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-782
JOANNA L. FICO1
vs.
DANIEL A. DITTLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Probate and Family Court
denied the father's request to modify the existing child support
agreement between himself and the mother. On appeal, the father
maintains that the judge abused her discretion in determining
that he alone was responsible for paying for the child's college
expenses, and that the judge exhibited impermissible bias
against the father. We affirm.
Background. We are the second panel of this court to
consider the father's effort to alter the terms of his child
1As is our custom, we set forth the mother's name as it appears in the initial 2008 complaint, despite that later pleadings refer to her as Joanna L. Mannion. Neither the mother nor the child participated in this appeal. support agreement based on his changed employment; familiarity
with the facts and the initial decision are assumed. See Fico
v. Dittler, 102 Mass. App. Ct. 1113 (2023) (Fico I). We repeat
only the essential findings by the trial judge, supplementing
them as needed with undisputed facts in the record. See Pierce
v. Pierce, 455 Mass. 286, 288 (2009).
The parents entered into a child support agreement in 2009
(2009 agreement), which was incorporated and merged into a
judgment, under which the father was required to contribute
twenty percent of his "net after tax bonus from employment" to
an education fund for the child. At the time, the father was
employed by Fidelity as an equity analyst and investment
portfolio manager and received a significant annual bonus; by
2015, the account designated for the child's education held a
total of $377,255.71.
In 2015, the parents entered into a modified child support
agreement (2015 agreement), which was incorporated and merged
into the judgment. The 2015 agreement stated that the "Father
shall bear the entire cost of [the child's] college education,
which shall be funded through Father's bonus." Between 2015 and
2019, the father earned $3.2 million in net income.
After losing his job in 2018, the father sought a
modification to his child support obligations and the case was
tried before a judge of the Probate and Family Court, then
2 appealed by the father. A panel of this court vacated the
portions of the modification judgment pertaining to child
support and college expenses and remanded the case to the trial
court. Fico I, supra, slip op. at 18-19.
On remand, the trial judge amended the portion of the
judgment related to college expenses as follows: "Father's
request to be relieved of his obligation to pay for the child's
entire college education is DENIED. Father shall pay the cost
of [the child's] college education through his income and
assets. For example, Father has cash in [a] bank account . . .
with $515,000 in it."
Discussion. "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 [her] 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 an agreement of the
parties, we have said that, notwithstanding that the agreement
3 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." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation and
citation omitted).
The father maintains that the trial judge erroneously
denied his request to modify the college expense provision
(favorably to him) while actually modifying the provision
(unfavorably to him). Because, he asserts, the clauses in the
language "Father shall bear the entire cost of [the child's]
college education, which shall be funded through Father's bonus"
are not severable, the judge failed to honor the parties' intent
and erred as a matter of law. We are not persuaded.
"Father shall bear the entire cost of [the child's] college
education" is an independent clause, able to be read as a
complete sentence on its own, and is not dependent on the
4 nonessential clause, "which shall be funded through Father's
bonus."2 We discern no error in the judge's implicit conclusion
that the loss of the father's bonus was not a material change of
circumstances that mandated a modification. As the prior panel
noted, the judge "could have appropriately treated the loss of
the father's bonus income as a material change warranting
modification of the requirement that the child's college
expenses be paid from said bonus income [emphasis added],"
Fico I, supra, slip op. at 8, but was not required to do so.
Again, as before, the trial judge properly considered the
totality of the parties' financial circumstances, see Emery v.
Sturtevant, 91 Mass. App. Ct. 502, 508 (2017); given the
father's available assets, previous substantial regular and
bonus income, and investments and expenditures, the judge acted
well within her discretion in concluding that the father failed
to meet his burden. See Croak v. Bergeron, 67 Mass. App. Ct.
750, 755-757 (2006) (in dismissing payor's complaint for
modification, judge may consider totality of circumstances,
including payor's evasiveness regarding his financial
circumstances, his available assets, and his use of assets to
support himself while claiming reduced ability to support
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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-782
JOANNA L. FICO1
vs.
DANIEL A. DITTLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Probate and Family Court
denied the father's request to modify the existing child support
agreement between himself and the mother. On appeal, the father
maintains that the judge abused her discretion in determining
that he alone was responsible for paying for the child's college
expenses, and that the judge exhibited impermissible bias
against the father. We affirm.
Background. We are the second panel of this court to
consider the father's effort to alter the terms of his child
1As is our custom, we set forth the mother's name as it appears in the initial 2008 complaint, despite that later pleadings refer to her as Joanna L. Mannion. Neither the mother nor the child participated in this appeal. support agreement based on his changed employment; familiarity
with the facts and the initial decision are assumed. See Fico
v. Dittler, 102 Mass. App. Ct. 1113 (2023) (Fico I). We repeat
only the essential findings by the trial judge, supplementing
them as needed with undisputed facts in the record. See Pierce
v. Pierce, 455 Mass. 286, 288 (2009).
