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-498
STEPHANIE A. HOWARD
vs.
DAVID W. HOWARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
David W. Howard (father), the former spouse of Stephanie A.
Howard (mother), appeals from a judgment of divorce nisi
(divorce judgment) issued by a judge of the Probate and Family
Court, claiming error in the judge's determinations of custody
(both legal and physical) and child support. The father also
appeals from an order issued by a single justice of this court
on May 25, 2023, denying the father's motion to stay the divorce
judgment.1 We affirm.
1The father filed additional notices of appeal, from (1) a judgment of contempt and several orders dated September 28, 2022, and (2) an order dated April 6, 2023, issued by a different Probate and Family Court judge denying the father's motion to stay the divorce judgment. The September 28, 2022 orders were subsumed by the contempt and divorce judgments and are not separately appealable (nor did the father set forth any Background. We summarize the trial judge's relevant
findings, supplementing them with undisputed facts in the
record, and reserving other facts for later discussion. See
Pierce v. Pierce, 455 Mass. 286, 288 (2009).
The parties were married in 2004. Four children were born
of the marriage: two sons and two daughters. Both parties
worked full time during the early years of the marriage;
however, the mother reduced her hours after the birth of the
first child and, shortly before the birth of the second child,
she left her job to care for the children full time. The
father, a mechanical engineer, worked for a company until late
2016, when he started his own firm. Though the firm was
successful during the first few years, with the father earning
in excess of $200,000 annually, its revenues began to decline
after the mother commenced divorce proceedings in February 2019.
1. The divorce proceedings. The father's reaction to the
mother filing for divorce was "nuclear." He became "hostile,"
"nasty," and "abusive" in his communications with the mother,
and he insisted on immediately having equal parenting time with
argument in his brief regarding those orders). Moreover, the father did not set forth any argument in his brief regarding the contempt judgment or April 6, 2023 order (nor did he provide copies of them in the record appendix); accordingly, we do not consider them. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Board of Registration in Med. v. Doe, 457 Mass. 738, 743 n.12 (2010).
2 the children, despite that the mother had been the children's
primary caregiver since birth.
After the mother filed for divorce, both parties initially
remained living in the marital home with the children. In
September 2019, the judge issued a temporary order incorporating
the parties' agreement for temporary shared legal and physical
custody, which allotted relatively equal parenting time to them.2
The father, however, refused to comply with the temporary
parenting schedule and failed to shield the children from his
anger toward the mother. During a confrontation in January
2020, the father threatened the mother that their next
confrontation would become "physical." The mother thereafter
obtained a G. L. c. 209A abuse prevention order against the
father (which was extended for one year) and moved out of the
marital home.
As the divorce litigation progressed, the boys' previously
"very close" relationship with the mother deteriorated. The
boys became increasingly hostile and combative toward the
2 The temporary parenting schedule provided that the children would (1) be in the mother's care from Monday morning until Wednesday afternoon, (2) in the father's care from Wednesday afternoon until Friday morning, and (3) spend alternating weekends in each parent's care. It was later adjusted (in a 2020 temporary order) to a "two-week" rotating schedule, with the father having slightly less parenting time than the mother (the children would be in the father's care from Thursday afternoon to Sunday afternoon on "week 1," and from Wednesday afternoon to Friday morning on "week 2").
3 mother, and both expressed their desire to spend less time with
her and more time with the father. On several occasions, the
father did not produce the boys for their scheduled parenting
time with the mother, sometimes claiming that the boys refused
to see her and that he would not force them to do so. The
discord between the boys and the mother reached an apex in
January 2022, when the father was jailed for contempt based on
his failure to pay child support. On learning of the father's
incarceration, the eldest son (who was fifteen at the time)
became enraged and verbally abusive toward the mother. After
the father was released from jail, the children visited him at
his home. When the mother came to pick the children up, the
boys were "extremely angry" with her. When they returned to her
home, the younger son (who was fourteen at the time) yelled and
verbally abused her while backing her into the kitchen counter.
