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-109

JOANNA L. FICO1

vs.

DANIEL A. DITTLER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties, Joanna L. Fico (mother) and Daniel A. Dittler 

(father), are the never married parents of one child. The 

father appeals from a July 30, 2021 modification judgment issued 

by a judge of the Probate and Family Court that, among other 

things, (1) calculated his modified child support obligation 

using attributed income and actual unemployment income; and (2) 

ordered him to pay $377,255.71 toward the child's college 

expenses.2 For the reasons that follow, we vacate so much of the 

modification judgment as pertains to child support and college 

1 As is our custom, we set forth the plaintiff's name as it 

appears in the initial complaint, despite that later pleadings

refer to her as Joanna L. Mannion.

2 The father also appeals from so much of an October 18, 2021 

order as partially denied his motion to amend the judge's 

findings.
2

expenses, and remand the case for further proceedings consistent 

with this memorandum and order.3

Background. We summarize the trial judge's relevant 

findings, supplementing them with undisputed facts in the 

record, and reserving other facts for later discussion. See 

Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties' child 

was born in December 2004. In August 2008, the mother filed a 

complaint pursuant to G. L. c. 209C in the Probate and Family 

Court.

On February 9, 2009, the parties filed an agreement

regarding custody, parenting time, child support, and 

educational expenses, among other things (2009 agreement). The 

2009 agreement, which was incorporated and merged into a 

judgment, provided, in relevant part, that the mother would have 

primary physical custody of the child, the parties would have 

shared legal custody, and the father would pay child support of 

$2,124 per month. The 2009 agreement further provided that, 

"[c]ommencing in 2009, the father will contribute [twenty 

percent] of his net after tax bonus through his employment to an 

education fund for [the child] and will provide proof of said 

contribution to the mother."

3 The mother, who was represented by counsel below but is 

unrepresented on appeal, declined to file a brief.
3

In October 2014, the mother filed a complaint for 

modification seeking, among other things, changes to the 

parenting plan and adjusted child support consistent with those 

changes. The parties both filed financial statements in 

connection with the 2015 modification proceedings. On the 

mother's March 2015 financial statement, she reported gross 

weekly income of $1,864.31 (excluding child support). On the 

father's March 2015 financial statement, he reported gross 

weekly income of $7,414.86 (consisting of $3,653.85 in base pay, 

and $3,758.54 in bonus income). In the assets listed on his 

financial statement, the father included a Fidelity account 

labeled as "[the child's] education account pursuant to . . . 

[j]udgment of 2-9-2009," having a balance of $377,255.71.

In August 2015, the parties entered into an agreement for 

modification (2015 agreement), which was incorporated and merged 

with a judgment. The 2015 agreement provided, in relevant part, 

that:

"No previous judgment or agreement between the parents 

relating to [the child] prior to this [a]greement shall 

have any force or effect . . . regardless of whether legal, 

equitable or otherwise. All such previous judgments and 

agreements are, from this moment and forever, null and void 

as if they had never existed, it being the intent of the 

parents that this [a]greement shall be the sole and 

exclusive embodiment of their entire [a]greement concerning 

their child . . . and shall be the sole repository of all 

agreements and understandings between them concerning [the 

child], as if there had never been any other agreements 

between them concerning [the child].
4

. . . .

"Each party hereto declares and acknowledges that this

[a]greement constitutes the entire agreement between them 

. . . . This is an Integrated Agreement, as defined in the 

Restatement (Second) of the Law of Contracts, § 209."

The 2015 agreement provided that the parties would continue 

to have shared legal custody of the child; however, the 

parenting plan was modified such that the child would spend 

approximately fifty percent of the time with each parent

(instead of residing primarily with the mother).

With respect to child support, the 2015 agreement provided 

that the father would continue to pay monthly child support of 

$2,124 "based on his base salary," and that if "either parent 

seeks to modify the amount of child support" in the future, "the 

current child support amount shall have no precedential weight 

or authority. In such event, child support shall be determined 

by [a judge of] the Probate [and Family Court] as if anew 

according to the then current Child Support Guidelines

[guidelines] and other applicable laws."

With respect to educational expenses for the child, the 

2015 agreement provided, in relevant part, that:

"[The] [f]ather shall bear the entire cost of [the child's] 

college education, which shall be funded through [the] 

[f]ather's bonus . . . . If [the] [f]ather, in his sole 

discretion, determines that [the child] should apply for 

educational loan(s) in connection with his college 

education, . . . [the] [f]ather alone[] shall be 

responsible for the repayment of said educational loans in 
5

full, . . . which repayment shall be funded through [the] 

[f]ather's bonus."

