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
25-P-436
REGINA L. FALLACE
vs.
DAVID R. FALLACE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
David R. Fallace (husband), the former spouse of Regina L.
Fallace1 (wife), appeals from a judgment of the Probate and
Family Court which, among other things, effectively dismissed
his complaint for modification in which he sought a reduction in
his child support obligations. The judge made detailed and
substantial findings of fact, all of which support her award of
current and retroactive child support for the parties' two
children, who were fourteen and sixteen years old at the time of
the modification trial. As we discuss in more detail below, we
1As is our practice, we use the names of the parties as they appear in the initial complaint. We recognize that the wife's name is now Regina L. Altreuter. discern no basis to disturb the judgment, which we affirm in its
entirety.
Background. We summarize the relevant facts as found by
the judge, supplemented where necessary by the undisputed
evidence in the record. See Pierce v. Pierce, 455 Mass. 286,
288 (2009). The parties had been married for almost twenty
years when they were divorced by a judgment of divorce nisi
(divorce judgment) in January 2018. As part of their separation
agreement (agreement), which was merged in part with the divorce
judgment, the husband was required to pay weekly child support
to the wife in the amount of $1,384 based on an imputed income
of $400,000. In addition, the husband was required to pay
(1) fifteen percent of his "gross employment-related income"
over $400,000 and up to $600,000 to the wife, and (2) twenty
percent of his "gross employment-related income" over $600,000
and up to $800,000 into existing § 529 college savings accounts
for the parties' children (529 accounts). "Gross employment-
related income" was defined in the agreement to exclude passive
investment income.
In August 2019, the husband had been working for Polaris
Partners as an advisor for about two years when his position was
eliminated and he became unemployed. Due to his loss of income,
he filed a complaint for modification, seeking a recalculation
of his child support obligation "in accordance with the amount
2 that would result from application of the Child Support
Guidelines" then in effect. See Child Support Guidelines (July
2023) (guidelines or child support guidelines). Prior to trial
on the modification complaint and on a separate modification
complaint filed by the wife, the husband sought and obtained a
temporary order in January 2020, which reduced his child support
obligation to $335 per week and required him to seek employment.
About one year later, in January 2021, the husband amended his
complaint for modification and requested sole legal and primary
physical custody of the parties' children, the termination of
his child support obligation, and that the wife pay him child
support.
The trial began in October 2021 before a different judge
and had proceeded for three nonconsecutive days when, in
December 2021, the judge suspended it so that the parties could
resolve discovery issues with a discovery master, whom the judge
appointed. During the suspension, the wife filed a motion
seeking to increase the husband's temporary child support
obligation, which the judge allowed. The new temporary order,
dated September 21, 2022, reversed the January 2020 temporary
order by reinstating the husband's $1,384 weekly child support
obligation retroactive to January 15, 2020, and requiring the
husband to make a retroactive child support payment of $163,796.
The husband filed a motion seeking relief from this temporary
3 order, which was denied. In denying the motion for relief, the
judge explained that the husband "filed a financial statement,
and the parties filed a Stipulation of Uncontested Facts,
showing income for 2019 through the present from all sources
equivalent to or in excess of that earned by [the Husband] at
the time of . . . the original support order." She also noted
that the September 2022 temporary order "puts the parties back
to the same position as at the time of divorce . . . without
prejudice to the arguments and evidence advanced at trial."
The trial then resumed in September 2023 and concluded,
after five more nonconsecutive days, in January 2024. In a
comprehensive judgment of modification and separate findings of
fact, the judge first found that at the time of the divorce, the
husband's annual salary was $300,000. By 2019, that salary had
increased to $600,000. The judge credited the husband's
testimony that he then lost his job in 2019. However, the judge
did not credit the husband's testimony that he declined to
accept a severance agreement, which would have provided him with
total severance of $200,000, because doing so "would make him
unmarketable for his job search." The judge also found that the
"vast majority of [the husband's] employment search efforts were
focused on establishing his own" venture capital fund (fund).
While unemployed, the husband's annual gross income was
temporarily reduced to approximately $370,000 in 2020 and about
4 $230,000 in 2021. However, once the fund was established and
generating income, the husband earned over $1.2 million in 2022
and "[a]t least $1,559,000" in 2023. As of the last day of
trial, the husband was owed an additional $900,000 for work that
he performed in 2023. The judge did not credit the husband's
testimony that he anticipated earning less income in 2024. The
judge found that the wife's income had also increased, from
approximately $80,000 per year at the time of the divorce, to
$150,000 per year at the conclusion of the trial.
