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-682
NESTOR ALLEN LOAYZA
vs.
YASMINE LOAYZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Nestor Allen Loayza (husband), the former spouse of Yasmine
Loayza (wife), appeals from a November 2019 judgment issued by a
judge of the Probate and Family Court that adjudicated the
husband's complaint for modification of the divorce decree, and
a November 2019 order allowing the wife's motion for attorney's
fees.1 After a four-day trial, the judge denied the husband's
request for sole legal and physical custody of the parties'
child, allowed the husband's request to recalculate child
support, and partially allowed the wife's motion for attorney's
1Entered on the Probate and Family Court docket are multiple complaints for modification and contempt. The complaint at issue is contained in the husband's record appendix and was docketed as pleading number 468. fees. The husband appeals from so much of the judgment as
recalculated child support and from the order allowing
attorney's fees to the wife.2 On the calculation of child
support, the husband points to one place where the judge's
findings stated an incorrect amount for the husband's gross
weekly income; the wife concedes that the amount was incorrect.
Because the record is insufficient for us to determine whether
that error affected the calculation of child support, we remand
to the Probate and Family Court for determination of that issue
and, if necessary, recalculation of child support. We otherwise
affirm.
Discussion. 1. Apparent clerical mistake in finding on
imputed income. The husband argues that the judge erred by
stating in paragraph 73 of her findings that, for the period
between December 28, 2016, and April 20, 2017, she imputed gross
weekly income to the husband of $1,341.3 The wife agrees that
2 On appeal, the husband does not argue that the judge erred in concluding that joint physical and legal custody was in the best interests of the child. His notice of appeal states that he appeals from dismissals of two complaints for contempt, but he has not included the complaints for contempt in the record appendix, and he makes no argument about those rulings in his brief. We do not consider any of those issues. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
3 That $1,341 amount was the amount of income that, after the divorce trial in 2015, the trial judge had imputed to the husband.
2 paragraph 73 of the findings contains an apparent scrivener's
error, but points out that the husband could have remedied it by
filing a motion to correct a clerical mistake. See Mass. R.
Dom. Rel. P. 60 (a) ("Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time
of its own initiative or on the motion of any party").
In contrast to the $1,341 amount set forth in paragraph 73,
in six other paragraphs of her findings of fact, the judge
consistently found that the gross weekly income imputed to the
husband was $560, based on his March 6, 2017 financial
statement.4 In the rationale section of her decision, the judge
concluded that she "impute[d] weekly income to [the husband] as
reported on his Financial Statement, filed on March 6, 2017,"
i.e., the $560 amount.
Because the judge referred to the $560 amount in her
rationale, we cannot ascertain from the record before us whether
the judgment used that amount or the $1,341 figure as gross
weekly income imputed to the husband in calculating child
support for the period between December 28, 2016, and April 20,
4 The judge did not credit the husband's April 9, 2018 financial statement, in which he claimed a gross weekly income of $126. We do not disturb that finding.
3 2017.5 Accordingly, we remand for the judge to make further
findings clarifying what figure was used as the husband's gross
weekly income in calculating child support for that period and
for recalculation of the husband's child support obligation for
that period.
2. Attorney's fees. The husband argues that the judge
erred in awarding attorney's fees to the wife in the amount of
$6,000.
In her motion for attorney's fees, the wife argued that, by
refusing to agree to uncontested facts or exhibits and by
insisting on calling at least one redundant witness, the husband
caused the trial to take four days instead of the two that had
originally been scheduled. Her motion noted that in his
pretrial memorandum, the husband estimated that the trial would
take one day, but in fact he took more than three days to
present his case; the wife presented her case in under four
hours.
5 We decline the husband's request in his reply brief that we calculate the amount of child support. That determination is the prerogative of the Probate and Family Court, and in any event the husband did not include in the appellate record copies of the documents that would be necessary for us to make that calculation, including the parties' worksheets and the applicable Massachusetts Child Support Guidelines.
4 The judge, who presided at trial, had broad discretion
under G. L. c. 208, § 38, to award attorney's fees to either
party.
"The factors relevant to an exercise of judicial discretion in determining an award of attorney's fees in a case such as this include the ability of the wife's counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the husband's obstructionist conduct which prolonged the proceedings" (quotation and citation omitted).
Schechter v. Schechter, 88 Mass. App. Ct. 239, 260 (2015). The
husband protests that he "did not engage in obstructionist
conduct and merely lacked skill in conducting a trial." We are
not persuaded. "A judge has discretion to award fees even in
the absence of bad faith or frivolous claims or defenses."
Wasson v. Wasson, 81 Mass. App. Ct. 574, 582 (2012) (judge
determined that mother was "litigious for the sake of being
litigious"). "We recognize that a calculation of attorney's
fees requires an exercise of judgment involving the application
of many factors, and that any award made will be entitled to
considerable respect on review" (citation omitted). Cooper v.
Cooper, 62 Mass. App. Ct. 130, 141 (2004). The wife's motion
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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-682
NESTOR ALLEN LOAYZA
vs.
YASMINE LOAYZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Nestor Allen Loayza (husband), the former spouse of Yasmine
Loayza (wife), appeals from a November 2019 judgment issued by a
judge of the Probate and Family Court that adjudicated the
husband's complaint for modification of the divorce decree, and
a November 2019 order allowing the wife's motion for attorney's
fees.1 After a four-day trial, the judge denied the husband's
request for sole legal and physical custody of the parties'
child, allowed the husband's request to recalculate child
support, and partially allowed the wife's motion for attorney's
1Entered on the Probate and Family Court docket are multiple complaints for modification and contempt. The complaint at issue is contained in the husband's record appendix and was docketed as pleading number 468. fees. The husband appeals from so much of the judgment as
recalculated child support and from the order allowing
attorney's fees to the wife.2 On the calculation of child
support, the husband points to one place where the judge's
findings stated an incorrect amount for the husband's gross
weekly income; the wife concedes that the amount was incorrect.
