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-509
VANJA KOJUHAROVA
vs.
PETAR STEFANOV.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Vanja Kojuharova (mother) appeals from an October 26, 2023
modification judgment (second modification judgment) entered by
a judge of the Probate and Family Court, modifying the parties'
divorce judgment to alter the amount of child support owed by
Petar Stefanov (father). Specifically, the mother challenges
the portions of the second modification judgment related to the
attribution of her current gross income, the calculation of the
father's gross income, and the retroactive date from which the
father owes child support. For reasons stated below, we affirm
in part and vacate in part.
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).
On October 19, 2017, the parties divorced and shared legal
custody of their three children, with the mother having primary
physical custody. The husband was obligated to pay the wife
$265 per week in child support. At the time of the divorce, the
mother worked as a senior software engineer at Harvard
University and the father worked as a biomedical manufacturing
technician at Fikst,1 an engineering consultant.
Two years later, on November 5, 2019, the father filed a
complaint for modification seeking primary physical custody of
their oldest child, and a recalculation of child support
payments. On November 21, 2019, a Probate and Family Court
judge issued a temporary order granting the father primary
physical custody of the oldest child and ordering weekly
parenting time with the mother. On June 3, 2020, the mother
filed her own complaint for modification. After a trial, on May
25, 2021, a Probate and Family Court judge issued a modification
of judgment (first modification judgment) to reflect the
significant changes in circumstances since the original support
agreement -- mainly the fact that the oldest child had been
living with the father, as agreed to by the parties. After
1 In 2022, the husband's employer, FIKST, was acquired by his current employee, Rebuild FIKST.
2 applying the Child Support Guidelines, the father's child
support obligation was removed and the mother was obligated to
pay weekly child support to the father.
On March 16, 2022, the mother filed a complaint for
modification on the May 25, 2021 modification of judgment and
soon after filed a motion to suspend child support. On June 22,
2022, a trial commenced on the sole issue of the mother's
request for a reduction or elimination of child support. On
October 26, 2023, a second modification judgment was issued by a
judge in the Probate and Family Court, terminating the mother's
obligation to pay weekly child support and renewing the father's
obligation to pay child support. The mother subsequently filed
a motion to amend the second modification judgment, which was
denied. This appeal followed.2
Discussion. The mother's argument centers around her
disagreement with the judge's findings regarding both the
mother's salary and the father's salary when determining the
final child support obligation. Under G. L. c. 209C, § 9 (a),
"if the court finds a parent chargeable with the support of a
child," the court shall order the parent, in accordance with
G. L. c. 209C, § 9 (c), to make payments "toward the current
2 The notice of appeal did not address the motion to amend the second modification judgment and on appeal the mother makes no separate argument related to it.
3 support and maintenance of the child." See Department of
Revenue v. Mason M., 439 Mass. 665, 669 (2003). To determine
the specific amount of child support, judges are required to
follow the Massachusetts Child Support Guidelines (guidelines).
See G. L. c. 209C, § 9 (c); Mason M., supra. "Our review of a
child support modification judgment is limited to whether the
judge's factual findings were clearly erroneous, whether there
were other errors of law, and whether the judge appears to have
based [her] decision on the exercise of sound discretion."
Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692 (2017). "The
standard of review reflects substantial, but not unlimited,
deference to the judge who saw the witnesses and heard the
evidence." Pierce v. Pierce, 455 Mass. 286, 293 (2009).
1. Attribution of income to the mother. In the second
modification judgment, the judge determined that for child
support purposes the mother's gross weekly income was $2,541.
The mother argues that the judge abused her discretion in making
this determination because this figure is an estimation of the
mother's total gross income if she worked full-time, rather than
a reflection of her actual gross income, which is twenty percent
less because of her reduced hours. We disagree.