In September 2020, the father filed a complaint for 

modification seeking, among other things, (1) recalculation of 

his child support obligation based on an application of the 

then-current guidelines; and (2) reallocation of the child's 

college expenses, which were to be paid entirely from his bonus 

income pursuant to the 2015 agreement. As changed 

circumstances, the father alleged that he had been laid off by 

his former employer, Fidelity Investments, in December 2018, and 

he no longer received "any regular or bonus income." A one-day 

modification trial was held on July 16, 2021. Both parties were 

represented by counsel, and each party testified. On July 30, 

2021, the trial judge issued the modification judgment and 

accompanying findings of fact.

With respect to the father's child support obligation, the

trial judge reduced the amount to $1,231 per month. At the time 

of the modification trial, both parties had been laid off from 

their prior full-time positions that they held at the time of 

the 2015 agreement. The mother had obtained part-time 

employment, whereas the father was working as the manager of 

Surrimassini, Inc. (Surrimassini), a company that he purchased 

in 2016. Despite working approximately forty hours per week for 

Surrimassini, the father claimed that he was not drawing a 
6

salary because the company could not afford it. In determining 

the father's income available for support, the judge attributed 

income to him of $55,000 per year, and added that attributed 

income to the unemployment income that he was receiving at the 

time of trial. The judge calculated the modified child support 

order pursuant to the guidelines, based on the following income 

figures for the parties (taking into account their shared 

parenting schedule): $1,042 per week for the mother (consisting 

of earned income, overtime, and unemployment benefits), and 

$2,228 per week for the father (consisting of attributed income 

of $1,058 per week, and unemployment benefits of $1,170 per 

week).

As for the issue of college expenses, the modification 

judgment provided that the father "shall pay $377,255.71 and the 

[m]other shall pay $25,000 toward the child's college education 

as defined in the [2015 agreement] . . . . Thereafter, the 

parties shall share college costs up to the maximum of the instate resident cost of UMass Amherst with the [f]ather paying 

[sixty percent] and the [m]other paying [forty percent]."4 The 

father filed motions to amend the judgment and the findings of 

fact; the former was denied and the latter was allowed in part.

The judge issued amended findings on October 18, 2021. In her 

4 At the time of the modification trial, the child was sixteen 

and about to enter his junior year at a private high school.
7

amended findings, the judge added several findings in support of 

her decision regarding college expenses, including that the 

father breached his "fiduciary obligation to maintain the funds" 

in the Fidelity account reported "on his [March 2015] financial 

statement that were designated for the child's education." The 

present appeal by the father followed.

Discussion. The father contends that the judge erred in 

modifying the college expense provision of the 2015 agreement to 

require him to pay $377,255.71 toward the child's college 

education. He also claims error in the judge's decision to 

attribute income to him for purposes of calculating the modified 

child support order. We address his contentions in turn.

1. College expenses. "When an agreement merges, and does 

not survive the judgment as an independent contract, a party 

seeking modification [must] demonstrate . . . a 'material change 

of circumstances' since the earlier judgment." Huddleston v. 

Huddleston, 51 Mass. App. Ct. 563, 564 n.2 (2001), quoting 

Harris v. Harris, 23 Mass. App. Ct. 931, 932 (1986). "When the 

judgment to be modified incorporates an agreement of the 

parties, we have said that, notwithstanding that the agreement 

does not survive the judgment as a binding contract, we 

nevertheless will 'review the findings to determine whether the 

judge gave appropriate consideration to the parties' intentions 

as expressed in their written agreement, . . . and to any 
8

changes in their circumstances since the last modification 

judgment.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 

(2004), quoting Huddleston, supra at 568. We review the judge's 

ultimate decision on a request for modification for an abuse of 

discretion. Cooper, supra.

Here, the father sought modification of the 2015 

agreement's provision requiring him to pay for one hundred 

percent of the child's college expenses with his bonus income, 

requesting that those expenses instead be shared equally by the 

parties (up to fifty percent of the in-state resident cost of 

UMass Amherst). The father asserted that his termination from

Fidelity in December 2018, which resulted in the loss of his 

bonus income, constituted a material change in circumstances.

