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15-P-848 Appeals Court

REGINA ROSEN vs. SCOTT ROSEN.

No. 15-P-848.

Essex. April 8, 2016. - November 22, 2016.

Present: Kafker, C.J., Wolohojian, & Maldonado, JJ.

Divorce and Separation, Child support, Modification of judgment, 

Child custody. Parent and Child, Child support, Custody.

Contempt.

Complaint for divorce filed in the Essex Division of the 

Probate and Family Court Department on January 17, 2001.

Complaints for modification and contempt, filed on August 

2, 2011, and October 12, 2012, respectively, were heard by Susan 

D. Ricci, J.; a motion for reconsideration, filed on July 7, 

2014 was heard by her, and judgment was entered by her.

Mary-Ellen Manning for the mother.

Mark A. Perkins for the father.

WOLOHOJIAN, J. Today we reach the question left open in 

T.M. v. L.H., 50 Mass. App. Ct. 856, 861 (2001), namely, whether 

"a judge, in compelling circumstances of an equitable nature, 

and without contravening G. L. c. 119A, § 13(a), may apply a 
2

credit in calculating child support arrearages to reflect 

payments made in a manner other than as directed by the original 

[child support] order."

1 We conclude that, despite the statutory 

prohibition against retroactive modification of child support 

judgments "except with respect to any period during which there 

is pending a complaint for modification," G. L. c. 119A, 

§ 13(a), inserted by St. 1987, c. 714, § 1, a judge may -- in 

certain very limited circumstances -- grant and apply such an 

equitable credit to offset a child support arrearage accrued 

during a period when there was no pending complaint for 

modification.

Background. After fourteen years of marriage, the parties 

divorced on July 14, 2003, pursuant to a judgment of divorce 

which incorporated the parties' separation agreement. The

separation agreement provided, in pertinent part, that the 

 

1 In Whelan v. Frisbee, a case decided more than a decade 

before T.M., this court discerned "no error in the entry of 

judgment for [the father] on [the mother's] complaint for 

contempt" where the trial judge "found that . . . although [the 

father] was determined to be in arrears in the amount of $5,190, 

he had accounted for these payments by his assumption of all 

college tuition and related expenses of the children." Whelan

v. Frisbee, 29 Mass. App. Ct. 76, 82 (1990), citing Whitten v. 

Durkee, 327 Mass. 562, 562-564 (1951). Although our decision in 

Whelan could arguably be viewed as implicitly supporting the 

"equitable credit" concept, we were not asked in that case to 

decide whether the offset amounted to an impermissible 

retroactive modification of child support in violation of G. L. 

c. 119A, § 13(a). See Whelan, supra at 82 n.7. Therefore, in 

our view, Whelan did not decide the issue we confront here.
3

mother would have primary physical custody of the parties' three 

children, Elliot, Ari, and Hannah, and that the father would pay 

monthly child support in the amount of $4,500. The separation 

agreement also contained several provisions relating to the 

children's college education. In one of those provisions, the 

parties "agree[d] that the choice of college or other 

institutions shall be made jointly, with due regard to the 

children's wishes, welfare, needs and aptitudes, and the 

parties' respective financial circumstances. Neither party 

shall make commitments to a . . . college . . . without first 

notifying the other and obtaining his or her approval . . . ." 

The parties also "agree[d] to contribute to the college costs of 

the children to the best of their financial ability." The 

separation agreement's provisions relating to "custody, care, 

visitation, support, education and medical care of the parties' 

minor children" were merged with the judgment of divorce, while 

the remaining provisions survived and were not merged with the 

judgment.

At the time of the divorce in 2003, all three children 

lived with the mother. However, by January 1, 2007, the 

parties' oldest child, Elliot, had moved into the father's home. 

The father thereafter reduced his child support payments by onethird, to $3,000 per month, without court approval.
4

More than two years later, on April 4, 2009, the parties 

entered into a signed and notarized "Agreement for Judgment on 

Modification" (2009 agreement), which provided that the father 

would pay monthly child support of $3,400, along with a lump sum 

of $2,500 upon the court's approval of the 2009 agreement, and 

an additional $2,900 over the next six months. On April 9, 

2009, the father filed the 2009 agreement with the Probate and 

Family Court; however, it was returned to him without being 

docketed due to certain procedural deficiencies.

2 Those 

deficiencies were not cured, and the 2009 agreement was never 

refiled with the Probate and Family Court.

By August, 2011, the parties' second child, Ari, had also 

moved into the father's home. In early August, 2011, the father 

filed another complaint for modification (2011 complaint for 

modification), which he served on the mother on August 11, 2011. 

In the 2011 complaint for modification, the father requested (1) 

a reduction in his child support in light of the fact that two 

of the three children were living with him, and (2) an order 

requiring the mother to contribute to the children's college 

expenses. On October 13, 2011, a judge of the Probate and 

 

2 The "Rejection Notice" accompanying the returned filings 

indicated that the parties' "Joint Petition for Modification" 

could not be processed due to "deficiencies in the form of the 

petition," and the absence of both a "Child Support Guidelines 

Worksheet" and a financial statement for the mother.
5

Family Court allowed the father's motion for temporary orders, 

reducing the father's child support payments from $4,500 per 

month to $200 per week.

In December, 2011, the parties' third child, Hannah, moved 

into the father's home, at which point all three children were 

living with the father and principally dependent on him for 

support and maintenance. On May 4, 2012, the judge allowed the 

father's motion to terminate child support.

On October 12, 2012, the mother filed a complaint for 

contempt asserting that the father was approximately $103,701 in 

arrears for child support that accrued before the court's 

October 13, 2011, temporary order.