It is within the province of the trial judge to make income
attributions "where a finding has been made that either party is
capable of working and is unemployed or underemployed." Fehrm-
4 Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 531 (2016),
quoting Child Support Guidelines § I.E. Relevant factors that
the court considers when determining income level include the
needs and care of the children, specific circumstances of the
parent, and the availability of employment at the attributed
income level. See Child Support Guidelines § I.E. (2023).
Additionally, "[i]f the Court makes a determination that either
party is earning less than he or she could earn through
reasonable effort, the Court should consider potential earning
capacity rather than actual earnings in making its child support
order." Id. at § I.E.(2).
In this case, we discern no abuse of discretion where the
judge considered all relevant factors when determining that the
mother's full-time salary should be attributed for calculating
child support. Here, the mother by her own admission had
initially reduced her hours to eighty percent because of the
COVID-19 pandemic and the unique demand for childcare at the
time. However, the judge made specific findings that the
children have since returned to full-time in-person school in
the fall of 2021. The mother alleges that she is still unable
to return to full-time work despite the availability of
increased hours because of demands related to the children's
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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-509
VANJA KOJUHAROVA
vs.
PETAR STEFANOV.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Vanja Kojuharova (mother) appeals from an October 26, 2023
modification judgment (second modification judgment) entered by
a judge of the Probate and Family Court, modifying the parties'
divorce judgment to alter the amount of child support owed by
Petar Stefanov (father). Specifically, the mother challenges
the portions of the second modification judgment related to the
attribution of her current gross income, the calculation of the
father's gross income, and the retroactive date from which the
father owes child support. For reasons stated below, we affirm
in part and vacate in part.
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).
On October 19, 2017, the parties divorced and shared legal
custody of their three children, with the mother having primary
physical custody. The husband was obligated to pay the wife
$265 per week in child support. At the time of the divorce, the
mother worked as a senior software engineer at Harvard
University and the father worked as a biomedical manufacturing
technician at Fikst,1 an engineering consultant.
Two years later, on November 5, 2019, the father filed a
complaint for modification seeking primary physical custody of
their oldest child, and a recalculation of child support
payments. On November 21, 2019, a Probate and Family Court
judge issued a temporary order granting the father primary
physical custody of the oldest child and ordering weekly
parenting time with the mother. On June 3, 2020, the mother
filed her own complaint for modification. After a trial, on May
25, 2021, a Probate and Family Court judge issued a modification
of judgment (first modification judgment) to reflect the
significant changes in circumstances since the original support
agreement -- mainly the fact that the oldest child had been
living with the father, as agreed to by the parties. After
1 In 2022, the husband's employer, FIKST, was acquired by his current employee, Rebuild FIKST.
2 applying the Child Support Guidelines, the father's child
support obligation was removed and the mother was obligated to
pay weekly child support to the father.
On March 16, 2022, the mother filed a complaint for
modification on the May 25, 2021 modification of judgment and
soon after filed a motion to suspend child support. On June 22,
2022, a trial commenced on the sole issue of the mother's
request for a reduction or elimination of child support. On
October 26, 2023, a second modification judgment was issued by a
judge in the Probate and Family Court, terminating the mother's
obligation to pay weekly child support and renewing the father's
obligation to pay child support. The mother subsequently filed
a motion to amend the second modification judgment, which was
denied. This appeal followed.2
Discussion. The mother's argument centers around her
disagreement with the judge's findings regarding both the
mother's salary and the father's salary when determining the
final child support obligation. Under G. L. c. 209C, § 9 (a),
"if the court finds a parent chargeable with the support of a
child," the court shall order the parent, in accordance with
G. L. c. 209C, § 9 (c), to make payments "toward the current
2 The notice of appeal did not address the motion to amend the second modification judgment and on appeal the mother makes no separate argument related to it.
3 support and maintenance of the child." See Department of
Revenue v. Mason M., 439 Mass. 665, 669 (2003). To determine
the specific amount of child support, judges are required to
follow the Massachusetts Child Support Guidelines (guidelines).
