Opinion
14-P-856
05-01-2015
DEPARTMENT OF REVENUE v. JOHN ROBERT MORICONI.
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
In this paternity action, the father appeals from a judgment awarding child support, maintenance, and education expenses. See G. L. c. 209C, § 9(a). The father maintains that the judge erred in awarding retroactive extracurricular, educational, and uninsured medical expenses, and in ordering the father to pay a share of future educational expenses. We affirm.
The judge awarded $8,196.47 in retroactive expenses, payable in weekly installments of $25.00, and $2,344.50 in college costs, annually, going forward.
The child was born in 1993, and the parents lived together until 2006. The Department of Revenue filed a paternity action in 2010; the father acknowledged paternity in 2012. After trial, judgment entered awarding retroactive and prospective orders of child support, a retroactive award of medical, educational, and extracurricular expenses, and an award of future college expenses.
The father does not dispute the judge's retroactive award of child support in the amount of $779.78, or the order of future child support in the amount of $96 per week. Rather, he maintains that (1) the plain language of G. L. c. 209C, § 9(a) contemplates prospective orders for maintenance, support, and education, but prohibits, over objection, retroactive orders for payment of extracurricular and education expenses; (2) the judge erred in awarding retroactive uninsured medical expenses because the only permissible retroactive medical reimbursements are those from the date of the complaint; and (3) the judge abused her discretion in ordering him to pay college expenses in excess of his ability to pay.
Section 9(a) provides in pertinent part:
"If the court finds that a parent is chargeable with the support of a child, the court shall make an order in accordance with subsection (c) requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child. The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree. Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parent's ability to pay under subsection (c) and any support provided by the parent during such period. . . . . An order may be entered requiring a parent chargeable with support to reimburse the mother or the department of transitional assistance or the office of Medicaid or the executive office of health and human services for medical expenses attributable to the child or associated with childbirth or resulting from the pregnancy" (emphasis added).
The father has not provided us with the trial memoranda, proposed findings and rulings, briefs, or the transcripts below, and nothing in the judge's opinion indicates that the issues raised on appeal were raised below. We would be warranted in disposing of the case on this basis alone. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992) ("[I]n the case before us, review of the transcript is necessary to determine whether the arguments raised on appeal are first, correct, and second, properly preserved"). Based upon what has been presented to us here, we discern no error for the reasons stated below.
The mother appears pro se on appeal.
1. Retroactive award of extracurricular and education expenses. It is the public policy of the Commonwealth that "[c]]hildren born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children." G. L. c. 209C, § 1, as amended by St. 1998, c. 64, § 205. See Department of Rev. v. G.W.A., 412 Mass. 435, 438-439 (1992); Massachusetts Child Support Guidelines (guidelines) (2013). To effectuate this goal, the General Court has decreed that "[e]very person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen, or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance, to age twenty-one." G. L. c. 209C, § 1.
The child support guidelines are applicable in paternity actions. Department of Rev. v. G.W.A., supra.
G. L. c. 209C, § 9A, also extends this treatment to children between the ages of twenty-one and twenty-three.
Despite this declaration of legislative intent, the father argues that because the second sentence of G. L. c. 209C, § 9(a), governing post-minority orders, refers to the "support, maintenance and education" of a child, but the fourth sentence of § 9(a), which governs retroactive orders, refers only to "support," a judge is stripped of authority to enter a retroactive order governing maintenance or education over objection. We disagree.
The judge awarded $6,032.41 in costs associated with private secondary education, school athletic fees, prom fees, college application fees, music lessons, summer camp expenses, gym membership, and T passes.
The term "support" as used in § 9(a) is a general term, which fairly read, encompasses the various forms of support addressed in § 9(a). General Laws c. 204C, § 9, was enacted as part of an overall revision of multiple statutes pertaining to child support, and was titled "An Act Improving the Collection of Child Support in the Commonwealth." See Acts of 1986, c. 310 §§ 16, 25, repealing G. L. c. 273, §§ 12-14, and inserting G. L. c. 204C, § 9. The title itself provides "useful guidance" in interpreting the usage of the term "support." See Tyler v. Michaels Stores, Inc., 464 Mass. 492, 496 (2013). The first sentence of § 9(a) refers to a parent "chargeable with the support of a child." The terms "maintenance" and "support" are used in tandem throughout § 9(a), as they are in G. L. c. 208, § 28 (referring to the "care, custody and maintenance" of minor children of a marriage, as well as "orders of maintenance and for support"). Education expenses have been described as educational support, see generally Eccleston v. Bankosky, 438 Mass. 428, 434-437 (2003), or "in the nature of an order for future child support," Passemento v. Passemento, 427 Mass. 52, 57 (1998).
The phrase "care, custody and maintenance" dates to earlier iterations of our divorce statute, which was titled "Care and Support of Children," but did not use the phrase "child support." Revised Laws 1902, c. 152, § 25. See Hill v. Hill, 196 Mass. 509, 517 (1907) (referring to "maintenance of the minor children of the parties").
