SAINT CLAIR v. SAINT CLAIR (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Probate and Family Court judge ordered the mother and father to share legal custody of their minor child, but ordered that the mother would have sole physical custody subject to parenting time with the father. In this supplemental judgment the judge also ordered the father to pay weekly child support to the mother. On appeal, the father's principal claim is that the judge erroneously calculated his child support obligation. For the first time on appeal, the father also challenges the judge's order regarding custody.² For the reasons that follow, we vacate so much of the supplemental judgment as ordered the father to pay child support to the mother in the amount of $422.50 per week nunc pro tunc to January 10, 2019, and remand for further findings. Otherwise, we affirm.

Background. We summarize the relevant facts. The parties were married in 2005, and have one child together. In 2011, the father enrolled in medical school in Puerto Rico and in 2012, the parties separated. The father has seen the child only a few days each year since starting medical school. The mother has been the child's sole caretaker since the parties separated, however, the father “has paid support to [the mother] through much of their separation.” On August 11, 2017, the mother filed a complaint seeking full custody of the child and payment of child support from the father.

On August 16, 2017, a judge entered a temporary order requiring the father to pay to the mother weekly child support in the amount of $325. On June 25, 2018, the father began a surgical residency at the University of Central Florida at an annual salary of $51,131 extended over twenty-six pay periods. Prior to June of 2018, the father was employed by Parallon Enterprise LLC, where he earned $65,731 in the first six months of 2018.

On October 2, 2018, the parties appeared for a pretrial conference. They agreed that there was no dispute regarding custody of the child or the parenting plan. They further agreed that the issue of child support could be resolved by the judge on written submissions without a trial. Based on the parties' written submissions, the judge issued a written decision increasing the father's child support obligation to $525 per week nunc pro tunc to August 16, 2017, $532.50 per week nunc pro tunc to September 15, 2017, and $300 per week nunc pro tunc to June 15, 2018.³ Based on those amounts, the father was ordered to pay the mother a child support arrearage of $8,142.50 within ninety days.

The judge further found that the father had “not been forthcoming in reporting his true income” for the purposes of calculating prior child support orders. Therefore, the judge ordered the father to submit documentation of his income including “all W2s and last four pay stubs.”

After receiving and reviewing those documents, the judge issued a supplemental judgment which, in relevant part, provided as follows:

“A review of [f]ather's most recent pay stubs indicates that his average weekly income for 2019 is $1,613.60. Application of the current child support guidelines results in a presumptive child support order of $338. As previously stated in the [j]udgment, due to [m]other shouldering almost [one hundred percent] of the parenting time with [the child], a [twenty-five percent] upward modification of the child support is warranted. Therefore, [f]ather shall pay $422.50 per week in child support retroactive to January 10, 2019.”

This finding resulted in a child support arrearage of $13,695, which the judge ordered to be paid by June 30, 2019. The judge also modified the father's ongoing child support obligation to $422.50 per week.

The father filed motions to reconsider and stay the initial and supplemental judgments, all of which were denied. On April 8, 2019, the father filed a notice of appeal from the supplemental judgment.⁴

Discussion. 1. Child support. In determining the father's child support obligation the judge was required to apply the Massachusetts Child Support Guidelines. G. L. c. 208, § 28. Child support is “calculated as a percentage of parental income, up to a maximum income amount.” M.C. v. T.K., 463 Mass. 226, 232 (2012). We review the order of child support for an abuse of discretion. See J.S. v. C.C., 454 Mass. 652, 660 (2009).

The father's sole claim is that the judge used an erroneous 2019 weekly income figure and, therefore, miscalculated his child support obligation under the guidelines.⁵ Specifically, the father challenges the judge's finding that “[a] review of [the father's] most recent pay stubs indicates that his average weekly income for 2019 is $1613.60.” “A finding of fact 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.’ ” Lundgren v. Gray, 41 Mass. App. Ct. 451, 457 (1996), quoting Marlow v. New Bedford, 369 Mass. 501, 508 (1976). Here, we cannot accurately assess whether a mistake has been committed because the judge did not explain how she arrived at her conclusion that the father earned $1,613.60 weekly in 2019.

