NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

15-P-771 Appeals Court

P.F. vs. DEPARTMENT OF REVENUE.

No. 15-P-771.

Norfolk. May 12, 2016. - December 6, 2016.

Present: Cohen, Rubin, & Hanlon, JJ.

Divorce and Separation, Child support, Modification of judgment. 

Parent and Child, Child support.

Complaint for divorce filed in the Norfolk Division of the 

Probate and Family Court Department on February 22, 2004. 

A complaint for modification, filed on January 9, 2012, was 

heard by John D. Casey, J.

P.F., pro se.

Benjamin K. Golden, Assistant Attorney General, for the 

defendant.

COHEN, J. The plaintiff, an incarcerated father, filed a 

complaint for downward modification of child support payments 

ordered following his divorce from the child's mother. A judge 

of the Probate and Family Court denied the request, reasoning 

that the father's loss of income was a foreseeable consequence 

of his conviction of indecent assault and battery on the child 
2

for whom he owes support. Before us is the father's appeal. We 

conclude that, on the record before us, the judge's refusal to 

reduce the father's child support payments in accordance with 

the Massachusetts Child Support Guidelines (2013) (guidelines) 

was outside the range of his discretion. We therefore vacate 

the judgment and remand the case for further consideration.1

1. Background. The father and the mother were married in 

September, 2000, and had one child together, a daughter. The

marriage was short-lived. The father and the mother divorced in 

April, 2004, and the father subsequently was ordered to pay

weekly child support of $72. In March, 2010, the father was 

convicted of indecent assault and battery on the child and was 

sentenced to five to seven years in State prison.2

In 2012, the father filed a complaint seeking modification

of his child support obligation, citing his inability to pay 

child support while incarcerated. On September 9, 2014, 

following a hearing at which the father represented himself,

3 and 

at which the child support enforcement division of the 

 

1 In addition, we reject the father's challenge to the 

judge's order of impoundment.

2 As of May 12, 2016, when we heard oral argument, the 

father was housed in the Massachusetts Treatment Center, where 

he was undergoing evaluation for commitment as a sexually 

dangerous person, pursuant to G. L. c. 123A. 

3 The father appeared by videoconference. 
3

Department of Revenue (DOR) appeared on behalf of the mother,4 a 

judge of the Probate and Family Court issued a judgment denying 

the father's modification request, stating that "[i]t should 

have been a foreseeable consequence of [the father's] criminal 

conduct that he would be incarcerated, lose his employment and 

thus lose his ability to earn income to pay support." The 

intended "effect of this denial [was] that [the father] [would] 

have to someday reimburse the [mother] for the expenses being 

incurred at this time." However, the judge also requested that 

DOR "waive the penalties that accrue on the unpaid arrears" 

during the father's incarceration.

The father filed a timely notice of appeal from the 

judgment. Thereafter, on December 8, 2014, the judge entered a 

"Supplemental Rationale" further explaining the basis for his 

decision on the father's complaint for modification. This 

appeal followed. 

2. Discussion. "When assessing a decision regarding a 

modification of child support, an appellate court 'review[s] for 

an abuse of discretion.'" Wasson v. Wasson, 81 Mass. App. Ct. 

574, 576 (2012), quoting from Richards v. Mason, 54 Mass. App. 

Ct. 568, 572 (2002). "[A] judge's discretionary decision 

constitutes an abuse of discretion where we conclude the judge 

 

4 The mother was present at the hearing, but DOR was 

handling collection and enforcement. See Naranjo v. Naranjo, 63 

Mass. App. Ct. 256, 259 & n.3 (2005).
4

made 'a clear error of judgment in weighing' the factors 

relevant to the decision, such that the decision falls outside 

the range of reasonable alternatives." L.L. v. Commonwealth, 

470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. 

Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). 

"The method for calculating and modifying child support 

orders is governed by statute and by the guidelines." Morales

v. Morales, 464 Mass. 507, 509-510 (2013).5 See G. L. c. 208, 

§ 28. "The Chief Justice of the Trial Court is authorized to 

promulgate guidelines establishing presumptive child support 

awards, based on articulated principles and calculated according 

to specified mathematical formulas." M.C. v. T.K., 463 Mass. 

