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Lizardo v. Ortega

Appeals Court of Massachusetts, Essex

June 12, 2017

VIRGILIO LIZARDO
v.
NAYSI ORTEGA.

          Heard: March 7, 2017.

          Anna Schleelein Richardson (Eve Elliott also present) for the plaintiff.

          Brittany Williams, Assistant Attorney General, for the Department of Revenue.

          Present: Vuono, Meade, & Maldonado, JJ.

          MEADE, J.

         The plaintiff, Virgilio Lizardo (father), appeals from a modification judgment of the Essex Division of the Probate and Family Court Department (Probate Court) that increased his child support payments to the defendant, Naysi Ortega (mother), for the parties' younger daughter (daughter), who was born in June, 1995, [1] and that ordered him to pay the mother approximately $13, 296 from a retroactive lump-sum distribution of Social Security disability income (SSDI) benefits, which was to be applied to the father's child support arrearage. The father contends that the judge (1) erred in ordering him to make a payment from his lump-sum SSDI benefits that exceeded the limit imposed by the Federal Consumer Credit Protection Act (CCPA), 15 U.S.C. § 1673(b) (2012); (2) erred in ordering postminority child support absent written or oral findings regarding the factors set forth in the Massachusetts Child Support Guidelines (2013) (guidelines); (3) infringed on his equal protection rights by mandating postminority support notwithstanding that married parents have no such financial obligation; and (4) erred in failing to dismiss his complaint for modification and threatening him with contempt proceedings. For the reasons that follow, we reverse the portion of the judgment that ordered the father to make a child support arrearage payment to the mother in excess of the garnishment limitation imposed by the CCPA. In all other respects, we affirm.

         1. Background.

         The record is largely silent regarding the history between the mother and the father, a veteran of the United States Army. It appears that they once were married but subsequently were divorced. A complaint for support pursuant to G. L. c. 209, § 32F, was filed in the Probate Court on April 27, 2006, and the resulting judgment has been modified several times over the past decade.

         On June 24, 2013, the mother filed a complaint for modification of a 2010 judgment that had ordered the father to pay seventy-five dollars per week in child support. The mother claimed that because the daughter was graduating from high school and had been accepted to several colleges, the daughter required additional financial assistance from her parents. On March 25, 2014, a modification judgment entered that incorporated and merged a written agreement between the parties pertaining to child support obligations. In light of a change in his income, the father agreed to make child support payments by wage assignment in the amount of $150 per week, plus an additional fifty dollars per week that would be applied to his arrearage. Although the father's child support obligation was a departure from the guidelines, pursuant to which he would have been required to pay $191 per week, the parties agreed that the deviation was in the best interests of the daughter.[2]

         A few months later, the father was hospitalized for depression and posttraumatic stress disorder. Although he had been employed as a vocational rehabilitation specialist, this temporary position ended during his hospitalization. On July 29, 2014, the father filed a complaint for modification of his child support obligation due to a loss of income. While awaiting a hearing on his complaint, the father began to receive service-related disability benefits in the amount of $1, 041.39 per month from the Department of Veterans Affairs (VA).[3] At around the same time, the father started a compensated work therapy (CWT) program at the Bedford VA Medical Center, earning $400 per week. On September 19, 2014, judgment entered on the father's complaint for modification. The father's child support payments were reduced to seventy dollars per week, his additional payment of fifty dollars per week for his arrearage was preserved, and all prior orders were to remain in effect except as so modified.

         In June, 2015, the father lost consciousness while sitting in his car at a stop sign. As a consequence, his driver's license was revoked and he was unable to complete the CWT program. On August 27, 2015, the father filed another complaint for modification, asserting that he had been unable to work due to his disability, that his only source of income was his disability benefits from the VA, and that he believed that his daughter was emancipated. The father requested a termination of his child support obligation or, if his daughter was not emancipated, an adjustment to reflect his disability and reduced income. He also sought the establishment of a more suitable payment obligation with respect to his arrearage. The mother did not file any responsive pleadings to the father's complaint.

         Two months later, the Social Security Administration (SSA) notified the father that he was eligible to receive monthly SSDI benefits in the amount of $1, 196.40. Around November 3, 2015, the father began to receive such benefits, of which $519.60 was withheld each month for the payment of his child support obligation. Because the SSA determined that the father had been entitled to receive these benefits beginning in December, 2014, the father anticipated that he would receive a retroactive lumpsum SSDI payment.

         A hearing on the father's complaint for modification was held on November 10, 2015.[4] The father first expressed uncertainty about whether the daughter was enrolled in college, and whether she was financially dependent on the mother. Next, the father's attorney informed the probate judge that the father's child support arrearage was approximately $58, 000, which included interest and penalties.[5] In response to the judge's inquiry why the father had "such an outrageously high arrearage, " counsel explained that the father had been unable to work due to multiple hospitalizations and ongoing struggles with disabilities. Counsel told the judge that the father expected to receive a retroactive lump-sum SSDI payment soon, and counsel requested that the payment be split in half, with fifty percent being retained by the father and fifty percent going toward his arrearage. Because the amount of this payment had not yet been determined by the SSA, the judge ordered the matter continued for one month, and he stated that proceedings would resume in the Department of Revenue (DOR) session. In the meantime, the judge issued a temporary order directing the father to pay ninety-seven dollars per week in child support, plus an additional twenty-three dollars per week toward his outstanding arrearage. The order further stated that the father's retroactive lump-sum SSDI payment should be held in escrow by the father's attorney, pending further determination by a judge regarding those funds. The mother was ordered to provide documentation to the father, prior to the next hearing, regarding the daughter's enrollment in college.[6]

         On December 17, 2015, the hearing resumed in the DOR session on the father's complaint for modification. According to the DOR's[7] unchallenged representation, the father had become satisfied that the daughter was enrolled in college. Nonetheless, given that the mother had not filed a responsive pleading, the father moved to withdraw his complaint so he could assess whether his VA benefits were going to be reduced in light of his receipt of SSDI benefits. See Mass.R.Dom.Rel.P. 41(a)(1). When the DOR indicated that it was ready to initiate contempt proceedings if the modification complaint was dismissed, the father decided to withdraw his motion to dismiss and, instead, to pay $123 per week in child support, which was the amount set forth in the guidelines. With respect to the father's arrearage, the DOR explained that it was holding approximately $10, 296 that the SSA had withheld from the father's retroactive lump-sum SSDI payment, and the father's attorney stated that he held the remaining $6, 864 of such payment in escrow.[8] The father argued that $10, 296 should go toward his arrearage, and ...


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