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Calabria v. Calabria

Appeals Court of Massachusetts, Bristol

July 13, 2017

SAKTI CALABRIA
v.
PETER J. CALABRIA, JR.

          Heard: May 31, 2017.

         Complaint for divorce filed in the Bristol Division of the Probate and Family Court Department on March 13, 2009.

         A complaint for modification, filed on July 16, 2014, was heard by Anthony R. Nesi, J.

          Charles M. Landry for the father.

          Present: Green, Wolohojian, & Ditkoff, JJ.

          GREEN, J.

         The defendant father appeals from those portions of a judgment of the Probate and Family Court that increased his child support payments retroactive to the date his income increased, which was before the plaintiff mother filed her complaint for modification.[1] We conclude that, in the circumstances of this case, in which the parties expressly provided for retroactive adjustment of child support in their separation agreement, and where the adjustment fosters the best interest of the couple's minor child and does not derogate from the purposes of G. L. c. 119A, § 13, such a retroactive award was within the judge's equitable authority. We accordingly affirm the judgment.

         Background.

         In the separation agreement between the parties, dated April 28, 2010, and merged as to alimony and child support into the judgment of divorce nisi entered the same day, the parties included the following provision regarding child support:

"The parties agree that upon any change in his or her employment or income he or she shall immediately notify mother/father of the change, the child support will be reviewed.
"The Wife is currently unemployed. The Husband's income has been cut in half. Both parties are obligated to notify the other upon any change of employment or salary status. Parties agree to immediately seek to modify the child support obligation and said modification to be retroactive to the change of employment or salary date. Parties shall also exchange by March 15th of each year, any and all W-2's; 1099's or other documents evidencing income earned or received." (Emphasis supplied.)

         At the time of the divorce, and pursuant to the separation agreement, the father was obliged to pay child support in the amount of $416 per semimonthly pay period.

         On February 28, 2013, the mother filed a complaint for contempt, based on (among other things) the father's failure to provide the required financial information. Ultimately, both parties exchanged the required information during the pendency of the contempt action, and no judgment of contempt entered against either party.

         On July 16, 2014, the mother filed a complaint for modification, seeking modification of child support based on the father's increased income reflected in the financial information exchanged during the contempt action. During 2011, the father had earned $1, 021 per week. Beginning in 2012 and thereafter, the father had consistently earned $1, 250 per week. Applying the Child Support Guidelines then in effect to the father's income during 2011, 2012, and 2013, [2] and then comparing the resulting support obligation to the amounts actually paid by the father during those years, the judge computed a deficit of $9, 264 for the prior years. In addition, the judge found that the father was responsible for an additional arrearage of $660 as of March 1, 2015, for a total ...


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