The incident frightened the mother, and she was concerned about
exposing the girls to similar incidents in the future, so she
returned the boys to the father's house and had little parenting
time with them in the following months leading up to trial.
2. The trial and divorce judgment. Approximately three
months later, in May 2022, a two-day trial was held. Two of the
major disputed issues at trial were custody (both legal and
physical) and the father's income for purposes of calculating
child support. With respect to custody, the father proposed
4 that the parties be granted shared legal custody and shared
physical custody of all four children but that he be granted
primary physical custody of the boys. He asserted that the
boys' relationship with the mother deteriorated because of his
incarceration, and that the last time they were in the mother's
care, the environment was "unsafe." The judge disagreed and
found that the boys' animosity toward the mother had been fueled
by the father expressing his anger about her to the boys and
"embroil[ing]" them in the conflict between the parties. The
judge concluded that the father had "intentionally interfer[ed]
with [the] mother's relationship with [the boys]." The judge
further found that, throughout the litigation, the father
"refused to communicate respectfully and cooperatively about the
children" with the mother. The judge ultimately granted primary
physical custody of the girls to the mother, shared physical
custody of the boys to both parents, and sole legal custody and
decision-making authority for all four children to the mother.
With respect to determining the father's income for
purposes of calculating child support, the father claimed that
his income from his firm had drastically declined through no
fault of his own, due in part to the COVID-19 pandemic,
decreasing from approximately $235,000 in 2018 to less than
$100,000 by 2020 (as reported on his tax returns for those
years). At the time of the May 2022 trial, the father had not
5 yet filed his 2021 tax returns. The father proposed that the
judge calculate child support using an annual income for him of
$100,000. The judge, however, did not find the father credible
regarding his income. She ultimately concluded that he was
voluntarily underemployed, attributed an annual income to him of
$165,000, and ordered him to pay child support of $655 per week.
The father appealed, challenging the aspects of the divorce
judgment pertaining to custody and child support. We address
his contentions in turn.
Discussion. 1. Custody. The father contends that the
judge committed reversible error by granting the mother sole
legal custody of all four children, and by granting the parties
joint physical custody of the boys while allowing the mother to
retain sole decision-making authority.
As an initial matter, we address the father's contention
that by vesting sole legal custody (and thus sole decision-
making authority) in the mother, the judge effectively granted
the mother sole physical custody of the boys because she retains
decision-making authority when they are in the father's care.
"[C]ustody is divisible into two components:" (1) "legal
custody," and (2) "physical custody." Mason v. Coleman, 447
Mass. 177, 181 (2006). See G. L. c. 208, § 31. Legal custody
involves making "major decisions regarding the child's welfare
including matters of education, medical care and emotional,
6 moral and religious development." G. L. c. 208, § 31 ("Sole
legal custody" vests decision-making authority in one parent;
"[s]hared legal custody" requires "continued mutual
responsibility and involvement by both parents in major
decisions"). Physical custody, by contrast, pertains to
parenting time; that is, how much time the child is in each
parent's care. G. L. c. 208, § 31 ("Sole physical custody"
defined as child "resid[ing] with and be[ing] under the
supervision of one parent, subject to reasonable visitation by
the other parent; "[s]hared physical custody" defined as child
"hav[ing] periods of residing with and being under the
supervision of each parent . . . in such a way as to assure a
child frequent and continued contact with both parents"). See
Mason, supra at 181-182.
Here, the father was granted equal parenting time pursuant
to a schedule that ensured frequent and continued contact with
the boys, consistent with the statutory definition of "[s]hared
physical custody." G. L. c. 208, § 31. Moreover, while the
custody arrangement in this case was perhaps less common than
other custody arrangements, our courts have affirmed the grant
of sole legal custody to one parent where the parents have
shared physical custody. See, e.g., Malachi M. v. Quintina Q.,
483 Mass. 725, 731, 741 (2019); Custody of a Minor (No. 1), 21
Mass. App. Ct. 985, 987 (1986) ("mother has been granted joint
7 physical custody . . . to satisfy her important interests in
sharing the child's time and in exercising her responsibility
for the child's upbringing. In view of the antagonism presently
existing between the parents, it was not unreasonable" to grant
father sole legal custody). Accordingly, we do not agree with
the father's assertion that the grant of shared physical custody
was illusory.