The judge concluded that the parties' increased incomes was
a material and substantial change in circumstances justifying a
modification of the husband's child support obligation. The
judge then modified the percentage-based child support
obligation, relating to the husband's annual income in excess of
$400,000, in two ways. First, the judge removed any reference
to "gross employment-related income," as defined in the
agreement. Second, the judge ordered the husband to pay ten
percent of "all gross income over $800,000" per year to the
wife. These modifications were retroactive through 2022 and
2023, and the husband was ordered to pay $45,839.10 for 2022 and
$133,400 for 2023, "representing 10% of [the husband's] . . .
income over $800,000" in those years. As to the husband's
weekly child support obligation, however, the judge made no
changes.
5 Discussion. The husband argues that (1) the judgment's
provision for weekly child support is inconsistent with the
child support guidelines presumptive amount and unsupported by
required findings; (2) the judge abused her discretion by
failing to retroactively reduce his weekly child support
obligation; (3) the judge abused her discretion by modifying his
percentage-based child support payments; and (4) the judge
miscalculated his 2023 income in establishing his retroactive
payment for that year. He also argues that several of the
judge's factual findings are clearly erroneous.
We begin our discussion of the issues with a summary of the
pertinent legal framework. Pursuant to the child support
guidelines, "[a] child support order may be modified if . . .
[t]here is an inconsistency between the amount of the existing
order and the amount that would result from the application of
the guidelines" or if "[a]ny other material and substantial
change in circumstances has occurred." Guidelines, § III(A).
When determining the appropriate amount of child support, there
is "a rebuttable presumption that the amount of the order which
would result from the application of the guidelines is the
appropriate amount of child support to be ordered." G. L.
c. 119A, § 13. This presumption may be overcome, however, in
certain circumstances, including by an agreement of the parties
or where the presumptive order would be unjust, inappropriate,
6 or not in the best interests of the parties' children. See
Guidelines, § IV(B). When deviating from the guidelines, a
judge must enter "specific written findings" to support the
deviation. Guidelines, § IV(A). Alternatively, a judge may
"apply [an] existing deviation" from the guidelines when
modifying a child support obligation, if the obligation already
diverged from the guidelines presumptive order. Guidelines,
§ III(B).
We review a modification of child support for an abuse of
discretion, see Smith v. Smith, 105 Mass. App. Ct. 505, 508
(2025), and "accept the judge's findings of fact as true unless
they are clearly erroneous" (citation omitted), Whelan v.
Whelan, 74 Mass. App. Ct. 616, 619 (2009).
1. The weekly child support obligation. The husband first
argues that his current weekly child support obligation should
have been reduced to $1,079 per week on the grounds that the
amount awarded ($1,384) was (1) inconsistent with the guidelines
presumptive amount and (2) unjust in light of the wife's
increased income at the time of trial. He further contends that
the judge erred by not making the written findings required by
section IV of the guidelines to support a deviation from the
presumptive amount. See Wasson v. Wasson, 81 Mass. App. Ct.
574, 579 (2012) ("while it is in the sound discretion of the
judge to modify an existing child support order, when the
7 modification involves a deviation from the guidelines, both
[G. L. c. 208, § 28,] and the guidelines require that the judge
explain the deviation in specific written findings").2
We discern no abuse of discretion. First, we note that the
husband's total child support obligation was inconsistent with
the presumptive guidelines figure at the time he filed his
complaint for modification and at the time that the modification
judgment entered, because it required the husband to pay more
than ten percent of his annual income over $400,000.
Guidelines, § II(C) ("In cases where combined available income
is over $400,000 . . . the Court should consider the award of
support at the $400,000 level as the minimum presumptive order
. . . [and] any percentage applied to the payor's income above
the maximum level . . . should be below" ten percent). In
addition, although section IV of the guidelines requires a judge
to make specific findings when deviating from the presumptive
guidelines amount, section III of the guidelines separately
2 We are not persuaded by the wife's claim that the husband "waived or abandoned" this issue because the husband's amended complaint for modification does not allege an inconsistency between the divorce judgement's child support order and the guidelines presumptive order or a change in circumstances as to the wife's income. In his amended complaint, the husband requested that he pay "child support payments to the [wife] in accordance with the amount that would result from application of the Child Support Guidelines." This request sufficiently preserved the issue.
8 allows for the continued application of preexisting deviations.
See Guidelines, § III(B). In this case, the judge specifically
found that "[t]he parties agreed to . . . a deviation" at the
time of the divorce.3 Section III states that "the Court shall
apply the existing deviation to the modification action if"
three conditions are met: (1) the facts giving rise to the
deviation still exist; (2) the deviation continues to be in the
children's best interests; and (3) the guidelines amount would
be unjust or inappropriate under the circumstances. Id.
