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Davison v. Goolishian

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Aug 5, 2015
13-P-1725 (Mass. App. Ct. Aug. 5, 2015)

Opinion

13-P-1725

08-05-2015

ELIZABETH ANN DAVISON v. WADE T. GOOLISHIAN.


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 mother, Elizabeth Ann Davison, appeals from a judgment of modification of child support entered by a judge of the Probate and Family Court in June, 2013. Relevant to this appeal, the mother's complaint (filed in April, 2011) sought increased child support from the father, Wade T. Goolishian, and for him to pay the entire cost of their daughter's college education, based on the father's significant income increase since the 2008 modification. The judge declined to modify the award amount and ordered the father to continue to pay a total of $1,156 per week in child support. This award is consistent with the 2008 judgment of modification, which incorporated and merged the parties' written stipulation filed on the same date. The judge also ordered the father, mother, and daughter each to be responsible for one-third of the daughter's college costs and expenses. We affirm.

The mother also appeals from the denial of her request for attorney's fees relative to her 2011 complaint for modification.

1. Standard of review. To succeed in an action to modify a child support judgment, the petitioner must establish "that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children." Brooks v. Piela, 61 Mass. App. Ct. 731, 734 (2004), quoting from G. L. c. 208, § 28. "[I]n fashioning an appropriate modification judgment, the probate judge enjoys considerable discretion, and the judgment will not be reversed unless it is 'plainly wrong.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981).

2. Child support. Where, as here, the parents' annual gross income exceeds $250,000, child support beyond the minimum presumptive order is discretionary. See Morales v. Morales, 464 Mass. 507, 510 n.4 (2013). See also Child Support Guidelines II.C (2009). The mother first argues that the father's increased income required an increase in child support and that the judge abused her discretion by failing to consider this increase, particularly where she considered the mother's current husband's income. We disagree.

It is clear from her comprehensive findings of fact, rationale, and conclusions of law (in both the June, 2013, and October, 2013, memoranda) that the judge appropriately considered "all relevant circumstances" in determining not to modify the award amount. Schuler v. Schuler, supra at 370. See Brooks v. Piela, supra at 734-735. This included the children's ages and needs, the father's 2012 gross income, the mother's earning capacity, contributions of the mother's husband to their household, the parties' respective standards of living, and the terms of the parties' prior stipulation. Although the father concedes that his gross income increased substantially since the 2008 modification, the judge found that the children's needs had not significantly increased and there was "no material disparity in the standard of living in the parents' households." These findings were not plainly wrong, and the judge did not abuse her discretion in her weighing of the factors. See Pearson v. Pearson, 52 Mass. App. Ct. 156, 160-161 (2001).

The mother further contends that the judge relied on the mother's current husband's income in a manner beyond what the law permits. See Silvia v. Silvia, 9 Mass. App. Ct. 339, 342 (1980) (holding that "the income and assets of second spouses are part of the circumstances relevant to the ability of parents to use their own resources to contribute to the support of their children"). She argues that the judge's consideration of the mother's husband's income impermissibly placed the burden of supporting the parties' children on her husband. Although this argument carries some weight, we cannot say that the judge erred under the circumstances of this case.

The judge relied on the mother's husband's income only to establish that the parties share a similarly high standard of living, and the judge was within her discretion to consider the couple's joint lifestyle in this manner. It is her husband's income and position as principal provider for their household that permits the mother to enjoy this lifestyle without pursuing more lucrative employment of her own. Cf. Smith v. Edelman, 68 Mass. App. Ct. 549, 555 (2007). Furthermore, the award amount is based on the parties' 2008 stipulation, at which time both parties already enjoyed a high standard of living and the mother's husband had been supporting their household for a number of years, including paying for the parties' daughter's educational expenses (such as private school tuition) and the parties' son's uninsured medical expenses. Significantly, the mother has not demonstrated a change in these circumstances, or in the children's needs, since the parties' 2008 agreement. See Cooper v. Cooper, 62 Mass. App. Ct. at 134-135, and cases cited.

The mother's reliance on Department of Rev. v. Mason M., 439 Mass. 665 (2003), and Maryanne R. v. Mason M., 66 Mass. App. Ct. 1103 (2006), is inapposite. The mother's husband is not in the same position as a spouse of the support payer as discussed in Department of Rev. v. Mason M., 439 Mass. at 675-676.

For these same reasons, the mother's argument that the judge erred in ordering the father responsible for only one-third of the daughter's college costs also fails. The judge's findings as to the parties' resources were not plainly wrong under the circumstances, and the allocation was not arbitrary or capricious. This is particularly so where the parties had expressed no prior intent regarding payment of college expenses (beyond establishing Uniform Transfers to Minors Act accounts at the time of their divorce), the mother and daughter did not invite the father to participate in the college selection process, and the mother did not provide the judge with detailed information about the daughter's application process or anticipated college expenses. See generally Mandel v. Mandel, 74 Mass. App. Ct. 348 (2009).

3. Attorney's fees. Finally, the judge made specific findings related to the mother's request for attorney's fees; the judge did not abuse her considerable discretion in denying this request.

4. Conclusion. For the reasons articulated above, we affirm the judgment of modification dated June 24, 2013.,

Because of our disposition, we need not reach the mother's argument that an increase in the award amount should be retroactive.

On July 18, 2013, the judge entered an "order for correction," replacing the word "wife" with the word "mother" in the June 24, 2013, judgment of modification. That order has no bearing on this appeal.

So ordered.

By the Court (Kafker, C.J., Rubin & Milkey, JJ.),

The panelists are listed in order of seniority. --------

Clerk Entered: August 5, 2015.


Summaries of

Davison v. Goolishian

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Aug 5, 2015
13-P-1725 (Mass. App. Ct. Aug. 5, 2015)
Case details for

Davison v. Goolishian

Case Details

Full title:ELIZABETH ANN DAVISON v. WADE T. GOOLISHIAN.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Aug 5, 2015

Citations

13-P-1725 (Mass. App. Ct. Aug. 5, 2015)