Rosen v. Rosen

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15-P-848 Appeals Court

REGINA ROSEN vs. SCOTT ROSEN.

No. 15-P-848.

Essex. April 8, 2016. - November 22, 2016.

Present: Kafker, C.J., Wolohojian, & Maldonado, JJ.

Divorce and Separation, Child support, Modification of judgment,
Child custody. Parent and Child, Child support, Custody.
Contempt.

Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on January 17, 2001.

Complaints for modification and contempt, filed on August
2, 2011, and October 12, 2012, respectively, were heard by Susan
D. Ricci, J.; a motion for reconsideration, filed on July 7,
2014 was heard by her, and judgment was entered by her.

Mary-Ellen Manning for the mother.
Mark A. Perkins for the father.

WOLOHOJIAN, J. Today we reach the question left open in

T.M. v. L.H., 50 Mass. App. Ct. 856, 861 (2001), namely, whether

"a judge, in compelling circumstances of an equitable nature,

and without contravening G. L. c. 119A, § 13(a), may apply a
 2

credit in calculating child support arrearages to reflect

payments made in a manner other than as directed by the original

[child support] order."1 We conclude that, despite the statutory

prohibition against retroactive modification of child support

judgments "except with respect to any period during which there

is pending a complaint for modification," G. L. c. 119A,

§ 13(a), inserted by St. 1987, c. 714, § 1, a judge may -- in

certain very limited circumstances -- grant and apply such an

equitable credit to offset a child support arrearage accrued

during a period when there was no pending complaint for

modification.

Background. After fourteen years of marriage, the parties

divorced on July 14, 2003, pursuant to a judgment of divorce

which incorporated the parties' separation agreement. The

separation agreement provided, in pertinent part, that the

1
In Whelan v. Frisbee, a case decided more than a decade
before T.M., this court discerned "no error in the entry of
judgment for [the father] on [the mother's] complaint for
contempt" where the trial judge "found that . . . although [the
father] was determined to be in arrears in the amount of $5,190,
he had accounted for these payments by his assumption of all
college tuition and related expenses of the children." Whelan
v. Frisbee, 29 Mass. App. Ct. 76, 82 (1990), citing Whitten v.
Durkee, 327 Mass. 562, 562-564 (1951). Although our decision in
Whelan could arguably be viewed as implicitly supporting the
"equitable credit" concept, we were not asked in that case to
decide whether the offset amounted to an impermissible
retroactive modification of child support in violation of G. L.
c. 119A, § 13(a). See Whelan, supra at 82 n.7. Therefore, in
our view, Whelan did not decide the issue we confront here.
 3

mother would have primary physical custody of the parties' three

children, Elliot, Ari, and Hannah, and that the father would pay

monthly child support in the amount of $4,500. The separation

agreement also contained several provisions relating to the

children's college education. In one of those provisions, the

parties "agree[d] that the choice of college or other

institutions shall be made jointly, with due regard to the

children's wishes, welfare, needs and aptitudes, and the

parties' respective financial circumstances. Neither party

shall make commitments to a . . . college . . . without first

notifying the other and obtaining his or her approval . . . ."

The parties also "agree[d] to contribute to the college costs of

the children to the best of their financial ability." The

separation agreement's provisions relating to "custody, care,

visitation, support, education and medical care of the parties'

minor children" were merged with the judgment of divorce, while

the remaining provisions survived and were not merged with the

judgment.

At the time of the divorce in 2003, all three children

lived with the mother. However, by January 1, 2007, the

parties' oldest child, Elliot, had moved into the father's home.

The father thereafter reduced his child support payments by one-

third, to $3,000 per month, without court approval.
 4

More than two years later, on April 4, 2009, the parties

entered into a signed and notarized "Agreement for Judgment on

Modification" (2009 agreement), which provided that the father

would pay monthly child support of $3,400, along with a lump sum

of $2,500 upon the court's approval of the 2009 agreement, and

an additional $2,900 over the next six months. On April 9,

2009, the father filed the 2009 agreement with the Probate and

Family Court; however, it was returned to him without being

docketed due to certain procedural deficiencies.2 Those

deficiencies were not cured, and the 2009 agreement was never

refiled with the Probate and Family Court.

By August, 2011, the parties' second child, Ari, had also

moved into the father's home. In early August, 2011, the father

filed another complaint for modification (2011 complaint for

modification), which he served on the mother on August 11, 2011.

In the 2011 complaint for modification, the father requested (1)

a reduction in his child support in light of the fact that two

of the three children were living with him, and (2) an order

requiring the mother to contribute to the children's college

expenses. On October 13, 2011, a judge of the Probate and

2
The "Rejection Notice" accompanying the returned filings
indicated that the parties' "Joint Petition for Modification"
could not be processed due to "deficiencies in the form of the
petition," and the absence of both a "Child Support Guidelines
Worksheet" and a financial statement for the mother.
 5

Family Court allowed the father's motion for temporary orders,

reducing the father's child support payments from $4,500 per

month to $200 per week.

In December, 2011, the parties' third child, Hannah, moved

into the father's home, at which point all three children were

living with the father and principally dependent on him for

support and maintenance. On May 4, 2012, the judge allowed the

father's motion to terminate child support.

On October 12, 2012, the mother filed a complaint for

contempt asserting that the father was approximately $103,701 in

arrears for child support that accrued before the court's

October 13, 2011, temporary order.

