Olimpia Raquel Sapers v. David J. Sapers.

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-60
OLIMPIA RAQUEL SAPERS
vs.
DAVID J. SAPERS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a judgment of the Norfolk Probate
and Family Court modifying his child support obligation. On
appeal, the father maintains that the judge abused her
discretion in (1) determining the parties' incomes, (2)
incorrectly applying the Massachusetts Child Support Guidelines
("guidelines"), and (3) awarding attorney's fees to the mother.
The father also takes issue with the judge's decision to quash a
trial subpoena directed to the mother's current husband
("husband"). We affirm and remand to permit the motion judge to
consider the release of escrowed funds awarded to the mother.
Background. We summarize the relevant facts found by the
judge, supplementing them with undisputed evidence in the record
that supports those findings, and reserving other facts for
later discussion. See Pierce v. Pierce, 455 Mass. 286, 288
(2009). In 2015, the parties were divorced pursuant to a
judgment that incorporated their separation agreement
("agreement").1 Under the agreement, the parties shared custody
of their child and the father agreed to pay the mother $3,462 in
monthly child support (above the minimum presumptive guidelines
amount), subject to a yearly recalculation.2 At the time of the
divorce, the father earned a yearly income of $199,992 from his
successful candy business and the mother was unemployed with no
income.
Between 2016 and 2018, the father's candy business
deteriorated and, by 2018, closed. In December 2016, he
unilaterally decided to begin paying only $1,303 in monthly
child support.3 In September 2017, the mother filed a complaint
for modification. By a counterclaim, the father sought a
retroactive reduction of his child support obligations beginning
1 The provisions of the separation agreement pertaining to the
parties' child merged with the divorce judgment.
2 The agreement was written with the expectation that the mother
would become employed by August 15, 2015. Pursuant to the
agreement, the parties were to recalculate the child support
payments on or about August 15 each year, or if there was a
significant change in income for either party. To facilitate
this recalculation, the parties agreed to exchange tax returns
and pay stubs at the time of review.
3 The mother testified -- credibly, as found by the judge -- that
she did not agree to the reduction in child support. She filed
a complaint for contempt; however, the father was adjudicated
not guilty because the parties had failed to timely exchange tax
returns and recalculate child support as agreed. The father's
support obligation remained unchanged, but he continued to pay
only the reduced amount.
2
in December 2016.4 The parties then entered into a partial
modification agreement ("modification agreement") that, among
other things, required them to recalculate child support on
November 15 each year "based on the prior year's tax returns"
and "pursuant to the then current Massachusetts Child Support
Guidelines." The judge incorporated the modification agreement
into a partial modification judgment on the father's
counterclaim.
The sole issue remaining for trial was whether a
retroactive reduction in the father's child support obligations
was warranted for 2017 through 2020. After trial, the judge
determined that the father's income did not significantly
diminish in 2017 and 2018 and left his support obligations for
those years unchanged. The judge retroactively modified the
father's child support obligations for 2019 and 2020 to $624 and
$479 per week, respectively. The judge also awarded attorney's
fees to the mother.
a. Father's income. As of the last day of trial, the
father was unemployed and described himself as having "multiple
failed businesses." Throughout the proceedings, he failed to
comply with the mother's discovery requests and filed incomplete
financial statements indicating a sharp decline in his income.
4 The father argued that, based on the "auto-adjusting" language
in their agreement, a retroactive modification was required.
3
The mother filed multiple motions to compel and subpoenaed
documents directly from financial institutions, the responses to
which produced evidence of the father's financial circumstances.
The judge found that since the divorce, the father regularly (1)
received financial assistance in the form of gifts and forgiven
loans from his family;5 (2) misrepresented his income to
financial institutions and the court; (3) spent more than his
reported income but had little to no debt; and (4) played high-
stakes poker, resulting in large deposits and transfers. After
closely examining the evidence, the judge included in the
father's income his monetary gifts from family and forgiven
loans. The judge then imputed to the father a weekly income of
$5,400 for purposes of calculating his 2017 and 2018 child
support obligations, and imputed total weekly incomes of $4,800
and $3,092 for his 2019 and 2020 support obligations,
respectively.
b. Mother's income. The mother remarried in 2018 and was
unemployed at the time of trial. Pursuant to an antenuptial
agreement, the mother and her new husband (husband) maintained
separate assets and filed separate tax returns. Throughout the
proceedings, the mother disclosed her finances; her financial
statements reflected loans she received from her husband. Based
5 Based on the evidence, the financial assistance from the
father's family totaled around $478,200.
4
on the mother's trial testimony and financial statements, the
judge found that that although the husband paid the "vast
majority of their household's expenses," the mother reimbursed
him each month for her child-related expenses, and at the time
of trial, owed him $75,000 in living expenses and attorney's
fees. Based on evidence of the mother's employment history and
financial circumstances, the judge attributed to her a weekly
income of $600 for 2017 through 2020,6 excluding from that amount
the contributions received from her husband.