226, 231 (2012), citing 42 U.S.C. § 667 (2006). "Although the 

guidelines have been subject to periodic revision since their 

enactment, an essential premise has remained constant: that 

child support should be calculated as a percentage of parental 

income. . . ." Id. at 232. 

There is a "rebuttable presumption that the amount of the 

order which would result from the application of the guidelines 

is the appropriate amount of child support to be ordered." 

 

5 "Under applicable provisions of Federal statutes, a 

State's receipt of certain Federal grants and reimbursements is 

conditioned on the State's creation of guidelines for child 

support that meet specific statutory and regulatory criteria." 

Morales v. Morales, supra at 513 & n.11, citing 42 U.S.C. 

§§ 602(a)(2), 654(20)(A), 665(a)(1)(A), 666, 667 (2006). 
5

G. L. c. 208, § 28, as amended through St. 1998, c. 64, § 194.

See guidelines, preamble. "Except as otherwise stated therein, 

the guidelines have presumptive application to actions to modify 

existing orders," Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 8 

(2016) (quotation omitted), and an existing order "shall be 

modified if there is an inconsistency between the amount of the 

existing order and the amount that would result from the 

application of the child support guidelines" (emphasis 

supplied). Morales v. Morales, supra at 511, quoting from G. L. 

c. 208, § 28. "This presumption may be rebutted, and a judge 

. . . may deviate from the amount of support dictated by [the 

guidelines], provided the judge makes written findings 

specifying that 'the guidelines amount' would be unjust or 

inappropriate, that departure from the guidelines is justified 

by the facts of the case, and that departure is consistent with 

the child's best interests." Id. at 510 n.6. 

Here, because the father had no income while he was 

incarcerated, the presumptive amount that followed from the 

application of the guidelines was the minimum order of eighty 

dollars per month. As the judge acknowledged, this was 

inconsistent with the existing child support order of seventytwo dollars per week and, therefore, "[i]n most cases this would 

result in a reduction of support." The judge nevertheless 

denied the father's modification request, concluding that (a) it 
6

was appropriate to attribute income to the father as his loss of 

employment was a "foreseeable" consequence of his crime against 

the child, and (b) regardless of the father's income, the 

circumstances of the case justified an upward deviation from the 

presumptive amount. The father argues that neither of these 

rationales is valid in the circumstances and, therefore, the 

judge's refusal to modify his child support obligation was an 

abuse of discretion. For the following reasons, we conclude 

that the father's position has merit. 

a. Attribution of income. "What is significant for 

purposes of the guidelines is the amount of the [payor's]

present gross income." Department of Rev. v. Foss, 45 Mass. 

App. Ct. 452, 459 (1998). However, in certain circumstances, 

"[t]he earning capacity rather than the actual income of [the 

payor] may be considered." Flaherty v. Flaherty, 40 Mass. App. 

Ct. 289, 291 (1996). "Income may be attributed where a finding 

has been made that [the payor] is capable of working and is 

unemployed or underemployed," guidelines, I(E),6 or where the 

payor owns "substantial assets." Wasson v. Wasson, 81 Mass. 

App. Ct. at 581, quoting from Flaherty v. Flaherty, supra. See 

 

6 In making such a finding, "[t]he Court shall consider all 

relevant factors including without limitation the education, 

training, health, past employment history of the party, and the 

availability of employment at the attributed income level. The 

Court shall also consider the age, number, needs and care of the 

children covered by this order." Guidelines, I(E). 
7

Schuler v. Schuler, 382 Mass. 366, 374-375 (1981) (ownership of 

valuable assets may be considered when determining payor's 

ability to pay child support). 

The criteria for attribution of income were not met in this 

case. It was undisputed that the father had no income or assets 

from which to pay child support, and the judge acknowledged that 

the father "[c]learly . . . cannot obtain employment while 

incarcerated." Nevertheless, the judge "attribut[ed] an income 

to [the] [f]ather [equal] to that of his previous job,"

7 on the 

basis that the father "acted voluntarily when he sexually abused 

his daughter," and the "loss of his employment" was a 

"foreseeable" consequence of his crime. In doing so, the judge 

cited to cases from other jurisdictions for the proposition that

it is appropriate to "attribute[] income to parents who have 

committed sex offenses and are facing a significant reduction in 

income as a result of their criminal conduct." These cases are 

inapposite, however, as they do not involve attributing income 

to a presently incarcerated payor.8 Furthermore, in

 

7 When the original child support order entered, the father 

was earning $450 per week as a truck driver. 

