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15-P-771                                                  Appeals Court

                  P.F.     vs.   DEPARTMENT OF REVENUE.


                                 No. 15-P-771.

           Norfolk.        May 12, 2016. - December 6, 2016.

                Present:    Cohen, Rubin, & Hanlon, JJ.

Divorce and Separation, Child support, Modification of judgment.
     Parent and Child, Child support.


     Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on February 22, 2004.

     A complaint for modification, filed on January 9, 2012, was
heard by John D. Casey, J.


     P.F., pro se.
     Benjamin K. Golden, Assistant Attorney General, for the
defendant.


    COHEN, J.     The plaintiff, an incarcerated father, filed a

complaint for downward modification of child support payments

ordered following his divorce from the child's mother.          A judge

of the Probate and Family Court denied the request, reasoning

that the father's loss of income was a foreseeable consequence

of his conviction of indecent assault and battery on the child
                                                                     2


for whom he owes support.    Before us is the father's appeal.     We

conclude that, on the record before us, the judge's refusal to

reduce the father's child support payments in accordance with

the Massachusetts Child Support Guidelines (2013) (guidelines)

was outside the range of his discretion.     We therefore vacate

the judgment and remand the case for further consideration.1

     1.    Background.   The father and the mother were married in

September, 2000, and had one child together, a daughter.     The

marriage was short-lived.    The father and the mother divorced in

April, 2004, and the father subsequently was ordered to pay

weekly child support of $72.    In March, 2010, the father was

convicted of indecent assault and battery on the child and was

sentenced to five to seven years in State prison.2

     In 2012, the father filed a complaint seeking modification

of his child support obligation, citing his inability to pay

child support while incarcerated.    On September 9, 2014,

following a hearing at which the father represented himself,3 and

at which the child support enforcement division of the



     1
       In addition, we reject the father's challenge to the
judge's order of impoundment.
     2
       As of May 12, 2016, when we heard oral argument, the
father was housed in the Massachusetts Treatment Center, where
he was undergoing evaluation for commitment as a sexually
dangerous person, pursuant to G. L. c. 123A.
     3
         The father appeared by videoconference.
                                                                     3


Department of Revenue (DOR) appeared on behalf of the mother,4 a

judge of the Probate and Family Court issued a judgment denying

the father's modification request, stating that "[i]t should

have been a foreseeable consequence of [the father's] criminal

conduct that he would be incarcerated, lose his employment and

thus lose his ability to earn income to pay support."     The

intended "effect of this denial [was] that [the father] [would]

have to someday reimburse the [mother] for the expenses being

incurred at this time."     However, the judge also requested that

DOR "waive the penalties that accrue on the unpaid arrears"

during the father's incarceration.

     The father filed a timely notice of appeal from the

judgment.   Thereafter, on December 8, 2014, the judge entered a

"Supplemental Rationale" further explaining the basis for his

decision on the father's complaint for modification.     This

appeal followed.

     2.   Discussion.   "When assessing a decision regarding a

modification of child support, an appellate court 'review[s] for

an abuse of discretion.'"    Wasson v. Wasson, 81 Mass. App. Ct.

574, 576 (2012), quoting from Richards v. Mason, 54 Mass. App.

Ct. 568, 572 (2002).    "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

     4
       The mother was present at the hearing, but DOR was
handling collection and enforcement. See Naranjo v. Naranjo, 63
Mass. App. Ct. 256, 259 & n.3 (2005).
                                                                    4


made 'a clear error of judgment in weighing' the factors

relevant to the decision, such that the decision falls outside

the range of reasonable alternatives."    L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v.

Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

     "The method for calculating and modifying child support

orders is governed by statute and by the guidelines."     Morales

v. Morales, 464 Mass. 507, 509-510 (2013).5    See G. L. c. 208,

§ 28.    "The Chief Justice of the Trial Court is authorized to

promulgate guidelines establishing presumptive child support

awards, based on articulated principles and calculated according

to specified mathematical formulas."     M.C. v. T.K., 463 Mass.

226, 231 (2012), citing 42 U.S.C. § 667 (2006).     "Although the

guidelines have been subject to periodic revision since their

enactment, an essential premise has remained constant:     that

child support should be calculated as a percentage of parental

income. . . ."   Id. at 232.