These conditions were met in this case. First, as to the
facts giving rise to the deviation, the judge found that the
parties agreed that the husband would pay a weekly amount and
that, "as [the husband's] income increased, . . . he would pay
child support of a specific percentage . . . given that [the
husband's] variable income exceeded the maximum amount"
considered by the guidelines.4 After trial, the husband's income
3 We assume arguendo that this was a deviation. But see Smith, 105 Mass. App. Ct. at 516.
4 At oral argument, the husband challenged this finding, arguing that the fact giving rise to the deviation was the "attribution" of $400,000 of annual income to the husband in the agreement, when he actually earned $300,000 per year. Where the husband earned more than $400,000 per year by the conclusion of trial, he contends that the fact giving rise to the original deviation no longer existed. However, the agreement imputed, rather than attributed, the income to the husband, and he stipulated for the modification trial that he earned over $400,000 at the time of the divorce.
9 continued to be variable and to exceed the amount considered by
the guidelines. As to the other criteria, the judge found that
a reduction in the husband's weekly support obligation,
including during the period when the husband was unemployed and
building his fund, "would be contrary to the children's best
interests and inappropriate in this case." In so finding, the
judge "considered [the husband's] lack of forthrightness
relative to his job search, his income, his assets, . . . and
the totality of the circumstances, most importantly the needs of
the children." Accordingly, the judge did not abuse her
discretion in declining to modify the husband's weekly child
support obligation. Nor has the husband provided any authority
for the proposition that the judge was required to make
deviation findings pursuant to section IV(A) of the guidelines
when she applied the existing deviation under section III(B).
Although "§ IV of the guidelines requires that the judge make
specific written findings when deviating from the guidelines,"
Wasson, 81 Mass. App. Ct. at 577, no such requirement appears in
section III. We will not read a requirement into the guidelines
which is not there. Cf. City Elec. Supply Co. v. Arch Ins. Co.,
481 Mass. 784, 789 (2019) ("Where language in certain provisions
is noticeably absent from other provisions of the same statute,
such as here, we have consistently held that the language should
not be implied where it is not present" [citation omitted]).
10 At the same time, the increase in the wife's income, which
was modest relative to the husband's, would not necessarily
constitute a change in circumstances requiring a reduction of
the weekly award, where the wife's income was but one of
multiple factors the judge could have considered. "Of the
several factors which the judge may consider in modifying a
decree for child support, . . . this court has never required
that they be accorded equal weight or conjunctive application"
(citation omitted). Brooks v. Piela, 61 Mass. App. Ct. 731, 734
(2004). "In any given case the judge as fact finder may thus
attribute greater significance to a change in the husband's net
worth than to changes in the needs or life style of the wife or
children" (citation omitted). Id. at 734-735. It was not an
abuse of discretion for the judge to give more weight to the
parties' agreement, the children's needs, and the husband's
income and assets, than to the wife's increase in income.
2. Retroactive weekly child support payments. The husband
argues that the judge abused her discretion when she declined to
grant him a retroactive reduction of his weekly child support
obligation due to his reduced income from January 2020 through
September 2022. Again, we disagree.
The husband first argues that a retroactive reduction was
required because the wife testified that she was able to pay for
the children's expenses during the time his weekly child support
11 payments were reduced by the temporary order entered in January
2020. In effect, he argues, without citation to any authority,
that child support payments can be reduced so long as the
recipient parent is able to cover all child related expenses.
This argument is flawed for a number of reasons, not the least
of which is that it is not supported by the record. While the
wife covered the children's expenses, she did so by withdrawing
funds from her retirement accounts, thereby reducing the amount
of her assets.
Next, the husband challenges certain findings relating to
his efforts to find employment, the severance offered by his
former employer, and whether he was "forthcoming with his income
and assets" as clearly erroneous. However, he does not dispute
that while he was unemployed, he declined a severance agreement,
made successful efforts to establish a fund, and maintained his
lifestyle. Nor does he dispute that his assets had increased in
value by the conclusion of trial, or that his reduction in
income was temporary. See Schuler v. Schuler, 382 Mass. 366,
373 (1981) (where payor's "reduced income is temporary, a
modification is not necessarily mandated"); P.F. v. Department
of Revenue, 90 Mass. App. Ct. 707, 710 (2016) (ownership of
valuable assets may be considered when determining payor's
ability to pay child support). Instead, he focuses on
subsidiary findings about the sincerity of his efforts to obtain
12 traditional employment, his reasons for not accepting severance
from his former employer, and his disclosure or nondisclosure of
certain assets. Those findings did not contribute materially to
the judge's ultimate analysis as to this issue, and thus, even
if they were erroneous, there was no abuse of discretion.
Furthermore, at least some of these findings were based on the
judge's credibility determinations, which we accord "the utmost
deference" (citation omitted). Yahna Y. v. Sylvester S., 97
Mass. App. Ct. 184, 185 (2020).
