Gary Symolon v. Cecilia Han (2013)

MEMORANDUM OF DECISION RE # 103

BACKGROUND

The plaintiff, Gary Symolon, has brought a postjudgment motion for modification of child support.   In his motion, he alleges that a substantial change of circumstances has occurred in that he is paying one-half of the college expenses of Stephanie Symolon and will be obligated to pay the anticipated college expenses of Stephen Symolon and therein requests that the current order of child support be reduced.

The parties' original divorce decree was issued by the Commonwealth of Massachusetts, Probate and Family Court Department, Middlesex Division.   This foreign decree was properly domesticated in the State of Connecticut.   This court earlier ruled that the substantive law of the Commonwealth of Massachusetts, including the child support guidelines, applies to the instant motion for modification [56 Conn. L. Rptr. 148].  (See pleading # 109.)

“Exhibit E” of the parties' separation agreement addresses child support.   It requires the amount of child support to be recalculated every two years starting April 1, 1999, using the child support guidelines.   The parties are to calculate and agree on the child support, but absent agreement, “they shall seek the assistance of counsel and if necessary the Middlesex County Probate Court.”   It further requires the plaintiff to pay child support until the children are emancipated, including by “[g]raduation from an accredited post-secondary school or college, or age 23, whichever occurs first.”

Additionally, “Exhibit G” of the separation agreement requires that, in the event a child attends college, university or comparable post-secondary vocational school “[t]he first source of payment shall be the child's contribution, if any, from scholarships, loans, work study plans, savings and gifts” and “[t]he second source shall be the parents who will contribute equally towards the cost of education.”   The agreement defines educational expenses as “testing fees, application fees, tuition, room and board, books, student activities fees, and such incidentals as customarily appear on college bills.”

The parties have two children, to wit:  Stephanie Symolon, born October 31, 1992 and Stephen Symolon, born August 12, 1995.   Stephanie is and has been full time enrolled in college.   She currently does not live on campus, but resides with the defendant.   Consistent with the parties' agreement and order of the court, the parties share equally in the cost of Stephanie's education expenses.   Stephen just graduated from high school and has been accepted to the University of Connecticut (UConn).   The evidence indicated he would attend UConn commencing the fall of 2013 and intends to live on campus.

The last recalculation of child support was on or about July of 2009.   At that time the State of New Hampshire issued an order of child support directing the plaintiff to pay to the defendant the sum of $593 biweekly for the support of the parties' two children.

As of the date of the hearing, neither child had yet to reach the age of 23 nor graduated from college.

LAW

In Massachusetts, modification of child support for children of divorced parents is governed by the Massachusetts General Laws chapter 208, § 28 (2012) and the child support guidelines.

Under Massachusetts General Laws chapter 208, § 28:  “Upon a complaint after a divorce, filed by either parent or by a next friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.”  (Emphasis added.)   Mass. Gen. Laws ch. 208, § 28 (2012).  “Changed circumstances are those that occur subsequent to the judgment of divorce or subsequent to a prior modification.”  Loebel v. Loebel, 77 Mass.App. 740, 750, 933 N.E.2d 1018 (2010).   Additionally, “[i]n furtherance of the public policy that dependent children shall be maintained as completely as possible from the resources of their parents and upon a complaint filed after a judgment of divorce, orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice of the trial court or if there is a need to provide for the health care coverage of the child.”  (Emphasis added.)  Mass. Gen. Laws ch. 208, § 28 (2012).  “A modification of child support may enter notwithstanding an agreement of the parents that has independent legal significance,” Mass. Gen. Laws ch. 208, § 28 (2012).

Under § 28, “when a complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines ․ Nothing ․ in § 28 establishes a separate and additional requirement that the discrepancy or inconsistency between the existing order and the guidelines amount of child support result from a material and substantial change in circumstances.”  (Citations omitted.)  Morales v. Morales, 464 Mass. 507, 511–12, 984 N.E.2d 748 (2013).

Under § 28, there is “a rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered.   If, after taking into consideration the best interests of the child, the court determines that a party has overcome such presumption, the court shall make specific written findings indicating the amount of the order that would result from application of the guidelines;  that the guidelines amount would be unjust or inappropriate under the circumstances;  the specific facts of the case which justify departure from the guidelines;  and that such departure is consistent with the best interests of the child.   The order shall be modified accordingly unless the inconsistency between the amount of the existing order and the amount of the order that would result from application of the guidelines is due to the fact that the amount of the existing order resulted from a rebuttal of the guidelines and that there has been no change in the circumstances which resulted in such rebuttal;  provided, however, that even if the specific facts that justified departure from the guidelines upon entry of the existing order remain in effect, the order shall be modified in accordance with the guidelines unless the court finds that the guidelines amount would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the child.”  Mass. Gen. Laws ch. 208, § 28 (2012).  “The text of § 28 makes clear that the rebuttable presumption applicable to an initial child support order issued pursuant to § 28—namely, that the amount that results from application of the guidelines is the appropriate amount of child support to be ordered—applies in the modification context as well, as does the availability of deviation from the guidelines, if supported by proper findings.”  Morales v. Morales, supra, 464 Mass. 512 n.

As to children over the age of 18, Massachusetts law provides:  “The court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance.   The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.”  Mass. Gen. Laws ch. 208, § 28 (2012).

The latest version of the child support guidelines (guidelines), became effective August 1, 2013 and supersedes any previous guidelines.

DISCUSSION

Massachusetts law permits modification of a child support order when and if the court finds that a material and substantial change in the circumstances of the parties has occurred.   In this instant case, considering all the evidence before the court, the court does not find any “material and substantial” change of circumstances.   The plaintiff raises the payment of college expenses as a substantial change of circumstances.   This cannot be so, in that the parties agreed to jointly and equally undertake this obligation at the time of dissolution of the marriage.   The court does not find a material and substantial change of circumstances.

Further, Massachusetts law requires modification of child support where the current level of support is inconsistent with the guidelines.   The current order of support is $296.50 per week for two children.   Using the parties' financial affidavits as filed with the court and applying the most current edition of the Massachusetts child support guidelines, the plaintiff would be required to pay to the defendant $278 per week for one child and $348 per week for two children.   However, both children are now over the age of 18 and pursuant to the current Massachusetts child support guidelines, it is within the court's discretion to set a child support amount.   Given that the evidence indicates that 1) the parties provided for post–18 support in their agreement;  2) the parties agreed to share both children's college costs;  3) one child, although in college, still resides at home;  4) one child is a full-time college student residing on campus;  and 5) both children are dependent upon the parties for support, the court finds the current order of support to be fair, appropriate and in the children's best interest.   Accordingly, the plaintiff's motion to modify is denied.

SO ORDERED

BOZZUTO, J.

Bozzuto, Elizabeth A., J.