Because the record is insufficient for us to determine whether
that error affected the calculation of child support, we remand
to the Probate and Family Court for determination of that issue
and, if necessary, recalculation of child support. We otherwise
affirm.
Discussion. 1. Apparent clerical mistake in finding on
imputed income. The husband argues that the judge erred by
stating in paragraph 73 of her findings that, for the period
between December 28, 2016, and April 20, 2017, she imputed gross
weekly income to the husband of $1,341.3 The wife agrees that
2 On appeal, the husband does not argue that the judge erred in concluding that joint physical and legal custody was in the best interests of the child. His notice of appeal states that he appeals from dismissals of two complaints for contempt, but he has not included the complaints for contempt in the record appendix, and he makes no argument about those rulings in his brief. We do not consider any of those issues. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
3 That $1,341 amount was the amount of income that, after the divorce trial in 2015, the trial judge had imputed to the husband.
2 paragraph 73 of the findings contains an apparent scrivener's
error, but points out that the husband could have remedied it by
filing a motion to correct a clerical mistake. See Mass. R.
Dom. Rel. P. 60 (a) ("Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time
of its own initiative or on the motion of any party").
In contrast to the $1,341 amount set forth in paragraph 73,
in six other paragraphs of her findings of fact, the judge
consistently found that the gross weekly income imputed to the
husband was $560, based on his March 6, 2017 financial
statement.4 In the rationale section of her decision, the judge
concluded that she "impute[d] weekly income to [the husband] as
reported on his Financial Statement, filed on March 6, 2017,"
i.e., the $560 amount.
Because the judge referred to the $560 amount in her
rationale, we cannot ascertain from the record before us whether
the judgment used that amount or the $1,341 figure as gross
weekly income imputed to the husband in calculating child
support for the period between December 28, 2016, and April 20,
4 The judge did not credit the husband's April 9, 2018 financial statement, in which he claimed a gross weekly income of $126. We do not disturb that finding.
3 2017.5 Accordingly, we remand for the judge to make further
findings clarifying what figure was used as the husband's gross
weekly income in calculating child support for that period and
for recalculation of the husband's child support obligation for
that period.
2. Attorney's fees. The husband argues that the judge
erred in awarding attorney's fees to the wife in the amount of
$6,000.
In her motion for attorney's fees, the wife argued that, by
refusing to agree to uncontested facts or exhibits and by
insisting on calling at least one redundant witness, the husband
caused the trial to take four days instead of the two that had
originally been scheduled. Her motion noted that in his
pretrial memorandum, the husband estimated that the trial would
take one day, but in fact he took more than three days to
present his case; the wife presented her case in under four
hours.
5 We decline the husband's request in his reply brief that we calculate the amount of child support. That determination is the prerogative of the Probate and Family Court, and in any event the husband did not include in the appellate record copies of the documents that would be necessary for us to make that calculation, including the parties' worksheets and the applicable Massachusetts Child Support Guidelines.
4 The judge, who presided at trial, had broad discretion
under G. L. c. 208, § 38, to award attorney's fees to either
party.
"The factors relevant to an exercise of judicial discretion in determining an award of attorney's fees in a case such as this include the ability of the wife's counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the husband's obstructionist conduct which prolonged the proceedings" (quotation and citation omitted).
Schechter v. Schechter, 88 Mass. App. Ct. 239, 260 (2015). The
husband protests that he "did not engage in obstructionist
conduct and merely lacked skill in conducting a trial." We are
not persuaded. "A judge has discretion to award fees even in
the absence of bad faith or frivolous claims or defenses."
Wasson v. Wasson, 81 Mass. App. Ct. 574, 582 (2012) (judge
determined that mother was "litigious for the sake of being
litigious"). "We recognize that a calculation of attorney's
fees requires an exercise of judgment involving the application
of many factors, and that any award made will be entitled to
considerable respect on review" (citation omitted). Cooper v.
Cooper, 62 Mass. App. Ct. 130, 141 (2004). The wife's motion
sought $7,200 in attorney's fees; the judge did not abuse her
discretion in ordering the husband to pay $6,000 of the wife's
attorney's fees. See L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014) (abuse of discretion occurs when judge makes clear
5 error of judgment in weighing factors relevant to decision "such
that the decision falls outside the range of reasonable
alternatives").
To the extent that the husband argues that his lack of
skill should be excused because at the time of trial he was a
law student but not yet a member of the bar, we note that pro se
litigants are held to the same standards as litigants
represented by counsel. See Jordan v. Register of Probate for
Hampden County, 426 Mass. 1020, 1020 (1998) ("Once again, we
caution pro se litigants that they will be held to the same
standards as litigants who are represented by counsel"). See
also Neuwirth v. Neuwirth, 85 Mass. App. Ct. 248, 257 (2014).6
Conclusion. We vacate paragraph 9 of the judgment of
modification dated November 26, 2019. The matter is remanded
for the limited purpose of further findings clarifying what
amount was imputed to the husband as gross weekly income in
calculating child support for the period between December 28,
2016, and April 20, 2017, and for recalculation of the husband's
child support obligations for that period consistent with this
memorandum and order. The judgment is otherwise affirmed. The
6 The wife's request for appellate attorney's fees is denied.
6 order dated November 26, 2019, allowing the wife's motion for
attorney's fees is affirmed.
So ordered.
By the Court (Desmond, Grant & Hodgens, JJ.7),
Clerk
Entered: April 29, 2025.
7 The panelists are listed in order of seniority.