On July 17, 2014, following a six-day trial on the 

consolidated modification and contempt proceedings, the Probate 

and Family Court entered an "Amended Judgment of Modification,"

an "Amended Judgment on Contempt," and supporting "Amended . . . 

Findings of Fact."3 In the amended judgment of modification, the 

 

3 The original judgment on contempt and judgment of

modification were dated June 9, 2014, and were docketed on June 

20, 2014. However, the father filed a motion for 

reconsideration seeking, among other things, correction of a 

mathematical error with respect to his child support arrearages, 

and contribution from the mother toward the children's college 

expenses. On July 17, 2014, the judge allowed the father's 

motion in part and entered the amended judgments reflecting the 

corrected child support arrearages and requiring the mother to 

reimburse the father for a portion of the children's college 

expenses.
6

judge reduced the father's child support obligation to $280 per 

week, retroactive to August 11, 2011, the date on which the 

mother had been served with the 2011 complaint for modification. 

The judge terminated the father's child support obligation 

retroactive to December 31, 2011, the date upon which "[all]

three children were solely dependent upon and residing with 

[the] [f]ather." The judge further ordered the mother to 

reimburse the father for "approximately seventeen percent (17%) 

of the college education expenses of the three children either 

paid or undertaken in the form of a loan by [the] [f]ather" from 

August 11, 2011, through December 31, 2011, and ten percent of 

the college expenses "[f]rom January 1, 2012 going forward."

In the amended judgment on contempt, the judge acknowledged 

that while she could not "validate" the 2009 agreement as a 

defense to contempt, see Quinn v. Quinn, 49 Mass. App. Ct. 144, 

145-148 (2000), she did not find the father in "wilful contempt" 

of his child support obligation. The judge found that, from 

January 1, 2007, to December 31, 2011, the father's total child 

support obligation was $254,697, taking into account the

retroactively modified child support beginning on August 11, 

2011. The judge determined that from January, 2007, to May,

2012, the father made child support payments to the mother 
7

totaling $190,737.4 The judge found that the father was 

"entitled to an equitable credit" of $500 per month "for his 

sole support of Elliot from January 1, 2007 to August 11, 2011." 

After applying the total equitable credit of $28,177, the judge 

determined that the father had child support arrearages of 

$35,783. The judge ordered the father to pay the arrearages to 

the mother within thirty days, "minus the college educational 

expenses" owed by the mother under the amended judgment of 

modification. This appeal followed.

Discussion.

5 1. Equitable credit. The mother challenges 

the $28,177 equitable credit the judge used to offset some of 

the father's child support arrearage for the period from January 

1, 2007, to August 11, 2011, when Elliot was living with him.

The mother argues that this equitable credit effectively 

constitutes a retroactive modification of child support that was 

 

4 The total should have been $191,137. See note 21, infra.

5 As a threshold matter, the mother contends that the judge 

did not have the power to modify the separation agreement 

because it survived the divorce judgment. See Whelan v. 

Frisbee, 29 Mass. App. Ct. at 80-81, quoting from Ames v. Perry, 

406 Mass. 236, 240 (1989) ("'[A] separation agreement, which 

survives a divorce judgment and is valid at the time of the 

entry of that judgment [that is free from fraud and coercion and 

fair and reasonable] should be specifically enforced,' absent 

changed circumstances which give rise to countervailing 

equities"). The mother's argument fails because the childrelated provisions contained in the separation agreement, 

including those pertaining to the children's "support" and 

"education," were expressly merged with the divorce judgment and 

did not survive.
8

outside the judge's power to award because no complaint for 

modification was pending.

6 See G. L. c. 119A, § 13(a). The 

father contends that there was no retroactive reduction of his 

support obligation; rather, the credit merely reflected that he 

had satisfied a portion of his child support obligation by 

providing direct or actual support to Elliot while Elliot was 

living with him.

In weighing the parties' arguments, we must also consider 

the broader context in which G. L. c. 119A, § 13(a), was 

enacted. "The Federal Government has created an elaborate 

procedural mechanism designed to help both the government and 

custodial parents to secure the payments to which they are 

entitled." Turner v. Rogers, 564 U.S. 431, 444 (2011), citing 

Blessing v. Freestone, 520 U.S. 329, 333 (1997). To that end, a

 

6 The mother further argues that the judge erred by granting 

the father an equitable credit for his payment of the children's 

college expenses. The argument is factually incorrect; the 

judge did not award the father an equitable credit for his 

payment of the children's college expenses. Although the judge 

considered the amount of college expenses paid by the father on 

behalf of all three children as one of many equitable factors 

weighing in favor of granting the father a credit for his 

support of Elliot, the equitable credit was not based on those 

payments but rather on the father's sole support of Elliot, 

including Elliot's "housing, food, clothing, insurance, 

transportation, and medical expenses." We note that, had the 

judge credited the father for his payment of the children's 

college expenses (as the mother argues), the equitable credit 

would have substantially exceeded the father's child support 

arrearages. Since this is not the case, it is clear that the 

amount of the equitable credit was not based on the college 

expenses.
9

State's eligibility for certain Federal grants7 is conditioned on 

the operation of a child support enforcement program that 

conforms to the Child Support Enforcement Act (CSEA), Title IV, 

Part D of the Social Security Act, 42 U.S.C. §§ 651-669b (2012).

8

See Blessing v. Freestone, supra. See also Doucette v. Ives, 

947 F.2d 21, 24 (1st Cir. 1991). As a participating State, 

Massachusetts has enacted G. L. c. 119A, §§ 1 et seq., which

"provides for child support enforcement services in accordance 

with the provisions of [the CSEA]." Morales v. Morales, 464 

Mass. 507, 510 n.5 (2013).

