DEPARTMENT OF REVENUE.
Heard: May 12, 2016.
for divorce filed in the Norfolk Division of the Probate and
Family Court Department on February 22, 2004.
complaint for modification, filed on January 9, 2012, was
heard by John D. Casey, J.
Benjamin K. Golden, Assistant Attorney General, for the
Present: Cohen, Rubin, & Hanlon, JJ.
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.
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
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,
at which the child support enforcement division of the
Department of Revenue (DOR) appeared on behalf of the mother,
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.
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.
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 (2012), quoting
from Richards v. Mason, 54
Mass.App.Ct. 568, 572 (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 (2014),
quoting from Picciotto v. Continental
Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
method for calculating and modifying child support orders is
governed by statute and by the guidelines." Morales
v. Morales, 464 Mass. 507, 509-510 (2013)
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 (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.
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,
" Hoegenv.Hoegen, 89
Mass.App.Ct. 6, 8 (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).
at 511, 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