Philip T. McNamara v. Sheena M. McNamara. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-759
PHILIP T. MCNAMARA
vs.
SHEENA M. MCNAMARA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Sheena McNamara (mother) appeals from a modification
judgment that resulted in a "slight increase" of the child
support obligation of Philip McNamara (father). The mother
argues that the judge (1) erred in calculating the father's
income by underestimating the amount of overtime income he would
earn, (2) abused her discretion by attributing income to the
mother, and (3) abused her discretion by failing to make the
modification judgment retroactive. We affirm in part and
reverse in part.
Discussion. "Our review of a child support modification
judgment is limited to whether the judge's factual findings were
clearly erroneous, whether there were other errors of law, and
whether the judge appears to have based h[er] decision on the
exercise of sound discretion." Lizardo v. Ortega, 91 Mass. App.
Ct. 687, 691–692 (2017). We "give due regard to the judge's
assessment and determination of credibility of the witnesses and
the weight of the evidence." E.K. v. S.C., 97 Mass. App. Ct.
403, 409 (2020). See Mass. R. Dom. Rel. P. 52 (a).
"Public policy dictates that children be supported by the
financial resources of their parents insofar as is possible."
Murray v. Super, 87 Mass. App. Ct. 146, 154 (2015), quoting M.C.
v. T.K., 463 Mass. 226, 231 (2012). The appropriate amount of
child support to be ordered is presumptively that set forth in
the Massachusetts Child Support Guidelines (guidelines). See
G. L. c. 208, § 28. The statute dictates 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." Morales v. Morales, 464 Mass.
507, 511 (2013).
1. Calculation of the father's income. The mother
challenges the judge's finding that the father "makes an average
of $2,069.80 a week as reflected in his year-to-date income for
2022 which does include overtime." The judgment did not
articulate the basis for the calculation of the father's income,
and we are unable to reproduce the calculation or discern the
judge's rationale.
2
The father, employed as a line repairman for the
Massachusetts Bay Transportation Authority, routinely earned
premium overtime, double overtime, and compensation for overtime
meals before the divorce. He earned gross income of $2,285.73
per week at the time of the divorce; however, he also reported
that he was scheduled to switch to the day shift in January
2020. Because the day shift was eligible for only straight
overtime, he expected his total weekly income to decrease
substantially. At the modification trial, the mother's counsel
argued that the father had changed his schedule back to nights
and continued receiving premium or double overtime after the
divorce proceedings ended. 1
The guidelines define income broadly as "gross income from
whatever source." Child Support Guidelines § I(A) (Aug. 2021).
The judge may disregard some or all of a parent's overtime
income only after giving "due consideration . . . to the history
of the income, the expectation that the income will continue to
be available, the economic needs of the parties and the children
. . . and whether the overtime work is a requirement of the
job." Child Support Guidelines § I(B)(1).
The father's amended financial statement for the
modification trial listed his gross weekly income as $2,325.18.
1 The mother has not alleged that the father deliberately reduced
his income in bad faith.
3
According to the statement, his base pay, including both regular
pay and ten hours of straight overtime, was $2,118.80, and he
received $166.85 in premium overtime. His income on the
statement also included a small weekly gift of $39.53 from his
sister. The income reported on the financial statement is
consistent with, albeit slightly lower than, the paychecks in
evidence. If one divides the father's total year-to-date pay
based on the first four full pay periods of 2022 (eight weeks)
or the five paychecks the father had received as of March 4,
2022 (ten weeks), his average income also appears to be roughly
$2,300 per week. 2
How the judge arrived at the figure of $2,069.80 per week
is a mystery, and does not appear to be supported by any view of
the record, especially in light of the judge's statement that
the figure includes overtime. Accordingly, we must remand the
case for the judge to recalculate the father's income and to
issue detailed findings of fact explaining how the calculation
comports with the guidelines.
2. Attribution of income to the mother. The judge found
that the mother "could earn a minimum of at least minimum wage
2 The father's 2021 Form W-2 suggests gross income of $2,669.49
per week, and based on a pay statement dated March 4, 2022, the
mother calculated the father's gross income as $2,571.79 per
week.
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weekly or $570.00 per week." The mother contends that the
judge's decision to attribute income was an abuse of discretion.
We review a judge's decision to attribute income for abuse
of discretion. See Davae v. Davae, 100 Mass. App. Ct. 54, 57
(2021). However, we review the underlying factual
determinations for clear error, see id. at 58, and in this
regard, the modification judge's "credibility finding is
decisive. In a bench trial credibility is quintessentially the
domain of the trial judge[,]" and the judge's "assessment is
close to immune from reversal on appeal except on the most
compelling of showings" (quotation and citation omitted).
Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 495-496 (2012).
The modification judge's decision to attribute income to
the mother was based on a constellation of factors. The judge
specifically discredited the mother's financial statement.
The record supports the judge's finding that the mother earned
income, not reflected in the financial statement, from
photography, selling items on line, and class action suits.
The mother could not verify payment of the $125 weekly rental
expense to her parents reported on her statement. Moreover, the
judge found that the mother made a number of large, unaccounted
for expenditures on items such as vacations and the purchase of
a jet ski.
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As to the mother's ability to earn income, the judge
specifically found that the mother "was not credible when she
testified that she is unable to work due to her disability of
edema, her hip replacement, and hip problems." The judge, who
had also entered the original divorce judgment, had ample
opportunity to evaluate the mother's testimony and demeanor.
Giving "due regard to the judge's assessment and determination
of credibility," Murray, 87 Mass. App. Ct. at 148, we discern no
error in the judge's determination that the mother had the
ability to earn $570 per week. The judge's decision to
attribute income to the mother was within the range of
reasonable alternatives.
3. Retroactivity of modified child support obligation.
The mother argues that the judge abused her discretion by
failing either to apply the modified child support order
retroactively to the date of the divorce judgment or to make
specific findings on why retroactivity was inappropriate.
Whether to order retroactive application of a modified
child support order is the judge's discretionary decision. See
Cavanagh v. Cavanagh, 490 Mass. 398, 425 (2022). To deny
retroactivity and fail to explain that conclusion, however, is
an abuse of discretion. See Boulter-Hedley v. Boulter, 429
Mass. 808, 811-812 (1999). This is particularly true here,
where the modified judgment corrected the prior, erroneous
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treatment of the mother's Supplemental Security Income benefits
as income. "[T]he failure of the findings to support the
judge's orders will constitute an abuse of discretion and
require reversal" (quotation omitted). Prenaveau, 81 Mass. App.
Ct. at 486.
We agree that specific findings were necessary, and that
the absence of findings requires reversal. However, child
support may not be modified except during the period when a
complaint for modification is pending. See G. L. c. 119A,
§ 13 (a) ("a judicial . . . action to enforce [a child support]
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, . . . where the obligee is the
plaintiff, to the obligor"). The mother's request for
retroactive relief, therefore, can date back only to July 20,
2021 -- the date she served her modification complaint on the
father.
Conclusion. The modification judgment (on the complaint
for modification filed July 1, 2021), entered April 11, 2022, is
vacated as it relates to the amount of the father's income and
the denial of retroactive application of the father's increased
child support obligation. In all other respects, the
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modification judgment is affirmed. The case is remanded for
further proceedings consistent with this decision.
So ordered.
By the Court (Massing,
Henry & Grant, JJ. 3),
Clerk
Entered: December 4, 2023.
3 The panelists are listed in order of seniority.
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