The judge could have appropriately treated the loss of the 

father's bonus income as a material change warranting 

modification of the requirement that the child's college 

expenses be paid from said bonus income. The loss of the 

father's bonus income, however, was not dispositive as to 

whether he met his burden of demonstrating a material change in 

his ability to satisfy his bargained-for obligation to be solely 

responsible for the child's college expenses. To make this 

determination, the judge properly considered the totality of the 

parties' financial circumstances. See Emery v. Sturtevant, 91 

Mass. App. Ct. 502, 508 (2017).
9

Here, the judge declined the father's request to reallocate 

the college expenses equally between the parties, finding that, 

between 2015 and 2019, the father received total gross income of 

$5.7 million. The judge found that, during that same period, 

the father liquidated the Fidelity brokerage account containing 

the funds earmarked for the child's education expenses, paid off 

his mortgages in excess of $1 million (because he no longer 

derived a tax benefit from carrying the mortgages), invested 

$766,000 in Surrimassini, contributed $60,000 to his 401K, and 

paid off a $25,500 loan. The judge also found that the father 

lacked credibility regarding various aspects of his finances, 

including inflating several of his reported living expenses and 

claiming to not know how much his spouse (who is employed as a 

physician) earns. Moreover, although not explicitly addressed 

in the judge's findings, we note that the father's sworn 

financial statement entered into evidence at the modification 

trial reflected an increase in his total assets by over $400,000 

since the 2015 agreement, despite that he had been unemployed 

(aside from working for Surrimassini without pay) for 

approximately two and one-half years at the time of the 2021 
10

modification trial.5 Finally, the judge found that the mother's 

income had decreased since the time of the 2015 agreement.

In light of the uncontroverted evidence and the judge's 

findings regarding the father's substantial expenditures between 

2015 and 2019, his lack of credibility regarding various aspects 

of his finances, the increase in his assets since 2015, and the 

decline in the mother's income, the judge was well within her 

discretion to conclude that the father failed to meet his burden 

to demonstrate that modification of his agreed-upon obligation

to pay for the child's entire college education was warranted. 

See Croak v. Bergeron, 67 Mass. App. Ct. 750, 755-757 (2006) (in 

dismissing payor's complaint for modification, judge may 

consider totality of circumstances, including payor's 

evasiveness regarding his financial circumstances, his available 

assets, and his use of assets to support himself while claiming 

reduced ability to support child). See also Crowe v. Fong, 45 

Mass. App. Ct. 673, 679 (1998).

Here, however, the judge went a step further and, instead 

of simply denying the father's request to be relieved of his 

obligation to pay for the child's entire college education, she 

ordered him to pay $377,255.71 toward the child's college 

5 On his March 2015 financial statement, the father reported 

total assets of $1,458,493.95. On his July 2021 financial 

statement, the father reported total assets of $1,885,650.82.
11

expenses. The judge found that, "pursuant to the [2009 

agreement]," the father "designated $377,255.71 that was in a 

[F]idelity brokerage acc[ount] for the child's education." The 

judge acknowledged that, as a result of the 2015 agreement, the 

father was "no longer ordered" to contribute twenty percent of 

his net, after-tax bonus to the child's education account; 

"[i]nstead, [he] agreed to 'bear the entire cost' of the child's 

college education funded through [his] bonus." However, the 

judge found that the father, in subsequently liquidating the 

$377,255.71 held in the Fidelity brokerage account, had 

"breached his fiduciary obligation to maintain the funds 

[reported] on his financial statement that were designated for 

the child's education." The father contends that his obligation 

to maintain a college fund for the child was revoked by the 2015 

agreement, thus the judge improperly found him to have a 

fiduciary duty to maintain the college fund account and thus 

abused her discretion in ordering him to contribute the previous 

balance of that account to the child's future college expenses. 

We agree.

Fiduciary duty may arise "as a matter of law," or "as 

determined by the facts established, upon evidence indicating 

that one person is in fact dependent on another's judgment in 

business affairs or property matters" (quotations and citations 

omitted). UBS Financial Servs., Inc. v. Aliberti, 483 Mass. 
12

396, 406 (2019). Here, however, the father's duty to maintain 

an account for the child's educational expenses arose from 

contract -- specifically, the 2009 agreement. The 2009 

agreement required the father to contribute twenty percent of 

his net, after-tax bonus to an "education fund" for the child.