On July 17, 2014, following a six-day trial on the

consolidated modification and contempt proceedings, the Probate

and Family Court entered an "Amended Judgment of Modification,"

an "Amended Judgment on Contempt," and supporting "Amended . . .

Findings of Fact."3 In the amended judgment of modification, the

3
The original judgment on contempt and judgment of
modification were dated June 9, 2014, and were docketed on June
20, 2014. However, the father filed a motion for
reconsideration seeking, among other things, correction of a
mathematical error with respect to his child support arrearages,
and contribution from the mother toward the children's college
expenses. On July 17, 2014, the judge allowed the father's
motion in part and entered the amended judgments reflecting the
corrected child support arrearages and requiring the mother to
reimburse the father for a portion of the children's college
expenses.
 6

judge reduced the father's child support obligation to $280 per

week, retroactive to August 11, 2011, the date on which the

mother had been served with the 2011 complaint for modification.

The judge terminated the father's child support obligation

retroactive to December 31, 2011, the date upon which "[all]

three children were solely dependent upon and residing with

[the] [f]ather." The judge further ordered the mother to

reimburse the father for "approximately seventeen percent (17%)

of the college education expenses of the three children either

paid or undertaken in the form of a loan by [the] [f]ather" from

August 11, 2011, through December 31, 2011, and ten percent of

the college expenses "[f]rom January 1, 2012 going forward."

In the amended judgment on contempt, the judge acknowledged

that while she could not "validate" the 2009 agreement as a

defense to contempt, see Quinn v. Quinn, 49 Mass. App. Ct. 144,

145-148 (2000), she did not find the father in "wilful contempt"

of his child support obligation. The judge found that, from

January 1, 2007, to December 31, 2011, the father's total child

support obligation was $254,697, taking into account the

retroactively modified child support beginning on August 11,

2011. The judge determined that from January, 2007, to May,

2012, the father made child support payments to the mother
 7

totaling $190,737.4 The judge found that the father was

"entitled to an equitable credit" of $500 per month "for his

sole support of Elliot from January 1, 2007 to August 11, 2011."

After applying the total equitable credit of $28,177, the judge

determined that the father had child support arrearages of

$35,783. The judge ordered the father to pay the arrearages to

the mother within thirty days, "minus the college educational

expenses" owed by the mother under the amended judgment of

modification. This appeal followed.

Discussion.5 1. Equitable credit. The mother challenges

the $28,177 equitable credit the judge used to offset some of

the father's child support arrearage for the period from January

1, 2007, to August 11, 2011, when Elliot was living with him.

The mother argues that this equitable credit effectively

constitutes a retroactive modification of child support that was

4
The total should have been $191,137. See note 21, infra.
5
As a threshold matter, the mother contends that the judge
did not have the power to modify the separation agreement
because it survived the divorce judgment. See Whelan v.
Frisbee, 29 Mass. App. Ct. at 80-81, quoting from Ames v. Perry,
406 Mass. 236, 240 (1989) ("'[A] separation agreement, which
survives a divorce judgment and is valid at the time of the
entry of that judgment [that is free from fraud and coercion and
fair and reasonable] should be specifically enforced,' absent
changed circumstances which give rise to countervailing
equities"). The mother's argument fails because the child-
related provisions contained in the separation agreement,
including those pertaining to the children's "support" and
"education," were expressly merged with the divorce judgment and
did not survive.
 8

outside the judge's power to award because no complaint for

modification was pending.6 See G. L. c. 119A, § 13(a). The

father contends that there was no retroactive reduction of his

support obligation; rather, the credit merely reflected that he

had satisfied a portion of his child support obligation by

providing direct or actual support to Elliot while Elliot was

living with him.

In weighing the parties' arguments, we must also consider

the broader context in which G. L. c. 119A, § 13(a), was

enacted. "The Federal Government has created an elaborate

procedural mechanism designed to help both the government and

custodial parents to secure the payments to which they are

entitled." Turner v. Rogers, 564 U.S. 431, 444 (2011), citing

Blessing v. Freestone, 520 U.S. 329, 333 (1997). To that end, a

6
The mother further argues that the judge erred by granting
the father an equitable credit for his payment of the children's
college expenses. The argument is factually incorrect; the
judge did not award the father an equitable credit for his
payment of the children's college expenses. Although the judge
considered the amount of college expenses paid by the father on
behalf of all three children as one of many equitable factors
weighing in favor of granting the father a credit for his
support of Elliot, the equitable credit was not based on those
payments but rather on the father's sole support of Elliot,
including Elliot's "housing, food, clothing, insurance,
transportation, and medical expenses." We note that, had the
judge credited the father for his payment of the children's
college expenses (as the mother argues), the equitable credit
would have substantially exceeded the father's child support
arrearages. Since this is not the case, it is clear that the
amount of the equitable credit was not based on the college
expenses.
 9

State's eligibility for certain Federal grants7 is conditioned on

the operation of a child support enforcement program that

conforms to the Child Support Enforcement Act (CSEA), Title IV,

Part D of the Social Security Act, 42 U.S.C. §§ 651-669b (2012).8

See Blessing v. Freestone, supra. See also Doucette v. Ives,

947 F.2d 21, 24 (1st Cir. 1991). As a participating State,

Massachusetts has enacted G. L. c. 119A, §§ 1 et seq., which

"provides for child support enforcement services in accordance

with the provisions of [the CSEA]." Morales v. Morales, 464

Mass. 507, 510 n.5 (2013).

