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
24-P-439
JONATHAN DANFORTH
vs.
ROBIN SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On a complaint for modification filed by the father,
Jonathan Danforth, against the mother, Robin Smith, a Probate
and Family Court judge issued a judgment that made no change to
the father's weekly child support obligation but calculated that
the father had a substantial credit for prior overpayment.1 On
cross appeals, the father challenges the judge's failure to
reduce his weekly child support obligation and both parties
1Although the judge did not change the overall weekly child support obligation, the judge did substantially reduce the father's weekly payments to account for social security dependency benefits being received by the mother for the child's support. See Rosenberg v. Merida, 428 Mass. 182, 188 (1998). The judgment also reduced the father's obligation to maintain life insurance on behalf of the child, but neither party challenges this provision of the judgment. challenge the judge's calculation of the credit. Concluding
that the judge was well justified in finding that the father
failed to show a change in circumstances requiring a reduction
in his child support obligation and that neither party has
demonstrated clear error in the judge's calculation of the
credit, we affirm.
1. Modification of the father's weekly child support
obligation. "To be successful in an action to modify a judgment
for alimony or child support, the petitioner must demonstrate a
material change of circumstances since the entry of the earlier
judgment." Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting
Schuler v. Schuler, 382 Mass. 366, 368 (1981). "[T]he central
inquiry in a case involving modification of both child support
and alimony is whether, and to what extent, the parties'
financial circumstances have changed since the entry of the
prior judgment." Dolan v. Dolan, 99 Mass. App. Ct. 284, 290
(2021), quoting Emery v. Sturtevant, 91 Mass. App. Ct. 502, 508
(2017). "In the case of an order of child support governed by
the Child Support Guidelines, 'orders of maintenance and for
support of minor children shall be modified if there is an
inconsistency between the amount of the existing order and the
amount that would result from application of the child support
2 guidelines.'" Feinstein v. Feinstein, 95 Mass. App. Ct. 230,
234 (2019), quoting G. L. c. 208, § 28.
Here, as the judge found, the father failed to demonstrate
any material change in circumstances. A different judge in 2019
discredited the father's statements that he had no income at all
and found that he had income of $3,799 per week. The father
testified at the instant trial, consistent with his latest
financial statement, that he had weekly income of $756.50 from
social security and $250 from his wife and no other income. He
testified that he had nothing to do with Meeting House
Development LLC and had never been a manager of it. The judge
explicitly did not credit this testimony, as the father was
currently proclaiming himself to be the managing director of
Meeting House Development LLC on social media. "In a bench
trial credibility is 'quintessentially the domain of the trial
judge [so that his] assessment is close to immune from reversal
on appeal except on the most compelling of showings.'"
Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),
quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995).
The judge's disbelief of the father's testimony is well
supported by the evidence at trial.
The father argues that there was no affirmative evidence
that he was still earning $3,799 per week. He also suggests
3 that the judge should have disbelieved the mother's testimony
that her investment earnings were only $90 per year. Both of
these arguments miss the mark. It was the father's burden on
his complaint for modification to demonstrate the existence of
"a material change of circumstances since the entry of the
earlier judgment." Pierce, 455 Mass. at 293, quoting Schuler,
382 Mass. at 368. It was not the mother's burden to demonstrate
the absence of a material change. In the absence of any
credible evidence that the father's income had decreased (or
that the mother's income had increased), there was no basis for
the judge to grant the request for modification.
As stated, a demonstration that the current child support
order is inconsistent with the Child Support Guidelines would
independently entitle the father to a modification. See
Feinstein, 95 Mass. App. Ct. at 234. The father, however, also
failed to demonstrate that. The guideline calculation he
provided to the judge was based on the father's false report of
his income, which the judge rejected. So far as we can tell, a
guideline calculation based on the father's income of $3,799 per
week yields a higher number than the current child support
order.
2. Credit calculation. The Child Support Guidelines
require that social security dependency benefits received for
4 the support of the child be credited towards the noncustodial
parent's child support obligation. See Child Support Guidelines
§ I.A n.1 (2023). On January 1, 2023, the mother received
$17,937 of such social security dependency benefits for the
child attributable to the father's social security. Starting on
February 3, 2023, the mother received $1,613 per month in such
benefits. Such benefits presumably ended in May 2024, when the
child turned eighteen.