See G. L. c. 209C, § 9 (c); Mason M., supra. "Our review of a
child support modification judgment is limited to whether the
judge's factual findings were clearly erroneous, whether there
were other errors of law, and whether the judge appears to have
based [her] decision on the exercise of sound discretion."
Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692 (2017). "The
standard of review reflects substantial, but not unlimited,
deference to the judge who saw the witnesses and heard the
evidence." Pierce v. Pierce, 455 Mass. 286, 293 (2009).
1. Attribution of income to the mother. In the second
modification judgment, the judge determined that for child
support purposes the mother's gross weekly income was $2,541.
The mother argues that the judge abused her discretion in making
this determination because this figure is an estimation of the
mother's total gross income if she worked full-time, rather than
a reflection of her actual gross income, which is twenty percent
less because of her reduced hours. We disagree.
It is within the province of the trial judge to make income
attributions "where a finding has been made that either party is
capable of working and is unemployed or underemployed." Fehrm-
4 Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 531 (2016),
quoting Child Support Guidelines § I.E. Relevant factors that
the court considers when determining income level include the
needs and care of the children, specific circumstances of the
parent, and the availability of employment at the attributed
income level. See Child Support Guidelines § I.E. (2023).
Additionally, "[i]f the Court makes a determination that either
party is earning less than he or she could earn through
reasonable effort, the Court should consider potential earning
capacity rather than actual earnings in making its child support
order." Id. at § I.E.(2).
In this case, we discern no abuse of discretion where the
judge considered all relevant factors when determining that the
mother's full-time salary should be attributed for calculating
child support. Here, the mother by her own admission had
initially reduced her hours to eighty percent because of the
COVID-19 pandemic and the unique demand for childcare at the
time. However, the judge made specific findings that the
children have since returned to full-time in-person school in
the fall of 2021. The mother alleges that she is still unable
to return to full-time work despite the availability of
increased hours because of demands related to the children's
schedules and the mother's commute via public transportation.
However, the judge did not credit her testimony as it related to
5 her commuting issues, and found that there was insufficient
evidence to support a finding of a material change in
circumstance from the first modification judgment where the
court found that the mother's working hours would increase once
the children returned to full-time school. See Johnston v.
Johnston, 38 Mass. App. Ct. 531, 536 (1995) ("the credibility of
a party . . . who appeared at trial is quintessentially the
domain of the trial judge"). We discern no abuse of discretion.
2. Calculation of the father's income. According to the
second modification judgment, the judge calculated the father's
income by referencing his W-2 forms (W-2) from 2021 and 2022,
and pay stubs for 2023. The mother argues that this was an
error because specific income information was omitted from the
W-2s, such as employer 401(k) retirement account (401k)
contributions, bonus income, and income from the father's
previous employer.3 We address each in turn.
a. 401k contributions. The Supreme Judicial Court in
Cavanagh v. Cavanagh, 490 Mass. 398, 417 (2022), unequivocally
held that "employer contributions to a retirement account
constitute income for the purposes of calculating child
3 Under the guidelines, income is defined as "gross income from any source" and is not "necessarily the equivalent of a parent's taxable income" as indicated in a W-2. Whelan v. Whelan, 74 Mass. App. Ct. 616, 625 (2009).
6 support." Here, the judge omitted the father's employer
contributions to his 401k retirement account from 2022,
$3,694.04, and 2023, $1,299.12. Accordingly, we remand for the
judge to recalculate the father's 2022 and 2023 income
consistent with Cavanagh and make any necessary adjustment to
the child support aspect of the second modification judgment
b. Father's bonus income. The guidelines define "income"
in a broad manner and expressly include "bonuses" as income.
See Guidelines § I-A (6). Even fluctuating, nonguaranteed
bonuses must be considered as part of the evaluative criteria
set in the guidelines, although the judge has the ultimate
discretion on whether child support based on the bonuses shall
be awarded. See Levitan v. Rosen, 95 Mass. App. Ct. 248, 256
and n.12 (2019).