General Laws c. 119A, § 13(a), provides that "[a]ny payment

or installment of support under any child support order issued

by any court of this commonwealth . . . shall be on or after the

7
Participating States receive funds from the Aid to
Families with Dependent Children (AFDC) program, which "provides
subsistence welfare benefits to needy families." Blessing v.
Freestone, 520 U.S. at 333, citing Title IV, Part A of the
Social Security Act, 42 U.S.C. §§ 601-617.
8
"The collection and distribution by the state of child
support payments . . . is governed by the Child Support
Enforcement Act, 42 U.S.C. §§ 651-666, Title IV-D of the Social
Security Act. The CSE program is designed both to assist
parents in collecting child support from absent parents and to
reduce state and federal government AFDC expenditures, which are
often necessitated by the failure of noncustodial parents to
meet their support obligations. All states participating in the
AFDC program are required to have child support collection
programs, 42 U.S.C. § 602(a)(27), through which they assist
families in establishing paternity, locating parents, and
collecting support through wage withholding, liens on property,
and withholding from unemployment compensation and tax refunds."
Doucette v. Ives, 947 F.2d 21, 24 (1st Cir. 1991).
 10

date it is due, a judgment by operation of law . . . [and] shall

not be subject to retroactive modification except with respect

to any period during which there is pending a complaint for

modification, but only from the date that notice of such

complaint has been given."9 In enacting § 13(a), "the

Legislature limited the power of a judge to reduce retroactively

any arrearages in child support except for any period during

which there is a pending complaint for modification." T.M. v.

9
General Laws c. 119A, § 13(a), was enacted in response to
42 U.S.C. § 666(a)(9), which went into effect on Oct. 21, 1986,
and prescribed the following:

"(a) [E]ach State must have in effect laws requiring the
use of the following procedures . . . to increase the
effectiveness of the program which the State administers
under [the CSEA]:

. . .

"(9) Procedures which require that any payment or
installment of support under any child support order . . .
is (on and after the date it is due) --

"(A) a judgment by operation of law, with the
full force, effect, and attributes of a judgment of the
State, including the ability to be enforced,

"(B) entitled as a judgment to full faith and
credit in such State and in any other State, and

"(C) not subject to retroactive modification by
such State or by any other State;

"except that such procedures may permit modification with
respect to any period during which there is pending a
petition for modification, but only from the date that
notice of such petition has been given . . . ."
 11

L.H., 50 Mass. App. Ct. at 859, citing Quinn v. Quinn, 49 Mass.

App. Ct. at 147-148. "The object of § 13(a) was to give support

orders the finality of other judgments, to assist the

[Department of Revenue] in its enforcement efforts." T.M. v.

L.H., supra, quoting from Smith-Clarke v. Clarke, 44 Mass. App.

Ct. 404, 406 (1998). By implicitly prohibiting extra-judicial

modifications of child support, § 13(a) furthers the

Commonwealth's policy of requiring court oversight for all

agreements pertaining to child support. See White v. Laingor,

434 Mass. 64, 67 (2001), citing Massachusetts Child Support

Guidelines, G. L. c. 208, § 28, and G. L. c. 119A, § 1

("Selected enactments of the Legislature convey the importance

of judicial review of child support agreements between

parents"). See also Quinn v. Quinn, 49 Mass. App. Ct. at 146,

quoting from Knox v. Remick, 371 Mass. 433, 437 (1976)

("[B]ecause '[p]arents may not bargain away the rights of their

children to support from either one of them,' . . . the

Legislature has placed certain limits on the ability of parents

to enter into binding contracts relating to child support"). It

is for this reason that we have previously held that an

agreement to reduce child support that has not received judicial

approval does not constitute a defense to a complaint for

contempt. Quinn v. Quinn, 49 Mass. App. Ct. at 148.
 12

Here, although the parties evidenced an intent to jointly

seek modification of the child support order by executing and

filing10 the 2009 agreement with the Probate and Family Court,

that filing was rejected on procedural grounds and the matter

was not further pursued. As such, there was no "pending"

complaint for modification in 2009 for purposes of G. L.

c. 119A, § 13(a), and the judge was prohibited from

retroactively reducing the father's child support obligation.

As the judge correctly determined, she did not obtain authority

to reduce retroactively the father's child support obligation

until 2011, when the mother was served with the second complaint

for modification.11

That said, as we acknowledged in T.M. v. L.H., "[A] number

of [other] jurisdictions" with statutory provisions similar to

G. L. c. 119A, § 13(a), "have recognized . . . special

circumstances of an equitable nature . . . that justify the

grant of a credit to a support obligor for payments or

expenditures made that were not in strict compliance with the

support order or judgment." 50 Mass. App. Ct. at 861, citing

10
While the 2009 agreement was apparently never docketed in
the Probate and Family Court, the judge found that it was indeed
filed on April 9, 2009.
11
To the extent that the 2009 agreement may have been
separately enforceable in a contract action, see Ratchford v.
Ratchford, 397 Mass. 114 (1986), the father did not bring such
an action.
 13

Alaska Dept. of Rev. v. Campbell, 931 P.2d 416, 419-420 (Alaska

1997), Goold v. Goold, 11 Conn. App. 268, 274-275 (1987), Baer

v. Baer, 263 Ga. 574, 575-576 (1993), and Griess v. Griess, 9

Neb. App. 105, 112-113 (2000). The father urges us to follow

those jurisdictions and to rule that "a judge, in compelling

circumstances of an equitable nature, and without contravening

G. L. c. 119A, § 13(a), may apply a credit in calculating child

support arrearages to reflect payments made in a manner other

than as directed by the original order." T.M. v. L.H., 50 Mass.