On May 26, 2023, the judge reduced the father's weekly
payments to $284 per week going forward to reflect the social
security benefits. In the modification judgment, the judge
credited the father for the $17,937 payment plus two $1,750
payments taken by the Department of Revenue (department) in May
and June 2023, presumably from the father's social security
benefits.
To the extent that the mother challenges crediting the
social security benefits received towards the father's child
support obligations, the Supreme Judicial Court has held "[t]he
noncustodial parent is . . . allowed a credit equal to the
amount of the [Social Security Disability Income] dependency
benefits." Rosenberg v. Merida, 428 Mass. 182, 188 (1998).
Accordingly, the judge properly gave the father a credit for the
5 social security benefits received, including the January 2023
lump payment.
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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
24-P-439
JONATHAN DANFORTH
vs.
ROBIN SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On a complaint for modification filed by the father,
Jonathan Danforth, against the mother, Robin Smith, a Probate
and Family Court judge issued a judgment that made no change to
the father's weekly child support obligation but calculated that
the father had a substantial credit for prior overpayment.1 On
cross appeals, the father challenges the judge's failure to
reduce his weekly child support obligation and both parties
1Although the judge did not change the overall weekly child support obligation, the judge did substantially reduce the father's weekly payments to account for social security dependency benefits being received by the mother for the child's support. See Rosenberg v. Merida, 428 Mass. 182, 188 (1998). The judgment also reduced the father's obligation to maintain life insurance on behalf of the child, but neither party challenges this provision of the judgment. challenge the judge's calculation of the credit. Concluding
that the judge was well justified in finding that the father
failed to show a change in circumstances requiring a reduction
in his child support obligation and that neither party has
demonstrated clear error in the judge's calculation of the
credit, we affirm.
1. Modification of the father's weekly child support
obligation. "To be successful in an action to modify a judgment
for alimony or child support, the petitioner must demonstrate a
material change of circumstances since the entry of the earlier
judgment." Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting
Schuler v. Schuler, 382 Mass. 366, 368 (1981). "[T]he central
inquiry in a case involving modification of both child support
and alimony is whether, and to what extent, the parties'
financial circumstances have changed since the entry of the
prior judgment." Dolan v. Dolan, 99 Mass. App. Ct. 284, 290
(2021), quoting Emery v. Sturtevant, 91 Mass. App. Ct. 502, 508
(2017). "In the case of an order of child support governed by
the Child Support Guidelines, 'orders of maintenance and for
support of minor children shall be modified if there is an
inconsistency between the amount of the existing order and the
amount that would result from application of the child support
2 guidelines.'" Feinstein v. Feinstein, 95 Mass. App. Ct. 230,
234 (2019), quoting G. L. c. 208, § 28.
Here, as the judge found, the father failed to demonstrate
any material change in circumstances. A different judge in 2019
discredited the father's statements that he had no income at all
and found that he had income of $3,799 per week. The father
testified at the instant trial, consistent with his latest
financial statement, that he had weekly income of $756.50 from
social security and $250 from his wife and no other income. He
testified that he had nothing to do with Meeting House
Development LLC and had never been a manager of it. The judge
explicitly did not credit this testimony, as the father was
currently proclaiming himself to be the managing director of
Meeting House Development LLC on social media. "In a bench
trial credibility is 'quintessentially the domain of the trial
judge [so that his] assessment is close to immune from reversal
on appeal except on the most compelling of showings.'"
Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),
quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995).
The judge's disbelief of the father's testimony is well
supported by the evidence at trial.
The father argues that there was no affirmative evidence
that he was still earning $3,799 per week. He also suggests
3 that the judge should have disbelieved the mother's testimony
that her investment earnings were only $90 per year. Both of
these arguments miss the mark. It was the father's burden on
his complaint for modification to demonstrate the existence of
"a material change of circumstances since the entry of the
earlier judgment." Pierce, 455 Mass. at 293, quoting Schuler,
382 Mass. at 368. It was not the mother's burden to demonstrate
the absence of a material change. In the absence of any
credible evidence that the father's income had decreased (or
that the mother's income had increased), there was no basis for
the judge to grant the request for modification.