8 See Nunley v. State Dept. of Rev., Child Support 

Enforcement Div., 99 P.3d 7, 13 (Alaska 2004) (attributing 

income to nonincarcerated payor where "substantial" evidence 

demonstrated that he was capable of obtaining full-time 

employment notwithstanding his status as a registered sex 

offender); Metz v. Metz, 212 N.C. App. 494, 501 (2011) 

(attributing income to nonincarcerated payor where his 
8

Massachusetts, the relevant inquiry for attribution of income is 

not whether the payor's unemployment was "foreseeable"; it is 

whether the payor is presently able to obtain employment through 

"reasonable efforts." See guidelines, I(E) ("If the Court makes 

a determination that either party is earning less than he or she 

could through reasonable effort, the Court should consider 

potential earning capacity rather than actual earnings in making 

its order"). See also Flaherty v. Flaherty, supra (attribution 

of income not appropriate where husband was laid off

involuntarily). Compare Croak v. Bergeron, 67 Mass. App. Ct. 

750, 752 (2006) (appropriate to deny father's request for a 

reduction in child support where he "carefully orchestrated his 

periods of unemployment to coincide with court appearances"). 

As the judge recognized, a payor serving a criminal sentence 

cannot obtain gainful employment through "reasonable efforts"

while he is incarcerated.

9 Accordingly, it was not a proper 

exercise of the judge's discretion to attribute income to the 

incarcerated father based on his prior earning capacity. 

 

"difficulty finding employment" following his release from 

prison was a "clearly foreseeable" result of sexual assaulting 

his child; and where the evidence demonstrated that the payor 

had "$355,000.00 under his control, over $40,000.00 of which was 

in cash"). 

9 The judge stated that the father "[c]learly . . . cannot 

obtain employment while incarcerated," and that the father is 

"unable to use reasonable efforts to obtain employment due to 

his incarceration." 
9

b. Deviation from guidelines. "Although a purpose of the 

guidelines is to encourage joint parental responsibility for 

child support in proportion to, or as a percentage of, income

. . . a judge is to consider the totality of the parties' 

circumstances in determining their support obligations." Croak

v. Bergeron, 67 Mass. App. Ct. at 754-755 (quotations omitted). 

To that end, a judge may "deviate" from the guidelines upon

"enter[ing] specific written findings stating: 1) the 

amount of the order that would result from application of 

the guidelines; 2) that the guidelines amount would be 

unjust or inappropriate under the circumstances; 3) the 

specific facts of the case which justify departure from the 

guidelines; and 4) that such departure is consistent with 

the best interests of the child."

Guidelines, IV. See G. L. c. 208, § 28. 

While, as we discuss below, the judge also mentioned two 

other considerations, it is apparent that his decision hinged on 

the fact that the father was incarcerated for sexually abusing 

the child for whom he owes support.

10 However, this central 

justification finds no support in the guidelines. The 

guidelines identify thirteen specific circumstances that a judge 

may consider when determining whether deviation is appropriate. 

 

10 This is underscored by a sentence in the judgment, 

stating that "[t]he [c]ourt is willing to reconsider this 

decision if [the] [f]ather is able to have his conviction 

overturned and he is subsequently found to be [n]ot [g]uilty." 

This was in keeping with what the judge had explained at the 

hearing -- that if the conviction were overturned, the father 

would "have the right to come back to court and at that point 

seek retroactive relief." 
10

See guidelines, IV.11 Although the list is not exhaustive, there 

is nothing in the guidelines to suggest that the judge may 

consider the nature of an incarcerated payor's crime as a factor 

warranting upward deviation. In fact, the guidelines 

specifically allow for a downward deviation from the presumptive 

amount when the "[p]ayor is incarcerated, is likely to remain so 

for an additional 3 years and has insufficient financial 

resources to pay support." Guidelines, IV.