App. Ct. at 861.

Although, as we have noted, a number of other jurisdictions

have recognized the concept of equitable credits, they have not

done so on uniform grounds. As a general proposition, we can

only say that the concept is clearly rooted in equity and its

application is driven by equitable considerations. Beyond that,

we discern three primary strands of analysis: (1) some courts

grant an equitable credit when the elements of equitable

estoppel are established; (2) some courts grant an equitable

credit when the support obligation has been fulfilled by an

alternative method; and (3) some courts simply apply general

equitable principles to determine whether an equitable credit is

in order. Regardless of the approach used, the jurisdictions

that allow credit on an equitable basis largely agree that the

adjustment of support must not be unilateral, the child's need
 14

for adequate support and maintenance must be met through the new

arrangement, and the circumstances under which a credit is to be

granted must be narrowly construed.12 We briefly describe each

of the three analytical approaches in more detail.

The jurisdictions that invoke, or rely on, the elements of

equitable estoppel -- either to allow credit or to bar recovery

of support arrearages -- generally require the support payor to

demonstrate that (1) the parties agreed to modify child support;

(2) the payor detrimentally relied on the agreement by changing

his or her position, such as by assuming physical custody or by

assuming additional expenses on behalf of the child; and (3) the

agreement is not contrary to the child's welfare.13 In our view,

12
See notes 13-15, infra.
13
See, e.g., In re Marriage of Webber, 191 Ill. App. 3d
327, 330-331 (1989) (equitable estoppel applied where [1] the
mother agreed to transfer custody to the father, [2] the court
credited the father's testimony that the mother also agreed to
suspend child support during that period, and [3] the father
reasonably relied on the agreement to his detriment by taking
custody of child and providing directly for his needs); In re
Marriage of Duerr, 250 Ill. App. 3d 232, 237 (1993) (custodial
mother estopped from seeking arrearages where parties agreed to
children moving in with noncustodial father, mother provided no
support to children during that period, and father reasonably
relied on the agreement to his detriment by financially
supporting the children, purchasing a larger house, and hiring a
nanny); In re Marriage of Harvey, 523 N.W.2d 755, 757 (Iowa
1994) (Equitable estoppel was available where the father
demonstrated that [1] the mother orally agreed to transfer
custody to the father and to terminate child support, [2] the
father relied on the agreement to his detriment by providing all
of the child's financial support, and [3] any arrearages
recovered by the mother "would not inure for [the child's]
 15

the appeal of this approach is that it draws upon the

established legal principles of the existing doctrine of

equitable estoppel, requires proof of objectively verifiable

facts, and does not recognize or reward unilateral action.

Those jurisdictions that allow a credit when a payor has

"satisfied" the original child support obligation by an

alternative method in essence create an exception to the

support, but solely for [the mother's] benefit"); In re Marriage
of Sabo, 224 Mont. 252, 256 (1986) (Equitable estoppel applied
where, "[b]y her assent and conduct, [the custodial parent]
consented to the shift in custody and support. We cannot
equitably allow [the custodial parent] to reap a windfall of
support payments, if she never made the support expenditures");
Truman v. Truman, 256 Neb. 628, 635-636 (1999) (equitable
estoppel applied where [1] custodial parent agreed to transfer
custody to noncustodial parent and terminate child support, [2]
noncustodial parent relied on the agreement in good faith and
changed his position "by assuming responsibility for the custody
and care" of the child, and [3] "[t]here is no evidence that the
agreement of the parties was in any way detrimental to the
welfare" of the child); State v. Stephen Leo S., 198 W. Va. 234,
240 (1996) ("[T]wo issues [must] be determined in deciding
whether to apply the doctrine of equitable estoppel to arrearage
child support: [1] will the welfare of the child be negatively
affected, and [2] has there been detrimental reliance?").
Compare In re Marriage of Beatty, 279 P.3d 1225, 1230 (Col. Ct.
App. 2012) (equitable estoppel not available where the parties
agreed to reduce the noncustodial parent's support payments, but
the noncustodial parent did not take action to his detriment in
reliance on the agreement, such as incurring additional
expenses); Matzen v. Matzen, 69 Ill. App. 3d 69, 72-73 (1979)
(equitable estoppel not available where the noncustodial parent
failed to demonstrate "by clear, precise and unequivocal
evidence" that the custodial parent agreed to the custody change
and suspension of child support; the court noted that
"[e]quitable estoppel is not created by [the custodial parent's]
failure to demand payment of support arrearages . . . or by the
mere passage of time").
 16

"general rule" that "a support obligor must make his or her

payments in the manner required by the support order or

judgment." T.M. v. L.H., 50 Mass. App. Ct. at 860, citing

Thacker v. Thacker, 710 N.E.2d 942, 944 (Ind. Ct. App. 1999).