3. Percentage-based child support. The husband also
argues that the judge abused her discretion by modifying his
percentage-based child support obligation to remove the
limitations imposed by the agreement as to the form and amount
of his income considered in determining the obligation. He
contends that the change was contrary to the desires of the
parties as expressed by the agreement and excessive in light of
the needs of the parties' children, where the judge found that
the husband's lifestyle did not materially change "after the
parties' divorce."
The husband is correct insofar as "[a] judge who modifies a
divorce judgment does not write on a tabula rasa. To the extent
possible, and consistent with common sense and justice, the
modified judgment should take into account the earlier,
expressed desires of the parties" (citation omitted). Katzman
13 v. Healy, 77 Mass. App. Ct. 589, 598 (2010). But agreements are
nonetheless modifiable as to child support, and "[p]arents may
not bargain away the rights of their children to support"
(citation omitted). Cavanagh v. Cavanagh, 490 Mass. 398, 418
(2022). Furthermore, the judge's findings and rationale show
that she did, in fact, take the agreement into account when
modifying the husband's child support obligation. Not only did
the judge specifically refer to the agreement and its terms, she
preserved the general structure of the award, including the
weekly baseline child support order and the unique provision
that the husband pay a portion of his obligation directly into
the 529 accounts that had been established for the parties'
children, rather than to the wife.
Moreover, the changes the judge made were not excessive,
and did not "fall[] outside the range of reasonable
alternatives" (citation omitted). Bobblis v. Costa, 94 Mass.
App. Ct. 264, 266 (2018). Instead, they were grounded in
changes in circumstances material to the issue of child support.
See Brooks, 61 Mass. App. Ct. at 735-737. Where, as here, the
husband's income had increased dramatically, it was not an abuse
of discretion to order child support on income over $800,000 per
year to account for that increase. Furthermore, given that the
husband transitioned from traditional employment to earning
income through a fund he formed and at which he was a partner,
14 it was not an abuse of discretion to expand the definition of
income to account for the husband's level of control over his
future earnings. Cf. Halpern v. Rabb, 75 Mass. App. Ct. 331,
335 (when determining whether corporate earnings should be
included when calculating child support, judge should consider
shareholder's level of control over distributions).
Furthermore, an agreement to exclude certain forms of income
"does not control when determining what income is available for
child support" in subsequent modifications. Jones v. Jones, 101
Mass. App. Ct. 673, 687 (2022). See Guidelines, § I(A) ("income
is defined as gross income from whatever source").
Finally, the husband is also correct that child support is
"rooted in a determination of need, which is defined, at least
in part, by the[] parents' standard of living" (quotation and
citation omitted). Macri v. Macri, 96 Mass. App. Ct. 362, 368
(2019). Nonetheless, we are not persuaded that the judge's
finding that the husband's lifestyle did not materially change
"after the parties' divorce" precluded modification of his
percentage-based child support obligation, as the husband
contends. Even assuming that the finding referred to his
lifestyle at the time of trial, and not only to when he was
unemployed, the husband's lifestyle was not the only relevant
factor. See Brooks, 61 Mass. App. Ct. at 734–35. There was
evidence that the expenses of the children had increased.
15 Likewise, the judge did not find that there was "no material
disparity in the standard of living in the respective parents'
households." Smith v. Edelman, 68 Mass. App. Ct. 549, 554
(2007). As such, the judge did not abuse her discretion by
considering the husband's increased income and assets when
making her determination.
4. The husband's 2023 income. The husband also challenges
the calculation of his retroactive child support obligation for
income over $800,000 for 2023, arguing that the judge's implicit
finding of his earnings in 2023 was clearly erroneous. The
husband was ordered to pay $133,400 for 2023, implying that he
earned $2,134,000 in income in that year. The husband points us
to the judge's finding that he earned "[a]t least $1,559,000" in
2023, and her finding that the chief financial officer of the
fund "credibly testified that [the husband's] total income for
2023 would be approximately $1,700,000" for the year, to support
his argument that the retroactive payment is unsupported by the
record, and therefore clearly erroneous.
The wife agrees that the amount of the husband's 2023
income implicitly found by the judge was erroneous. However,
she argues that the husband's actual income would support a
higher, rather than lower, retroactive payment. Indeed, the
record shows that the judge found, in addition to the findings
discussed above, that the husband earned $1,259,000 in
16 distributions from his fund through June of 2023, received
"guaranteed payments" of $300,000 that year, and was "owed
$900,000" in unpaid distributions for 2023 as of the last day of
trial. As such, we are not persuaded that the judge's implicit
determination of the husband's income was erroneously high.5
Modification judgment affirmed.
By the Court (Vuono, Sacks & Ditkoff, JJ.6),
Clerk
Entered: March 27, 2026.
5 The wife's request for appellate attorney's fees and double costs is denied. The husband's request for attorney's fees is similarly denied.
6 The panelists are listed in order of seniority.