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16-P-1397 Appeals Court

SAKTI CALABRIA vs. PETER J. CALABRIA, JR.

No. 16-P-1397.

Bristol. May 31, 2017. - July 13, 2017.

Present: Green, Wolohojian, & Ditkoff, JJ.

Divorce and Separation, Child support, Modification of judgment. 

Parent and Child, Child support.

Complaint for divorce filed in the Bristol Division of the 

Probate and Family Court Department on March 13, 2009.

A complaint for modification, filed on July 16, 2014, was 

heard by Anthony R. Nesi, J.

Charles M. Landry for the father.

GREEN, J. The defendant father appeals from those portions 

of a judgment of the Probate and Family Court that increased his

child support payments retroactive to the date his income 

increased, which was before the plaintiff mother filed her 
2

complaint for modification.

1 We conclude that, in the 

circumstances of this case, in which the parties expressly 

provided for retroactive adjustment of child support in their 

separation agreement, and where the adjustment fosters the best 

interest of the couple's minor child and does not derogate from 

the purposes of G. L. c. 119A, § 13, such a retroactive award 

was within the judge's equitable authority. We accordingly 

affirm the judgment.

Background. In the separation agreement between the 

parties, dated April 28, 2010, and merged as to alimony and 

child support into the judgment of divorce nisi entered the same 

day, the parties included the following provision regarding 

child support:

"The parties agree that upon any change in his or her 

employment or income he or she shall immediately notify 

mother/father of the change, the child support will be 

reviewed.

"The Wife is currently unemployed. The Husband's income 

has been cut in half. Both parties are obligated to notify 

the other upon any change of employment or salary status. 

Parties agree to immediately seek to modify the child 

support obligation and said modification to be retroactive 

to the change of employment or salary date. Parties shall 

also exchange by March 15th of each year, any and all W2's; 1099's or other documents evidencing income earned or 

received." (Emphasis supplied.)

 

1 The father has not appealed from those portions of the 

judgment increasing his child support obligations from and after 

the filing of the complaint for modification, or continuing the 

suspension of his visitation pursuant to an earlier order.
3

At the time of the divorce, and pursuant to the separation 

agreement, the father was obliged to pay child support in the 

amount of $416 per semimonthly pay period.

On February 28, 2013, the mother filed a complaint for 

contempt, based on (among other things) the father's failure to 

provide the required financial information. Ultimately, both 

parties exchanged the required information during the pendency 

of the contempt action, and no judgment of contempt entered 

against either party.

On July 16, 2014, the mother filed a complaint for 

modification, seeking modification of child support based on the 

father's increased income reflected in the financial information 

exchanged during the contempt action. During 2011, the father

had earned $1,021 per week. Beginning in 2012 and thereafter, 

the father had consistently earned $1,250 per week. Applying

the Child Support Guidelines then in effect to the father's 

income during 2011, 2012, and 2013,2 and then comparing the 

resulting support obligation to the amounts actually paid by the 

father during those years, the judge computed a deficit of 

$9,264 for the prior years. In addition, the judge found that 

the father was responsible for an additional arrearage of $660 

as of March 1, 2015, for a total arrearage of $9,924. The 

 

2 New Child Support Guidelines became effective on August 1, 

2013, and the judge applied the new guidelines to the 

calculation of support for the period following that date.
4

judgment ordered the father to pay that arrearage in biweekly 

installments of $100 in addition to his new biweekly child 

support payments of $476, until the arrearage is paid in full.

Discussion. The father challenges the imposition of an 

obligation to pay increased child support for the period 

preceding the date on which the mother filed her complaint for 

modification. His principal contention is that the judge was 

without authority to make any increase retroactive to a date 

earlier than the date of the complaint for modification, by 

reason of G. L. c. 119A, § 13(a), which provides, in pertinent 

part, as follows:

"Any payment or installment of support under any child 

support order issued by any court of this commonwealth 

. . . shall be on or after the date it is due, a judgment 

by operation of law, . . . provided that said judgment 

shall not be subject to retroactive modification except 

with respect to any period during which there is pending a 

complaint for modification, but only from the date that 

notice of such complaint has been given . . . ."

Ibid., as amended by St. 1998, c. 64, § 161.

"In enacting § 13(a), 'the Legislature limited the power of 

a judge to reduce retroactively any arrearages in child support 

except for any period during which there is a pending complaint 

for modification.' . . . 'The object of § 13(a) was to give 

support orders the finality of other judgments, to assist the 

[Department of Revenue] in its enforcement efforts.'" Rosen v. 

Rosen, 90 Mass. App. Ct. 677, 683 (2016), quoting from T.M. v. 
5

L.H., 50 Mass. App. Ct. 856, 859 (2001). See Quinn v. Quinn, 49 

Mass. App. Ct. 144, 147-148 (2000).3 To that end, an agreement 

by a recipient parent to accept reduced child support payments 

will not be given effect. See id. at 146-147.

Here, we are presented with a modification judgment that 

gives effect to a predivorce agreement of the parties concerning 

retroactive adjustment of child support and that results in an 

increase rather than a decrease in child support during the 

period preceding the complaint for modification. In such 

circumstances, the objective of § 13(a) to furnish finality and 

clarity to orders for child support in order to facilitate 

prosecution of an enforcement action based on the support order 

is not impaired by the possibility that the support obligor 

might assert claimed defenses to payment. Contrast Quinn v. 

Quinn, supra at 147. Moreover, in light of the fact that the 

delay in the mother's filing of her complaint for modification 

 

3 In Rosen v. Rosen, we recognized that special 

circumstances of an equitable nature could "justify the grant of 

a credit to a support obligor for payments or expenditures made 

that were not in strict compliance with the support order or

judgment." 90 Mass. App. Ct. at 684, quoting from T.M. v. L.H., 

50 Mass. App. Ct. at 861. In certain narrowly described 

circumstances, a support obligor may receive a credit against 

support arrearages for other payments made, provided (among 

other things) that the alternative support arrangement was not 

contrary to the child's best interests and that the credit would 

not result in injustice or undue hardship to the support 

recipient. Id. at 688-689. Rosen included a number of other 

circumstances applicable to the allowance of an equitable credit 

against a child support arrearage, which we do not repeat here.
6

was attributable to her lack of awareness of the increase in the 

father's income, which in turn resulted from the father's 

failure to provide the financial information required by the 

parties' agreement, it is not inequitable to give force to the 

parties' intent, as expressed in the agreement.4 Cf. Hamilton v. 

Pappalardo, 42 Mass. App. Ct. 471, 476 (1997). Finally, we 

observe that giving effect to the parties' agreement where it 

operates to increase support payments in the manner agreed by 

the parties, and where it is in the best interest of the child

(as the judge here found), "is consistent with the articulated 

public policy of the Commonwealth that 'dependent children shall 

be maintained, as completely as possible, from the resources of 

their parents.'" Rosen v. Rosen, supra at 689, quoting from 

Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 415 (2007). See 

Boulter-Hedley v. Boulter, 429 Mass. 808, 813 (1999) ("Two 

central policies furthered by the Massachusetts child support 

scheme are [1] caring for the best interests of children, and 

[2] ensuring that the taxpayers are secondary to the parents in 

meeting the financial needs of children").

 

4 We reject the father's contention that the judge should 

have treated the mother's claim for modification pursuant to the 

agreement as waived, by reason of her delay in filing her 

complaint. Again, we see no error of law or abuse of discretion 

in the judge's implicit conclusion that the mother cannot be 

faulted for her failure to assert a claim of which she was 

unaware because of the father's failure to furnish the required 

financial disclosure.
7

Judgment affirmed.