There are contexts in which it may be necessary to provide more precise definition to the terms support, maintenance, or education. See Purdy v. Colangelo, 61 Mass. App. Ct. 362, 364- 365 & n.7 (2004) (reserving question and collecting cases). However, with respect to a retroactive order issued pursuant to § 9(a), "each clause or phrase is to be construed with reference to every other clause or phrase . . . so that, if reasonably possible, all parts shall be construed as consistent with each other so as to form a harmonious enactment effectual to accomplish its manifest purpose." Worcester v. College Hill Properties, LLC., 465 Mass. 134, 139 (2013), quoting from Topsfield v. State Racing Commn., 324 Mass. 309, 312-313 (1949). The stated purpose of G. L. c. 209C is to make each parent responsible for the "support" of a nonmarital child. In view of the foregoing, we think it unlikely that the Legislature intended to parse the retroactive award of maintenance or education expenses in the meager fashion the father suggests.
As Purdy points out, the term "support" has been used as an umbrella term in some contexts, and in other contexts "support" may be imbued with a far more particularized meaning. We address only the specific issue of statutory construction in the case before us.
The mother had sole legal custody at the time the disputed expenses were incurred. The father nonetheless contends that he did not agree to the expenditures, and, therefore, cannot (or should not) be compelled to contribute after the fact. Contemporaneous agreement is not required in a paternity action, although the father's awareness of his paternity may be taken into account in determining the fairness of a retroactive award. See Department of Rev. v. Roe, 29 Mass. App. Ct. 967, 968 (1990). "The apparent reason for th[e] provision requiring the award of retroactive support [in paternity actions]is that '[t]here is a greater need for retroactive orders to protect children born out of wedlock than other children because the paternity of a father of a child born out of wedlock is not presumptively established by the fact of marriage and may take some time to be established.'" O'Meara v. Doherty, 53 Mass. App. Ct. 599, 605 (2002), quoting from Department of Rev. v. Roe, supra at 968. The father was at all times aware of his paternity, and cannot claim to have been surprised.
The father paid in excess of $25,000 in payment of back due child support, rent, cellular telephone, and other expenses, all of which were credited in full by the trial judge.
On appeal, the father also contends that these expenses should not be assessed because of the unilateral nature of the mother's decision making. The judge's decision suggests that the father argued at trial that there were no special circumstances warranting private schooling, a gym membership, or the uninsured medical expenses, addressed below. The judge found that the child did have the special needs that necessitated the expenditures, and ordered reimbursement. In view of the judge's factual findings, it cannot be said that the award was unfair or that the judge abused her discretion in awarding retroactive expenses.
2. Medical expenses. As previously noted, the father maintains that the retroactive award of uninsured medical expenses is limited to expenses incurred after the date of the complaint for paternity. General Laws chapter 209C, § 9(a) permits the entry of an order "requiring a parent chargeable with support to reimburse the mother or the department of transitional assistance or the office of Medicaid or the executive office of health and human services for medical expenses attributable to the child or associated with childbirth or resulting from the pregnancy" (emphasis added). The statute does not limit the award of past medical expenses to expenses incurred since the date of the complaint. Indeed, such a limitation would appear to be contrary to both the plain language and purpose of the statute. See O'Meara v. Doherty, supra; Department of Rev. v. Roe, supra. See generally G. L. c. 4, § 6, par. 3; Worcester v. College Hill Properties, LLC., supra at 138 ("[C]ourts enforce the statute according to its plain wording"). This argument is simply a variation of the father's previously made retroactivity argument, albeit cloaked in different garb, and is unpersuasive for the same reasons.
In his brief, the father argues that only expenses of childbirth are compensable. At oral argument, he re-characterized his argument. Our analysis remains the same regardless of characterization.
3. Future educational expenses. The award of post-minority educational expenses for a child domiciled in the home of a parent and dependent on that parent for "maintenance" is directed to the sound discretion of the judge. G. L. c. 209C, § 9(a)("The court may make appropriate orders for . . . education"); Massachusetts Child Support Guidelines § II-J. (costs of post-secondary education to be allocated on a case by case basis). The father claims that he is unable to contribute based on his present income. This contention ignores the basis of the judge's order. The judge found that the father had underreported his existing income as a musician, and further found that he was earning less than he could through reasonable effort. See Massachusetts Child Support Guidelines § I-D, E. (Underreported Income, Attribution of Income). Based on the imputed income and additional, untapped, earning capacity, the judge attributed income to the father calculated at the rate of eight dollars per hour for forty hours per week.
The prospective award of $2,344.50 in annual educational expenses, as well as ninety-six dollars in weekly support, was based on this attributed income. The award was consistent with the guidelines. See Massachusetts Child Support Guidelines § II-C (Minimum and Maximum Levels), H. (Other Orders and Obligations). Moreover, the judge treated the evidence with meticulous care, and credited the father with payment of numerous expenses, to the penny. She also clearly considered the future support payment and educational expenses in setting the amount of the payment. See Massachusetts Child Support Guidelines § II-F. (requiring that college contribution be considered in setting the weekly support order). The judge did not make "a clear error of judgment in weighing" the factors relevant to the decision. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Accordingly, we will not disturb her exercise of discretion.
Judgment affirmed.
By the Court (Kafker, Cohen & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 1, 2015.