The parents entered into a child support agreement in 2009
(2009 agreement), which was incorporated and merged into a
judgment, under which the father was required to contribute
twenty percent of his "net after tax bonus from employment" to
an education fund for the child. At the time, the father was
employed by Fidelity as an equity analyst and investment
portfolio manager and received a significant annual bonus; by
2015, the account designated for the child's education held a
total of $377,255.71.
In 2015, the parents entered into a modified child support
agreement (2015 agreement), which was incorporated and merged
into the judgment. The 2015 agreement stated that the "Father
shall bear the entire cost of [the child's] college education,
which shall be funded through Father's bonus." Between 2015 and
2019, the father earned $3.2 million in net income.
After losing his job in 2018, the father sought a
modification to his child support obligations and the case was
tried before a judge of the Probate and Family Court, then
2 appealed by the father. A panel of this court vacated the
portions of the modification judgment pertaining to child
support and college expenses and remanded the case to the trial
court. Fico I, supra, slip op. at 18-19.
On remand, the trial judge amended the portion of the
judgment related to college expenses as follows: "Father's
request to be relieved of his obligation to pay for the child's
entire college education is DENIED. Father shall pay the cost
of [the child's] college education through his income and
assets. For example, Father has cash in [a] bank account . . .
with $515,000 in it."
Discussion. "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 [her] 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 an agreement of the
parties, we have said that, notwithstanding that the agreement
3 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." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation and
citation omitted).
The father maintains that the trial judge erroneously
denied his request to modify the college expense provision
(favorably to him) while actually modifying the provision
(unfavorably to him). Because, he asserts, the clauses in the
language "Father shall bear the entire cost of [the child's]
college education, which shall be funded through Father's bonus"
are not severable, the judge failed to honor the parties' intent
and erred as a matter of law. We are not persuaded.
"Father shall bear the entire cost of [the child's] college
education" is an independent clause, able to be read as a
complete sentence on its own, and is not dependent on the
4 nonessential clause, "which shall be funded through Father's
bonus."2 We discern no error in the judge's implicit conclusion
that the loss of the father's bonus was not a material change of
circumstances that mandated a modification. As the prior panel
noted, the judge "could have appropriately treated the loss of
the father's bonus income as a material change warranting
modification of the requirement that the child's college
expenses be paid from said bonus income [emphasis added],"
Fico I, supra, slip op. at 8, but was not required to do so.
Again, as before, the trial judge properly considered the
totality of the parties' financial circumstances, see Emery v.
Sturtevant, 91 Mass. App. Ct. 502, 508 (2017); given the
father's available assets, previous substantial regular and
bonus income, and investments and expenditures, the judge acted
well within her discretion in concluding that the father failed
to meet his burden. See Croak v. Bergeron, 67 Mass. App. Ct.
750, 755-757 (2006) (in dismissing payor's complaint for
modification, judge may consider totality of circumstances,
including payor's evasiveness regarding his financial
circumstances, his available assets, and his use of assets to
support himself while claiming reduced ability to support
2 Sorting Out Essential and Nonessential Clauses, https://www.merriam-webster.com/grammar/usage-of-essential-and- nonessential-clauses.
5 child). See also Crowe v. Fong, 45 Mass. App. Ct. 673, 679
(1998).
The father also claims that the trial judge erred by
considering only the father's financial circumstances and not
the mother's, and that the judge's findings were therefore
inadequate. As the moving party, the father bore the burden of
showing changed circumstances justifying the requested change.
See Croak, 67 Mass. App. Ct. at 758. Because we conclude that
it was within the judge's discretion to conclude the father
failed to make this showing, we see no error.
We are equally unpersuaded by the allegations of bias.
While the father may have preferred for the judge to have found
otherwise, her conclusions are grounded in the evidence; as fact
finder, it was within her discretion to credit or discredit the
testimony and other evidence presented. See Buster v. George W.
Moore, Inc., 438 Mass. 635, 644 (2003). The findings would not
leave a reasonable person with the impression that the judge
6 held an impermissible bias against the father. See Commonwealth
v. Zine, 52 Mass. App. Ct. 130, 130 n.1 (2001).
Second Amended Judgment, entered May 25, 2023, affirmed.
By the Court (Green, C.J.,3 Desmond & Hershfang, JJ.4),
Clerk
Entered: September 5, 2024.
3 Chief Justice Green participated in the deliberation on this case prior to his retirement.
4 The panelists are listed in order of seniority.