Michael C. Janes v. Sarah Filas.

• Court: Massachusetts Appeals Court
• Decided: January 31, 2025
• Docket: 24-P-0079
• Status: Unpublished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

24-P-79

MICHAEL C. JANES

vs.

SARAH FILAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties married on June 16, 2002, and divorced on

November 27, 2018, by a judgment nisi. Approving an agreement

of the parties, a judge of the Probate and Family Court awarded

sole custody of the son to Michael C. Janes (father) and sole

custody of the daughter to Sarah Files (mother) and further

ordered the father to pay the mother weekly child support in the

amount of $182. In May 2021, the daughter moved out of the

mother's residence and moved in with her paternal aunt and

uncle. In October 2021, a second judge entered a temporary

order (based on a stipulation of the parties) that required the

father to pay future child support to the paternal aunt and

uncle instead of the mother. Thereafter, the father claims that the aunt and uncle incurred various expenses totaling $12,962.10

related to the daughter's residing with them through March 2022.

The father claims that he reimbursed the aunt and uncle for

these expenses, and on May 26, 2023, he filed a "verified

complaint in equity" against the mother and alleged the matters

set forth herein. He demanded the following: (1) reimbursement

of $12,962.10 paid to the aunt and uncle, and (2) reimbursement

of child support paid from June 2021 through October 2021 in the

amount of $3,154.72 (the period preceding the temporary order).

Following a hearing on a motion to dismiss pursuant to Mass. R.

Civ. P. 12 (b) (6), 365 Mass. 754 (1974), the second judge

dismissed the complaint with prejudice and awarded $3,500 in

attorney's fees to the mother. The father appeals, and we

affirm in part and dismiss in part.

After de novo review and accepting as true the allegations

in the complaint and drawing all inferences in the father's

favor, see Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674,

676 (2011), we conclude that the complaint in equity failed "to

state a claim upon which relief can be granted," Mass. R. Civ.

P. 12 (b) (6). The divorce judgment required the father to pay

the mother weekly child support in the amount of $182. As

events unfolded, however, the mother later agreed that the

daughter would live with the aunt and uncle, and a temporary

2 order modified the future payments accordingly. The father now

seeks reimbursement for claimed payments that he made to the

mother before the temporary order entered as well as

reimbursement for claimed payments that he unilaterally made to

the aunt and uncle toward what he believed was necessary for the

support of his daughter. The judge properly dismissed the

complaint because this factual scenario does not plausibly

suggest an "entitlement to relief." Iannacchino v. Ford Motor

Co., 451 Mass. 623, 636 (2008).

"As a general rule, a support obligor must make his or her

payments in the manner required by the support order or

judgment." T.M. v. L.H., 50 Mass. App. Ct. 856, 860 (2001).

The Legislature strictly limits retroactive modification: "Any

payment or installment of support under any child support order

. . . shall not be subject to retroactive modification except

with respect to any period during which there is pending a

complaint for modification." G. L. c. 119A, § 13 (a). This

statute also implicitly prohibits "extra-judicial modifications

of child support." Rosen v. Rosen, 90 Mass. App. Ct. 677, 683

(2016). See T.M., supra (support obligor "should not be allowed

to modify unilaterally a support order"). Thus, the governing

statute, G. L. c. 119A, § 13 (a), prohibits the relief sought by

the father in the circumstances presented.

3 A narrow equitable exception to this statute does not offer

relief here. "[A] judge is not foreclosed by G. L. c. 119A,

§ 13 (a), from determining whether 'compelling circumstances of

an equitable nature' warrant the allowance of a credit for the

payor's fulfillment of his or her child support obligation 'in a

manner other than as directed by the original order' but which

nevertheless accomplishes the maintenance of the child as

envisioned by the original order" (citation omitted). Rosen, 90

Mass. App. Ct. at 688. To receive such an "equitable credit,"

the support obligor must demonstrate a number of facts including

the support recipient agreed "to transfer custody of the child

to the payor for an extended period of time not contemplated in

the original custody order." Id. Because the aunt and uncle

rather than the payor (father) had custody of the daughter, the

father has failed to demonstrate a basis for equitable credit.

To the extent the father sought to enforce the wife's

obligations under the divorce judgment (e.g., paying medical

copayments for the daughter), the proper avenue for seeking

relief would be to file a complaint for contempt rather than a

new complaint in equity. "A complaint for civil contempt filed

pursuant to G. L. c. 215, § 34A, is the usual method of

remedying a failure to pay a continuing order for child support

or alimony." Karellas v. Karellas, 54 Mass. App. Ct. 469, 473–

4 474 (2002). "The purpose of such action is 'intended to achieve

compliance with the court's orders for the benefit of the

complainant.'" Quinn v. Quinn, 49 Mass. App. Ct. 144, 147

(2000), quoting Furtado v. Furtado, 380 Mass. 137, 141 (1980).

If the applicable standards are satisfied, a "judge in contempt

proceedings has broad discretion to fashion remedies." Mills v.

Mills, 4 Mass. App. Ct. 273, 278 (1976).

The father's appeal from the award of attorney's fees is

not properly before us. See G. L. c. 231, § 6G ("If the matter

arises in the superior, land, housing or probate court, the

appeal shall be to the single justice of the appeals court at

the next sitting thereof").

The mother's request for attorney's fees is denied.

Accordingly, the judgment of dismissal is affirmed, and the

father's appeal from the order awarding attorney's fees is

dismissed.

So ordered.

By the Court (Meade, Sacks & Hodgens, JJ.1),

Clerk

Entered: January 31, 2025.

1 The panelists are listed in order of seniority.