In this case, the father has a record of receiving
fluctuating bonuses in 2021, 2022, and 2023.4 The judge
incorporated the $5,227 in bonus income that the father
accumulated over the first three months of 2023 into his total
salary calculation by averaging the three-month total bonus
across fifty-two weeks -- adding just $100 per week. However,
this method of calculation overlooks the fact that the father
4 According to pay stubs in the record, the father received $26,500 in bonus income in 2021; $21,5000 in 2022; and $5,227.24 through the first three months of 2023.
7 received over twenty thousand dollars in bonus income in 2021
and 2022 and he did not testify that his 2023 bonus income would
be lower. The $21,000 bonus from 2022 spread over fifty-two
weeks was $413.46 per week. Therefore, without specific
reasoning from the judge explaining why she did not consider
previous bonus income when calculating the father's 2023 income,
we remand for further findings and clarification by the judge
and any necessary adjustment to the child support aspect of the
second modification judgment.
c. Unused paid time off. The mother argues that the judge
erred in failing to incorporate the father's payout of $4,718.70
in unused paid time off from his previous employer, when
calculating his 2022 income. Under the guidelines, income
expressly includes "wages." See Guidelines § I-A. The Wage
Act, G. L. c. 149, § 148, specifically provides that the term
"wages" includes holiday and vacation pay. See O'Connor v.
Kadrmas, 96 Mass. App. Ct. 273, 287 (2019). The judge in the
second modification judgement provided no explanation for the
omission of these wages in either the judgment or accompanying
findings of fact. Accordingly, we remand for further findings
on these omitted wages and their inclusion in the father's 2022
income calculation, and any necessary adjustment to the child
support aspect of the second modification judgment.
8 3. Retroactive child support calculation. The mother
argues that the judge improperly calculated the retroactive
child support by excluding up to nine additional eligible
months, thereby unjustly enriching the father. When it is in
the best interest of a child and circumstances have materially
changed, a party may be eligible for retroactive modification of
a child support order. See Hoegen v. Hoegen, 89 Mass. App. Ct.
6, 11 (2016). "A judge is not required to make an order for
modification retroactive, but 'absent a specific finding that
retroactivity would be contrary to the child's best interest,
unjust, or inappropriate,' these factors should be considered."
Id. at 11-12, quoting Whelan v. Whelan, 74 Mass. App. Ct. 616,
627 (2009).
In this case, the judge agreed that retroactive child
support payments to the mother were appropriate and set the
retractive date to "the first Friday in 2023," because by the
end of 2022 the father had more "fully realized the average
income" determined by the judge in the proceedings. However, it
is unclear from the judge's reasoning why the end of 2022 marks
when the father fully realized his income, when the judge had
already determined in her findings that the father had an
"increase in his income from the prior [2021] judgment" and this
increase was reflected in his salary for the entirety of 2021
9 and 2022.5 Given this discrepancy, we remand the case for a new
determination of the date to which the modification of child
support shall be retroactive or for an explanation of why it
should not be retroactive to the date the modification complaint
was filed -- March 18, 2022. See Whelan, 74 Mass. App. Ct. at
627, quoting Boulter-Hedley v. Boulter, 429 Mass. 808, 812
(1999) ("If the father has been paying less than would otherwise
have been required under the Guidelines, this 'necessarily
implies that the child has been receiving insufficient support
during the pendency of the complaint'").
Conclusion. Numbered paragraphs 3 and 4 of the orders
contained in the October 26, 2023, modification judgment
pertaining to the father's child support obligation and
retroactive adjustments of child support are vacated and the
matter is remanded for further proceedings consistent with this
decision. The modification judgment is otherwise affirmed.
During the pendency of the remand, the father shall continue
5 The judge found that the father had earned $87,682 in 2021 and $90,024 in 2022.
10 paying child support of $104 per week, unless it has been or is
otherwise ordered by the judge.
So ordered.
By the Court (Henry, Smyth & Toone, JJ.6),
Clerk
Entered: July 24, 2025.
6 The panelists are listed in order of seniority.