DEPARTMENT OF REVENUE CHILD SUPPORT ENFORCEMENT DIVISION v. MICHALKO (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jozef Michalko, appeals from a judgment of the Probate and Family Court enforcing a child support order issued by a court in the Czech Republic and determining arrearages. Discerning no error in the judge's conclusion that the defendant had no grounds under G. L. c. 209D, § 7-708, to withhold payment of child support, we affirm.

1. Uniform Interstate Family Support Act. Under the Uniform Interstate Family Support Act, G. L. c. 209D, Massachusetts courts have “jurisdiction to enforce [a foreign] support order.” Cohen v. Cohen, 470 Mass. 708, 709 (2015). See G. L. c. 209D, § 1-105. A challenge to the enforcement of a foreign child support order “may be based only on grounds set forth in section 7-708,” and “[t]he contesting party bears the burden of proof.” G. L. c. 209D, § 7-707 (d). On appeal, “[w]e review the judge's legal conclusions de novo.” T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456 Mass. 562, 569 (2010). We are, however, “bound by the findings of fact on which the foreign tribunal based its jurisdiction” and “may not review the merits of” the child support order issued by the foreign tribunal. G. L. c. 209D, § 7-707 (e). Accord Draper v. Burke, 450 Mass. 676, 679 (2008), quoting Child Support Div. of Ak. v. Brenckle, 424 Mass. 214, 218 (1997).

2. Defenses to enforcement. The defendant asserts two grounds under G. L. c. 209D, § 7-708, to defeat enforcement of the child support order. First, the defendant argues that “recognition and enforcement of the order is manifestly incompatible with public policy” because he was fraudulently deprived of child support as a child by the totalitarian government of Czechoslovakia. G. L. c. 209D, § 7-708 (b) (1). Yet whether the defendant was deprived of child support when he was a child is not a ground to deny enforcement of the current order. See Matter of Ardell v. Ardell, 140 A.D.3d 863, 866 (N.Y. App. Div. 2016) (“contrary to the mother's contention, she has failed to demonstrate that recognition of the Swedish support order is manifestly incompatible with public policy”). The defendant's desire to visit upon his son the same injustice that was visited upon him as a child holds no purchase in the public policy of Massachusetts.

Second, the defendant argues that “the order was obtained by fraud in connection with a matter of procedure.” G. L. c. 209D, § 7-708 (b) (4). To the extent he argues that the current order was obtained by fraud because he was fraudulently denied child support as a child, this argument is without merit for the reasons stated supra. See Brett v. Martin, 9 Wash. App. 2d 303, 308 (2019) (“[the father] has provided no evidence the order was obtained by fraud, as [he] was present for the hearing when the order was issued, was represented by counsel, and agreed to the order”). On appeal, the defendant argues that, because his attorney did not notify him of the order until four months after it entered, he was denied an opportunity to appeal the order. Nothing in the record presented to us, however, indicates that the defendant raised this argument in the probate court.³ Accordingly, it is waived. See Clement v. Owens-Clement, 98 Mass. App. Ct. 632, 635 n.3 (2020). In any event, the defendant selected his attorney and presents no reason to believe that any failure of notification by counsel was the result of fraud, rather than ordinary negligence. See Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 501 (2010) (“[attorneys’] failure to file a timely appeal constitutes clear and obvious negligence”).⁴

Accordingly, the judge correctly concluded that, under G. L. c. 209D, § 7-708, the defendant failed to establish any defenses to defeat enforcement of the Czech child support order.

Judgment affirmed.

FOOTNOTES

3.   We are disadvantaged by the defendant's conscious choice not to transcribe any of the hearings in the probate court. See Ravasizadeh v. Niakosari, 94 Mass. App. Ct. 123, 126 n.10 (2018) (“it is the appellant's burden to produce a full record on appeal”).

4.   Before the October 18, 2021, hearing, a judge ordered the defendant “to provide the Court with admissible documentation proving the existence of his pending appeal in the Czech Republic, otherwise the case shall be scheduled for trial.” On October 18, a different judge held a nonevidentiary hearing. After that hearing, the judge determined that, in the absence of admissible evidence of a pending appeal of the Czech child support order, evidence would be taken “on the sole issue of the amount of arrears.” It is not evident to us why trial on the defendant's substantive defenses was canceled, but presumably the transcript of the October 18 hearing would reveal the reasons. As stated, the defendant consciously decided not to have that hearing transcribed. See Mass. R. A. P. 8 (b) (1), as appearing in 481 Mass. 1611 (2019) (appellant must provide transcripts relevant to appeal). The defendant raises no claim of error in this regard, nor could he in light of his decision not to transcribe the hearing. See Ravasizadeh, 94 Mass. App. Ct. at 126 n.10.