Some jurisdictions refer to this as credit for "nonconforming"

support payments. See, e.g., Smith v. Smith, 793 N.E.2d 282,

285 (Ind. Ct. App. 2003); Meyer v. Block, 123 S.W.3d 316, 326

(Mo. Ct. App. 2003). Regardless of the nomenclature used, these

jurisdictions typically limit the credit to expenditures that

substantially comply with the "spirit and intent" of the

original support order, such as "direct" support of a child

living in the payor's home.14 In our view, this approach does

14
See, e.g., McCreless v. McCreless, 673 So. 2d 438, 440
(Ala. Civ. App. 1995) ("The trial court does have the discretion
. . . to give the obligated parent credit for money and gifts
given to the child, or for amounts expended while the child
lived with the obligated parent or a third party"); In re
Marriage of Trainotti, 212 Cal. App. 3d 1072 (1989) (statutory
bar against retroactive modification does not prohibit judge
from allowing credit based on determination that noncustodial
parent assumed custody of child and fulfilled his child support
obligation by directly supporting child); Brown v. Georgia Dept.
of Human Resources, 263 Ga. 53, 54 (1993) (credit appropriate
where "payee consents to payor's voluntary expenditures as an
alternative to payor's child support obligation; and payor has
substantially complied with the spirit and intent of the divorce
decree by discontinuing child support payments while payor has
the care and custody of the children and supported the children
at the payee's request"); Smith v. Smith, 793 N.E.2d at 285
(credit may be granted to noncustodial parent in the event of
nonconforming child support payments, if "noncustodial parent
has, by agreement with the custodial parent, assumed custody and
has provided food, clothing, shelter, medical attention, and
school expenses and has exercised parental control for an
 17

not contain sufficiently objective criteria and could encourage

payors having superior economic leverage to unilaterally

substitute one form of support for another even where the

substitution is not substantially equivalent.

Several other jurisdictions have simply relied on general

equitable considerations, taking a variety of factors into

extended period"); Meyer v. Block, 123 S.W.3d at 326, and cases
cited ("Equitable principles may permit credit for a
nonconforming payment, when those payments were made under the
compulsion of the circumstances. . . . Those nonconforming
payments must nevertheless substantially comply with the spirit
and intent of the terms of the original child support judgment
. . . [and] the assent or acquiescence of a custodial parent to
the nonconforming payment must be established"); Curtis v.
Curtis, 11 S.W.3d 466, 472 (Tex. Ct. App. 2000) (to receive
credit for support provided directly to the child while the
child was living with the obligor, the obligor must show: [1]
that the custodial parent relinquished custody of the child; [2]
that relinquishment was for a time period in excess of any
court–ordered periods of possession of and access to the child;
[3] that actual support was provided to the child; and [4] the
value of the support provided must be proven); Schafer v.
Schafer, 95 Wash. 2d 78, 82 (1980) (When determining whether to
allow credit, the court should consider: "[1] whether the
noncustodial parent [a] intended the expenditures for care to be
in satisfaction of child support, [b] exerted undue influence
over the child to obtain or retain custody, [c] continued to
retain custody as a form of retribution; [2] whether the
custodial parent [a] was willing and able to provide necessary
care for the child, [b] expressly or impliedly consented to the
noncustodial parent's continued custody of the child, [c] was
relieved of any or all of the reasonable expenses of child
support while the child was in the custody of the noncustodial
parent; [3] the length of time the child was in the custody of
the noncustodial parent; and [4] whether a compelling reason
exists requiring the noncustodial parent not only to pay for the
child's care while in that parent's custody, but also to comply
with the support order to make child support payments to the
custodial parent").
 18

account, to determine whether to apply a credit against a child-

support arrearage.15 This approach concerns us because it does

not specify core requirements and thus, over time, could become

15
See, e.g., Goold v. Goold, 11 Conn. App. at 274-275, and
cases cited ("Although there is no general rule as to when
circumstances require the allowance of [a credit against past
due child support], factors which have been considered by
various courts . . . include [1] whether the father brought a
motion for modification of the support order; [2] whether the
parties expressly provided in their separation agreement that
the father may deduct or adjust support payments when the child
is no longer in the mother's custody; and [3] whether the mother
has in some manner consented to accept the father's direct
support of the child as an alternative method of payment of
child support"); Nolte v. Nolte, 544 So. 2d 1146, 1147 (Fla.
Dist. Ct. App. 1989) (Where the custodial parent expelled the
child from her home, causing the child to live with noncustodial
parent, the court viewed the child's "expulsion from [the
custodial parent's] home as a legitimate equitable reason
warranting the [noncustodial parent's] cessation of [child
support] payments"); Heflin v. Heflin, 1 So. 3d 820, 826 (La.
Ct. App. 2009) (noncustodial parent was not liable for child
support arrearages where the parties had an "implied agreement
to suspend child support payments after [the custodial parent]
voluntarily delivered physical custody of [the child] to [the
noncustodial parent] and for 10 years thereafter made no attempt
to take custody of [the child] pursuant to the original custody
decree"); Griess v. Griess, 9 Neb. App. at 116 (court granted
equitable relief by crediting the father for his overpayment of
child support for nearly two years due to "grossly incorrect"
order; court noted that there was "clear evidence that granting
[the father] some sort of credit against his future child
support payments will not work a hardship on the children in
[the mother's] custody"); Acree v. Acree, 2 Va. App. 151, 157
(1986) ("Where . . . the custodial parent has by his or her own
volition entered into an agreement to relinquish custody on a
permanent basis and has further agreed to the elimination of
support payments and such agreement has been fully performed, we
hold that the purpose to be served by application of an
inflexible rule denying credit for nonconforming payments is
outweighed by the equities involved. . . . [T]he purpose of the
[original] support decree in this case has been fulfilled")
(emphasis omitted).
 19

so amorphous as to swallow the general prohibition against

retroactive modification in the absence of a pending

modification complaint.