We next turn to the father's claim that the judge's
determinations as to legal and physical custody amounted to
reversible error. We review custody determinations for an abuse
of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239,
245 (2015). "In custody matters, the touchstone inquiry [is]
. . . what is 'best for the child.'" Hunter v. Rose, 463 Mass.
488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840
(2003). "In making an order or judgment relative to the custody
of children, the rights of the parents shall, in the absence of
misconduct, be held to be equal, and the happiness and welfare
of the children shall determine their custody." G. L. c. 208,
§ 31. "When considering the happiness and welfare of the child,
the court shall consider whether or not the child's present or
past living conditions adversely affect his physical, mental,
moral or emotional health." Id. "The determination of which
parent will promote a child's best interests rests within the
discretion of the judge . . . [whose] findings . . . 'must stand
8 unless they are plainly wrong.'" Hunter, supra, quoting Custody
of Kali, supra at 845.
a. Legal custody. In granting the mother sole legal
custody, the judge cited the father's "inability to communicate
civilly and effectively" with the mother. The father asserts
that the judge, in essence, deprived him of shared legal custody
to "punish" him for being "uncivil." We disagree.
"[F]or joint custody or shared responsibility to work, both
parents must be able mutually to agree on the basic issues in
child rearing and want to cooperate in making decisions for
[their] children." Macri v. Macri, 96 Mass. App. Ct. 362, 369
(2019), quoting Rolde v. Rolde, 12 Mass. App. Ct. 398, 404
(1981). Joint legal custody is not appropriate where "the
relationship of the parties has been dysfunctional, virtually
nonexistent, and one of continuous conflict." Carr v. Carr, 44
Mass. App. Ct. 924, 925 (1998), cert. denied, 525 U.S. 1073
(1999).
Here, the judge found that the father had demonstrated an
unwillingness "to communicate respectfully and cooperatively
about the children" with the mother, sending her "abusive,
disrespectful" messages, refusing to discuss various matters
pertaining to the children (including their schedules,
activities, and medical care), and making unilateral decisions
regarding the children over the mother's objection. The judge
9 found, among other things, that the father (1) called the mother
a "disgusting sad excuse for a human being" and berated her for
not immediately receiving a job offer after being out of the
workforce for over a decade to raise the children; (2)
unilaterally signed the younger son up for club hockey over the
mother's objection; (3) refused to consent to (or even discuss
with the mother) the girls receiving COVID-19 vaccinations as
recommended by their pediatrician;3 (4) refused to answer the
mother when she asked if he was planning to buy one of the girls
a cell phone, stating that it was "[n]one of [her] business";
(5) refused to tell the mother whether he intended to pick the
elder son up from school when he became ill during the school
day, informing the mother that it was "[n]ot [her] concern"; and
(6) refused to discuss the holiday parenting schedule with the
mother.4
3 The father claims that the judge erroneously found that he refused to consent to the girls receiving COVID-19 vaccines against the advice of their pediatrician. He asserts that his unrebutted testimony demonstrated that the pediatrician spoke to him over the phone and admitted that the vaccine was not necessary. The judge, however, did not credit this testimony. See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). 4 The record revealed additional instances of the father's
unilateral decision-making and refusal to communicate with the mother regarding the children's welfare. For example, the father (1) unilaterally canceled a family therapy appointment that the boys were supposed to attend with the mother, so that the boys could get haircuts instead; (2) unilaterally canceled one of the children's orthodontist appointments, over the mother's objection; and (3) ignored the mother when she repeatedly asked him whether he planned to pick up one of the
10 Contrary to the father's assertion, these findings were
well supported by the evidence at trial. The judge's findings,
and the evidence supporting those findings, clearly demonstrated
that shared legal custody would be unworkable in this case given
the parties' dysfunctional, high-conflict relationship,
rendering them unable to communicate effectively or
cooperatively to engage in joint decision-making regarding the
children. See Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 571
(2023) ("it is generally inappropriate to grant shared legal
custody to parents who display a high level of acrimony that
impedes their ability to jointly make decisions about the
children's welfare"). The judge properly determined that shared
legal custody was not feasible in this case. See O'Connell v.
