § 1, provides 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, but only from the date that notice of such complaint has been given...."⁸" The object of § 13(a) was to give support orders the finality of other judgments, to assist the [Department of Revenue] in its enforcement efforts."Smith-Clarke v. Clarke,44 Mass. App. Ct. 404, 406(1998).To this end the Legislature limited the power of a judge to reduce retroactively any arrearages in child support except for any period during which there is a pending complaint for modification.Quinn v. Quinn,49 Mass. App. Ct. 144, 147-148(2000).

In the instant matter, the judge, apparently with an eye to § 13(a), explained that she was "not reducing or retroactively modifying any arrears that may have accumulated since the entry of the support order in 1991, because arrears [had] not previously been established in [the] case."Rather, the judge stated that she was "establishing the arrearage for the first time, by factoring the amount of the weekly obligation, the amount of time the order was suspended, and the amounts which have been paid by the defendant."Noting that the father may only be found to be in arrears for the amounts that he has not paid, the judge stated that "[i]n this case the payments of child support were overdue but they no longer remain unpaid(except as to the amount ... [of $1,295.50])"(emphasis in original).⁹

The mother challenges the court's rationale and decision arguing, essentially, that the judge's orders modify support retroactively in contravention of § 13(a).The mother also argues that the judge erred by allowing the father a credit (or offset) for his payment of Philip's funeral and burial expenses.¹⁰No controlling Massachusetts case law has been called to our attention (and we are aware of none) on the specific issues raised by the appeal.

As a general rule, a support obligor must make his or her payments in the manner required by the support order or judgment.SeeThacker v. Thacker,710 N.E.2d 942, 944(Ind. Ct. App.1999);24A Am. Jur. 2dDivorce and Separation§ 1066 (2d ed. 1998);27C C.J.S.Divorce§ 708(1986).The reasons for the rule are manifest: a support obligor should not be allowed to modify unilaterally a support order or interfere with the right of the custodial parent to decide how support money should be spent.SeeAlaska Dept. of Rev. v. Campbell,931 P.2d 416, 420(Alaska1997);Goold v. Goold,11 Conn. App. 268, 274(1987);24A Am.Jur 2d Divorce and Separation§ 1066.Notwithstanding the general rule, a number of jurisdictions have recognized that special circumstances of an equitable nature may arise that justify the grant of a credit to a support obligor for payments or expenditures made that were not in strict compliance with the support order or judgment.See, e.g., Alaska Dept. of Rev. v. Campbell,931 P.2d at 419-420(noting that there are "strict limitations" on the grant of credits by a court for voluntary payments);Goold v. Goold,11 Conn. App. at 274-275;Baer v. Baer,263 Ga. 574, 575-576(1993);Griess v. Griess,9 Neb. App. 105, 112-113(2000).See also47 A.L.R.3d 1031(1973& Supp. 2000).Cf.Cohen v. Murphy,368 Mass. 144, 145-148(1975);Rosenberg v. Merida,428 Mass. 182, 185-187(1998);L.W.K. v. E.R.C.,432 Mass. 438, 451-452(2000);Whelan v. Frisbee,29 Mass. App. Ct. 76, 82(1990).Whether a credit is to be given necessarily depends upon the facts and circumstances of each case.

Here, the judge's (implicit) construction of G. L. c. 119A, § 13(a), suggests a belief on her part "that there is a distinction between modifying support arrearages to effect a retroactive decrease in the amount or level of support originally ordered and granting equitable credits against those arrearages [or in establishing the amount of the arrearages] to reflect support payments made in some manner other than [as directed by the original order]."SeeSchulz v. Ystad,155 Wis. 2d 574, 596 n.4(1990)(where the issue was noted but not reached by the court).Apparently, it is the judge's view that only the former practice retroactively revises the amount of support due under the order or judgment for child support and, consequently, is the only practice which § 13(a) proscribes.See generallyQuinn v. Quinn,49 Mass. App. Ct. at 148(wife's agreement to accept less child support than provided by the court order did not constitute a defense to the wife's complaint for contempt).We need not, and do not, decide the question for, even if we were to assume that a judge, in compelling circumstances of an equitable nature, and without contravening G. L. c. 119A, § 13(a), may apply a credit in calculating child support arrearages to reflect payments made in a manner other than as directed by the original order, there is no basis for the grant of a credit in this case.

First, Philip had attained the age of eighteen at the time of his death and, as we have stated, nothing in the record before us establishes that he was domiciled with and principally dependent upon the father for maintenance.The father's payment of funeral and burial expenses was thus akin to payments made for the benefit of an adult (or emancipated) child — one whom the father no longer had a legal obligation to support (see note 5, supra).¹¹See generallyWood v. Wood,434 So. 2d 800, 801(Ala. Civ. App.1983)(court may not give father credit against arrearages for support furnished to child who has attained age of majority);In re Marriage of Forrester,147 Or. App. 319, 327, S.C.,149 Or. App. 111(1997)(court erred in allowing father credits for certain payments, including payments made after the child had turned eighteen, against child support arrearages);Johnson v. Johnson,338 S.E.2d 353, 355(Va. App.1986)(father's payments to adult children were gifts or gratuities and cannot be credited to his...