PATRICIA KEEFE v. ERIC OLSON (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a hearing in the District Court, a judge found the defendant, Eric Olson (father), in contempt, and ordered him to pay $24,534 in unpaid child support and $5,800 in attorney's fees. On the father's appeal, we conclude that the judge did not err in calculating the arrearages but that he failed to make the necessary findings on the father's ability to pay. We therefore affirm in part and vacate in part.¹

Background. The parties are the unmarried parents of an adult child born in 1982. It is uncontested that the father had virtually no role in the child's life. The plaintiff, Patricia Keefe (mother), filed a complaint in the District Court and in 1983, the father was ordered to pay $55 per week in child support, and arrears were established at $740. On June 6, 1994, on the mother's motion for modification, child support was increased to $75 per week, and arrears were established at $17,000. On June 6, 2024, the mother filed a complaint for contempt alleging that the father “fail[ed] to pay the amount ordered.” The judge found that the father (1) owed $55,660 in child support from May 1982 through May 2000,² (2) made payments of $31,126, and (3) still owed $24,534. The judge ordered the father to pay the arrears and $5,800 in attorney's fees.

Discussion. In addition to establishing that the father was in “disobedience of a clear and unequivocal command,” the mother also bore the burden of establishing that the father had a present ability to pay the child support arrears. Birchall, petitioner, 454 Mass. 837, 853 (2009). We review a judge's ultimate finding of contempt for an abuse of discretion, and questions of law de novo. See Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 134 (2020).

Here, the judge established child support arrears by multiplying the amount of weekly support ordered by the number of weeks owed. The father contends that these calculations retroactively modified his child support obligation. We agree that retroactive modification of child support is prohibited without a pending complaint for modification. See Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 11 (2016). However, the judge here simply did a mathematical computation -- nothing more. And the father presented no evidence to contradict the calculation. It is of no moment that the Department of Revenue (DOR) documents provided contradictory numbers, as the DOR witness testified the documents were not necessarily accurate or reliable. For these reasons, we discern no abuse of discretion in the calculation of the child support arrears.

However, the mother did not meet her burden of proof as to the father's ability to pay the support arrears ³ and the judge's decision is devoid of any findings concerning the father's ability to pay the arrears. See Birchall, 454 Mass. at 852-853. Accordingly, the finding of contempt and award of attorney's fees must be vacated. See Allen v. Allen, 25 Mass. App. Ct. 515, 525 (1988).

Conclusion. So much of the contempt order dated July 7, 2025, as establishes child support arrears at $24,534 is affirmed. In all other respects, the order is vacated and the case is remanded to the District Court for further proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

1.   We reject the father's claim, made in the alternative, that there was a binding settlement agreement that resolved the underlying case. Here, the parties discussed a global resolution with the judge, and a subsequent status hearing was scheduled. Ultimately an agreement was not reached. We disagree with the father's contention that the drafting of the agreement was “nothing more than a mere formality.” The purported oral agreement was not read into the record with the intent to memorialize it in writing. Cf. Dominick v. Dominick, 18 Mass. App. Ct. 85, 88 (1984). Additionally, it did not contain all the essential terms. See Targus Group Int'l, Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). This is best exemplified by the father's counsel statement that the mother could review the agreement and “if she want[ed] to change any of the language or terms or revisions, and then [counsel would] mail it to her.” There was no error.

2.   Although the order states in one instance that the father owed a total of $55,600 in child support for the relevant time period, that is a scrivener's error and the correct amount is $55,660 based on the judge's calculations of the amounts underlying that total ($32,560 and $23,100). The judge appears to have used the correct total of $55,660 in calculating the amount that the father still owed.

3.   The mother focused her cross-examination of the father on whether he had receipts for the claimed child support payments. She asked nothing about his current income, assets, or liabilities.