Heard: May 31, 2017.
for divorce filed in the Bristol Division of the Probate and
Family Court Department on March 13, 2009.
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.
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. 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.
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
"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.)
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.
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.
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,  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 ...