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16-P-1397 Appeals Court
SAKTI CALABRIA vs. PETER J. CALABRIA, JR.
No. 16-P-1397.
Bristol. May 31, 2017. - July 13, 2017.
Present: Green, Wolohojian, & Ditkoff, JJ.
Divorce and Separation, Child support, Modification of judgment.
Parent and Child, Child support.
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.
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
2
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.)
1
The father has not appealed from those portions of the
judgment increasing his child support obligations from and after
the filing of the complaint for modification, or continuing the
suspension of his visitation pursuant to an earlier order.
3
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 arrearage of $9,924. The
2
New Child Support Guidelines became effective on August 1,
2013, and the judge applied the new guidelines to the
calculation of support for the period following that date.
4
judgment ordered the father to pay that arrearage in biweekly
installments of $100 in addition to his new biweekly child
support payments of $476, until the arrearage is paid in full.
Discussion. The father challenges the imposition of an
obligation to pay increased child support for the period
preceding the date on which the mother filed her complaint for
modification. His principal contention is that the judge was
without authority to make any increase retroactive to a date
earlier than the date of the complaint for modification, by
reason of G. L. c. 119A, § 13(a), which provides, in pertinent
part, as follows:
"Any payment or installment of support under any child
support order issued by any court of this commonwealth
. . . shall be on or after the date it is due, a judgment
by operation of law, . . . provided that said judgment
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 . . . ."
Ibid., as amended by St. 1998, c. 64, § 161.
"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.' . . . '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.'" Rosen v.
Rosen, 90 Mass. App. Ct. 677, 683 (2016), quoting from T.M. v.
5
L.H., 50 Mass. App. Ct. 856, 859 (2001). See Quinn v. Quinn, 49
Mass. App. Ct. 144, 147-148 (2000).3 To that end, an agreement
by a recipient parent to accept reduced child support payments
will not be given effect. See id. at 146-147.
Here, we are presented with a modification judgment that
gives effect to a predivorce agreement of the parties concerning
retroactive adjustment of child support and that results in an
increase rather than a decrease in child support during the
period preceding the complaint for modification. In such
circumstances, the objective of § 13(a) to furnish finality and
clarity to orders for child support in order to facilitate
prosecution of an enforcement action based on the support order
is not impaired by the possibility that the support obligor
might assert claimed defenses to payment. Contrast Quinn v.
Quinn, supra at 147. Moreover, in light of the fact that the
delay in the mother's filing of her complaint for modification
3
In Rosen v. Rosen, we recognized that special
circumstances of an equitable nature could "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." 90 Mass. App. Ct. at 684, quoting from T.M. v. L.H.,
50 Mass. App. Ct. at 861. In certain narrowly described
circumstances, a support obligor may receive a credit against
support arrearages for other payments made, provided (among
other things) that the alternative support arrangement was not
contrary to the child's best interests and that the credit would
not result in injustice or undue hardship to the support
recipient. Id. at 688-689. Rosen included a number of other
circumstances applicable to the allowance of an equitable credit
against a child support arrearage, which we do not repeat here.
6
was attributable to her lack of awareness of the increase in the
father's income, which in turn resulted from the father's
failure to provide the financial information required by the
parties' agreement, it is not inequitable to give force to the
parties' intent, as expressed in the agreement.4 Cf. Hamilton v.
Pappalardo, 42 Mass. App. Ct. 471, 476 (1997). Finally, we
observe that giving effect to the parties' agreement where it
operates to increase support payments in the manner agreed by
the parties, and where it is in the best interest of the child
(as the judge here found), "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.'" Rosen v. Rosen, supra at 689, quoting from
Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 415 (2007). See
Boulter-Hedley v. Boulter, 429 Mass. 808, 813 (1999) ("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").
4
We reject the father's contention that the judge should
have treated the mother's claim for modification pursuant to the
agreement as waived, by reason of her delay in filing her
complaint. Again, we see no error of law or abuse of discretion
in the judge's implicit conclusion that the mother cannot be
faulted for her failure to assert a claim of which she was
unaware because of the father's failure to furnish the required
financial disclosure.
7
Judgment affirmed.