Because the education account was within the father's possession

and control, his obligation to fund the account was accompanied 

by a duty to preserve the funds deposited therein for the 

child's benefit. The 2015 agreement extinguished this duty, 

rendering it "null and void as if [it] had never existed." The 

2015 agreement thus not only relieved the father of any future

obligation to contribute to an education fund for the child, it 

also voided the father's past obligation to do so. See Black's 

Law Dictionary (11th ed. 2019) (defining "void contract" as "[a]

contract that is of no legal effect, so that there is really no 

contract in existence at all"). See also Computer Sys. of Am.,

Inc. v. Western Reserve Life Assur. Co. of Ohio, 19 Mass. App. 

Ct. 430, 437 (1985) ("every word and phrase of a contract 

should, if possible, be given meaning, and . . . none should be 

treated as surplusage if any other construction is rationally 

possible").6

6 The interpretation of an agreement is a question of law that we 

review de novo. See Colorio v. Marx, 72 Mass. App. Ct. 382, 386 

(2008).
13

Although the judge found that the father's March 2015 

financial statement listing the Fidelity brokerage account was 

"used in connection with" the August 2015 agreement, and that 

the mother "credibly relied on the [a]greement that the [f]ather 

would be responsible for the child's college tuition," there is 

nothing in the 2015 agreement reflecting the parties' intent 

that the father remain obligated to preserve the existing 

balance in the Fidelity brokerage account for the child's 

benefit. If the parties had so intended, they "easily could 

have included language" to that effect in the 2015 agreement, 

but they did not. Merrimack College v. KPMG, LLP, 88 Mass. App. 

Ct. 803, 806 (2016). Cf. Computer Sys. of Am., Inc., 19 Mass. 

App. Ct. at 437 ("if the parties had intended at-will 

termination, they could have said so . . . expressly"). 

Instead, the 2015 agreement expressly voided the 2009 agreement 

and obligated the father to "bear the entire cost of [the 

child's] college education, which shall be funded through [the] 

[f]ather's bonus." The 2015 agreement contained an integration 

clause stating that it "constitute[d] the entire agreement

between [the parties]," see Cabot v. Cabot, 55 Mass. App. Ct. 

756, 763 (2002), and "the words of an integrated agreement 

remain the most important evidence of intention" (citation 

omitted). Boston v. Professional Staff Ass'n, 61 Mass. App. Ct. 

105, 111 n.5 (2004). Here, the language of the integrated 2015 
14

agreement clearly expressed the parties' intention to void the 

father's obligation to maintain an education account for the 

child. See Balles v. Babcock Power Inc., 476 Mass. 565, 571 

(2017) ("when the language of a contract is clear, it alone 

determines the contract's meaning"). Accordingly, it was error 

for the judge to conclude that the father breached his duty to 

preserve that account for the child's benefit.7 The matter must 

therefore be remanded for further proceedings regarding the 

father's request for modification of the 2015 agreement's 

college expense provision.8

2. Attribution of income. "Income may be attributed where 

a finding has been made that either parent is capable of working 

and is unemployed or underemployed," and that parent "is earning 

7 We note that while finding that the father breached a fiduciary 

duty by liquidating the account holding $377,255.71 may not have 

been the appropriate remedy in this case, the judge was not 

without other options to secure the father's obligation to pay 

for the child's college education. See, e.g., Taverna v. Pizzi, 

430 Mass. 882, 885 (2000) (judge has power, pursuant to general 

equity jurisdiction conferred by G. L. c. 215, § 6, to order 

security for child support obligations).

8 The father also contends that the amount ordered by the judge 

constituted an impermissible deviation from the guidelines 

without the requisite findings to support the deviation. See 

Child Support Guidelines § II (G) (3) (June 2018) ("No parent 

shall be ordered to pay an amount in excess of fifty percent of 

the undergraduate, in-state resident costs of the University of 

Massachusetts-Amherst, unless the [judge] enters written 

findings that a parent has the ability to pay a higher amount"). 

We need not reach that issue, however, in light of our 

disposition remanding the issue of college expenses for 

redetermination.
15

less than he or she could earn through reasonable effort." 

Child Support Guidelines § I (E) (1)-(2) (June 2018). In 

deciding whether to attribute income to a parent:

"The Court shall consider the age, number, needs and care 

of the children covered by the child support order. The 

Court shall also consider the specific circumstances of the 

parent, to the extent known and presented to the Court, 

including, but not limited to, the assets, residence, 

education, training, job skills, literacy, criminal record 

and other employment barriers, age, health, past employment 

and earnings history, as well as the parent's record of 

seeking work, and the availability of employment at the 

attributed income level, the availability of employers 

willing to hire the parent, and the relevant prevailing 

earnings level in the local community" (emphasis added). 

