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Appeals Court of Massachusetts.



Decided: March 03, 2021

By the Court (Vuono, Sacks & Hand, JJ.1)


Jason Leavitt (father) appeals from three modification judgments entered in the Probate and Family Court on August 26, 2019; he also appeals from the order denying his motion to strike the defendant, Kerry Restuccia's (mother), proposed findings of fact and rationale. The father's principal claims concern the judge's denial of his request for a downward departure in his child support obligation and for an “equitable credit” toward his child support arrears. For the reasons that follow, we affirm in part, reverse in part, and remand the case for the limited purpose of calculating a new child support order consistent with the 2018 Massachusetts Child Support Guidelines (as amended June 15, 2018) (guidelines) pertaining to Social Security Disability Income (SSDI) dependency benefits. See Rosenberg v. Merida, 428 Mass. 182, 186 (1998).

1. Background. We summarize the relevant facts found by the judge following a trial held on two nonconsecutive days. The parties, who were never married, have one child together, who was born in 2003. Two years later, in 2005, a judgment entered that granted custody to the mother and ordered the father to pay child support. Between approximately 2014 and 2016,2 the father filed three complaints for modification, all of which were consolidated, seeking, among other things, a reduction in his child support obligations on the grounds that he was disabled, unemployed, and receiving SSDI benefits.3 The father also claimed that the mother's income and ability to pay had increased. In addition, the father requested a credit toward his child support arrears for the amount the mother received from his SSDI for the benefit of their child.

At the time of trial, the child was sixteen years old and resided with the mother in Massachusetts. The father resided in North Carolina. Both parties testified at trial. The judge found that the father had an inconsistent history of employment, was currently unemployed, but had the capability to earn more income than he was receiving. The judge did not credit the father's testimony that he was unable to work due to his disability stemming from a traumatic brain injury he sustained in 2001. The judge observed that the father introduced no evidence pertaining to his claimed disability and that the father had been employed from time to time since 2001. The judge also found that because the father had a “ticket to work,” he had been employed after he began receiving SSDI. The judge concluded that the father was capable of working forty hours per week at a minimum wage job and attributed that amount of income ($290 per week) to him for purposes of calculating his child support obligation. The judge then added the income from the father's SSDI ($256.15 per week) and calculated the father's total weekly income at $546.15.

As regards the mother, the judge found that she also was unemployed, but was capable of working forty hours per week at a minimum wage job. The judge then attributed that amount ($480)4 to the mother and, after adding $39 per week that the mother receives in SSDI for the benefit of the child, arrived at a total weekly income of $519.

Based on these findings, the judge, applying the 2018 guidelines, calculated the father's child support obligation at $118 per week. The judge declined to credit the portion of the father's SSDI payment to the mother benefitting the child toward the father's child support arrears, and ordered that arrears be repaid at $25 per week until paid in full.

2. Discussion. The father argues that (1) certain findings made by the judge are clearly erroneous; (2) the judge erred by adopting the mother's proposed findings without genuine examination and should have allowed his motion to strike the mother's proposed findings; (3) the judge's finding that he was not disabled, but rather was able to work, improperly “overrules” the Social Security Administration's determination that he was “totally disabled”; and (4) the child support order did not take into consideration his obligation to support his other children and was inconsistent with the guidelines pertaining to SSDI dependency benefits.

We first address the mother's claim that the father's appeal should be dismissed due to his failure to include the trial transcript in the record appendix as required by Mass. R. A. P. 8 (b) (1), as amended, 430 Mass. 1601 (1999).5 We are not persuaded.

“An appellant's obligation to include those parts of the trial transcript ․ ‘which are essential for review of the issues raised on appeal ․ is a fundamental and long-standing rule of appellate civil practice’ ” (citation omitted). Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995). See Roby v. Superintendent, Mass. Correctional Inst., 94 Mass. App. Ct. 410, 412 (2018), quoting Commonwealth v. Woody, 429 Mass. 95, 97 (1999) (“it is the appellant's responsibility to ensure that the record is adequate for appellate review”). Although we discern no basis for relieving the father of his responsibility, we do not believe that dismissal of the appeal is warranted, and we decline to impose sanctions. We agree with the mother, however, that due to the insufficiency of the record we are unable to address many of the father's claims, including whether the judge's findings regarding the nature and extent of his disability and his capacity to work forty hours per week at a minimum wage job are clearly erroneous, and whether the judge abused his discretion in denying the father's motion to strike the mother's proposed findings and rationale. We also cannot review the father's claim that the judge erred by not considering his support obligations to his other children. Without a transcript, we cannot determine whether there was evidence “that such responsibility does, in fact, exist and that [the father] is fulfilling such responsibility.” G. L. c. 209C, § 9 (f). Accordingly, these issues are waived. See Cameron, supra. See also Mass. R. A. P. 18 (b) (4), as amended, 425 Mass. 1602 (1997) (“Failure to reproduce the entire transcript may result in waiver of the issue”). To the extent that the father's remaining arguments can be addressed on the record before us, we conclude as follows.

The judge's calculation of child support pursuant to the guidelines was error, as he improperly included in the mother's income the SSDI dependency benefit that the mother received on behalf of the child as a result of the father's disability. The SSDI dependency benefit must be included in the income of the noncustodial disabled parent -- here the father. See Guidelines § 1 n.1. After calculating the presumptive support order, the disabled father is entitled to a dollar-for-dollar credit equal to the amount of the SSDI dependency benefit. See Schmidt v. McCulloch-Schmidt, 86 Mass. App. Ct. 902, 903-904 (2014). Put another way, the $39 dependency benefit must be included in the father's gross income prior to calculation of child support and then deducted from the presumptive order. See Guidelines § I n.1, citing Rosenberg, 428 Mass. at 186 (adopting “the majority position of allowing a credit to the noncustodial parent for SSDI dependency benefits”).

3. Conclusion. We therefore vacate so much of the modification judgments that require the father to pay child support in the amount of $118 per week plus $25 per week in arrears. In all other respects, the judgments are affirmed. The case is remanded for the purpose of calculating a new child support order consistent with this memorandum and order. Given the error in failing to calculate the father's total gross income and credit arising from the SSDI benefits, the judge may, but is not required to, reconsider his denial of the father's request for a retroactive child support order. The order denying the father's motion to strike is affirmed.6

So ordered.

affirmed in part; vacated in part and remanded


2.   The complaints were filed on August 25, 2014, June 8, 2016, and October 3, 2016, amended on April 3, 2017.

3.   In his modification complaint filed on June 8, 2018, the father requested a reduction in his child support obligation on the additional ground that he had another child to support.

4.   The difference in weekly income earned from a minimum wage job results from the difference in the minimum wage in Massachusetts ($12) and North Carolina ($7.25).

5.   Alternatively, the mother claims the father should be sanctioned and his claims deemed waived. The father does not deny that he did not order a transcript of the proceedings. He claims, essentially, that he should be excused from his obligation to provide a transcript as a result of various difficulties he and out-of-State counsel encountered during the course of the proceedings.

6.   The mother's request for attorney's fees is denied.

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