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P.F. v. Department of Revenue

Appeals Court of Massachusetts, Norfolk

December 6, 2016

P.F.
v.
DEPARTMENT OF REVENUE.

          Heard: May 12, 2016.

         Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on February 22, 2004.

         A complaint for modification, filed on January 9, 2012, was heard by John D. Casey, J.

          P.F., pro se.

          Benjamin K. Golden, Assistant Attorney General, for the defendant.

          Present: Cohen, Rubin, & Hanlon, JJ.

          COHEN, J.

         The 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.[1]

         1. Background.

         The 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 prison.[2]

         In 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, [3] and at which the child support enforcement division of the Department of Revenue (DOR) appeared on behalf of the mother, [4] a 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.

         The 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.

         2. Discussion.

         "When 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).

         "The 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) .[5] 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.

         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, 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). Moralesv.Morales, supra at 511, quoting from G. L. c. 208, ยง 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 'the ...


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