12 

 

11 "Circumstances which may support deviation, above or 

below the [guidelines,] include, but are not limited to, the 

following: 1) the parties agree and the Court approves their 

agreement; 2) a child has special needs or aptitudes; 3) a child 

has extraordinary medical or other expenses; 4) application of 

the guidelines, particularly in low income cases, leaves a party 

without the ability to self support; 5) Payor is incarcerated, 

is likely to remain incarcerated for an additional 3 years and 

has insufficient financial resources to pay support; 6) 

application of the guidelines would result in a gross disparity 

in the standard of living between the two households such that 

one household is left with an unreasonably low percentage of the 

combined available income; 7) a parent has extraordinary medical 

expenses; 8) a parent has extraordinary travel or other expenses 

related to parenting; 9) application of the guidelines may 

adversely impact re-unification of a parent and child where the 

child has been temporarily removed from the household based upon 

allegations of neglect; 10) absent deviation, application of the 

guidelines would lead to an order that is unjust, inappropriate 

or not in the best interests of the child, considering the 

Principles of these guidelines; 11) a parent has extraordinary 

health insurance expenses; 12) one parent is absorbing a child 

care cost that is disproportionate in relation to their income; 

13) one parent provides less than one-third of the parenting 

time for a child or children." Guidelines, IV. 

12 We infer that the likely intent of this provision is to 

prevent incarcerated parents from accumulating arrears that will 

impede their reentry into society and make it more difficult to 

support themselves and provide for their children in the future.
11

The judge's decision to make an upward departure from the 

guidelines therefore "was based at least partially upon [an] 

impermissible factor[]." Leonardo v. Leonardo, 40 Mass. App. 

Ct. 572, 576 (1996) (factor is impermissible if neither 

expressly nor impliedly permitted in the guidelines). See 

Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999) ("[W]e 

cannot read into a statute a provision which simply is not 

there"). In addition, we find it problematic to draw a 

distinction based on the nature of the parent's crime, since 

virtually any crime leading to incarceration could be considered 

injurious to the child, to the extent that it disrupts the 

family unit and disadvantages the child both emotionally and 

economically. In essence, the judge made a policy determination

that is not reflected in the guidelines and is appropriately 

left to those responsible for their promulgation. 

Nevertheless, DOR argues that the judge, who is vested with 

general equity jurisdiction under G. L. c. 215, § 6, was 

permitted to consider the nature of the father's crime as an

equitable factor weighing against a reduction in child support. 

Specifically, DOR contends that the judge properly denied the 

father's request for modification, as a person "who comes into 

equity must come with clean hands," and "it can be said, as 

matter of law," that a person "convicted of a crime related to 

the controversy in issue . . . has unclean hands." Fidelity 
12

Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 

(1996) (quotation omitted). 

In this case, however, the father did not "come into 

equity," ibid.; rather, the relief that he sought in his

complaint for modification was statutory in nature, see

Department of Rev. v. Mason M., 439 Mass. 665, 674 (2003) ("A 

judge's authority to modify a support order is statutory"); 

Vaida v. Vaida, 86 Mass. App. Ct. 601, 606 (2014) ("The 

statutory system governing child support in Massachusetts is a 

complete system, and there is no nonstatutory right to relief 

under the common law"). While a judge may, "in certain 

circumstances, . . . award child support under [the court's]

broad equity powers," Santagate v. Tower, 64 Mass. App. Ct. 324, 

328 (2005), the judge here appeared to be using child support as 

a means to provide compensation for injuries (both psychological 

and financial) caused by the father's abuse.

13 This was not 

appropriate. It is well-settled that "[a]n equitable remedy 

. . . is not available to a party with an adequate remedy at 

law." Id. at 329. Here, the child and the mother have remedies

at law: they may seek damages in tort for injuries caused to 

 

13 The judge found that the father should not be allowed to 

"benefit" from his "heinous actions," and to the extent that the 

"child will need therapy and other services . . . to cope" with 

the father's abuse, "[f]orcing [the] [m]other to bear th[at] 

financial burden alone, a burden caused solely by [the] 

[f]ather's actions, runs afoul of the purpose of this court of 

equity." 
13

them by the father's sexual abuse of the child.

14 Accordingly, 

DOR's argument is unpersuasive.

We also are unconvinced by two additional reasons cited by 

the judge in support of his decision to deviate from the 

guidelines: disparity in parenting time, and special needs and 

expenses. As to the first, the judge specifically found that 

"[r]educing [the] [f]ather's child support obligation would be 

unjust" because he "spends no parenting time with his daughter." 