     There is a "rebuttable presumption that the amount of the

order which would result from the application of the guidelines

is the appropriate amount of child support to be ordered."


     5
       "Under applicable provisions of Federal statutes, a
State's receipt of certain Federal grants and reimbursements is
conditioned on the State's creation of guidelines for child
support that meet specific statutory and regulatory criteria."
Morales v. Morales, supra at 513 & n.11, citing 42 U.S.C.
§§ 602(a)(2), 654(20)(A), 665(a)(1)(A), 666, 667 (2006).
                                                                   5


G. L. c. 208, § 28, as amended through St. 1998, c. 64, § 194.

See guidelines, preamble.   "Except as otherwise stated therein,

the guidelines have presumptive application to actions to modify

existing orders," Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 8

(2016) (quotation omitted), and an existing order "shall be

modified if there is an inconsistency between the amount of the

existing order and the amount that would result from the

application of the child support guidelines" (emphasis

supplied).   Morales v. Morales, supra at 511, quoting from G. L.

c. 208, § 28.   "This presumption may be rebutted, and a judge

. . . may deviate from the amount of support dictated by [the

guidelines], provided the judge makes written findings

specifying that 'the guidelines amount' would be unjust or

inappropriate, that departure from the guidelines is justified

by the facts of the case, and that departure is consistent with

the child's best interests."   Id. at 510 n.6.

    Here, because the father had no income while he was

incarcerated, the presumptive amount that followed from the

application of the guidelines was the minimum order of eighty

dollars per month.   As the judge acknowledged, this was

inconsistent with the existing child support order of seventy-

two dollars per week and, therefore, "[i]n most cases this would

result in a reduction of support."   The judge nevertheless

denied the father's modification request, concluding that (a) it
                                                                        6


was appropriate to attribute income to the father as his loss of

employment was a "foreseeable" consequence of his crime against

the child, and (b) regardless of the father's income, the

circumstances of the case justified an upward deviation from the

presumptive amount.    The father argues that neither of these

rationales is valid in the circumstances and, therefore, the

judge's refusal to modify his child support obligation was an

abuse of discretion.     For the following reasons, we conclude

that the father's position has merit.

     a.   Attribution of income.    "What is significant for

purposes of the guidelines is the amount of the [payor's]

present gross income."     Department of Rev. v. Foss, 45 Mass.

App. Ct. 452, 459 (1998).     However, in certain circumstances,

"[t]he earning capacity rather than the actual income of [the

payor] may be considered."     Flaherty v. Flaherty, 40 Mass. App.

Ct. 289, 291 (1996).     "Income may be attributed where a finding

has been made that [the payor] is capable of working and is

unemployed or underemployed," guidelines, I(E),6 or where the

payor owns "substantial assets."     Wasson v. Wasson, 81 Mass.

App. Ct. at 581, quoting from Flaherty v. Flaherty, supra.        See


     6
       In making such a finding, "[t]he Court shall consider all
relevant factors including without limitation the education,
training, health, past employment history of the party, and the
availability of employment at the attributed income level. The
Court shall also consider the age, number, needs and care of the
children covered by this order." Guidelines, I(E).
                                                                     7


Schuler v. Schuler, 382 Mass. 366, 374-375 (1981) (ownership of

valuable assets may be considered when determining payor's

ability to pay child support).

     The criteria for attribution of income were not met in this

case.    It was undisputed that the father had no income or assets

from which to pay child support, and the judge acknowledged that

the father "[c]learly . . . cannot obtain employment while

incarcerated."   Nevertheless, the judge "attribut[ed] an income

to [the] [f]ather [equal] to that of his previous job,"7 on the

basis that the father "acted voluntarily when he sexually abused

his daughter," and the "loss of his employment" was a

"foreseeable" consequence of his crime.    In doing so, the judge

cited to cases from other jurisdictions for the proposition that

it is appropriate to "attribute[] income to parents who have

committed sex offenses and are facing a significant reduction in

income as a result of their criminal conduct."    These cases are

inapposite, however, as they do not involve attributing income

to a presently incarcerated payor.8   Furthermore, in


     7
       When the original child support order entered, the father
was earning $450 per week as a truck driver.
     8
       See Nunley v. State Dept. of Rev., Child Support
Enforcement Div., 99 P.3d 7, 13 (Alaska 2004) (attributing
income to nonincarcerated payor where "substantial" evidence
demonstrated that he was capable of obtaining full-time
employment notwithstanding his status as a registered sex
offender); Metz v. Metz, 212 N.C. App. 494, 501 (2011)
(attributing income to nonincarcerated payor where his
                                                                    8