Greenwood, 59 Mass. App. Ct. 147, 155-156 (2003) ("in the face
of overwhelming undisputed evidence of hostility between the
parents and their disagreement on matters pertaining to the
child[ren], the child[ren]'s best interests . . . are likely
better served by ending the joint custodial arrangement," rather
than "forcing the parties into a cooperative relationship they
appear incapable of maintaining" [quotation and citation
omitted]).
children's medications (which the child was supposed to take during the father's parenting time).
11 The judge, therefore, was tasked with determining which
parent would be more capable of making decisions in furtherance
of the children's best interests. See Hunter, 463 Mass. at 494.
Implicit in the judge's findings is her determination that, of
the two parents, the mother was more capable of separating her
own needs from those of the children in order to make decisions
that promoted their best interests.5 In light of the father's
pattern of refusing to discuss matters regarding the children's
welfare with the mother, his unilateral decision-making without
regard for the mother's input, and his general hostility when
communicating with the mother, we cannot say the judge abused
her discretion in granting the mother sole legal custody. See
id. See also Macri, 96 Mass. App. Ct. at 369-370 (affirming
grant of sole legal custody to mother where parties continuously
had conflict, were unable to communicate effectively, and father
engaged in unilateral decision-making over mother's objection
demonstrating his inability to put children's needs first).
b. Physical custody. In granting the parties shared
physical custody of the boys, the father asserts that the judge
failed to consider certain factors pertinent to the best
interest determination, including the boys' "need for stability,
5The judge found that the father had "exhibited absolutely no ability to separate his feelings and needs from the needs and feelings of the children."
12 the effect of their strained relationship with [the] [m]other,
and their right to the care and custody of the parent they
preferred" (i.e., the father).6 He also claims certain findings
made by the judge were erroneous, and that he ultimately "lost
custody" of the boys because he refused to "bully [them] into a
relationship they did not want" with the mother. We are not
persuaded.
In determining the boys' best interests, the judge was
permitted to "consider the widest range of permissible evidence,
including the reports and testimony of [the] court appointed
[Guardian Ad Litem (GAL)7], evidence of the history of the
relationship between the child and each parent, [and] evidence
of each parent's . . . over-all fitness to further the child's
best interests." Ardizoni v. Raymond, 40 Mass. App. Ct. 734,
738 (1996). Moreover, the judge was permitted to consider the
6 The father also contends that reversal is required because the judge failed to consider certain factors required by G. L. c. 209C, § 10 (a); however, that statute only applies to custody proceedings involving children born to unmarried parents (it does not apply to custody determinations involving children of divorcing parents). Compare G. L. c. 208, § 31 (custody of children born to married parents), with G. L. c. 209C, § 10 (custody of children born to unmarried parents). 7 In this case a licensed psychologist was appointed as a
"Category E" GAL to report and make recommendations as to the issues of custody, parenting time, and parental alienation. See Imbrie, 102 Mass. App. Ct. at 561 n.5 ("In addition to investigating and reporting factual data to the court, a Category E GAL develops clinical opinions to assist the judge . . . in making custody and visitation decisions").
13 boys' "expressions of a preference" regarding custody, with the
caveat that such preference "'must be treated with caution,'
particularly where, as here, custody is hotly disputed." Id.,
quoting Hale v. Hale, 12 Mass. App. Ct. 812, 820 (1981).