Discussion. 1. Standard of review. "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 his decision on the exercise of sound discretion."
Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692 (2017). "When
an agreement merges, and does not survive the judgment as an
independent contract, a party seeking modification [must]
demonstrate . . . a 'material change of circumstances' since the
earlier judgment." Huddleston v. Huddleston, 51 Mass. App. Ct.
563, 564 n.2 (2001), quoting Harris v. Harris, 23 Mass. App. Ct.
931, 932 (1986). "When the judgment to be modified incorporates
6 This attributed income amount was based on the mother's
capacity to earn $15 per hour working forty hours per week,
which the mother conceded, and the father did not challenge, at
trial.
5
an agreement of the parties, we have said that, notwithstanding
that the agreement does not survive the judgment as a binding
contract, we nevertheless will 'review the findings to determine
whether the judge gave appropriate consideration to the parties'
intentions as expressed in their written agreement, . . . and to
any changes in their circumstances since the last modification
judgment.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134
(2004), quoting Huddleston, supra at 568. "[A] judge's
discretionary decision constitutes an abuse of discretion where
we conclude the judge 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"
(citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.
27 (2014).
2. Income for purposes of child support. At the heart of
the father's appeal is his contention that it was error for the
judge to exclude from the mother's income financial household
contributions from her husband, while at the same time including
monetary gifts and forgiven loans from the father's family in
the father's income.7 "Section I-A of the guidelines explicitly
7 The father maintains that the judge erred by not assessing the
child's initial need for support before determining the parents'
income and applying the guidelines. This argument is not
supported by the authority cited, including M.C. v. T.K., 463
Mass. 226, 231 (2012), which holds that a parent has a duty to
support their child.
6
instructs on the definition of 'income,' and how that income
should be calculated when determining a child support order.
'[I]ncome is defined as gross income from whatever source
regardless of whether that income is recognized by the Internal
Revenue Code or reported to the Internal Revenue Service or
state Department of Revenue or other taxing authority'; some
twenty-seven sources of income are then listed," along with a
catchall provision allowing for any form of income "not
specifically itemized" in the guidelines. Hoegen v. Hoegen, 89
Mass. App. Ct. 6, 9 (2016), quoting Child Support Guidelines
§ I(A) (Aug. 2013).8 "The [child support] guidelines and our
case law leave the definition of income flexible, and the
judge's discretion in its determination broad." Casey v. Casey,
79 Mass. App. Ct. 623, 634 (2011), citing Whelan v. Whelan, 74
Mass. App. Ct. 616, 625 (2009).
a. Spousal contributions after remarriage. The judge did
not err in excluding from the mother's income her husband's
financial contributions to their household. "[T]he guidelines
do not reflect a direct prohibition on contributions from a
present spouse, nor do they include a direct command to include
them." Murray v. Super, 87 Mass. App. Ct. 146, 155 (2015).
8 This language is identical to that in the guidelines' 2018
definition of income, except that the 2018 guidelines list
twenty-nine potential sources of income. Child Support
Guidelines § I(A) (June 2018).
7
Rather, a judge is directed to consider several factors,
including "how those funds [received from a spouse] are
expended[,] . . . the lack of an obligation of the mother's
husband to support the children, the manner in which the
mother's and the children's lifestyles are altered by these
funds, the discretion that the mother's husband maintains in
payment of these funds, and the manner in which the mother would
support her household absent these funds." Id. See Fehrm-
Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 529 (2016)
(inclusion of household members' financial contributions in
parents' income must be justified by detailed findings). The
judge weighed these factors in context, including the fact that
(1) the mother and husband were married subject to an
antenuptial agreement that created "no joint assets" between
them, (2) the mother and husband had no joint bank accounts and
the husband paid "the vast majority of their household's
expenses," but was reimbursed monthly by the mother for expenses
related to the child, and (3) the mother testified -- credibly,
as found by the judge -- that she owed the husband $75,000 for
attorney's fees and living expenses. The judge's credibility
assessments are not lightly to be disturbed. See Johnston v.
Johnston, 38 Mass. App. Ct. 531, 536 (1995) (credibility is
"quintessentially the domain of the trial judge, in which the
judge's assessment is close to immune from reversal on appeal
8
except on the most compelling of showings"). We see no abuse of
discretion in the judge's treatment of the contributions from
the mother's husband. See Murray, supra, at 148, 155; Johnston,
supra.
b. Imputation of income to the father. "Public policy
dictates that children be supported by the financial resources
of their parents insofar as is possible," M.C. v. T.K., 463
Mass. 226, 231 (2012), and "child support should be calculated
as a percentage of parental income, up to a maximum income
amount." Id. at 232. "The imputation of income is appropriate
where a party has made vague, misleading, or untruthful entries
on a financial statement," M.C., supra, at 240, and when "the
[c]ourt finds that a parent has . . . undocumented or unreported
income, [it] may reasonably impute income to the parent based on
all the evidence submitted." Child Support Guidelines § I(D)(1)
(June 2018).