General Laws c. 119A, § 13(a), provides that "[a]ny payment 

or installment of support under any child support order issued 

by any court of this commonwealth . . . shall be on or after the 

 

7 Participating States receive funds from the Aid to 

Families with Dependent Children (AFDC) program, which "provides 

subsistence welfare benefits to needy families." Blessing v. 

Freestone, 520 U.S. at 333, citing Title IV, Part A of the 

Social Security Act, 42 U.S.C. §§ 601-617.

8 "The collection and distribution by the state of child 

support payments . . . is governed by the Child Support 

Enforcement Act, 42 U.S.C. §§ 651-666, Title IV-D of the Social 

Security Act. The CSE program is designed both to assist 

parents in collecting child support from absent parents and to 

reduce state and federal government AFDC expenditures, which are 

often necessitated by the failure of noncustodial parents to 

meet their support obligations. All states participating in the 

AFDC program are required to have child support collection 

programs, 42 U.S.C. § 602(a)(27), through which they assist 

families in establishing paternity, locating parents, and 

collecting support through wage withholding, liens on property, 

and withholding from unemployment compensation and tax refunds." 

Doucette v. Ives, 947 F.2d 21, 24 (1st Cir. 1991).
10

date it is due, a judgment by operation of law . . . [and] 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."

9 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." T.M. v. 

 

9 General Laws c. 119A, § 13(a), was enacted in response to

42 U.S.C. § 666(a)(9), which went into effect on Oct. 21, 1986, 

and prescribed the following:

"(a) [E]ach State must have in effect laws requiring the 

use of the following procedures . . . to increase the 

effectiveness of the program which the State administers 

under [the CSEA]:

. . .

"(9) Procedures which require that any payment or 

installment of support under any child support order . . . 

is (on and after the date it is due) --

"(A) a judgment by operation of law, with the 

full force, effect, and attributes of a judgment of the 

State, including the ability to be enforced, 

"(B) entitled as a judgment to full faith and 

credit in such State and in any other State, and 

"(C) not subject to retroactive modification by 

such State or by any other State; 

"except that such procedures may permit modification with 

respect to any period during which there is pending a 

petition for modification, but only from the date that 

notice of such petition has been given . . . ."
11

L.H., 50 Mass. App. Ct. at 859, citing Quinn v. Quinn, 49 Mass. 

App. Ct. at 147-148. "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." T.M. v. 

L.H., supra, quoting from Smith-Clarke v. Clarke, 44 Mass. App. 

Ct. 404, 406 (1998). By implicitly prohibiting extra-judicial 

modifications of child support, § 13(a) furthers the 

Commonwealth's policy of requiring court oversight for all 

agreements pertaining to child support. See White v. Laingor, 

434 Mass. 64, 67 (2001), citing Massachusetts Child Support 

Guidelines, G. L. c. 208, § 28, and G. L. c. 119A, § 1

("Selected enactments of the Legislature convey the importance 

of judicial review of child support agreements between 

parents"). See also Quinn v. Quinn, 49 Mass. App. Ct. at 146, 

quoting from Knox v. Remick, 371 Mass. 433, 437 (1976) 

("[B]ecause '[p]arents may not bargain away the rights of their 

children to support from either one of them,' . . . the 

Legislature has placed certain limits on the ability of parents 

to enter into binding contracts relating to child support"). It 

is for this reason that we have previously held that an 

agreement to reduce child support that has not received judicial 

approval does not constitute a defense to a complaint for 

contempt. Quinn v. Quinn, 49 Mass. App. Ct. at 148.
12

Here, although the parties evidenced an intent to jointly 

seek modification of the child support order by executing and 

filing10 the 2009 agreement with the Probate and Family Court, 

that filing was rejected on procedural grounds and the matter 

was not further pursued. As such, there was no "pending" 

complaint for modification in 2009 for purposes of G. L. 

c. 119A, § 13(a), and the judge was prohibited from 

retroactively reducing the father's child support obligation. 

As the judge correctly determined, she did not obtain authority

to reduce retroactively the father's child support obligation 

until 2011, when the mother was served with the second complaint 

for modification.

11

That said, as we acknowledged in T.M. v. L.H., "[A] number 

of [other] jurisdictions" with statutory provisions similar to 

G. L. c. 119A, § 13(a), "have recognized . . . special 

circumstances of an equitable nature . . . that 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." 50 Mass. App. Ct. at 861, citing 

 

10 While the 2009 agreement was apparently never docketed in 

the Probate and Family Court, the judge found that it was indeed 

filed on April 9, 2009.

11 To the extent that the 2009 agreement may have been 

separately enforceable in a contract action, see Ratchford v. 

Ratchford, 397 Mass. 114 (1986), the father did not bring such 

an action.
13

Alaska Dept. of Rev. v. Campbell, 931 P.2d 416, 419-420 (Alaska 

1997), Goold v. Goold, 11 Conn. App. 268, 274-275 (1987), Baer

v. Baer, 263 Ga. 574, 575-576 (1993), and Griess v. Griess, 9 

Neb. App. 105, 112-113 (2000). The father urges us to follow 

those jurisdictions and to rule that "a judge, in compelling 

circumstances of an equitable nature, and without contravening 

G. L. c. 119A, § 13(a), may apply a credit in calculating child 

support arrearages to reflect payments made in a manner other 

than as directed by the original order." T.M. v. L.H., 50 Mass. 

App. Ct. at 861.

