Kedisha A. Pinnock v. Horace Pinnock. ( 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-1174
KEDISHA A. PINNOCK
vs.
HORACE PINNOCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this divorce action, the parties entered into a partial
separation agreement that resolved all issues "other than the
determination of [the husband's] child support obligation and
the calculation of [the husband's] child support arrears." The
parties also "agree[d] that child support shall be calculated
pursuant to the child support guidelines," and there was little
dispute regarding the information to be used in applying those
guidelines. After a brief trial held on representations of
counsel, a Probate and Family Court judge set child support at
$150 per week, and she incorporated that order into a judgment
of divorce nisi. 1 The wife appeals, contending that the judge
erred in calculating the amount of child support the husband
1 The husband was also required to pay an additional $47 per week
until an arrearage of $14,310 in child support was paid off.
should pay. We remand this matter to the judge for
reconsideration and explication of her ruling.
Background. In calculating child support pursuant to the
child support guidelines, the judge was required to determine
the husband's gross income. See Child Support Guidelines § I.
The husband earns his income as a driver working for various
ride share and delivery services such as Uber and DoorDash.
Because the husband was self-employed, to establish his gross
income, he is allowed to deduct from his gross receipts those
expenses that are "ordinary and necessary" to the production of
his income. See Child Support Guidelines § I.C.
The parties stipulated that the husband's average weekly
gross receipts for the period from January 1, 2022, to July 17,
2022, were $1,009.91. The parties also agreed that the husband
could deduct from that figure at least some of his automobile
and cell phone expenses given that he used his car and cell
phone to earn income. His total weekly car and cell phone
expenses were $352.34 per week. Because it appears uncontested
that the husband used his car and cell phone for both business
and personal use, this raised the question of how the expenses
for those items should be apportioned between those uses. In
their stipulation, the parties expressly left to the judge for
resolution at trial "the applications of any reductions against
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[the husband's] gross receipts based on the payments [for car
and cell phone expenses enumerated in the stipulation]."
At the hearing, the wife's counsel pointed out that the
husband owned only one car, and that the separation agreement
itself indicated that the husband would need to make some
personal use of that car. 2 Counsel also represented that the
husband owned a cell phone prior to becoming an Uber driver and
that the phone was not just used for business. Ultimately,
wife's counsel took the position that the husband should be
allowed to deduct only half of such expenses in calculating his
gross income. It does not appear from the record that the
wife's proposed split of those expenses was based on any actual
calculation of the relative percentages of the husband's
business and personal use of the phone or car.
Through his counsel, the husband did not contest the wife's
claim that he made some personal use of his car and cell phone.
Nevertheless, the husband did not directly engage the question
of whether/how such expenses should be apportioned. The primary
focus of the husband's arguments related to his overall
financial status and attendant ability to pay. 3 Describing the
2 For example, wife's counsel made uncontested representations
that the husband "drives his car to pick up and drop off the
children, for parenting time, to school, [and] to bring the
children and himself to trips to visit his family in New York."
3 The husband also asserted that he incurred some additional
expenses that should count as related to his business, such as
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husband as financially "under water" and "drowning," counsel
suggested that unless the judge implemented a "deviation
downward" from the presumptive figure generated by the child
support guidelines, the husband would "have to go on public
assistance."
The judge found the husband's income to be $658 per week.
She did not explain how she arrived at that figure but, as the
wife points out, that is the precise figure that results from
allowing the husband to deduct 100 percent of his documented car
and cell phone expenses from his gross receipts. Thus, the wife
takes the position that the judge implicitly ruled that the
husband was entitled to deduct all of his car and cell phone
expenses even though he made some personal use of them.
Inputting the $658 figure into the child support guidelines
would generate a presumptive child support award of $197 per
week. As the judge noted, that figure would amount to 30
percent of the husband's income. The judge did not set child
support at the presumptive amount of $197, but instead made a
downward deviation based on her concern about the husband's
ability to pay. The judge's only explanation was her statement
"that the Husband is able to pay 23% of his gross income of $658
the food he purchased while on the road. We agree with the wife
that the husband's seeking to raise those additional expenses is
not consistent with how the parties jointly framed the remaining
issues in the stipulation.