We will not disturb the judge's findings about the
imputation of income, which were properly based on evidence that
the father obstructed the discovery process, underreported
income, and misrepresented his financial resources to the court
and financial institutions.9 See Johnston, 38 Mass. App. Ct. at
9 "In circumstances where the [c]ourt finds that a parent has
unreported income . . . [it] may adjust the amount of income
upward by a reasonable percentage to take into account the
absence of income taxes that normally would be due and payable
9
536; Child Support Guidelines § I(D)(1) (June 2018). See also
Salten v. Ackerman, 64 Mass. App. Ct. 868, 872-873 (2005) (in
calculating father's child support obligation, judge considered
father's evasiveness as to his finances); Crowe v. Fong, 45
Mass. App. Ct. 673, 678-679 (1998) (court entitled to draw
inferences adverse to evasive party from uncertainties
surrounding party's financial affairs). Given the guidelines'
expansive definition of income, the amount and ongoing nature of
the assistance the father received, the evidence of his
spending, and the absence of debt, we see no abuse of discretion
in the judge's imputation of frequent gifts and forgiven loans
to the father as income. 10 See Croak v. Bergeron, 67 Mass. App.
on the unreported income." Child Support Guidelines § I(D)(3)
(June 2018). We see no abuse of discretion in the judge's
upward adjustment of the father's income by twenty-five percent
given the evidence of his unreported income. See Johnston, 38
Mass. App. Ct. at 536; Child Support Guidelines § I(D)(3) (June
2018).
10 Although "the modified judgment should take into account the
earlier, expressed desires of parties," Bercume v. Bercume, 428
Mass. 635, 644 (1999), "[p]arents may not bargain away the
rights of their children to support from either one of them."
Knox v. Remick, 371 Mass. 433, 437 (1976). See Cavanagh v.
Cavanagh, 490 Mass. 398, 409, 418 (2022). The judge interpreted
the parties' agreement to calculate child support "based on" the
prior year's tax returns as allowing "other income of the
parties" to be included in the calculation, an interpretation
that was not clearly erroneous. We see no error in the judge's
conclusion that excluding other sources of income from the
calculation would have improperly eliminated the father's child
support obligations for 2017 and 2018, where his tax returns
reflected negative income. See Knox, supra. The finding was
supported by the evidence.
10
Ct. 750, 755-756 (2006) (judge may properly deny payor's request
for downward modification of child support where, considering
payor's financial circumstances -- including evasiveness about
finances -- payor failed to meet burden of demonstrating
material change in circumstances); Child Support Guidelines
§ I(D)(1) (June 2018) (imputation of income may be based on
evidence of "parent's lifestyle, expenses and spending
patterns").
3. Retroactivity of support order. The father takes issue
with the judge's denial of his request for a retroactive
reduction in his child support obligation for 2017 and 2018.
The father contends, among other things, that the judge
erroneously declined to modify the parties' 2015 agreement for
support that exceeded the minimum presumptive guidelines order
for those years. Although the father maintains that the judge
abused her discretion in "departing" from the guidelines for
2017 and 2018, she did not. Rather, she concluded that the
father failed to meet his burden of demonstrating a material
change in circumstances for 2017 and 2018, because his imputed
income for those years exceeded his income at the time of the
2015 agreement. Because the judge found that the father failed
to demonstrate that his income decreased in 2017 and 2018 as
compared to 2015, and she found no other relevant material
change in circumstances for those years, she concluded that he
11
was not entitled to a downward modification of his support
obligation for 2017 and 2018. In her written findings, the
judge emphasized the recency of the parties' original agreement
that the father would pay more than the guidelines amount and
ruled that the father had failed to provide sufficient evidence
of a change in either his circumstances or in the child's needs
since that time to warrant a decrease in his support
obligations. See Hoegen, 89 Mass. App. Ct. at 11, quoting
Whelan, 74 Mass. App. Ct. at 627 ("a party is entitled to
retroactive modification of a child support order 'where a judge
finds that the parties' circumstances have materially changed
and that such modification is in the best interests of the
children'"). This ruling was supported by the evidence. See
Wasson v. Wasson, 81 Mass. App. Ct. 574, 577-578 (2012)
(presumption in favor of guidelines may be rebutted where
applying guidelines would lead to order that is unjust,
inappropriate, or not in best interests of child).
