Legal News

What follows is part of administration filed in a Modification Case. It's posted (A) As an "advertisement" of the work of our office". (B) A chance for people to know the law on the issue of retroactive child support in modification and divorce cases. You may find it informative and interesting. I. RETROACTIVITY: This item is addressed first by defendant, through counsel, because both are strongly opposed to such an action. A. There is no mandatory requirement for retroactivity. Boulter-Hadley v.Boulter, 429 Mass.808 (1999) concludes unequivocally, "There is no statutory mandate that modification of support orders be given retroactive effect; the decision whether to give retroactive effect to such orders rests in the sound discretion of the judge." At 809. B. Retroactivity requires the Court to consider the totality of the circumstances. Croak v. Bergeron, 67 Mass, App Ct. 750 (2006) AT 751 said simply: "Child support is controlled by G.L. c. 208, Sec 28, and the Massachusetts Child Support Guidelines." Korff v. Korff, 64 Mass. App. Ct. 94, 95-96 n.5 (2005). (9) Except as otherwise stated therein, the guidelines have presumptive application to actions before the court to modify existing orders. Child Support Guidelines, preamble.(10) This presumption may be rebutted upon a finding by the court that the guidelines would be unjust or inappropriate in a particular case and that the best interests of the child have been considered. Ibid. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 205-206 (1992), quoting from the Department of Rev. v. G.W.A., 412 Mass. 435, 439-440 (1992) (upon a finding rebutting the presumptive application of the guidelines, the judge was obliged "to fashion a more equitable order: and to base that effort on "all the relevant considerations"). Although a purpose of the guidelines is to "encourage joint parental responsibility for child support in proportion to, or as a percentage of, income. . . " (emphasis supplied), (11) Child Support Guidelines, preamble; see Crowe v. Fong, 45 Mass. App. Ct. 673, 677 (1998); Richards v. Mason, 54 Mass. App. Ct. 568, 575 (2002, we have stated that the "guidelines indicate that a judge is to consider to the totality for the parties' circumstances in determining their support obligations." Buckley v. Buckley, 42 Mass. App. C 716, 723 (1997). See Schuler v. Schuler, 382 Mass. 366, 373-376 (1981) (a pre-guidelines case); Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 736-737 (1995); Brooks v. Piela, 61 Mass. App. Ct. 731, 734-735 (2004). See also Kindregan & Inker, Family Law and Practice Sec 39.7 (3rd ed. 2002). Bergeron, Ibid. C. The facts establish that retroactivity would be unjust, inappropriate, and not in the best interests of the children. This is not a case where there would be a claim that defendant deliberately delayed proceedings in order to avoid any increase in support. The facts establish that the order of child support, per the Separation Agreement, didn't start to be effective until after the house was sold and the parties physically separated. That means defendant operated from the terms agreed to from August to December 2017; five months. He testified that within that time he was emailed bills to be paid for the children and he did. From December 2017 on, when litigation started he established that he did (Exhibit 6). In litigation, at a hearing on Temporary Orders, defendant was ordered to pay more, and in Court tendered a check to cover the difference until the next Court date. Thereafter, he made a lump sum payment to cover from then until trial (Exhibit 6). To grant retroactivity, in light of defendant's behavior is both inappropriate and unjust. D. The facts establish that the children have received sufficient support during the pendency of the complaint. Exhibit 6 shows clearly defendant paid towards every expense billed him by plaintiff regarding the children; including all extra-curricular, class trips to Spain, even children's parking tickets. No one exhibit of evidence shows any expense of children was not contributed to. Plaintiff's counsel wanted to make an issue of defendant emailing plaintiff for 1/2 of a fishing trip the defendant, children and others went on. As an example of "snarky behavior". Defendant would contend that this action establishes throughout the summer and fall defendant was getting emails of bills from plaintiff wanting contribution. This Court, having seen the parties physically could easily infer that this is an idea that came from plaintiff. That this was a jab at plaintiff for sending him bills to pay above child support as soon as he left the house is probably true, and shows he's human. The fact that he never said anything more about it shows it was an emotional reaction, not a real request expecting a result. But what is clear, by the very nature of the bills received, checks sent, listings showing what the money was for (Exhibit 6), is that the children were CERTAINLY provided for from December on, the pendency of the litigation. If there is any issue that is clear and convincing, defendant will contend this one is.