Consistent with the views of other jurisdictions, we

conclude that a judge is not foreclosed by G. L. c. 119A,

§ 13(a), from determining whether "compelling circumstances of

an equitable nature" warrant the allowance of a credit for the

payor's fulfillment of his or her child support obligation "in a

manner other than as directed by the original order" but which

nevertheless accomplishes the maintenance of the child as

envisioned by the original order. T.M. v. L.H., 50 Mass. App.

Ct. at 861. That said, because of the clear purpose and policy

behind G. L. c. 119A, § 13(a), and to avoid potential abuse, we

favor a clearly delineated standard that relies on objectively

verifiable facts in order to allow an equitable credit. This

means that, although we have drawn from the various

considerations and factors present in the three analytical

strains we set out above, we conclude that a more rigorous set

of clearly identified requirements is appropriate in

Massachusetts. Therefore, to receive an equitable credit

against a child support arrearage, the support payor must

demonstrate that (1) the support recipient agreed (a) to

transfer custody of the child to the payor for an extended

period of time not contemplated in the original custody order,
 20

and (b) to accept the payor's direct support of the child as an

alternative method of satisfying the payor's child support

obligation; (2) the custody transfer was not the result of

duress, coercion, or undue influence exerted by the payor

against either the recipient or the child; (3) the payor

provided the child with adequate support and maintenance while

the child was principally domiciled in the payor's home; (4) the

recipient was relieved of supporting the child during the period

in question; (5) the alternative support arrangement was not

contrary to the child's best interests; and (6) granting a

credit to the payor for his or her direct support of the child

would not result in injustice or undue hardship to the

recipient.

Where these factors are present, a judge may find

"compelling circumstances of an equitable nature" warranting an

equitable credit. We stress that the concept of equitable

credit is an extremely narrow exception to the general rule that

support must be paid in the manner originally ordered. The

exception is necessarily narrow so as to prevent a support payor

from "modify[ing] unilaterally a support order or interfer[ing]

with the right of the custodial parent to decide how support

money should be spent," T.M. v. L.H., 50 Mass. App. Ct. at 860,

citing Alaska Dept. of Rev. v. Campbell, 931 P.2d at 420, and

Goold v. Goold, 11 Conn. App. at 274, while also ensuring that
 21

the child, rather than the support recipient who has been

relieved of supporting the child, is the beneficiary of the

payor's support. "This is consistent with the articulated

public policy of the Commonwealth that 'dependent children shall

be maintained, as completely as possible, from the resources of

their parents.'" Lombardi v. Lombardi, 68 Mass. App. Ct. 407,

415 (2007), quoting from G. L. c. 119A, § 1, and citing L.W.K.

v. E.R.C., 432 Mass. 438, 446 (2000). See Boulter-Hedley v.

Boulter, 429 Mass. 808, 813 (1999), citing G. L. c. 119A, §§ 1,

13(c), and G. L. c. 208, § 28 ("Two central policies furthered

by the Massachusetts child support scheme are [1] caring for the

best interests of children, and [2] ensuring that the taxpayers

are secondary to the parents in meeting the financial needs of

children"). Moreover, by confining this exception to its

narrowest scope, we promote the general principle that judges --

rather than the parties -- are vested with the responsibility to

determine what is in the best interests of the child. See White

v. Laingor, 434 Mass. at 68, citing, inter alia, McCarthy v.

McCarthy, 36 Mass. App. Ct. 490, 493 (1994) ("[J]udges must be

satisfied that the best interests of the child are not

compromised. . . . [T]he presence of a negotiated agreement

between the parents does not exempt judges from the need to

protect children").
 22

Applying the principles we have just set out to the facts

of this case, we conclude that the judge was warranted in

allowing an equitable credit of $500 per month for the father's

direct support of Elliot from January 1, 2007, to August 11,

2011. It is undisputed that Elliot moved into the father's home

no later than January 1, 2007. There is no indication or

contention that Elliot's move was the result of duress,

coercion, or undue influence exerted by the father.16 It is also

undisputed that Elliot received adequate support from the father

while living in the father's home, and that the mother was

relieved of supporting Elliot during that period.

It is clear that the mother consented to accept the

father's direct support of Elliot as an alternative method of

fulfilling his support obligation no later than April 4, 2009,

when, as the judge found, she "willingly, freely and

voluntarily" executed the 2009 agreement. What remains,

therefore, is the question whether the evidence warranted the

judge's finding that the mother consented even earlier, in 2007,

when Elliot went to live with his father. We conclude that the

evidence supports such a finding. The judge credited the

father's testimony that "after Elliot moved in with [the

16
While not addressed in the judge's findings, it appears
that the mother was living in Connecticut at the time and
Elliot, an aspiring musician, wanted to live with the father in
order to pursue musical opportunities in the Boston area.
 23

father], the parties agreed to reduce the child support to

$3,000.00 [per] month." Although the mother testified that she

agreed with the move, but not with the reduction in child

support, the judge apparently did not find the mother credible

in this regard because the mother later "confirmed" that she

"requested a change to [the parties'] child support agreement"

in early 2009, by seeking "an increase from $3,000.00 [per]

month to $3,400.00 [per] month," which was consistent with the

father's testimony. The mother also testified that she did not

believe the father owed her any "back child support" when he

filed the 2011 complaint for modification.17 Accordingly, the

judge's determination that the parties agreed to the alternative

support arrangement in 2007 was "based on an assessment of [each

party's] credibility" -- an assessment that is "quintessentially

the domain of the trial judge" and "close to immune from

reversal on appeal except on the most compelling of showings."

Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995), citing

Goddard v. Dupree, 322 Mass. 247, 248 (1948), and Palmer v.

Palmer, 23 Mass. App. Ct. 245, 252 (1986). As there is nothing

in the record that would warrant disturbing the judge's

credibility assessment, especially in light of the mother's own

17
Moreover, the "parties acknowledge[d]" in the 2009
agreement that "neither party currently owes anything else to
the other," apart from the $5,400 sum the father agreed to pay
upon executing the 2009 agreement.
 24

internally contradictory testimony, we are satisfied that the

evidence supports the judge's finding that the mother consented

to the alternative support arrangement in January, 2007.

Finally, there is no indication that the alternative

support arrangement was contrary to Elliot's best interests, or

that granting the credit to the father would result in injustice

or undue hardship to the mother. The mother was not required to

return a portion of the child support previously paid by the

father. We note also that the equitable credit was only $500

per month, even though it appears that the parties themselves

allocated $1,500 per child per month.18

We therefore conclude that the facts of this case present

"compelling circumstances of an equitable nature," T.M. v. L.H.,

50 Mass. App. Ct. at 861, warranting the allowance of a $28,177

equitable credit to the father for his direct support of Elliot

in conformance with the maintenance of the child as provided in

the original support order. Compare id. at 862 (identifying

several factors that rendered the credit inappropriate,

including that the child was already emancipated when the father

paid for his funeral expenses, the fact that the mother did not

18
Although the parties agreed to a monthly reduction of
$1,500 from 2007 to 2009, and $1,100 from 2009 onward, the judge
was not bound by those figures in calculating the credit. The
amount of the credit was within the judge's discretion to
determine, and we discern no error in the judge's decision to
allow a credit of $500 per month.
 25

agree "to accept the father's payment of funeral expenses as an

alternative method of payment of child support," and that it was

"difficult to perceive how the father's payment of funeral

expenses constitute[d] 'substantial compliance' with the child

support order," as "the purpose of the order was to provide for

the support of the children during their dependency, a duty that

the father failed absolutely to fulfill").

2. Contempt. The mother contends that the father should

have been found to be in contempt because it was undisputed that

(1) the father's child support obligation had not been modified

by the 2009 agreement, and (2) the father had the ability to pay

the full amount of child support required by the divorce

judgment.

"[A] civil contempt finding [must] be supported by clear

and convincing evidence of disobedience of a clear and

unequivocal command." Birchall, petitioner, 454 Mass. 837, 853

(2009). It is well settled that an agreement to reduce child

support that has not been approved by the court cannot

constitute a defense to a complaint for contempt. See Quinn v.

Quinn, 49 Mass. App. Ct. at 148. Here, the judge acknowledged

that, in light of Quinn, the 2009 agreement could not "be used

as a bar . . . or a defense" to the mother's complaint for

contempt. However, the judge found that "it was not undoubted

disobedience for [the] [f]ather to direct a one-third portion of
 26

his support toward the care of Elliot, who was residing with

[the] [f]ather and entirely economically dependent on [the]

[f]ather." The judge concluded that, because "Elliot actually

benefitted from [the] [f]ather's support," the father was not in

contempt of his original child support obligation. It is

undisputed that the father directly supported Elliot from

January, 2007, until Elliot's emancipation in May, 2013.

Accordingly, the judge could properly have found a lack of

evidence that the father sought to avoid his support obligation

with respect to Elliot, and we discern no error in the judge's

conclusion that there was no clear and convincing evidence of

contempt. Birchall, petitioner, 454 Mass. at 853.

3. Termination of the father's child support obligation.

The mother argues that it was error to terminate the father's

child support obligation as of December 31, 2011, as there was

"no evidence adduced at trial" to support the judge's finding

that the parties' daughter, Hannah, had moved out of the

mother's home by that date.19

"A trial court's findings of fact will be upheld unless

shown to be clearly erroneous." Martin v. Martin, 70 Mass. App.

Ct. 547, 548-549 (2007), citing Mass.R.Dom.Rel.P. 52(a). "A

19
The mother does not challenge the judge's conclusion that
the other two children, Elliot and Ari, began residing with the
father prior to December 31, 2011.
 27

finding is 'clearly erroneous' when, although there is evidence

to support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has

been committed." Martin, supra at 549, quoting from C. C. & T.

Constr. Co. v. Coleman Bros. Corp., 8 Mass. App. Ct. 133, 135

(1979). Here, the judge found that Hannah had moved into the

father's home by late December, 2011, a finding that was

supported by the father's trial testimony. There is nothing in

the record to cause us to disturb the judge's assessment of the

father's credibility in this regard.20 See Johnston v. Johnston,

38 Mass. App. Ct. at 536. We therefore discern no abuse of

discretion with respect to the termination date of the father's

child support payments.