Massachusetts, the relevant inquiry for attribution of income is

not whether the payor's unemployment was "foreseeable"; it is

whether the payor is presently able to obtain employment through

"reasonable efforts."   See guidelines, I(E) ("If the Court makes

a determination that either party is earning less than he or she

could through reasonable effort, the Court should consider

potential earning capacity rather than actual earnings in making

its order").   See also Flaherty v. Flaherty, supra (attribution

of income not appropriate where husband was laid off

involuntarily).   Compare Croak v. Bergeron, 67 Mass. App. Ct.

750, 752 (2006) (appropriate to deny father's request for a

reduction in child support where he "carefully orchestrated his

periods of unemployment to coincide with court appearances").

As the judge recognized, a payor serving a criminal sentence

cannot obtain gainful employment through "reasonable efforts"

while he is incarcerated.9   Accordingly, it was not a proper

exercise of the judge's discretion to attribute income to the

incarcerated father based on his prior earning capacity.



"difficulty finding employment" following his release from
prison was a "clearly foreseeable" result of sexual assaulting
his child; and where the evidence demonstrated that the payor
had "$355,000.00 under his control, over $40,000.00 of which was
in cash").
     9
       The judge stated that the father "[c]learly . . . cannot
obtain employment while incarcerated," and that the father is
"unable to use reasonable efforts to obtain employment due to
his incarceration."
                                                                     9


     b.   Deviation from guidelines.    "Although a purpose of the

guidelines is to encourage joint parental responsibility for

child support in proportion to, or as a percentage of, income

. . . a judge is to consider the totality of the parties'

circumstances in determining their support obligations."     Croak

v. Bergeron, 67 Mass. App. Ct. at 754-755 (quotations omitted).

To that end, a judge may "deviate" from the guidelines upon

     "enter[ing] specific written findings stating: 1) the
     amount of the order that would result from application of
     the guidelines; 2) that the guidelines amount would be
     unjust or inappropriate under the circumstances; 3) the
     specific facts of the case which justify departure from the
     guidelines; and 4) that such departure is consistent with
     the best interests of the child."

Guidelines, IV.   See G. L. c. 208, § 28.

     While, as we discuss below, the judge also mentioned two

other considerations, it is apparent that his decision hinged on

the fact that the father was incarcerated for sexually abusing

the child for whom he owes support.10    However, this central

justification finds no support in the guidelines.     The

guidelines identify thirteen specific circumstances that a judge

may consider when determining whether deviation is appropriate.


     10
       This is underscored by a sentence in the judgment,
stating that "[t]he [c]ourt is willing to reconsider this
decision if [the] [f]ather is able to have his conviction
overturned and he is subsequently found to be [n]ot [g]uilty."
This was in keeping with what the judge had explained at the
hearing -- that if the conviction were overturned, the father
would "have the right to come back to court and at that point
seek retroactive relief."
                                                                10