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per week toward the support of the parties' two minor children
after consideration of his reasonable expenses and the needs of
his children." On this basis, she ordered the husband to pay
child support of $150 per week (23% of $658). Until he paid off
his current arrearage, however, the husband would be required to
pay the full $197 per week.
Discussion. The wife makes two different arguments.
First, she argues that the judge erred in calculating the
husband's gross income by giving him 100 percent credit for his
car and cell phone expenses as "ordinary and necessary" business
expenses, even though it was uncontested that he made some
personal use of them. Second, she argues that the judge erred
in making a downward deviation from the presumptive figure
generated by the guidelines. We begin by addressing the second
argument first.
The child support guidelines allow a judge to deviate from
the presumptive figures based on a list of particular
considerations. 4 See Child Support Guidelines § IV.A, B. To
4 The wife argues that the husband in fact waived any request for
a downward deviation by agreeing in the stipulation that child
support would be "calculated pursuant to the child support
guidelines." Under her interpretation, the term "guidelines"
used in the stipulation refers to the formulae through which
presumptive child support is to be determined. Although this
argument is not without some force, it founders on the fact that
the term "guidelines" is commonly used in two different senses:
that is, to refer to both the specific formulae used to
determine presumptive child support, and the overall policy
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effect a deviation, however, the judge must "make specific
written findings" that using the presumptive "amount would be
unjust or inappropriate under the circumstances; the specific
facts of the case which justify departure from the guidelines
and that such departure is consistent with the best interests of
the child." G. L. c. 119A, § 13 (c). See Wasson v. Wasson, 81
Mass. App. Ct. 574, 577 (2012).
As relevant here, a judge may deviate from the presumptive
amount of child support "where application of the
guidelines . . . leaves a parent without the ability to self
support." Child Support Guidelines § IV.B.10. The judge did
not support her decision to deviate with an adequate explanation
of how payment of the presumptive amount would preclude the
husband from supporting himself. To be sure, the judge did note
the husband's ability to pay by stating her view that he "is
able to pay 23% of his gross income." However, that statement
is not a specific finding about the effect that paying the
presumptive amount would have on the husband's ability to self-
document comprising the child support guidelines as a whole
(which include both the specific formulae and the ability to
deviate from them). In light of this, we do not view the
husband's agreeing to the stipulation as an unambiguous waiver
of his ability to argue for a deviation. In addition, we note
that when the husband made his ability to pay arguments at the
hearing, the wife sought to counter such arguments on the
merits; she did not argue that the husband had waived them by
executing the stipulation.
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support, and it can be interpreted as an expression of a policy
view that no one should be required to pay more than 23 percent
of his or her income in child support. Accordingly, we conclude
that a remand is necessary.
While leaving the child support obligation set forth in the
judgment of divorce nisi in place for the time being, we remand
the issue of child support for the judge to reconsider whether a
deviation from the child support guidelines is justified and, if
so, for the judge to make appropriate findings. That leaves the
question whether the judge properly determined the husband's
gross income in the first place. Without resolving whether the
judge abused her discretion by giving the husband full credit
for all of his car and cell phone expenses, on remand the judge
should reconsider how to apportion such expenses for purposes of
determining the husband's gross income. We leave it to the
discretion of the judge whether to hear new evidence or to
resolve the matter on the existing record.
Conclusion. So much of paragraph 2 of the judgment of
divorce nisi as requires the husband to pay child support of
$150 per week is vacated, and the matter is remanded for further
proceedings consistent with this memorandum and order. The
judgment is affirmed in all other respects, including the
husband's obligation to pay $47 per week toward arrears. During
the pendency of the remand, the husband shall pay temporary
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child support of $150 per week, in addition to his weekly
arrearage payment, unless the judge orders otherwise.
So ordered.
By the Court (Vuono, Milkey &
Hand, JJ. 5),
Clerk
Entered: December 12, 2023.
5 The panelists are listed in order of seniority.
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