Although, as we have noted, a number of other jurisdictions 

have recognized the concept of equitable credits, they have not 

done so on uniform grounds. As a general proposition, we can 

only say that the concept is clearly rooted in equity and its 

application is driven by equitable considerations. Beyond that, 

we discern three primary strands of analysis: (1) some courts 

grant an equitable credit when the elements of equitable 

estoppel are established; (2) some courts grant an equitable 

credit when the support obligation has been fulfilled by an 

alternative method; and (3) some courts simply apply general 

equitable principles to determine whether an equitable credit is 

in order. Regardless of the approach used, the jurisdictions 

that allow credit on an equitable basis largely agree that the 

adjustment of support must not be unilateral, the child's need 
14

for adequate support and maintenance must be met through the new 

arrangement, and the circumstances under which a credit is to be 

granted must be narrowly construed.12 We briefly describe each 

of the three analytical approaches in more detail.

The jurisdictions that invoke, or rely on, the elements of 

equitable estoppel -- either to allow credit or to bar recovery 

of support arrearages -- generally require the support payor to 

demonstrate that (1) the parties agreed to modify child support;

(2) the payor detrimentally relied on the agreement by changing

his or her position, such as by assuming physical custody or by 

assuming additional expenses on behalf of the child; and (3) the 

agreement is not contrary to the child's welfare.13 In our view, 

 

12 See notes 13-15, infra.

13 See, e.g., In re Marriage of Webber, 191 Ill. App. 3d 

327, 330-331 (1989) (equitable estoppel applied where [1] the 

mother agreed to transfer custody to the father, [2] the court 

credited the father's testimony that the mother also agreed to 

suspend child support during that period, and [3] the father 

reasonably relied on the agreement to his detriment by taking 

custody of child and providing directly for his needs); In re 

Marriage of Duerr, 250 Ill. App. 3d 232, 237 (1993) (custodial 

mother estopped from seeking arrearages where parties agreed to 

children moving in with noncustodial father, mother provided no 

support to children during that period, and father reasonably 

relied on the agreement to his detriment by financially 

supporting the children, purchasing a larger house, and hiring a 

nanny); In re Marriage of Harvey, 523 N.W.2d 755, 757 (Iowa 

1994) (Equitable estoppel was available where the father 

demonstrated that [1] the mother orally agreed to transfer 

custody to the father and to terminate child support, [2] the 

father relied on the agreement to his detriment by providing all 

of the child's financial support, and [3] any arrearages 

recovered by the mother "would not inure for [the child's] 
15

the appeal of this approach is that it draws upon the 

established legal principles of the existing doctrine of 

equitable estoppel, requires proof of objectively verifiable 

facts, and does not recognize or reward unilateral action.

Those jurisdictions that allow a credit when a payor has 

"satisfied" the original child support obligation by an 

alternative method in essence create an exception to the 

 

support, but solely for [the mother's] benefit"); In re Marriage 

of Sabo, 224 Mont. 252, 256 (1986) (Equitable estoppel applied 

where, "[b]y her assent and conduct, [the custodial parent]

consented to the shift in custody and support. We cannot 

equitably allow [the custodial parent] to reap a windfall of 

support payments, if she never made the support expenditures"); 

Truman v. Truman, 256 Neb. 628, 635-636 (1999) (equitable 

estoppel applied where [1] custodial parent agreed to transfer 

custody to noncustodial parent and terminate child support, [2]

noncustodial parent relied on the agreement in good faith and 

changed his position "by assuming responsibility for the custody 

and care" of the child, and [3] "[t]here is no evidence that the 

agreement of the parties was in any way detrimental to the 

welfare" of the child); State v. Stephen Leo S., 198 W. Va. 234, 

240 (1996) ("[T]wo issues [must] be determined in deciding 

whether to apply the doctrine of equitable estoppel to arrearage 

child support: [1] will the welfare of the child be negatively 

affected, and [2] has there been detrimental reliance?"). 

Compare In re Marriage of Beatty, 279 P.3d 1225, 1230 (Col. Ct. 

App. 2012) (equitable estoppel not available where the parties 

agreed to reduce the noncustodial parent's support payments, but 

the noncustodial parent did not take action to his detriment in 

reliance on the agreement, such as incurring additional 

expenses); Matzen v. Matzen, 69 Ill. App. 3d 69, 72-73 (1979) 

(equitable estoppel not available where the noncustodial parent 

failed to demonstrate "by clear, precise and unequivocal 

evidence" that the custodial parent agreed to the custody change 

and suspension of child support; the court noted that 

"[e]quitable estoppel is not created by [the custodial parent's]

failure to demand payment of support arrearages . . . or by the 

mere passage of time").
16

"general rule" that "a support obligor must make his or her 

payments in the manner required by the support order or 

judgment." T.M. v. L.H., 50 Mass. App. Ct. at 860, citing 

Thacker v. Thacker, 710 N.E.2d 942, 944 (Ind. Ct. App. 1999). 

Some jurisdictions refer to this as credit for "nonconforming" 

support payments. See, e.g., Smith v. Smith, 793 N.E.2d 282, 

285 (Ind. Ct. App. 2003); Meyer v. Block, 123 S.W.3d 316, 326 

(Mo. Ct. App. 2003). Regardless of the nomenclature used, these 

jurisdictions typically limit the credit to expenditures that 

substantially comply with the "spirit and intent" of the 

original support order, such as "direct" support of a child 

living in the payor's home.

