SAXENA v. SEWAK (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Atmaja Saxena (mother) appeals from a judgment modifying the weekly child support required to be paid by Saurabh Sewak (father). On appeal, the mother contends that the judge abused his discretion by (1) failing to include the father's bonus and stock options in setting the child support amount and not making the new child support amount retroactive; (2) attributing income to the mother; (3) eliminating portions of the separation agreement; and (4) denying her motion for a new trial. We vacate the portion of the judgment deleting the portions of the separation agreement that neither party litigated, but we otherwise affirm.

Background. The mother and the father were married in 2004. Their only child was born in 2011. A judgment of divorce nisi entered in 2014, incorporating the parties' separation agreement. The separation agreement, as incorporated, included child support provisions.² In 2015, the father filed a complaint for modification. This modification judgment increased the father's time with the child.

The present appeal concerns the mother's 2016 complaint for modification, seeking to increase the amount of weekly child support paid by the father.³ At the time she filed the complaint, the father was paying $797 in weekly child support. After two days of trial,⁴ a Probate and Family Court judge entered a modification judgment that increased the father's weekly payments of child support to $809. The judge also eliminated section 3, paragraphs A through G of the separation agreement. See note 1, supra.

Discussion. Weekly child support. We review a judge's modification of child support for an abuse of discretion. See Pierce v. Pierce, 455 Mass. 286, 293 (2009). The parties' joint income (prior to attribution of income to the mother, see discussion infra) exceeded $250,000, and thus the Child Support Guidelines (guidelines) provided the minimum presumptive amount of weekly child support. Support above that amount was to be determined in the judge's discretion, consistent with the child's best interest. See Guidelines § II-C; Levitan v. Rosen, 95 Mass. App. Ct. 248, 256 n.12 (2019) (“The judge may, in his discretion, decline to award child support on any additional income above the first $250,000 of the parties' combined available income ․, and may also deviate from the minimum presumptive order required by the Guidelines”).

Here, the judge did not abuse his discretion in setting the modified amount of weekly child support. The judge found that the child was seven years old, doing well, and attending kindergarten. The father's salary had decreased, while the mother's salary had increased since the last modification of child support. The parties shared legal custody, and as a result of the prior modification, the father had substantially greater physical custody of the child than he had had at the time of the divorce. Moreover, on top of his weekly child support payment, the father also paid for the child's extracurricular activities; the mother made no contributions to these. The judge also found that the mother had extravagant discretionary expenses. Both parties submitted child support calculations using the 2017 guidelines. The father proposed $802 weekly child support, while the mother proposed $817. The judge ordered child support in the amount of $809 weekly, essentially midway between the parties' proposals.

The mother contends that the judge abused his discretion in declining to set the amount of weekly child support higher in light of the father's anticipated yearly bonus and stock options. The judge found, based on ample evidence, that the bonus was not guaranteed or predicable; and, the stock options were not exercised and were subject to limitations.⁵ Given the parties' joint income exceeded $250,000 and the judge's other findings, we see no abuse of discretion.

Retroactivity. The mother also contends that the judge erred in not making the modified weekly child support amount retroactive. The decision whether to make support retroactive is discretionary with the judge. See Boulter-Hedley v. Boulter, 429 Mass. 808, 809-810 (1999). Given that the father was paying above the presumptive minimum amount of the guidelines at the time the modification complaint was filed, and the judge's finding that the child was doing well coupled with the father's decreased salary and the judge's other findings, there was no abuse of discretion. Contrast Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 11-12 (2016).

Income attribution. The mother also faults the judge for attributing income to her. Income may be attributed where a finding has been made that the mother is capable of working and is unemployed or underemployed. See Guidelines § I-E. We review for an abuse of discretion. See Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 531 (2016). There was evidence that the mother had the ability to work full time, is licensed as a pharmacist, and is employable based on her skills and demand. There was also evidence regarding her compensation from her part-time contracts. See C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 159 (2008) (proper income attribution where potential income commensurate with mother's education, training, employment history, and past earnings). The record included examples of full-time pharmacist positions in Massachusetts about which the mother had received e-mails. Furthermore, the mother was earning much more as a part-time employee than when she was a full-time employee prior to the divorce. Contrast Fehrm-Cappuccino, supra at 530-532 (improper income attribution where mother lacked college degree, was unemployed during marriage and at time of divorce, and was responsible for overwhelming majority of children's care). On this record, the judge did not abuse his discretion in attributing income to the mother.

Elimination of separation agreement provisions. The mother maintains that the judge abused his discretion in eliminating the child support provisions in the separation agreement because those provisions were not litigated at trial. Because the elimination of section 3, paragraphs B through G, of the separation agreement was not litigated, and in the absence of any explanation for the same, we agree. See Messina v. Scheft, 20 Mass. App. Ct. 945, 946 (1985) (judge may not base decision on issue not raised or litigated by parties).⁶

Order denying motion for a new trial. The mother alleges the judge abused his discretion in denying her motion for a new trial based on purported newly discovered evidence that the father purchased a home in Winchester. The mother has failed to show why this evidence was material in view of the parties' aggregate income above $250,000 and the judge's other findings. See Kelly v. Kelly, 12 Mass. App. Ct. 937, 938 (1981).

Appellate fees. The father's request for appellate attorney's fees is denied.

Conclusion. We vacate the judgment so much as it deleted section 3, paragraphs B through G, of exhibit B in the separation agreement, and otherwise affirm the judgment.⁷ We affirm the order denying the motion for a new trial.

So ordered.

Vacated in part; affirmed in part

FOOTNOTES

2.   In addition to the payment provision, section 3, paragraphs B through G of the agreement required the parties to (1) exchange year-end pay stubs and tax documents to adjust the child support payment according to the actual bonus the father received for that year; (2) exclude “future stock awards” from child support as long as the father is obligated to pay alimony to the mother; (3) attempt to mediate any recalculation of child support; and (4) establish a trust account for the child after April 30, 2019, to which the father would transfer twenty percent of his “future stock awards” in order to pay for the child's college education.

3.   The mother also sought to modify the conditions allowing her and the son to travel to India and to make the father solely responsible for the son's “educational costs” after all of the funds in the child's trust are expended. The mother has not raised these issues on appeal.

4.   The father filed a counterclaim, but voluntarily dismissed it at trial.

5.   As discussed supra, treatment of any income above $250,000 is within the judge's discretion. See Levitan, 95 Mass. App. Ct. at 256 n.12.

6.   The mother also contends that the judge failed to use his independent judgment in his findings. We reject this claim. Even where findings are recited verbatim from a party's proposal, we do not reject them out-of-hand, and they will stand if supported by the evidence. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 823-824 (2003). The judge's findings are supported by the evidence and, contrary to the mother's assertion, are not a verbatim recitation of the father's proposal.

7.   To the extent that any of the mother's challenges to the judge's other findings are not expressly addressed, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).