As stated, a demonstration that the current child support
order is inconsistent with the Child Support Guidelines would
independently entitle the father to a modification. See
Feinstein, 95 Mass. App. Ct. at 234. The father, however, also
failed to demonstrate that. The guideline calculation he
provided to the judge was based on the father's false report of
his income, which the judge rejected. So far as we can tell, a
guideline calculation based on the father's income of $3,799 per
week yields a higher number than the current child support
order.
2. Credit calculation. The Child Support Guidelines
require that social security dependency benefits received for
4 the support of the child be credited towards the noncustodial
parent's child support obligation. See Child Support Guidelines
§ I.A n.1 (2023). On January 1, 2023, the mother received
$17,937 of such social security dependency benefits for the
child attributable to the father's social security. Starting on
February 3, 2023, the mother received $1,613 per month in such
benefits. Such benefits presumably ended in May 2024, when the
child turned eighteen.
On May 26, 2023, the judge reduced the father's weekly
payments to $284 per week going forward to reflect the social
security benefits. In the modification judgment, the judge
credited the father for the $17,937 payment plus two $1,750
payments taken by the Department of Revenue (department) in May
and June 2023, presumably from the father's social security
benefits.
To the extent that the mother challenges crediting the
social security benefits received towards the father's child
support obligations, the Supreme Judicial Court has held "[t]he
noncustodial parent is . . . allowed a credit equal to the
amount of the [Social Security Disability Income] dependency
benefits." Rosenberg v. Merida, 428 Mass. 182, 188 (1998).
Accordingly, the judge properly gave the father a credit for the
5 social security benefits received, including the January 2023
lump payment.
Both parties appear to argue that the amount of the credit
is wrong. "The burden is on the appellant to show that a
finding is clearly erroneous." Pointer v. Castellani, 455 Mass.
537, 539 (2009), quoting Demoulas v. Demoulas Super Mkts., Inc.,
424 Mass. 501, 509 (1997), S.C., 428 Mass. 543 (1998), and S.C.,
432 Mass. 43 (2000). Neither party has met this burden.
The father argues that the credit should be increased by
$7,778 to reflect the difference between the $659 per week he
was paying from January through May 2023 and the $284 he should
have been paying once the social security benefits started.
This argument, however, is premised on the father's assertion
that "[t]here was no dispute that the father had been paying
$659 per week until the reduction by the May, 2023 order." That
assertion is not supported by the record on appeal, as the
payment records submitted by the father show that he had not
been doing so.
The mother, for her part, argues that there was "a minimal
remaining support arrearage due from Appellant of $439.00."
Even if the department's accounting reflected such an arrearage,
the department's documents show no indication that they reflect
any of the social security dependency benefits. Moreover,
6 although the mother stated in her opening statement at trial
that "[t]he DOR this morning lists arrearages in $439," she
produced no evidence of that at trial, at least so far as the
record before us reflects. To the contrary, the department
accounting for November 3, 2023, entered in evidence showed no
arrears.
There is simply no way from the evidence presented to us to
determine what the father's arrears were either when the judge
zeroed them out on May 26, 2023 [R 1:130], or at the time of
trial. See Poras v. Pauling, 70 Mass. App. Ct. 535, 536-537
(2007) (judge may fix amount of arrears). Accordingly, we
cannot determine whether the social security payments from
February through May 2023 were applied to the father's arrears
or instead should have resulted in an increased higher credit,
nor can we determine whether there were additional arrears that
should have reduced the credit.
Furthermore, trial exhibit four is mysteriously absent from
the record appendix. Perhaps it would shed some light on the
matter (and perhaps not), but "it is an appellant's duty to
produce an appendix containing all portions of the record
relevant to the issues raised on appeal." Lodigiani v. Paré,
103 Mass. App. Ct. 140, 141 n.3 (2023). On the record provided
7 to us, neither party has demonstrated the judge's calculation of
the father's credit was clearly erroneous.
Modification judgment entered on January 9, 2024, affirmed.
By the Court (Neyman, Ditkoff & Wood, JJ.2),
Clerk
Entered: March 25, 2025.
2 The panelists are listed in order of seniority.