The father contends that the judge failed to adequately
consider the boys' need for stability and their preferences
regarding custody. With respect to the boys' need for
stability, the shared parenting plan set forth in the divorce
judgment granted each party essentially the same amount of
parenting time as the temporary parenting plans issued during
the pendency of the divorce proceedings (including the temporary
parenting plan agreed on by the parties in September 2019). The
judge expressly chose to not alter the existing shared physical
custody framework for the boys (apart from slightly increasing
the amount of parenting time allotted to the father under the
2020 temporary order), because the boys had become "so polarized
that it would be . . . difficult to imagine them being
comfortable with anything less than shared physical custody
which, in fact, the boys have told numerous third parties
[including the GAL] they are seeking." It is apparent from the
judge's findings and rationale that she was inclined to grant
primary physical custody of the boys to the mother but for their
expressed opposition to such an arrangement. As such, contrary
14 to the father's assertion, the judge did indeed consider the
boys' preferences regarding custody.
The father, however, claims that the judge ignored the
boys' "choice [to] reside[] primarily with [him]" after their
relationship with the mother deteriorated. Once again, we
disagree. The judge's findings reflect careful consideration of
the boys' resistance to spending time with the mother, along
with the circumstances surrounding the deterioration of their
relationship with her, and she appropriately "treated with
caution" their expressions of desire to spend more time in the
father's care. Ardizoni, 40 Mass. App. Ct. at 738, quoting
Hale, 12 Mass. App. Ct. at 820. See Bak v. Bak, 24 Mass. App.
Ct. 608, 617 (1987) (judge may consider child's preference
regarding custody, but it should "not [be] given decisive
weight"). The judge found that the father had "intentionally
interfere[ed]" with the boys' relationship with the mother and
had failed to exercise his parental authority to ensure that
they attended their scheduled parenting time with her. The
father claims this finding is clearly erroneous,8 pointing to the
8 The father also claims error in the judge's finding that the father offered no testimony that he found the boys' behavior toward the mother unacceptable. The father asserts that he testified that he was "appalled" on learning of the boys' behavior. However, he made that statement after the close of evidence, during a colloquy with the judge where she asked if he was concerned about the boys' behavior. Accordingly, the
15 GAL's testimony that he did not find evidence of parental
alienation by the father. The GAL, however, testified that
while he did not "find a parental . . . alienation syndrome,"
there "were elements that contribute to alienation." The GAL
further testified that the father had inadequately protected the
children from his anger and resentment toward the mother, failed
to use his parental authority to stop the boys' disrespectful
behavior toward the mother, and failed to support a positive
relationship between the boys and the mother, which the judge
apparently credited. Accordingly, we cannot say the judge's
finding that the father interfered in the boys' relationship
with the mother was clearly erroneous.
The father next asserts that the shared parenting plan
ordered by the judge is "almost certain to prove chaotic," and
that the boys' best interests require that sole physical custody
be granted to the father -- even if it "result[s] in [the]
[m]other's 'severance' from the boys." Again we are not
persuaded. The difficulty posed by the boys' resistance to
spending time with the mother -- which the judge found that the
father encouraged -- neither makes an order for joint physical
custody fruitless nor warrants the exclusion of the mother from
the boys' lives (especially where she was their primary
judge's finding that the father "offered [no] testimony" on this point is not clearly erroneous.
16 caregiver up until the divorce proceedings). See McCarthy v.
McCarthy, 21 Mass. App. Ct. 924, 924 (1985) ("Tentative results
in difficult [custody] cases . . . do not excuse effort").
"Here, the judge's obligation was clear: to craft a creative
[parenting plan]," in the children's best interests, by "drawing
on the evaluations and recommendations of the professionals and
[the judge's] own insight, experience and knowledge." Id. The
judge found that the father had "exhibited absolutely no insight
into his own behavior and the damage that it has caused the
children by placing them in the middle of the parties'
conflict."9 The judge concluded that the father had "no ability
to promote a relationship between the children and [the]
mother," but also acknowledged the reality that the boys would
be opposed to "anything less than shared physical custody." The
judge carefully considered and weighed all relevant factors in
arriving at a determination that the boys' best interests would
be served by a shared parenting plan that ensured continued and
frequent contact with both parents. See G. L. c. 208, § 31.
We are satisfied that the judge properly applied the law,
considered all factors relevant to the children's best
9 The judge found that the mother had also put the children in between the parties and made derogatory statements about the father, but that this had occurred on "limited" occasions and only "in response to tremendous stress caused by the father's unrelenting behavior."