See guidelines, IV.11   Although the list is not exhaustive, there

is nothing in the guidelines to suggest that the judge may

consider the nature of an incarcerated payor's crime as a factor

warranting upward deviation.   In fact, the guidelines

specifically allow for a downward deviation from the presumptive

amount when the "[p]ayor is incarcerated, is likely to remain so

for an additional 3 years and has insufficient financial

resources to pay support."   Guidelines, IV.12


     11
       "Circumstances which may support deviation, above or
below the [guidelines,] include, but are not limited to, the
following: 1) the parties agree and the Court approves their
agreement; 2) a child has special needs or aptitudes; 3) a child
has extraordinary medical or other expenses; 4) application of
the guidelines, particularly in low income cases, leaves a party
without the ability to self support; 5) Payor is incarcerated,
is likely to remain incarcerated for an additional 3 years and
has insufficient financial resources to pay support; 6)
application of the guidelines would result in a gross disparity
in the standard of living between the two households such that
one household is left with an unreasonably low percentage of the
combined available income; 7) a parent has extraordinary medical
expenses; 8) a parent has extraordinary travel or other expenses
related to parenting; 9) application of the guidelines may
adversely impact re-unification of a parent and child where the
child has been temporarily removed from the household based upon
allegations of neglect; 10) absent deviation, application of the
guidelines would lead to an order that is unjust, inappropriate
or not in the best interests of the child, considering the
Principles of these guidelines; 11) a parent has extraordinary
health insurance expenses; 12) one parent is absorbing a child
care cost that is disproportionate in relation to their income;
13) one parent provides less than one-third of the parenting
time for a child or children." Guidelines, IV.
     12
       We infer that the likely intent of this provision is to
prevent incarcerated parents from accumulating arrears that will
impede their reentry into society and make it more difficult to
support themselves and provide for their children in the future.
                                                                 11


    The judge's decision to make an upward departure from the

guidelines therefore "was based at least partially upon [an]

impermissible factor[]."   Leonardo v. Leonardo, 40 Mass. App.

Ct. 572, 576 (1996) (factor is impermissible if neither

expressly nor impliedly permitted in the guidelines).      See

Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999) ("[W]e

cannot read into a statute a provision which simply is not

there").   In addition, we find it problematic to draw a

distinction based on the nature of the parent's crime, since

virtually any crime leading to incarceration could be considered

injurious to the child, to the extent that it disrupts the

family unit and disadvantages the child both emotionally and

economically.   In essence, the judge made a policy determination

that is not reflected in the guidelines and is appropriately

left to those responsible for their promulgation.

    Nevertheless, DOR argues that the judge, who is vested with

general equity jurisdiction under G. L. c. 215, § 6, was

permitted to consider the nature of the father's crime as an

equitable factor weighing against a reduction in child support.

Specifically, DOR contends that the judge properly denied the

father's request for modification, as a person "who comes into

equity must come with clean hands," and "it can be said, as

matter of law," that a person "convicted of a crime related to

the controversy in issue . . . has unclean hands."   Fidelity
                                                                   12


Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200

(1996) (quotation omitted).

     In this case, however, the father did not "come into

equity," ibid.; rather, the relief that he sought in his

complaint for modification was statutory in nature, see

Department of Rev. v. Mason M., 439 Mass. 665, 674 (2003) ("A

judge's authority to modify a support order is statutory");

Vaida v. Vaida, 86 Mass. App. Ct. 601, 606 (2014) ("The

statutory system governing child support in Massachusetts is a

complete system, and there is no nonstatutory right to relief

under the common law").     While a judge may, "in certain

circumstances, . . . award child support under [the court's]

broad equity powers," Santagate v. Tower, 64 Mass. App. Ct. 324,

328 (2005), the judge here appeared to be using child support as

a means to provide compensation for injuries (both psychological

and financial) caused by the father's abuse.13     This was not

appropriate.    It is well-settled that "[a]n equitable remedy

. . . is not available to a party with an adequate remedy at

law."     Id. at 329.   Here, the child and the mother have remedies

at law:     they may seek damages in tort for injuries caused to

     13
       The judge found that the father should not be allowed to
"benefit" from his "heinous actions," and to the extent that the
"child will need therapy and other services . . . to cope" with
the father's abuse, "[f]orcing [the] [m]other to bear th[at]
financial burden alone, a burden caused solely by [the]
[f]ather's actions, runs afoul of the purpose of this court of
equity."
                                                                     13


them by the father's sexual abuse of the child.14    Accordingly,

DOR's argument is unpersuasive.

     We also are unconvinced by two additional reasons cited by

the judge in support of his decision to deviate from the

guidelines:    disparity in parenting time, and special needs and

expenses.     As to the first, the judge specifically found that

"[r]educing [the] [f]ather's child support obligation would be

unjust" because he "spends no parenting time with his daughter."