However, while the guidelines do permit upward deviation where 

the payor provides "less than one-third of the parenting time 

for a child," guidelines, IV,

15 this provision reasonably must be 

understood to apply only to nonincarcerated parents; otherwise, 

it would operate as an exception that swallows the rule, as it 

would automatically apply to all incarcerated parents -- even 

those who are eligible for a downward deviation due to the 

length of their incarceration. See guidelines, IV. Thus, the 

fact that the incarcerated father provides less than one-third 

 

14 In this regard, the child has the benefit of a special,

long statute of limitations. See G. L. c. 260, § 4C.

 

15 "These guidelines are based upon the child(ren) having a 

primary residence with one parent and spending approximately 

one-third of the time with the other parent. If parenting time 

is less than one-third for the parent who is not the residential 

parent, the Court may consider an upward adjustment to the 

amount provided under the child support guidelines." 

Guidelines, II(D).
14

of the parenting time does not overcome the presumptive 

application of the guidelines in this case. 

As to the second, the judge stated that the child will 

likely require "therapy and other services," which the "[m]other 

will have to provide . . . at a significant cost." To be sure, 

the guidelines do allow upward deviation where a "child has 

special needs," or "extraordinary medical or other expenses." 

Guidelines, IV. However, as the judge acknowledged, "no 

evidence was presented . . . on this issue." In the absence of 

evidence regarding the child's specific needs and the nature and 

extent of any expenses that the mother stands to incur as a 

result, it cannot be concluded that the amount of support 

ordered by the judge is appropriate to meet the child's needs. 

See Department of Rev. v. Foss, 45 Mass. App. Ct. at 459 

(deviation not appropriate where "[t]he judge referred to the 

needs of the child," but "made no determination of what the 

child's needs were"). See also Martin v. Martin, 70 Mass. App. 

Ct. 547, 551 (2007) (deviation improper where "record 

disclose[d] no extraordinary expenses that would rebut the 

presumption in the guidelines").

In sum, "[b]ased on our examination of the record as a 

whole, we conclude that the judge gave insufficient reasons for 
15

deviating from the guidelines" in this case. Department of Rev.

v. Foss, supra at 456-457.16 

3. Scope of remand. Because the judge should not have 

attributed income to the incarcerated father, and had 

insufficient grounds, on this record, for upward deviation from 

the guidelines, we vacate the judgment and remand the case for 

reconsideration of the father's request for modification. The 

judge may take additional evidence. Among the issues that will 

need to be addressed on remand are the father's current 

incarceration status and the extent to which any modification 

should be retroactive, consistent with G. L. c. 119A, § 13(a). 

The judge also should take into account any other support 

obligations that the father may have, as required by the 

guidelines and G. L. c. 208, § 28.

17 See Richards v. Mason, 54 

 

16 We do not consider the father's additional argument 

concerning the propriety and scope of the impoundment order 

entered on November 10, 2014. The argument is not properly 

raised in this appeal, nor is the record adequate to address it. 

In any event, we note that it is hardly uncommon for files to be 

impounded in cases involving sexual abuse of minors. See, e.g., 

Commonwealth v. George W. Prescott Publishing Co., 463 Mass. 

258, 265 n.10 (2012) ("[N]umerous statutes preclude disclosure 

or publication of a sexual assault victim's name or other 

identifying information, whether contained in police or court 

records"). The father's apparent concerns were without 

foundation. Impoundment did not prevent him from obtaining 

access to the court record, nor did it impede this court's

ability to review the case.

 

17 "When a court makes an order for maintenance or support, 

the court shall determine whether the obligor under such order 

is responsible for the maintenance or support of any other 
16

Mass. App. Ct. at 574 (father's support payments for child of 

another relationship should be deducted from his gross income 

before applying guidelines).

4. Conclusion. The judgment dated September 9, 2014,

denying the father's complaint for modification is vacated, and 

the matter is remanded for further proceedings consistent with 

this opinion. The impoundment order dated November 10, 2014, is 

affirmed. 

So ordered.

 

children of the obligor, even if a court order for such 

maintenance or support does not exist . . . . If the court 

determines that such responsibility does, in fact, exist and 

that such obligor is fulfilling such responsibility such court 

shall take into consideration such responsibility in setting the 

amount to [be] paid under the current order for maintenance or 

support." G. L. c. 208, § 28, as amended through St. 1993, c. 

460, § 62. At the modification hearing, the father testified 

that he had three other children from a prior relationship.