The judge did, however, find a relevant material change in
circumstances for 2019 and 2020. The judge found that, in 2018,
the parties agreed to cap child support in future years at the
minimum presumptive order under the guidelines. The judge
therefore considered the parties' intentions as expressed in
their 2018 agreement, Cooper, 62 Mass. App. Ct. at 134, and for
2019, although the parties' combined income exceeded $250,000,
12
she calculated the father's support obligation at the minimum
presumptive guidelines amount, consistent with the parties' 2018
agreement. For 2020, the judge reasonably found that the
parties' combined income of $191,984 was below the guidelines'
maximum of $250,000. Therefore, the guidelines presumptively
applied to the entirety of the parties' 2020 combined income,
and the judge calculated the father's support obligation at the
presumptive guidelines amount. See Child Support Guidelines
§ II(C)(2) (June 2018).
4. Motion to quash. Twenty days before trial, the father
subpoenaed the mother's husband, who filed a motion to quash and
for a protective order. The judge quashed the subpoena on the
first day of trial. Arguing that this was an abuse of
discretion and deprived him of a fair trial, the father appeals.
"Trial judges have broad discretion to make discovery and
evidentiary rulings conducive to the conduct of a fair and
orderly trial" (quotation and citation omitted). Mattoon v.
Pittsfield, 56 Mass. App. Ct. 124, 131 (2002). "It is within
[the] court's power to vacate any subpoena which it determines
is unreasonable, oppressive, irrelevant, or improper." Hull
Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co.,
414 Mass. 609, 616 (1993); see Mass. R. Dom. Rel. P. 45 (b)
(identical to Mass. R. Civ. P. 45 (b), as appearing in 470 Mass.
131402 (2015)). We review for abuse of discretion. See Chambers
v. RDI Logistics, Inc., 476 Mass. 95, 110 (2016).
The father did not attempt to depose the mother's husband
or otherwise seek evidence of his financial resources and
support of the mother during discovery; instead, just twenty
days before trial, he served the mother's husband with a trial
subpoena demanding his testimony and seeking detailed financial
information, including documents and records related to all bank
accounts, credit cards, investment accounts (whether
individually or jointly held), paystubs, and copies of tax
returns, utility bills, and mortgage statements for the prior
two or three years. Whether the judge viewed the subpoena as
overbroad, or untimely, or seeking information that was
irrelevant and duplicative, as the mother suggested, or as an
end-run on the discovery process, or some combination of the
above, the judge was within her broad discretion in granting the
husband's motion to quash and for a protective order protecting
the husband or others from testifying about his finances. See
Bishop v. Klein, 380 Mass. 285, 288 (1980) (denial of discovery
motion not abuse of discretion where defendant waited four years
to raise issue of access to plaintiff's records and sought
production of those records only after case called for trial).
5. Attorney's fees. We have been asked to consider the
award of attorney's fees in three contexts.
14
First, the father objects to the trial judge's posttrial
award of fees to the mother. The court may, in its discretion,
award costs and expenses or legal fees to a party. G. L.
c. 208, § 38. If an award of attorney's fees "is within the
range of reasonableness based on an objective evaluation of the
services performed, it will be affirmed on appeal" (quotation
and citation omitted). Schechter v. Schechter, 88 Mass. App.
Ct. 239, 260 (2015). The judge, after trial, found that the
father's noncompliance with discovery warranted an award of fees
to the mother, ordered the father to pay a portion of the
requested fees ($25,000) and held that the parties "shall
otherwise be responsible for their own counsel fees and costs."
The award was reasonably based on the judge's well-supported
findings about the mother's costs in obtaining discovery, which,
the judge found, increased because of the father's obstructive
conduct. See Cooper, 62 Mass. App. Ct. at 141, quoting Downey
v. Downey, 55 Mass. App. Ct. 812, 819 (2002) (opposing party's
"obstructionist conduct which prolonged the proceedings"
relevant to determination of attorney's fees).11
11The father notes that he requested fees in connection with his
successful summary judgment motion, and that the judge deferred
ruling on those fees. In connection with trial, the father
neither requested these fees nor provided an affidavit of
counsel to support such an award. The judge did not address the
award of fees from the father's summary judgment matter, and the
issue is not properly before us.
15
Second, the mother has asked this panel to order the
release from escrow of funds awarded to her by the judge. In
the alternative, she asks that the judge be "empowered" to
address the issue. The judge, perhaps believing that the filing
of this appeal divested her of jurisdiction to enforce the award
of fees to the mother, denied the mother's motion to release
fees "without prejudice subject to any ruling from the Appeals
Court." On remand, the judge may, consistent with her prior
rulings and our decision today, order the release to the mother
of these escrowed funds.
Third, the mother requested appellate attorney's fees
pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654(2019). This request is denied.
Judgment affirmed and case
remanded for further
proceedings consistent with
this memorandum and order.
By the Court (Sullivan,
Massing, &
Hershfang, JJ.12),
Clerk
Entered: March 21, 2023.
12 The panelists are listed in order of seniority.
16