4. Calculation of child support arrearages. The mother

argues that the father's child support arrearages were

artificially decreased due to the judge's erroneous calculation

of the father's total child support payments. The judge

determined that the father had paid a total of $190,737 in child

support from January, 2007 to May, 2012. In arriving at that

figure, the judge found that the parties stipulated that the

20
The mother testified that Hannah did not move out of her
home until the summer of 2012. However, the judge was not
required to credit the mother's testimony, Baccanti v. Morton,
434 Mass. 787, 791 (2001), especially where the mother later
acknowledged that she did not have suitable living
accommodations for Hannah as of May, 2012.
 28

father had made total child support payments of $188,637

(including a $3,500 "lump sum" payment), and that the father had

made an additional $2,500 child support payment21 in April, 2009,

when the parties executed the 2009 agreement. The mother

contends that the $190,737 figure is clearly erroneous, as the

parties stipulated only to payments totaling $185,137, and there

is nothing in the record that supports the additional amounts

included by the judge. While we discern no error with respect

to the inclusion of the $2,500 payment made in April, 2009,22 it

was indeed error to include the $3,500 "lump sum" as a

"stipulated" child support payment. As the mother correctly

asserts, the parties stipulated only to payments totaling

$185,137. While the parties agreed that the father made the

$3,500 lump sum payment, they disagreed as to whether the

payment was made for the purpose of settling past due child

support or old marital debt. Because the parties did not agree

regarding the nature of the $3,500 payment, it was error for the

judge to treat it as a child support payment on the basis of the

21
Due to a typographical error, the judge added the $2,500
payment to $188,237 (rather than $188,637, a difference of
$400), resulting in the $190,737 figure. Without the
typographical error, the total would be $191,137. This error
carried through into the amended judgments, and must be
corrected.
22
The record adequately supports the judge's finding that
the father made a $2,500 child support payment in connection
with the execution of the 2009 agreement.
 29

parties having stipulated to same. Accordingly, because the

amount the father should have been credited for child support

payments should have totaled $187,637 ($185,137 plus $2,500),

his child support arrearages (after applying the $28,177

equitable credit and correcting for the $400 typographical

error, see note 21, supra) should have been $38,883, rather than

$35,783, and the amended judgments must be modified

accordingly.23

5. College expenses. The mother argues that the judge

erred by ordering the mother to contribute to the children's

"future" college expenses. To the extent that the mother is

raising a prematurity argument, it is unpersuasive. Generally,

"support orders regarding the future payment of post-high school

educational costs are premature and should not be made,"

Passemato v. Passemato, 427 Mass. 52, 54 (1998), until college

is "imminent" for the child. Ketterle v. Ketterle, 61 Mass.

App. Ct. 758, 765 (2004), citing Cabot v. Cabot, 55 Mass. App.

Ct. 756, 765 (2002), and Lang v. Koon, 61 Mass. App. Ct. 22, 26

n.11 (2004). In the present case, all three children were

23
The mother also argues that the judge used a flawed
formula that incorrectly credited the father twice for his
$6,008 "overpayment" of child support from August 11, 2011,
through May, 2012. However, as the father points out in his
brief, the mother appears to be relying on the judge's somewhat
confusing explanation of the math, rather than on the math
itself, which was correct. Accordingly, there was no error.
 30

already enrolled in college when the judge ordered the mother to

contribute to their college expenses. Accordingly, the judge's

order was not premature.24

The mother further argues that the judge erred by ordering

the mother to contribute to the children's college expenses

where the mother was excluded from the college selection

process. We are unpersuaded. The judge found that the children

selected their respective colleges "without regard to either

parent's ability to contribute to college tuition."25 Although

the separation agreement contemplated that the parties would

jointly participate in the choice of which college the children

would attend, it did not explicitly make payment of either

parent's obligation to contribute to the children's college

expenses contingent upon being included in the college selection

process. Moreover, the judge was well within her discretion to

24
The cases cited by the mother are distinguishable as they
involve young children for whom college was not imminent. See,
e.g., L.W.K. v. E.R.C., 432 Mass. at 452-454 (order for payment
of post-high school education costs for ten year old child was
premature); Lang v. Koon, 61 Mass. App. Ct. 22 (2004) (order for
payment of post-high school education costs for eleven- and
fifteen year old children was premature).
25
While the mother did not participate in the college
selection process, there is no indication in the judge's
findings that the mother objected to the colleges selected by
the children. Indeed, the mother appears to have consented to
Hannah's choice of college, as she agreed in the spring of 2011
to pay for Hannah's education, and she contributed to Hannah's
tuition for the spring 2012 semester.
 31

make an order relative to the payment of college expenses, even

if the parties had not previously agreed to contribute to them.

See Massachusetts Child Support Guidelines § II-F (2013) ("In

establishing support orders for children over age 18 . . . the

Court shall exercise its discretion in ordering support and/or

college contribution"). As such, we discern no abuse of

discretion in making the mother "responsible for her

proportionate share of the college education costs of the

children,"26 in lieu of paying child support to the father. See

J.S. v. C.C., 454 Mass. 652, 660 (2009) (child support orders

are reviewed for abuse of discretion).

Conclusion.27 The amended judgment on contempt is modified

as follows: In par. 1, by striking "$35,793.00" and inserting

"$38,883.00"; and by striking "$69,968.00" and inserting

"73,068.00." In par. 2, by striking "$35,783.00" and inserting

"$38,883.00."

The amended judgment of modification is modified as

follows: In par. 3, by striking "$41,791.00" and inserting

26
See also Massachusetts Child Support Guidelines,
principles (The Guidelines are intended "[2] to promote joint
parental responsibility for child support in proportion to, or
as a percentage of, income").
27
To the extent that we do not address the parties' other
contentions, "they 'have not been overlooked. We find nothing
in them that requires discussion.'" Department of Rev. v. Ryan
R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).
 32

"$44,891.00"; and by striking "69,968.00" and inserting

"$73,068.00." As so modified, the amended judgments are

affirmed.

So ordered.