17 interests, and made findings of fact (which were not contrary to
the evidence) that provided ample support for her custody
determinations. Accordingly, based on the record before us, we
discern no abuse of discretion in the judge's determinations of
both legal and physical custody. Schechter, 88 Mass. App. Ct.
at 245, 260.
2. Child support. The father next contends that the judge
abused her discretion in attributing annual income to him of
$165,000 for purposes of calculating child support.
A judge's decision to attribute income to a party is
reviewed for an abuse of discretion. Davae v. Davae, 100 Mass.
App. Ct. 54, 57 (2021). "Income may be attributed where a
finding has been made that either parent is capable of working
and is . . . underemployed," and that parent "is earning less
than he or she could earn through reasonable effort." Child
Support Guidelines § I (E) (1)-(2) (Oct. 2021). In deciding
whether to attribute income to a parent, the judge must consider
"the specific circumstances of the parent, to the extent known
and presented to the [judge], including, but not limited to,
"the assets, residence, education, training, job skills, . . . age, health, past employment and earnings history, . . . record of seeking work, and the availability of employment at the attributed income level, the availability of employers willing to hire the parent, and the relevant prevailing earnings level in the local community" (emphasis added). Child Support Guidelines § I (E) (3) (Oct. 2021).
18 Here, the judge's findings reflect consideration of the
aforementioned factors that were presented to her at trial
(along with other relevant factors), including the father's (1)
degrees in mechanical engineering and management; (2) employment
history earning approximately $150,000 per year, prior to
starting his own firm in late 2016; (3) earnings from his firm
averaging over $200,000 annually from 2017 to 2019, and the
rapid decline in the firm's revenues after the mother filed for
divorce;10 (4) decision not to seek alternative employment after
the firm's revenue decline, instead "cho[osing] to build the
company . . . back up"; and (5) failure to file his 2021 tax
returns prior to the May 2022 trial.
The judge found the father's testimony regarding his
finances to lack credibility. The judge concluded that the
father was voluntarily underemployed, as he had not looked for
other work despite his claim that the firm had been experiencing
significant, ongoing revenue decline for three years. See
Macri, 96 Mass. App. Ct. at 365 (attributing income to husband
10In 2017 and 2018, the father earned an average of $234,000 per year in combined W-2 and K-1 income from his firm. In 2019, the year that the mother filed for divorce, the father's total income from the firm declined by approximately seventeen percent, to $194,443. In 2020, the first year of the COVID-19 pandemic, the father's income from the firm, as reported on his 2020 tax returns, declined by approximately fifty percent, to $95,655.
19 who had "not exercised reasonable efforts to secure appropriate
employment"). The judge noted the father's contradictory
testimony that he was optimistic about the firm's future and
that he had been "quite busy" with work over the past few
months, finding that the father would resume his historical
predivorce earning level with the firm following the divorce.
The judge also found that the father had artificially reduced
his income by recording his divorce legal fees as business
expenses11 and by using assets to remain current on his bills
(except for child support) rather than working.12 The judge
concluded that, "[g]iven [the father's] earning history of over
$200,000.00 annually prior to the filing of the divorce, the
attribution of $165,000.00 is more than reasonable."
The father contends that the judge's attribution of income
was "contradicted by all evidence at trial," which evidence
consisted almost entirely of his own testimony. He asserts that
the judge improperly refused without explanation to credit any
11 The father testified that he has total control over how he is paid, and that he stopped issuing himself regular paychecks because he had legal fees to pay. 12 Notably, despite his allegation of substantially
decreased income due to the COVID-19 pandemic and his use of assets to meet his expenses, the father's net worth (i.e., assets minus liabilities) actually increased between mid 2020 ($914,194.03, as reported on his June 2020 financial statement) and the trial in 2022 ($977,006.31, as reported on his May 2022 financial statement).
20 of his testimony regarding his income and the effect of the
COVID-19 pandemic on his business.13 He also contends that the
judge unfairly drew an adverse inference regarding his 2021
income based on his accountant's failure to file the father's
2021 tax returns. The father's contentions are, in essence, a
challenge to the judge's assessment of his credibility, which we
do not disturb on appeal. See Johnston v. Johnston, 38 Mass.
