CASTILLO v. ROBERSON (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant husband appeals from a judgment dated November 19, 2020, that (1) ordered the plaintiff wife to reimburse the husband for child support for a shorter time than the husband sought, and (2) awarded the wife alimony.² We affirm.

1. Reimbursement of child support. The husband, who was paying $249 per week as child support, argues that he is entitled to reimbursement of child support paid from the child's eighteenth birthday in August 2017 until a court order in June 2019 ending his child support obligation. We disagree.

In relevant part, G. L. c. 119A, § 13 (a), provides that a child support “judgment shall not be subject to retroactive modification except with respect to any period during which there is pending a complaint for modification, but only from the date that notice of such complaint has been given.”

Here, the wife received notice of the complaint for modification on April 19, 2019. The husband's child support obligation was terminated on June 10, 2019. There was no error where the judge, bound by the statute, awarded the husband reimbursement of child support between those dates, but not for the period before the husband filed the complaint for modification. See Feinstein v. Feinstein, 95 Mass. App. Ct. 230, 234 n.4 (2019).

2. Alimony. The parties were married for more than twenty-five years at the time of the divorce. At the time that the husband sought a modification to eliminate his child support obligation, the wife sought alimony for the first time.

The husband challenges the award of alimony, which was not retroactive, in the amount of $150.44 per week. The husband argues that the judge failed to take into full consideration the husband's medical condition. He also argues that his expenses will continue to increase because of his serious medical condition, which caused his involuntary retirement, while the wife is “able-bodied” and able to work.

General Laws c. 208, § 48, defines alimony as “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.” In addition to determining a payor's ability to pay and a recipient's need for support, the judge must consider the factors listed in G. L. c. 208, § 53 (a). See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 773 (2014). Alimony may be awarded for “an indefinite length of time” for marriages exceeding twenty years. G. L. c. 208, § 49 (c). “[G]eneral term alimony orders shall terminate upon the payor attaining the full retirement age.” G. L. c. 208, § 49 (f).

“In reviewing both the form and the amount of an award of alimony, we examine a judge's findings to determine whether the judge considered all of the relevant factors under G. L. c. 208, § 53 (a), and whether the judge relied on any irrelevant factors.” Zaleski v. Zaleski, 469 Mass. 230, 235-236 (2014). “A judgment will not be disturbed on appeal unless plainly wrong and excessive” (quotations and citations omitted). Id. at 236.

Here, the judge credited the wife's testimony that she was unemployed due to the COVID pandemic and that her expenses exceeded her income from unemployment benefits. The judge also credited that the wife had taken affirmative steps to reduce her expenses. The judge accordingly found that the wife had a need for support after the parties’ twenty-five year long marriage. The judge also found that the husband's chronic illnesses should not be considered as a ground for deviation of alimony. While the husband had retired and was fifty-six years old at the time of the hearing, the judge found that he continued to receive a pension and his weekly income continued to exceed his weekly expenses. Accordingly, the judge concluded that the husband's retirement alone, without his having reached full retirement age, was not enough to trigger termination of any award of alimony. See G. L. c. 208, § 49 (f). We discern no error in this conclusion.

The husband raises additional concerns that he received ineffective assistance of counsel. “A claim of ineffective assistance of counsel is a well-established ground for a collateral attack on a decision in a criminal case. Such a claim is not a basis for a collateral attack on a civil judgment, where a litigant's sole recourse for his attorney's negligence is an action for malpractice. As a general rule, there is no right to the effective assistance of counsel in civil cases” (citations omitted), Commonwealth v. Patton, 458 Mass. 119, 124 (2010), and this case does not fit within any of the narrow exceptions to the general rule.³ As such, this argument is not a basis for relief.

The husband also disagrees with many of the judge's findings of fact, but did not provide us with the appropriate record evidence or citations that would allow us to determine whether the findings were clearly erroneous. See O'Meara v. Doherty, 53 Mass. App. Ct. 599, 605-606 (2002) (failure to provide complete trial transcript prevents determination of whether judge's factual findings are clearly erroneous).

The husband asserts discovery from the wife would bolster his case. Although we express no opinion on his entitlement to discovery, we note that discovery is not available in this court, but is available only in the trial court.⁴ The husband makes no argument that he sought but was denied discovery in the trial court.

Judgment dated November 19, 2020, affirmed.

FOOTNOTES

2.   The wife did not submit a brief in this appeal.

3.   There are exceptions for civil proceedings with a statutory right to counsel such as proceedings to dispense with parental consent for adoption and sexually dangerous person proceedings, Patton, 458 Mass. at 127-128, and for “patients faced with the administration of antipsychotic drugs under a substituted judgment standard.” Guardianship of L.H., 84 Mass. App. Ct. 711, 718 (2014).

4.   , Nothing in this decision prevents the husband from filing a complaint for modification of alimony if circumstances change, including an increase in his own expenses or an increase in the wife's income from what was reported to the trial court. Emery v. Sturtevant, 91 Mass. App. Ct. 502, 507 (2017), quoting Vedensky, 86 Mass. App. Ct. at 772 (“A party seeking to modify an existing alimony award ‘must demonstrate a material change of circumstances since the entry of the earlier judgment’ ”).