Goodwin v. Goodwin

WARREN GOODWIN v. SHARON L. GOODWIN.

14-P-1568

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

November 17, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The father appeals from a judgment of the Probate and Family Court dismissing with prejudice his complaint for modification in which he sought an increase in child support. He argues that the judge failed to adhere to G. L. c. 208, § 28, and the Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013), applied the incorrect standard for modification, and ignored the best interests of the children. We agree with the father that in the circumstances of this case the judgment of dismissal must be vacated and the matter remanded to the Probate and Family Court for further proceedings.

1. Background. The parties were divorced by a judgment of divorce nisi in October, 2004 (2004 judgment). The 2004 judgment incorporated an agreement of the parties that is not reproduced in the appendix. In 2013, the father filed a complaint for modification, later amended, which resulted in an agreement for judgment between the parties. An amended modification judgment was issued on September 24, 2013 (2013 judgment), and provides that the parties' agreement "is incorporated in and made a part of this Judgment and the parties shall comply with the terms thereof. Except as modified herein prior Judgment of the Court is reaffirmed."

Among other things, the parties agreed that the father was to have primary physical custody of the parties' two minor children and that the mother would pay the father as child support the sum of one hundred dollars per month (approximately twenty-three dollars per week). The agreement states that "[t]his shall be the mother's sole responsibility and financial contribution for child support or extracurriculars for said minor children."

Approximately seven months after the entry of the 2013 judgment, in April of 2014, the father filed a new complaint for modification alleging that "there is now a difference between the amount of the existing child support order [as set out in the 2013 judgment] and the amount that would result from application of the Child Support Guidelines" (guidelines), and stating, in addition, that there had been a change in circumstances, to wit: the father "is financially unable to bear the full cost of the children's extracurricular costs such as driving school, licensing costs and insurance without contribution from" the mother. The father requested that the 2004 judgment and the 2013 judgment be modified by ordering the mother to pay child support consistent with the guidelines.

The mother filed an answer, asserting the affirmative defense that the complaint failed to state a claim upon which relief could be granted. She moved to dismiss the father's complaint for modification stating that at the time of the 2013 judgment the guidelines indicated a child support figure of $175 per week, which the parties negotiated downwards. The mother further asserted there was no material change of circumstances warranting the requested relief.

In opposition, the father stated that he had set forth factual allegations suggesting an entitlement to relief and precluding the allowance of a motion pursuant to Mass.R.Dom.Rel.P. 12(b)(6). More specifically, quoting from Morales, 464 Mass. at 511, he asserted, "[W]hen a complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines." He also asserted that the mother was relying on an incorrect legal standard.

After the hearing on the motion to dismiss, the judge (who was not the judge in the 2013 proceedings) dismissed the complaint with prejudice.¹ The judge did not make written findings and neither party requested that she do so.²

2. Discussion. On appeal, the father restates his position that the judge erred in dismissing his complaint for modification because modification of child support is presumptively required whenever there is an inconsistency between the existing support order and the guidelines. He asserts that the judge was required to modify the existing support order to reflect the presumptively correct guidelines amount or to issue a detailed written analysis as to why deviation from that amount is appropriate. The father asserts that because the judge failed to adhere to appropriate statutory and case law, and applied the incorrect standard (i.e., material change in circumstances), the judgment dismissing his complaint must be vacated.

The mother, in response, invokes the language of Morales, supra at 512 n.9, that "use of the inconsistency standard to review child support modification requests does not mean that a complaint for modification may be used as a substitute for or an alternative to the normal appellate process; appeal remains the proper method to challenge the validity of a child support order as initially determined." In the mother's view, the father "cannot now come before this court and argue that, without any other change in circumstances, that the child support being below . . . [the guidelines] is inconsistent, warranting a complaint for modification as it was inconsistent with . . . [the guidelines] at the time it was set." To hold otherwise, the mother argues, would allow the father to change his mind as to what he agreed.

On review of the dismissal of the father's complaint for modification pursuant to Mass.R.Dom.Rel.P. 12(b)(6),³ we accept the father's allegations as true,⁴ and focus "on whether the factual allegations plausibly suggest an entitlement to relief." Laurano v. Superintendent of Schs. of Saugus, 459 Mass. 1008, 1008 (2011), quoting from Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). See Ortiz v. Examworks, Inc., 470 Mass. 784, 792-793 (2015); Midland States Life Ins. Co. v. Cardillo, 59 Mass. App. Ct. 531, 536 (2003). "[W]hile the allegations of the complaint generally control in evaluating a motion under rule 12(b)(6), 'matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.'"⁵ Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008), quoting from Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).

"The method for calculating and modifying child support orders is governed by statute and by the guidelines." Morales, 464 Mass. at 509-510. As noted in Morales, G. L. c. 119A sets forth the Commonwealth's general policy governing child support enforcement. Id. at 510.

Section 13(c), as amended by St. 2011, c. 93, § 22, of c. 119A provides:

"In any proceeding to establish or modify an amount of child support, the child support guidelines promulgated by the chief justice of the trial court shall apply. There shall be 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."

This same presumption is incorporated in G. L. c. 208, § 28, which has application to child support orders for children of divorced parents. Morales, 464 Mass. at 510. Modification of child support orders also is governed by § 28. The guidelines, effective August 1, 2013, give effect to these provisions.

In Morales, supra at 508, the trial judge, in ruling on the mother's complaint for modification of a child support order, applied a standard requiring a material and substantial change in circumstances, rather than the inconsistency standard set out in § 28. The court stated that "when a complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines." Id. at 511. "Nothing here or elsewhere in § 28 establishes a separate and additional requirement that the discrepancy or inconsistency between the existing order and the guidelines amount of child support result from a material and substantial change in circumstances." Id. at 511-512.⁶ See Murray v. Super, 87 Mass. App. Ct. 146, 154 n.14 (2015).

In the circumstances presented by this case, and mindful of the best interests of the children, a theme that runs throughout G. L. c. 208, § 28, and the guidelines, we conclude that the judge erred in dismissing the father's complaint for modification at this early stage of the proceedings.

Notwithstanding the deviation from the guidelines amount in the agreement the parties submitted to the court for approval, there is no indication before us that the judge in 2013 made any of the specific written findings set out in § 28 and the guidelines, or that the parties requested the same. Notwithstanding the deviation from the guidelines amount in 2013, there is no finding that the presumptive application of the guidelines was rebutted, despite the parties agreement to a support order less than the guidelines. Nonetheless, neither party appealed from the 2013 judgment and the propriety of it is not before us.

We are not persuaded by the mother's argument, that the father's failure to appeal from...