14 In our view, this approach does 

 

14 See, e.g., McCreless v. McCreless, 673 So. 2d 438, 440 

(Ala. Civ. App. 1995) ("The trial court does have the discretion

. . . to give the obligated parent credit for money and gifts 

given to the child, or for amounts expended while the child 

lived with the obligated parent or a third party"); In re 

Marriage of Trainotti, 212 Cal. App. 3d 1072 (1989) (statutory 

bar against retroactive modification does not prohibit judge 

from allowing credit based on determination that noncustodial 

parent assumed custody of child and fulfilled his child support 

obligation by directly supporting child); Brown v. Georgia Dept. 

of Human Resources, 263 Ga. 53, 54 (1993) (credit appropriate 

where "payee consents to payor's voluntary expenditures as an 

alternative to payor's child support obligation; and payor has 

substantially complied with the spirit and intent of the divorce 

decree by discontinuing child support payments while payor has 

the care and custody of the children and supported the children 

at the payee's request"); Smith v. Smith, 793 N.E.2d at 285

(credit may be granted to noncustodial parent in the event of 

nonconforming child support payments, if "noncustodial parent 

has, by agreement with the custodial parent, assumed custody and 

has provided food, clothing, shelter, medical attention, and 

school expenses and has exercised parental control for an 
17

not contain sufficiently objective criteria and could encourage 

payors having superior economic leverage to unilaterally 

substitute one form of support for another even where the 

substitution is not substantially equivalent.

Several other jurisdictions have simply relied on general 

equitable considerations, taking a variety of factors into 

 

extended period"); Meyer v. Block, 123 S.W.3d at 326, and cases 

cited ("Equitable principles may permit credit for a 

nonconforming payment, when those payments were made under the 

compulsion of the circumstances. . . . Those nonconforming 

payments must nevertheless substantially comply with the spirit 

and intent of the terms of the original child support judgment 

. . . [and] the assent or acquiescence of a custodial parent to 

the nonconforming payment must be established"); Curtis v. 

Curtis, 11 S.W.3d 466, 472 (Tex. Ct. App. 2000) (to receive 

credit for support provided directly to the child while the 

child was living with the obligor, the obligor must show: [1]

that the custodial parent relinquished custody of the child; [2]

that relinquishment was for a time period in excess of any 

court–ordered periods of possession of and access to the child; 

[3] that actual support was provided to the child; and [4] the 

value of the support provided must be proven); Schafer v.

Schafer, 95 Wash. 2d 78, 82 (1980) (When determining whether to 

allow credit, the court should consider: "[1] whether the 

noncustodial parent [a] intended the expenditures for care to be 

in satisfaction of child support, [b] exerted undue influence 

over the child to obtain or retain custody, [c] continued to 

retain custody as a form of retribution; [2] whether the 

custodial parent [a] was willing and able to provide necessary 

care for the child, [b] expressly or impliedly consented to the 

noncustodial parent's continued custody of the child, [c] was 

relieved of any or all of the reasonable expenses of child 

support while the child was in the custody of the noncustodial 

parent; [3] the length of time the child was in the custody of 

the noncustodial parent; and [4] whether a compelling reason 

exists requiring the noncustodial parent not only to pay for the 

child's care while in that parent's custody, but also to comply 

with the support order to make child support payments to the 

custodial parent").
18

account, to determine whether to apply a credit against a childsupport arrearage.15 This approach concerns us because it does 

not specify core requirements and thus, over time, could become 

 

15 See, e.g., Goold v. Goold, 11 Conn. App. at 274-275, and 

cases cited ("Although there is no general rule as to when 

circumstances require the allowance of [a credit against past 

due child support], factors which have been considered by 

various courts . . . include [1] whether the father brought a 

motion for modification of the support order; [2] whether the 

parties expressly provided in their separation agreement that 

the father may deduct or adjust support payments when the child 

is no longer in the mother's custody; and [3] whether the mother 

has in some manner consented to accept the father's direct 

support of the child as an alternative method of payment of 

child support"); Nolte v. Nolte, 544 So. 2d 1146, 1147 (Fla. 

Dist. Ct. App. 1989) (Where the custodial parent expelled the 

child from her home, causing the child to live with noncustodial 

parent, the court viewed the child's "expulsion from [the 

custodial parent's] home as a legitimate equitable reason 

warranting the [noncustodial parent's] cessation of [child 

support] payments"); Heflin v. Heflin, 1 So. 3d 820, 826 (La. 

Ct. App. 2009) (noncustodial parent was not liable for child 

support arrearages where the parties had an "implied agreement 

to suspend child support payments after [the custodial parent]

voluntarily delivered physical custody of [the child] to [the 

noncustodial parent] and for 10 years thereafter made no attempt 

to take custody of [the child] pursuant to the original custody 

decree"); Griess v. Griess, 9 Neb. App. at 116 (court granted 

equitable relief by crediting the father for his overpayment of 

child support for nearly two years due to "grossly incorrect"

order; court noted that there was "clear evidence that granting 

[the father] some sort of credit against his future child 

support payments will not work a hardship on the children in 

[the mother's] custody"); Acree v. Acree, 2 Va. App. 151, 157

(1986) ("Where . . . the custodial parent has by his or her own 

volition entered into an agreement to relinquish custody on a 

permanent basis and has further agreed to the elimination of 

support payments and such agreement has been fully performed, we 

hold that the purpose to be served by application of an 

inflexible rule denying credit for nonconforming payments is 

outweighed by the equities involved. . . . [T]he purpose of the 

[original] support decree in this case has been fulfilled")

(emphasis omitted).
19

so amorphous as to swallow the general prohibition against 

retroactive modification in the absence of a pending 

modification complaint.