The mother posits that the judge calculated the father's weekly income from his then most recent paystub dated March 1, 2019, which showed year-to-date income of $11,295.20 over a seven week period (from January 1, 2019 to February 21, 2019). This is a plausible explanation because the father's 2019 year-to-date income figure of $11,295.20 divided by seven weeks yields exactly $1,613.60. That same March 1, 2019 pay record, however, reflects regular biweekly pay of $1,959.04 or weekly pay of $979.52, far less than the $1,613.60 per week that the judge attributed to the father for all of 2019. Projected over the course of twelve months, the judge's weekly income figure for the father results in an annual salary of $83,907.20, which far exceeds the $51,131 salary set forth in the father's employment contract.

It may be that the year-to-date figure of $11,295.20 reflects receipt of 2018 income, or that it included part of the father's $3,000 per year salary supplement for surgical supplies.⁶ But if so, it is not clear why those amounts should be attributed to the father as 2019 income. Simply put, absent further explanation, we are left to speculate regarding the basis for the judge's finding that the father's weekly income in 2019 was $1,613.60. Such speculation is impermissible. See Caldwell v. Caldwell, 17 Mass. App. Ct. 1032, 1033 (1984). Accordingly, we vacate so much of the supplemental judgment as ordered the father to pay child support to the mother in the amount of $422.50 per week nunc pro tunc to January 10, 2019 (and the corresponding arrearage), and remand the case to the Probate and Family Court for further factual findings to include the rationale for the determination that the father's weekly income in 2019 was $1,613.60. The judge may take additional evidence if necessary.

Finally, we disagree with the father's claim that the judge abused her discretion in failing to impute income to the mother when calculating the father's child support obligation. When calculating child support, the judge has discretion to impute income to either parent. Child Support Guidelines, Section I (D)-(E). A parent's earning capacity may be considered in determining child support orders rather than his or her actual income. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 206 (1992).

The mother's financial statement indicates that in December 2018, she earned $169.21 weekly as a part-time driver for Uber and Lyft while continuing her primary role as a homemaker and caretaker of the child. The judge credited the mother's representations regarding her income and used that figure in calculating the father's support obligation. The judge considered the father's argument that additional income should be imputed to the mother in calculating child support, but rejected it because the mother, as the homemaker and sole caretaker of the child, had not worked full time outside the home since 2016. Based on the evidence before her, this conclusion was not an abuse of the judge's discretion.

2. Custody. The father's argument regarding custody of the child requires little discussion. The custody arrangement ordered by the judge was agreed to by the parties. Because the father did not object to the order that the mother would have physical custody of the child, he has waived the opportunity to do so here. See Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 674 (2000). If the father believes that changed circumstances warrant a modification of the custody order, such modification should be addressed in the Probate and Family Court in the first instance.⁷

So much of the supplemental judgment as to the order of child support in the amount of $422.50 per week nunc pro tunc to January 10, 2019, including the corresponding arrearage, is vacated, and the case is remanded for further proceedings consistent with this decision. The supplemental judgment is otherwise affirmed.

vacated in part and remanded; affirmed in part

FOOTNOTES

2.   The father was represented by counsel in the Probate and Family Court. He represents himself on appeal.

3.   Separate orders entered for different amounts in different timeframes based on changes in the child support guidelines.

4.   The father did not file a timely notice of appeal from the original judgment. Therefore, only the appeal from the supplemental judgment is properly before us.

5.   The father does not challenge the twenty-five percent upward modification of child support based upon the mother “shouldering almost [one hundred percent] of the parenting time.”

6.   As part of his employment contract at the University of Central Florida the father received a $3,000 annual supplement for surgical supplies.

7.   We note that on August 7, 2019, the father filed a complaint for modification in the Probate and Family Court.