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

22-P-1262

JOHN THOMAS O'DONNELL

vs.

KYLEE CHRISTINE GRANFIELD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is a case about child support. The father appeals 

from an "Amended Judgment of Modification," and raises three 

principal arguments: (1) that the judge erred in ordering the 

father to pay one-half of his eleven year old daughter's private 

school expenses, (2) that the judge erred in ordering the father 

to pay one-half of the daughter's extracurricular expenses, for 

activities such as ice hockey, lacrosse and summer camps, and 

(3) that the judge did not properly calculate the father's gross 

income and thus the ordered child support payment of $712 per 

week was improperly inflated. Finding no merit in the father's 

arguments, we affirm.
2

Background. The father and the mother were never married 

and this proceeding concerns their one child. The father is the 

owner and operator of a business, O'Donnell Paving and 

Landscaping (OP & L). A central question at trial was 

determining the father's gross income from the business. The 

mother presented evidence of the father's actual income through 

an accounting expert; the father through his business

accountant. As the judge put it:

Father is the sole owner of OP & L. Given this, he is able 

to manage the finances of the business in any way he 

chooses; and he does. The business pays myriad personal 

expenses for father and other family members, even for 

family pets. It would be an impossible task for this Court 

to quantify with certainty the expenses paid by the 

business that are not 'ordinary and necessary expenses 

required to produce income,' but they are quite substantial 

and significantly reduce father's taxable income related to 

the business.

The judge concluded that the father's actual gross income 

from OP & L was $279,202 per year, and that applying the child 

support guidelines (and accounting for the mother's yearly 

income), the father was to pay $712 per week. The judge also 

ordered the father to pay one-half of the daughter's private 

school expenses. The judge noted that the mother has sole legal 

custody, and reasoned that "[t]he Court is satisfied that [the] 

mother had good reasons to enroll [the child] in private school; 

and it appears that the child is thriving in that academic 

setting." The judge reached a similar conclusion in ordering 
3

the father to pay one-half of the daughter's extracurricular 

activities: "[w]here [the] father is able to pay for 'extras' 

for himself, his older daughter and other members of his family 

through the cash flow generated by his business, he has the 

ability to do the same for [the child]."

1. Discussion. The order to pay for private school. The 

father first challenges the order that he pay one-half of the 

child's private school expenses, claiming that the judge is not 

authorized by the applicable statute, G. L. c. 209C, § 9, to 

order a parent "to pay secondary school tuition." That 

contention is simply incorrect. The statute states that in 

determining child support, the judge "shall apply the child 

support guidelines promulgated by the chief justice of the trial 

court." G. L. c. 209C § 9. Those guidelines, in turn, state 

that "in cases where the Court makes a determination that there 

are additional child-related expenses such as . . . private

school . . . which are in the best interest of the child and 

which are affordable by the parties, the Court may allocate 

costs to the parties on a case-by-case basis." Child Support 

Guidelines § II(M) (Oct. 2021). See M.C. v. T.K., 463 Mass. 

226, 237-239 (2012) (remanding for determination of whether, as 

per guidelines, private school expenses were affordable by 

parties and in best interests of child).
4

During oral argument, the father's counsel suggested a 

different argument, which was that the guidelines themselves, 

insofar as they authorized payment for private secondary school, 

exceeded the authority granted to the drafters of those 

guidelines. The father's counsel did not point us to any 

relevant authority on the issue, however, and more importantly, 

the argument was made for the first time on appeal. We will not 

upset a trial judge's order based upon an argument that was not

made to her. See Commonwealth v. Bettencourt, 447 Mass. 631, 

633 (2006).

As the order to pay for private secondary school education 

was authorized, we review it for abuse of discretion. See 

Bobblis v. Costa, 94 Mass. App. Ct. 264, 266 (2018); Wasson v. 

Wasson, 81 Mass. App. Ct. 574, 576 (2012). We discern no abuse 

of discretion here. While we think an order requiring a parent 

to pay for private secondary school education requires a showing 

of appropriate circumstances, the judge expressly found that 

"good reasons" existed here, and such was borne out by the 

evidence at trial. The child has some learning impediments and 

had been struggling in public school; she was doing much better 

in the private school due to the flexibility of the private 

school teaching environment. Finally, we note that the judge 

ordered the parents to split the costs of the school, thereby 
5

ensuring that the mother would bear a significant financial 

burden and would not make the choice lightly.