Consistent with the views of other jurisdictions, we 

conclude that a judge is not foreclosed by G. L. c. 119A, 

§ 13(a), from determining whether "compelling circumstances of 

an equitable nature" warrant the allowance of a credit for the 

payor's fulfillment of his or her child support obligation "in a 

manner other than as directed by the original order" but which

nevertheless accomplishes the maintenance of the child as 

envisioned by the original order. T.M. v. L.H., 50 Mass. App. 

Ct. at 861. That said, because of the clear purpose and policy 

behind G. L. c. 119A, § 13(a), and to avoid potential abuse, we 

favor a clearly delineated standard that relies on objectively 

verifiable facts in order to allow an equitable credit. This 

means that, although we have drawn from the various 

considerations and factors present in the three analytical 

strains we set out above, we conclude that a more rigorous set 

of clearly identified requirements is appropriate in 

Massachusetts. Therefore, to receive an equitable credit

against a child support arrearage, the support payor must

demonstrate that (1) the support recipient agreed (a) to 

transfer custody of the child to the payor for an extended 

period of time not contemplated in the original custody order, 
20

and (b) to accept the payor's direct support of the child as an 

alternative method of satisfying the payor's child support 

obligation; (2) the custody transfer was not the result of 

duress, coercion, or undue influence exerted by the payor 

against either the recipient or the child; (3) the payor 

provided the child with adequate support and maintenance while 

the child was principally domiciled in the payor's home; (4) the 

recipient was relieved of supporting the child during the period 

in question; (5) the alternative support arrangement was not 

contrary to the child's best interests; and (6) granting a 

credit to the payor for his or her direct support of the child 

would not result in injustice or undue hardship to the 

recipient.

Where these factors are present, a judge may find 

"compelling circumstances of an equitable nature" warranting an 

equitable credit. We stress that the concept of equitable 

credit is an extremely narrow exception to the general rule that 

support must be paid in the manner originally ordered. The 

exception is necessarily narrow so as to prevent a support payor

from "modify[ing] unilaterally a support order or interfer[ing] 

with the right of the custodial parent to decide how support 

money should be spent," T.M. v. L.H., 50 Mass. App. Ct. at 860, 

citing Alaska Dept. of Rev. v. Campbell, 931 P.2d at 420, and

Goold v. Goold, 11 Conn. App. at 274, while also ensuring that
21

the child, rather than the support recipient who has been 

relieved of supporting the child, is the beneficiary of the 

payor's support. "This 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.'" Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 

415 (2007), quoting from G. L. c. 119A, § 1, and citing L.W.K. 

v. E.R.C., 432 Mass. 438, 446 (2000). See Boulter-Hedley v. 

Boulter, 429 Mass. 808, 813 (1999), citing G. L. c. 119A, §§ 1, 

13(c), and G. L. c. 208, § 28 ("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"). Moreover, by confining this exception to its 

narrowest scope, we promote the general principle that judges --

rather than the parties -- are vested with the responsibility to 

determine what is in the best interests of the child. See White

v. Laingor, 434 Mass. at 68, citing, inter alia, McCarthy v. 

McCarthy, 36 Mass. App. Ct. 490, 493 (1994) ("[J]udges must be 

satisfied that the best interests of the child are not 

compromised. . . . [T]he presence of a negotiated agreement 

between the parents does not exempt judges from the need to 

protect children").
22

Applying the principles we have just set out to the facts 

of this case, we conclude that the judge was warranted in 

allowing an equitable credit of $500 per month for the father's 

direct support of Elliot from January 1, 2007, to August 11, 

2011. It is undisputed that Elliot moved into the father's home 

no later than January 1, 2007. There is no indication or 

contention that Elliot's move was the result of duress, 

coercion, or undue influence exerted by the father.16 It is also

undisputed that Elliot received adequate support from the father 

while living in the father's home, and that the mother was 

relieved of supporting Elliot during that period.

It is clear that the mother consented to accept the 

father's direct support of Elliot as an alternative method of 

fulfilling his support obligation no later than April 4, 2009, 

when, as the judge found, she "willingly, freely and 

voluntarily" executed the 2009 agreement. What remains, 

therefore, is the question whether the evidence warranted the 

judge's finding that the mother consented even earlier, in 2007,

when Elliot went to live with his father. We conclude that the 

evidence supports such a finding. The judge credited the 

father's testimony that "after Elliot moved in with [the 

 

16 While not addressed in the judge's findings, it appears 

that the mother was living in Connecticut at the time and 

Elliot, an aspiring musician, wanted to live with the father in 

order to pursue musical opportunities in the Boston area.
23

father], the parties agreed to reduce the child support to 

$3,000.00 [per] month." Although the mother testified that she 

agreed with the move, but not with the reduction in child 

support, the judge apparently did not find the mother credible

in this regard because the mother later "confirmed" that she

"requested a change to [the parties'] child support agreement" 

in early 2009, by seeking "an increase from $3,000.00 [per]

month to $3,400.00 [per] month," which was consistent with the 

father's testimony. The mother also testified that she did not 

believe the father owed her any "back child support" when he 

filed the 2011 complaint for modification.

17 Accordingly, the 

judge's determination that the parties agreed to the alternative 

support arrangement in 2007 was "based on an assessment of [each 

party's] credibility" -- an assessment that is "quintessentially 

the domain of the trial judge" and "close to immune from 

reversal on appeal except on the most compelling of showings." 

Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995), citing 

Goddard v. Dupree, 322 Mass. 247, 248 (1948), and Palmer v. 