App. Ct. 531, 536 (1995) (judge's credibility determination
"close to immune from reversal on appeal except on the most
compelling of showings"). The judge was entitled to draw
adverse inferences based on the father's failure to file his
2021 tax returns before the trial,14 his vague testimony
regarding his 2021 earnings,15 and his failure to produce
13 This evidence included the father's testimony that the firm's revenues had sharply declined in 2020 because of the COVID-19 pandemic, which he claims was corroborated by the testimony of a witness (who runs a forensic engineering business similar to the father's own firm). However, when the witness testified that his business suffered a decline in revenue because of the COVID-19 pandemic, the mother's counsel objected, the objection was sustained, and the testimony was struck. 14 The judge was not required to credit the father's
testimony that the delay was his accountant's choice rather than his own.
15The father contends that the judge erroneously found he testified to having "no idea" how much he earned in 2021. The father is correct insofar as his actual testimony was that he had no idea what he owed in taxes for 2021, but the judge certainly could have found that the father was unable clearly to explain his idea of how much he earned in 2021. At one point during the trial, the father testified that he earned $47,015 in 2021. When the judge asked, "[W]here did you get that $47,000
21 documentary evidence (such as bank statements) of the firm's
finances for 2021 and the first quarter of 2022 (despite his
testimony that business was picking up).16 See M.C. v. T.K. 463
Mass. 226, 240 & n.16 (2012) ("In the absence of tax returns,
the judge appropriately could draw inferences adverse to the
father and impute net income based on evidence in the record");
Salten v. Ackerman, 64 Mass. App. Ct. 868, 872-873 (2005) (judge
entitled to draw adverse inferences in light of husband's
"failure to provide sufficient information" about income,
"evasiveness as to the finances of the partnership and his lack
of credibility"); Crowe v. Fong, 45 Mass. App. Ct. 673, 679
(1998) (judge entitled to draw adverse inferences from father's
failure to produce financial documents within his control and
"uncertainties surrounding his financial affairs"); Grubert v.
Grubert, 20 Mass. App. Ct. 811, 821-822 (1985) (adverse
inference permissible where "the uncertainty surrounding the
figure from," the father replied, "That is the [firm] soup," which included W-2 income of $12,500 (the father testified that he had not paid himself a salary since the second quarter of 2021). When the judge asked again how he arrived at the total $47,000 figure, the father said that it was on a spreadsheet prepared by his accountant, which he did not produce at trial.
16The only documents that the father submitted regarding his firm's finances for 2021 was a profit and loss statement that he prepared using the "QuickBooks" software, which was not supported by any documentation apart from his 2021 W-2 from the firm.
22 husband's income and assets is his own doing; the production of
records is a matter entirely within his control").
There is nothing in the record convincing us that the
judge's assessment of the father's credibility regarding his
finances was "plainly wrong" (citation omitted). Zaleski v.
Zaleski, 469 Mass. 230, 237 (2014). Accordingly, based on the
record before us, we discern no abuse of discretion in the
attribution of income to the father and calculation of his child
support obligation. See Davae, 100 Mass. App. Ct. at 57.17
Judgment of divorce nisi dated December 8, 2022, affirmed.
Judgment of contempt dated September 28, 2022, affirmed.
Order dated April 6, 2023, denying motion to stay, affirmed.
Single justice order dated May 25, 2023, denying motion to stay, affirmed.
By the Court (Sacks, Singh & Walsh, JJ.18),
17 Because we are affirming the divorce judgment, the father's arguments pertaining to the denial of his motion in this court to stay the divorce judgment are moot, and we need not address them. That said, we discern no error or abuse of discretion by the single justice, as the father failed to demonstrate a likelihood of success on the merits. See C.E. v. J.E., 472 Mass. 1016, 1017 (2015).
18 The panelists are listed in order of seniority.
23 Assistant Clerk
Entered: June 11, 2024.