DONOGHUE v. SINAGRA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

William Donoghue (father), the former husband of Elise Sinagra (mother), appeals from a judgment of modification, which increased his weekly child support obligations from $450 to $495. He contends that because the modification judgment was entered in 2017, the judge erred by applying the Massachusetts Child Support Guidelines promulgated in 2013 in calculating his child support obligation. He also claims that the judge abused her discretion by not attributing additional income to the mother. We affirm.

Background. The parties were divorced by judgment of divorce nisi dated May 10, 2013. Under the parties' separation agreement, which was incorporated into the judgment, they share legal and physical custody of their two minor children. The judgment required the father to pay $450 per week in child support to the mother. The child support order also directed the father to pay twenty-one percent of all compensation resulting from overtime and detail assignments in quarterly installments.²

On August 25, 2016, the mother filed a complaint for modification of the divorce judgment.³ The father filed an answer and counterclaim on October 3, 2016. In his counterclaim the father sought, among other things, “[t]hat child support be adjusted according to the current income.”⁴ Following two nonconsecutive days of trial in June and July, 2017, judgment entered on December 3, 2017, retroactive to June 28, 2017. As we have noted, the judgment increased the husband's weekly child support obligation to $495. The judgment did not modify the previously agreed upon provisions of the separation agreement, which provided for additional quarterly child support payments and directed the parties to share the children's uninsured medical expenses equally. An amended judgment subsequently entered on May 2, 2018, nunc pro tunc to December 3, 2017.⁵

Discussion. 1. Application of the 2013 guidelines. The judge calculated the new child support order using the 2013 guidelines. The father argues that because a final judgment was entered in December of 2017, the judge should have applied the 2017 guidelines, which took effect on September 15, 2017.⁶ He claims that if the judge had applied the 2017 guidelines rather than the 2013 guidelines, he would be responsible for making one weekly child support payment based on all his income, and would no longer be required to pay twenty-one percent of compensation he received for overtime and detail work on a quarterly basis. In addition, he contends that under the 2017 guidelines, the mother would be responsible for the first $250 each year in uninsured medical expenses for both children. We conclude that the judge had discretion to apply the 2013 guidelines and did not abuse her discretion in the circumstances presented.

To begin with, the record does not support the father's claim, as stated in his brief, that he “brought his counterclaim largely to have the child support guidelines that were in effect at the time of the judgment [2017] apply to him and his child support payment.” To the contrary, it appears that neither party addressed the issue of whether the 2017 guidelines should apply.⁷ In any event, as the mother notes in her brief, the judge properly applied the 2013 guidelines because those were the guidelines in effect at the time of the modification trial in June and July 2017, and at the time that the father filed his counterclaim to the modification complaint on October 3, 2016. Although the 2017 guidelines applied at the time judgment entered in December 2017, the judgment was entered nunc pro tunc to June 28, 2017. As noted, the 2017 guidelines were not in effect at that time. We therefore discern no abuse of discretion in the judge's application of the 2013 guidelines and, as a result, we conclude there was no error in the judge's calculation of the child support order or in declining to modify the parties' agreement to share all uninsured medical expenses equally.

2. Calculation of mother's income. The father next argues that the judge erred in finding that the mother earned $534 per week. He claims that the judge should have attributed $30,000 in income to the mother, which, he contends, was done when the original child support order was issued in 2013. He also argues that the judge failed to take into consideration evidence presented at trial of the mother's unreported income, including bartered income, contributions received from her boyfriend, and personal expenditures written off as business deductions. This argument has no merit.

First, the record does not support the father's claim that $30,000 in income had previously been attributed to the mother. The only reference to a $30,000 amount appears in the section of the separation agreement entitled “Dependency Exemptions.” That section states only that the father shall be entitled to claim the minor children as dependents for the purposes of federal and state income taxes “until the wife earns $30,000.” We agree with the mother that this reference does not amount to an attribution of income.

Second, contrary to the father's claim, the judge did not ignore evidence that the mother earned more than what was stated on her financial statement. Rather, the judge concluded that the evidence presented by the father, including the mother's offer to pay $20,000 in tuition expenses for one daughter, was not sufficient to warrant an attribution of additional income. The judge specifically noted that the evidence presented by the father regarding the mother's income was not sufficiently specific or persuasive to overcome the mother's testimony regarding her income or the figures set forth in the mother's financial statement and supporting documents. We will not disturb a judge's credibility determination “unless we are convinced [it is] plainly wrong.” Zaleski v. Zaleski, 469 Mass. 230, 237 (2014). We therefore discern no abuse of the judge's discretion in not attributing additional income to the mother.

Judgment affirmed.

FOOTNOTES

2.   The father is employed as a Massachusetts State police trooper.

3.   The mother subsequently filed two complaints for contempt. The father was found guilty on one complaint and not guilty on the other. The father's appeal does not challenge the contempt judgment.

4.   The father also sought an order for the use of a parenting coordinator, and an order requiring the parties to refrain from talking about the case to the children or make disparaging comments about the other parent to the children. Neither of these issues are the subject of this appeal.

5.   The father filed a motion to amend and clarify the judgment requesting that the trial judge modify the child support figure used to calculate his arrearages, elaborate on her calculation of the new child support order, and modify the judgment to require objective evidence of the mother's actual earnings.

6.   The preamble to the 2017 guidelines specifically states that the “child support guidelines shall take effect on September 15, 2017 and shall be applied to all child support orders and judgments entered as of the effective date.”

7.   The earliest reference in the record to the 2017 guidelines appears in the father's motion to amend the judgment and to clarify the judgment, filed on December 18, 2017. In paragraph 9, the father suggests that the new guidelines might apply to this case.