Palmer, 23 Mass. App. Ct. 245, 252 (1986). As there is nothing 

in the record that would warrant disturbing the judge's 

credibility assessment, especially in light of the mother's own 

 

17 Moreover, the "parties acknowledge[d]" in the 2009 

agreement that "neither party currently owes anything else to 

the other," apart from the $5,400 sum the father agreed to pay 

upon executing the 2009 agreement.
24

internally contradictory testimony, we are satisfied that the 

evidence supports the judge's finding that the mother consented 

to the alternative support arrangement in January, 2007.

Finally, there is no indication that the alternative 

support arrangement was contrary to Elliot's best interests, or 

that granting the credit to the father would result in injustice 

or undue hardship to the mother. The mother was not required to

return a portion of the child support previously paid by the 

father. We note also that the equitable credit was only $500 

per month, even though it appears that the parties themselves 

allocated $1,500 per child per month.18

We therefore conclude that the facts of this case present 

"compelling circumstances of an equitable nature," T.M. v. L.H., 

50 Mass. App. Ct. at 861, warranting the allowance of a $28,177 

equitable credit to the father for his direct support of Elliot 

in conformance with the maintenance of the child as provided in 

the original support order. Compare id. at 862 (identifying

several factors that rendered the credit inappropriate, 

including that the child was already emancipated when the father 

paid for his funeral expenses, the fact that the mother did not 

 

18 Although the parties agreed to a monthly reduction of

$1,500 from 2007 to 2009, and $1,100 from 2009 onward, the judge 

was not bound by those figures in calculating the credit. The 

amount of the credit was within the judge's discretion to 

determine, and we discern no error in the judge's decision to 

allow a credit of $500 per month.
25

agree "to accept the father's payment of funeral expenses as an 

alternative method of payment of child support," and that it was 

"difficult to perceive how the father's payment of funeral 

expenses constitute[d] 'substantial compliance' with the child 

support order," as "the purpose of the order was to provide for 

the support of the children during their dependency, a duty that 

the father failed absolutely to fulfill").

2. Contempt. The mother contends that the father should 

have been found to be in contempt because it was undisputed that 

(1) the father's child support obligation had not been modified 

by the 2009 agreement, and (2) the father had the ability to pay 

the full amount of child support required by the divorce 

judgment.

"[A] civil contempt finding [must] be supported by clear 

and convincing evidence of disobedience of a clear and 

unequivocal command." Birchall, petitioner, 454 Mass. 837, 853 

(2009). It is well settled that an agreement to reduce child 

support that has not been approved by the court cannot 

constitute a defense to a complaint for contempt. See Quinn v. 

Quinn, 49 Mass. App. Ct. at 148. Here, the judge acknowledged 

that, in light of Quinn, the 2009 agreement could not "be used 

as a bar . . . or a defense" to the mother's complaint for 

contempt. However, the judge found that "it was not undoubted 

disobedience for [the] [f]ather to direct a one-third portion of 
26

his support toward the care of Elliot, who was residing with 

[the] [f]ather and entirely economically dependent on [the] 

[f]ather." The judge concluded that, because "Elliot actually 

benefitted from [the] [f]ather's support," the father was not in 

contempt of his original child support obligation. It is 

undisputed that the father directly supported Elliot from 

January, 2007, until Elliot's emancipation in May, 2013. 

Accordingly, the judge could properly have found a lack of 

evidence that the father sought to avoid his support obligation 

with respect to Elliot, and we discern no error in the judge's 

conclusion that there was no clear and convincing evidence of 

contempt. Birchall, petitioner, 454 Mass. at 853.

3. Termination of the father's child support obligation. 

The mother argues that it was error to terminate the father's 

child support obligation as of December 31, 2011, as there was 

"no evidence adduced at trial" to support the judge's finding

that the parties' daughter, Hannah, had moved out of the 

mother's home by that date.

19

"A trial court's findings of fact will be upheld unless 

shown to be clearly erroneous." Martin v. Martin, 70 Mass. App. 

Ct. 547, 548-549 (2007), citing Mass.R.Dom.Rel.P. 52(a). "A 

 

19 The mother does not challenge the judge's conclusion that 

the other two children, Elliot and Ari, began residing with the 

father prior to December 31, 2011.
27

finding is 'clearly erroneous' when, although there is evidence 

to support it, the reviewing court on the entire evidence is 

left with the definite and firm conviction that a mistake has 

been committed." Martin, supra at 549, quoting from C. C. & T. 

Constr. Co. v. Coleman Bros. Corp., 8 Mass. App. Ct. 133, 135 

(1979). Here, the judge found that Hannah had moved into the 

father's home by late December, 2011, a finding that was

supported by the father's trial testimony. There is nothing in 

the record to cause us to disturb the judge's assessment of the 

father's credibility in this regard.20 See Johnston v. Johnston, 

38 Mass. App. Ct. at 536. We therefore discern no abuse of 

discretion with respect to the termination date of the father's 

child support payments.