However, while the guidelines do permit upward deviation where

the payor provides "less than one-third of the parenting time

for a child," guidelines, IV,15 this provision reasonably must be

understood to apply only to nonincarcerated parents; otherwise,

it would operate as an exception that swallows the rule, as it

would automatically apply to all incarcerated parents -- even

those who are eligible for a downward deviation due to the

length of their incarceration.     See guidelines, IV.   Thus, the

fact that the incarcerated father provides less than one-third




     14
       In this regard, the child has the benefit of a special,
long statute of limitations. See G. L. c. 260, § 4C.
     15
       "These guidelines are based upon the child(ren) having a
primary residence with one parent and spending approximately
one-third of the time with the other parent. If parenting time
is less than one-third for the parent who is not the residential
parent, the Court may consider an upward adjustment to the
amount provided under the child support guidelines."
Guidelines, II(D).
                                                                   14


of the parenting time does not overcome the presumptive

application of the guidelines in this case.

    As to the second, the judge stated that the child will

likely require "therapy and other services," which the "[m]other

will have to provide . . . at a significant cost."   To be sure,

the guidelines do allow upward deviation where a "child has

special needs," or "extraordinary medical or other expenses."

Guidelines, IV.   However, as the judge acknowledged, "no

evidence was presented . . . on this issue."   In the absence of

evidence regarding the child's specific needs and the nature and

extent of any expenses that the mother stands to incur as a

result, it cannot be concluded that the amount of support

ordered by the judge is appropriate to meet the child's needs.

See Department of Rev. v. Foss, 45 Mass. App. Ct. at 459

(deviation not appropriate where "[t]he judge referred to the

needs of the child," but "made no determination of what the

child's needs were").   See also Martin v. Martin, 70 Mass. App.

Ct. 547, 551 (2007) (deviation improper where "record

disclose[d] no extraordinary expenses that would rebut the

presumption in the guidelines").

    In sum, "[b]ased on our examination of the record as a

whole, we conclude that the judge gave insufficient reasons for
                                                                   15


deviating from the guidelines" in this case.    Department of Rev.

v. Foss, supra at 456-457.16

     3.   Scope of remand.   Because the judge should not have

attributed income to the incarcerated father, and had

insufficient grounds, on this record, for upward deviation from

the guidelines, we vacate the judgment and remand the case for

reconsideration of the father's request for modification.    The

judge may take additional evidence.    Among the issues that will

need to be addressed on remand are the father's current

incarceration status and the extent to which any modification

should be retroactive, consistent with G. L. c. 119A, § 13(a).

The judge also should take into account any other support

obligations that the father may have, as required by the

guidelines and G. L. c. 208, § 28.17   See Richards v. Mason, 54


     16
       We do not consider the father's additional argument
concerning the propriety and scope of the impoundment order
entered on November 10, 2014. The argument is not properly
raised in this appeal, nor is the record adequate to address it.
In any event, we note that it is hardly uncommon for files to be
impounded in cases involving sexual abuse of minors. See, e.g.,
Commonwealth v. George W. Prescott Publishing Co., 463 Mass.
258, 265 n.10 (2012) ("[N]umerous statutes preclude disclosure
or publication of a sexual assault victim's name or other
identifying information, whether contained in police or court
records"). The father's apparent concerns were without
foundation. Impoundment did not prevent him from obtaining
access to the court record, nor did it impede this court's
ability to review the case.
     17
       "When a court makes an order for maintenance or support,
the court shall determine whether the obligor under such order
is responsible for the maintenance or support of any other
                                                                  16


Mass. App. Ct. at 574 (father's support payments for child of

another relationship should be deducted from his gross income

before applying guidelines).

    4.   Conclusion.   The judgment dated September 9, 2014,

denying the father's complaint for modification is vacated, and

the matter is remanded for further proceedings consistent with

this opinion.   The impoundment order dated November 10, 2014, is

affirmed.

                                    So ordered.




children of the obligor, even if a court order for such
maintenance or support does not exist . . . . If the court
determines that such responsibility does, in fact, exist and
that such obligor is fulfilling such responsibility such court
shall take into consideration such responsibility in setting the
amount to [be] paid under the current order for maintenance or
support." G. L. c. 208, § 28, as amended through St. 1993, c.
460, § 62. At the modification hearing, the father testified
that he had three other children from a prior relationship.
