NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

16-P-1397                                             Appeals Court

            SAKTI CALABRIA    vs.   PETER J. CALABRIA, JR.


                             No. 16-P-1397.

            Bristol.     May 31, 2017. - July 13, 2017.

            Present:   Green, Wolohojian, & Ditkoff, JJ.


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



     Complaint for divorce filed in the Bristol Division of the
Probate and Family Court Department on March 13, 2009.

     A complaint for modification, filed on July 16, 2014, was
heard by Anthony R. Nesi, J.


    Charles M. Landry for the father.


    GREEN, J.   The defendant father appeals from those portions

of a judgment of the Probate and Family Court that increased his

child support payments retroactive to the date his income

increased, which was before the plaintiff mother filed her
                                                                   2


complaint for modification.1   We conclude that, in the

circumstances of this case, in which the parties expressly

provided for retroactive adjustment of child support in their

separation agreement, and where the adjustment fosters the best

interest of the couple's minor child and does not derogate from

the purposes of G. L. c. 119A, § 13, such a retroactive award

was within the judge's equitable authority.   We accordingly

affirm the judgment.

     Background.   In the separation agreement between the

parties, dated April 28, 2010, and merged as to alimony and

child support into the judgment of divorce nisi entered the same

day, the parties included the following provision regarding

child support:

     "The parties agree that upon any change in his or her
     employment or income he or she shall immediately notify
     mother/father of the change, the child support will be
     reviewed.

     "The Wife is currently unemployed. The Husband's income
     has been cut in half. Both parties are obligated to notify
     the other upon any change of employment or salary status.
     Parties agree to immediately seek to modify the child
     support obligation and said modification to be retroactive
     to the change of employment or salary date. Parties shall
     also exchange by March 15th of each year, any and all W-
     2's; 1099's or other documents evidencing income earned or
     received." (Emphasis supplied.)



     1
       The father has not appealed from those portions of the
judgment increasing his child support obligations from and after
the filing of the complaint for modification, or continuing the
suspension of his visitation pursuant to an earlier order.
                                                                   3


     At the time of the divorce, and pursuant to the separation

agreement, the father was obliged to pay child support in the

amount of $416 per semimonthly pay period.

     On February 28, 2013, the mother filed a complaint for

contempt, based on (among other things) the father's failure to

provide the required financial information.   Ultimately, both

parties exchanged the required information during the pendency

of the contempt action, and no judgment of contempt entered

against either party.

     On July 16, 2014, the mother filed a complaint for

modification, seeking modification of child support based on the

father's increased income reflected in the financial information

exchanged during the contempt action.   During 2011, the father

had earned $1,021 per week.   Beginning in 2012 and thereafter,

the father had consistently earned $1,250 per week.   Applying

the Child Support Guidelines then in effect to the father's

income during 2011, 2012, and 2013,2 and then comparing the

resulting support obligation to the amounts actually paid by the

father during those years, the judge computed a deficit of

$9,264 for the prior years.   In addition, the judge found that

the father was responsible for an additional arrearage of $660

as of March 1, 2015, for a total arrearage of $9,924.     The

     2
       New Child Support Guidelines became effective on August 1,
2013, and the judge applied the new guidelines to the
calculation of support for the period following that date.
                                                                    4


judgment ordered the father to pay that arrearage in biweekly

installments of $100 in addition to his new biweekly child

support payments of $476, until the arrearage is paid in full.

    Discussion.     The father challenges the imposition of an

obligation to pay increased child support for the period

preceding the date on which the mother filed her complaint for

modification.   His principal contention is that the judge was

without authority to make any increase retroactive to a date

earlier than the date of the complaint for modification, by

reason of G. L. c. 119A, § 13(a), which provides, in pertinent

part, as follows:

    "Any payment or installment of support under any child
    support order issued by any court of this commonwealth
    . . . shall be on or after the date it is due, a judgment
    by operation of law, . . . provided that said 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 . . . ."

Ibid., as amended by St. 1998, c. 64, § 161.

    "In enacting § 13(a), 'the Legislature limited the power of

a judge to reduce retroactively any arrearages in child support

except for any period during which there is a pending complaint

for modification.' . . .    'The object of § 13(a) was to give

support orders the finality of other judgments, to assist the

[Department of Revenue] in its enforcement efforts.'"    Rosen v.

Rosen, 90 Mass. App. Ct. 677, 683 (2016), quoting from T.M. v.
                                                                   5


L.H., 50 Mass. App. Ct. 856, 859 (2001).    See Quinn v. Quinn, 49

Mass. App. Ct. 144, 147-148 (2000).3   To that end, an agreement

by a recipient parent to accept reduced child support payments

will not be given effect.   See id. at 146-147.

     Here, we are presented with a modification judgment that

gives effect to a predivorce agreement of the parties concerning

retroactive adjustment of child support and that results in an

increase rather than a decrease in child support during the

period preceding the complaint for modification.   In such

circumstances, the objective of § 13(a) to furnish finality and

clarity to orders for child support in order to facilitate

prosecution of an enforcement action based on the support order

is not impaired by the possibility that the support obligor

might assert claimed defenses to payment.   Contrast Quinn v.

Quinn, supra at 147.   Moreover, in light of the fact that the

delay in the mother's filing of her complaint for modification


     3
       In Rosen v. Rosen, we recognized that special
circumstances of an equitable nature could "justify the grant of
a credit to a support obligor for payments or expenditures made
that were not in strict compliance with the support order or
judgment." 90 Mass. App. Ct. at 684, quoting from T.M. v. L.H.,
50 Mass. App. Ct. at 861. In certain narrowly described
circumstances, a support obligor may receive a credit against
support arrearages for other payments made, provided (among
other things) that the alternative support arrangement was not
contrary to the child's best interests and that the credit would
not result in injustice or undue hardship to the support
recipient. Id. at 688-689. Rosen included a number of other
circumstances applicable to the allowance of an equitable credit
against a child support arrearage, which we do not repeat here.
                                                                   6


was attributable to her lack of awareness of the increase in the

father's income, which in turn resulted from the father's

failure to provide the financial information required by the

parties' agreement, it is not inequitable to give force to the

parties' intent, as expressed in the agreement.4    Cf. Hamilton v.

Pappalardo, 42 Mass. App. Ct. 471, 476 (1997).     Finally, we

observe that giving effect to the parties' agreement where it

operates to increase support payments in the manner agreed by

the parties, and where it is in the best interest of the child

(as the judge here found), "is consistent with the articulated

public policy of the Commonwealth that 'dependent children shall

be maintained, as completely as possible, from the resources of

their parents.'"   Rosen v. Rosen, supra at 689, quoting from

Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 415 (2007).     See

Boulter-Hedley v. Boulter, 429 Mass. 808, 813 (1999) ("Two

central policies furthered by the Massachusetts child support

scheme are [1] caring for the best interests of children, and

[2] ensuring that the taxpayers are secondary to the parents in

meeting the financial needs of children").


     4
       We reject the father's contention that the judge should
have treated the mother's claim for modification pursuant to the
agreement as waived, by reason of her delay in filing her
complaint. Again, we see no error of law or abuse of discretion
in the judge's implicit conclusion that the mother cannot be
faulted for her failure to assert a claim of which she was
unaware because of the father's failure to furnish the required
financial disclosure.
                     7


Judgment affirmed.
