Deana L. Connolly v. Jonathan G. Lawit.

• Court: Massachusetts Appeals Court
• Decided: March 1, 2024
• Docket: 23-P-0406
• Status: Unpublished

Opinion

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

23-P-406

DEANA L. CONNOLLY

vs.

JONATHAN G. LAWIT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father, Jonathan G. Lawit, appeals from a judgment of

the Probate and Family Court requiring him to pay certain

uninsured medical expenses and child support of $250 per week to

the mother, Deana L. Connolly. He challenges only the order of

child support, and on the ground that he was denied due process.

Concluding that the father was denied due process to the extent

that the judge ordered him to pay child support, we vacate in

part and remand for further proceedings.

1. Discussion. Although the mother filed a complaint for

contempt, "[a] Probate Court has power to modify a support order

in the context of either a complaint for contempt or a complaint

for modification." Feinstein v. Feinstein, 95 Mass. App. Ct.

230, 234 (2019), quoting Kennedy v. Kennedy, 17 Mass. App. Ct.

308, 312 (1983). "A modification on a complaint for contempt may occur even in the absence of a contempt finding."

Feinstein, supra. Nonetheless, in the divorce context, as in

all contexts, "due process requires that defendants be given

notice and an opportunity to be heard." Sullivan v. Smith, 90

Mass. App. Ct. 743, 751 (2016).

Although the complaint for contempt did not request an

alteration of child support, it plainly raised the question

whether the mother should continue to pay child support to the

father. The father, in his answer and memorandum, similarly

addressed the question whether the order for the mother to pay

child support should remain in force. Although the parties

understood that the issue of the continuation of the mother's

payment of child support would be before the judge, the pretrial

record does not reflect that the issue of the father's payment

of child support to the mother would be addressed at the

contempt trial.

Similarly, at the trial, the mother specifically asked "to

be relieved of my child support," without objection from the

father. See Commonwealth v. Cortez, 438 Mass. 123, 126 (2002)

("There was no objection, register of surprise, or request for a

continuance by the defendant. In these circumstances, the

defendant's claim of lack of notice rings hollow"). Accord

Wojcicki v. Caragher, 447 Mass. 200, 214 (2006). The judge then

asked the mother, "are you looking for an order based upon the

2 guidelines and a shared -- a split custody arrangement?"

Although an attorney might have understood "an order based upon

the guidelines" to include the possibility of an order for the

father to pay child support to the mother, it seems unlikely

that the parties -- two lay persons -- could have understood

this question as addressing anything but the elimination of the

mother's duty to pay child support. See Sullivan, 90 Mass. App.

Ct. at 751 ("due process requires that defendants [in a child

support action] be given notice and an opportunity to be

heard"); Guardianship of Moe, 81 Mass. App. Ct. 136, 139-140

(2012) (error to decide issue not raised by parties or court).

Accord Cunningham v. Thomas, 102 Mass. App. Ct. 135, 144-145

(2023).

Accordingly, before the father can be ordered to pay child

support, he must be afforded an opportunity to be heard on the

question. In vacating the child support portion of the

judgment, we do not mean to intimate that such an order would be

unwarranted. The question has not been briefed before us, and

we express no view about it. 1

1 We do note that, contrary to the father's suggestion, the 2021 Massachusetts Child Support Guidelines (like every version of the guidelines since 2009) explicitly exclude consideration of the income of a non-parent guardian, such as the mother's new husband. Mass. Child Support Guidelines § I.F (Oct. 2021). Similarly, even without an affirmative showing of need, "[t]here is a 'rebuttable presumption that the amount of the order which would result from the application of the guidelines is the

3 2. Conclusion. Paragraph three of the judgment entered on

September 8, 2022, is vacated, and the matter is remanded to the

Probate and Family Court for further proceedings in accordance

with this decision. 2 The judgment is otherwise affirmed.

So ordered.

By the Court (Rubin, Ditkoff & Grant, JJ. 3),

Assistant Clerk

Entered: March 1, 2024.

appropriate amount of child support to be ordered.'" P.F. v. Department of Revenue, 90 Mass. App. Ct. 707, 709 (2016), quoting G. L. c. 208, § 28. On the other hand, the father's request for reciprocal consideration of the older child's support needs may be considered by the judge at the judge's discretion. See Mass. Child Support Guidelines § II.F (Oct. 2021). 2 If the father's past child support obligation is reduced on

remand, some of the money the father paid could instead reduce the amount that the father owed in past uninsured medical and dental expenses under paragraph four of the judgment. 3 The panelists are listed in order of seniority.