2. Extracurricular activity costs. The father also 

challenges the order that he pay one-half of the child's 

extracurricular activity costs, including sports teams in ice 

hockey and lacrosse, and summer camps. The father appears to be 

arguing that the costs are simply too high –- that the child 

does not need to do all of the activities. For reasons similar 

to those noted above, we are not persuaded. As the judge put 

it: "father deferred to mother's judgment when he agreed to 

give her sole legal custody, and mother decided that [the child] 

would benefit from these activities, as well as summer camps. 

By all accounts . . . [the child] is flourishing generally while 

maintaining the activities schedule established for her by 

mother."

3. The child support payment. Finally, the father 

challenges the judge's child support order because, he claims, 

the judge miscalculated his gross income. We understand this 

argument to be that the judge's findings were clearly erroneous, 

meaning that there was either no evidence to support them, or 

that despite supporting evidence, "'the reviewing court . . . 

[must be] left with the definite and firm conviction that a 

mistake has been committed.'" Bldg. Inspector of Lancaster v. 

Sanderson, 372 Mass. 157, 160 (1977), quoting United States v. 
6

United States Gypsum Co., 333 U.S. 364, 395 (1948). Again, we 

are not persuaded.

The judge found as fact that the father's income was 

comprised of two components –- a salary of $102,00 per year, and 

the ordinary business income of OP & L, which was attributable 

to father as the sole owner. As to the latter amount, the judge 

first averaged the past three years as reported on OP & L's tax 

returns, arriving at an average business income of $145,303 per 

year. However, the judge noted that OP & L took many deductions 

against its ordinary business income that were not appropriate, 

because they were not "ordinary and necessary expenses required 

to produce income." These deductions artificially reduced the 

father's gross income for child support purposes. Stating that 

it was an "impossible task" to quantify all such improper 

expenses, the judge chose to add back to OP & L's income only 

two such items -– (1) the expenses for the father's Maserati 

(one of seven vehicles expensed through the business), and (2) 

depreciation expenses. The adjustments resulted in an annual 

income of $279,202 per year ($102,000 plus $145,303 plus

$31,899).

The father objects to this figure, but his arguments are 

without merit. At one point the father states, somewhat 

incredibly, that the correct figure is just the $102,000 salary;

at another he suggests that it should be $266,318, rather than 
7

$279,202. The only concrete argument he makes is that OP & L's 

income for 2020 included a one-time COVID Paycheck Protection 

Program Forgiven Loan (PPP) of $92,000; he argues that the judge 

erred by not excluding the PPP payment, and that the judge's 

figure thus was inflated by one-third of that amount, or 

approximately $30,000. We are not convinced that it was error 

to include the PPP payment in the father's gross income, as it 

was money actually received, but in any event, it is clear that 

the judge took a conservative approach in calculating the 

father's ordinary income, as there were several other

questionable expenses that the judge chose not to add back. We 
8

discern no abuse of discretion.1,2

Amended judgment of 

modification dated February 

22, 2022, affirmed.

By the Court (Wolohojian,3

Englander & Brennan, JJ.4),

Assistant Clerk

Entered: May 29, 2024.

1 The mother requests appellate attorney's fees in her 

brief. However, she does not cite any authority as the basis 

for her request. Accordingly, in the exercise of our discretion

the request is denied. 

2 The father also claims that error arose because the 

mother's (former) live-in boyfriend did not respond to a trial 

subpoena, and did not testify. The father presents no evidence 

that the mother procured this absence, but in any event, the 

father made no offer of proof as to what he expected the 

boyfriend to say, and thus made no showing of prejudice. Again, 

there was no error. To the extent the father makes additional 

arguments, "they 'have not been overlooked. We find nothing in 

them that requires discussion.'" Commonwealth v. Sosa, 493 

Mass. 104, 124 n.12 (2023), quoting Commonwealth v. Domanski, 

332 Mass. 66, 78 (1954). 

3 Justice Wolohojian participated in the deliberation on 

this case while an Associate Justice of this court, prior to her 

appointment as an Associate Justice of the Supreme Judicial 

Court.

4 The panelists are listed in order of seniority.