4. Calculation of child support arrearages. The mother 

argues that the father's child support arrearages were 

artificially decreased due to the judge's erroneous calculation 

of the father's total child support payments. The judge 

determined that the father had paid a total of $190,737 in child 

support from January, 2007 to May, 2012. In arriving at that 

figure, the judge found that the parties stipulated that the 

 

20 The mother testified that Hannah did not move out of her 

home until the summer of 2012. However, the judge was not 

required to credit the mother's testimony, Baccanti v. Morton, 

434 Mass. 787, 791 (2001), especially where the mother later 

acknowledged that she did not have suitable living 

accommodations for Hannah as of May, 2012.
28

father had made total child support payments of $188,637

(including a $3,500 "lump sum" payment), and that the father had 

made an additional $2,500 child support payment21 in April, 2009, 

when the parties executed the 2009 agreement. The mother 

contends that the $190,737 figure is clearly erroneous, as the 

parties stipulated only to payments totaling $185,137, and there 

is nothing in the record that supports the additional amounts

included by the judge. While we discern no error with respect 

to the inclusion of the $2,500 payment made in April, 2009,

22 it 

was indeed error to include the $3,500 "lump sum" as a 

"stipulated" child support payment. As the mother correctly 

asserts, the parties stipulated only to payments totaling 

$185,137. While the parties agreed that the father made the

$3,500 lump sum payment, they disagreed as to whether the 

payment was made for the purpose of settling past due child 

support or old marital debt. Because the parties did not agree

regarding the nature of the $3,500 payment, it was error for the 

judge to treat it as a child support payment on the basis of the 

 

21 Due to a typographical error, the judge added the $2,500 

payment to $188,237 (rather than $188,637, a difference of 

$400), resulting in the $190,737 figure. Without the 

typographical error, the total would be $191,137. This error 

carried through into the amended judgments, and must be 

corrected.

22 The record adequately supports the judge's finding that 

the father made a $2,500 child support payment in connection 

with the execution of the 2009 agreement.
29

parties having stipulated to same. Accordingly, because the

amount the father should have been credited for child support 

payments should have totaled $187,637 ($185,137 plus $2,500), 

his child support arrearages (after applying the $28,177 

equitable credit and correcting for the $400 typographical 

error, see note 21, supra) should have been $38,883, rather than 

$35,783, and the amended judgments must be modified 

accordingly.

23

5. College expenses. The mother argues that the judge 

erred by ordering the mother to contribute to the children's 

"future" college expenses. To the extent that the mother is 

raising a prematurity argument, it is unpersuasive. Generally, 

"support orders regarding the future payment of post-high school 

educational costs are premature and should not be made," 

Passemato v. Passemato, 427 Mass. 52, 54 (1998), until college 

is "imminent" for the child. Ketterle v. Ketterle, 61 Mass. 

App. Ct. 758, 765 (2004), citing Cabot v. Cabot, 55 Mass. App. 

Ct. 756, 765 (2002), and Lang v. Koon, 61 Mass. App. Ct. 22, 26 

n.11 (2004). In the present case, all three children were 

 

23 The mother also argues that the judge used a flawed 

formula that incorrectly credited the father twice for his 

$6,008 "overpayment" of child support from August 11, 2011,

through May, 2012. However, as the father points out in his 

brief, the mother appears to be relying on the judge's somewhat 

confusing explanation of the math, rather than on the math 

itself, which was correct. Accordingly, there was no error.
30

already enrolled in college when the judge ordered the mother to 

contribute to their college expenses. Accordingly, the judge's 

order was not premature.24

The mother further argues that the judge erred by ordering 

the mother to contribute to the children's college expenses 

where the mother was excluded from the college selection 

process. We are unpersuaded. The judge found that the children

selected their respective colleges "without regard to either 

parent's ability to contribute to college tuition."

25 Although 

the separation agreement contemplated that the parties would 

jointly participate in the choice of which college the children 

would attend, it did not explicitly make payment of either 

parent's obligation to contribute to the children's college 

expenses contingent upon being included in the college selection 

process. Moreover, the judge was well within her discretion to 

 

24 The cases cited by the mother are distinguishable as they 

involve young children for whom college was not imminent. See, 

e.g., L.W.K. v. E.R.C., 432 Mass. at 452-454 (order for payment 

of post-high school education costs for ten year old child was 

premature); Lang v. Koon, 61 Mass. App. Ct. 22 (2004) (order for 

payment of post-high school education costs for eleven- and 

fifteen year old children was premature).

25 While the mother did not participate in the college 

selection process, there is no indication in the judge's 

findings that the mother objected to the colleges selected by 

the children. Indeed, the mother appears to have consented to 

Hannah's choice of college, as she agreed in the spring of 2011 

to pay for Hannah's education, and she contributed to Hannah's 

tuition for the spring 2012 semester.
31

make an order relative to the payment of college expenses, even 

if the parties had not previously agreed to contribute to them. 

See Massachusetts Child Support Guidelines § II-F (2013) ("In 

establishing support orders for children over age 18 . . . the 

Court shall exercise its discretion in ordering support and/or 

college contribution"). As such, we discern no abuse of 

discretion in making the mother "responsible for her 

proportionate share of the college education costs of the 

children,"26 in lieu of paying child support to the father. See

J.S. v. C.C., 454 Mass. 652, 660 (2009) (child support orders 

are reviewed for abuse of discretion).

Conclusion.

27 The amended judgment on contempt is modified 

as follows: In par. 1, by striking "$35,793.00" and inserting 

"$38,883.00"; and by striking "$69,968.00" and inserting 

"73,068.00." In par. 2, by striking "$35,783.00" and inserting

"$38,883.00."

The amended judgment of modification is modified as 

follows: In par. 3, by striking "$41,791.00" and inserting 

 

26 See also Massachusetts Child Support Guidelines, 

principles (The Guidelines are intended "[2] to promote joint 

parental responsibility for child support in proportion to, or 

as a percentage of, income").

27 To the extent that we do not address the parties' other 

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

in them that requires discussion.'" Department of Rev. v. Ryan 

R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth

v. Domanski, 332 Mass. 66, 78 (1954).
32

"$44,891.00"; and by striking "69,968.00" and inserting 

"$73,068.00." As so modified, the amended judgments are 

affirmed.

So ordered.