Child Support Guidelines § I (E) (3) (June 2018).

We review a judge's decision to attribute income to a parent for 

an abuse of discretion. Davae v. Davae, 100 Mass. App. Ct. 54, 

57 (2021).

Here, the judge made the following relevant findings 

regarding the father's work history and earning capacity. The 

father is "a skilled and experienced equity analyst," who worked 

at Fidelity for approximately ten years until he was laid off on 

December 31, 2018, for "unsatisfactory employment performance." 

The severance package that he received from Fidelity "permitted 

him to meet his support obligations to date," however, "that 

ha[s] since ended." Following his termination, he was subject 

to a noncompete agreement until March 2019. He initially 

searched for other positions within Fidelity, and then outside 

of Fidelity when the noncompete agreement expired. In 2016, 
16

while the father was still working at Fidelity, he purchased 

Surrimassini, a company that transports adults with health 

conditions and developmental delays to appointments and care 

centers.9 The purchase price was $1,637,000, which the father 

funded with personal funds and loans, using his residence as 

collateral. Although the father "claimed to have carefully 

researched and vetted" Surrimassini, "he ultimately found 

himself owning a company that was barely 'breaking even.'" 

Although the father testified that he owed $712,000 in loans, 

due in August 2021, that he had not renegotiated and did "not 

know how they [would] be paid," the judge did not find this 

testimony credible because the father is a "talented equity 

analyst and investment portfolio manager" who "testified at 

length from memory with intricate details regarding 

[Surrimassini] and personal investments and expenses." Although 

business declined during the early days of the COVID-19 

pandemic,10 it improved in 2021 and the father described 

Surrimassini as "modestly profitable" as of June 2021.11 The 

9 The father also owns Woodlawn Leasing, Inc. (Woodlawn), which 

owns vehicles (worth $772,241) that are used by Surrimassini. 

Woodlawn does not, however, generate any income.

10 Surrimassini received Paycheck Protection Program loans 

totaling $310,000 in 2020 and 2021 ($160,000 had been forgiven 

at the time of trial, and the father expected the remainder to 

eventually be forgiven).

11 The father credibly testified that the rise of telehealth 

services has caused Surrimassini to permanently lose some 

business.
17

father initially hired a manager to run Surrimassini, paying him 

an annual salary of $55,000. After the manager resigned for 

health reasons, the father assumed the management role, working 

full time without paying himself a salary. The judge did not 

credit the father's claim that, if he paid himself a salary, 

"the bank would accelerate his loans and he would be unable to 

pay them."

The father contends that, in calculating his modified child 

support obligation, the judge improperly attributed income to 

him despite making insufficient findings to justify income 

attribution.12 It is apparent from the judge's findings, 

however, that she attributed income to the father of $55,000 per 

year based on the salary that he was previously paying the 

former manager of Surrimassini, a role that he assumed when the 

manager resigned. Although the judge did not expressly find 

that the father could earn more with "reasonable effort," Child 

Support Guidelines § I (E) (2) (June 2018), this determination 

is readily inferred from her subsidiary findings. The father 

claims that the judge erred in concluding that Surrimassini 

could afford to pay him a salary of $55,000, where 

12 The father also claims that the judge failed to treat the 

parties even-handedly as she attributed income to the father, 

but not the mother, despite both having been laid off from their 

prior jobs for unsatisfactory performance. The judge, however, 

credited the mother's testimony that she was laid off because of 

"family scheduling conflicts."
18

"uncontroverted" evidence in the record supported his testimony 

regarding the company's financial difficulties. The judge, 

however, declined to credit this testimony, finding that 

Surrimassini was able to the pay the previous manager $55,000 

per year without taking any capital out of the company. We see

nothing in the record that warrants disturbing the judge's

assessment of the father's credibility in this regard. See 

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

judge's findings are sufficient to support the attribution of 

income based on the salary paid to the individual who previously 

performed the management job that the father is now performing. 

See Crowe, 45 Mass. App. Ct. at 680.

However, in arriving at a total gross weekly income of 

$2,228 for the father, the judge added the father's actual 

unemployment income to his hypothetical attributed income. This 

was error insofar as the guidelines permit a judge to calculate 

support based on the payor's actual income or potential earning 

capacity, but not both. See Child Support Guidelines

§ I (E) (2) (June 2018) ("If the Court makes a determination 

that either parent is earning less than he or she could earn 

through reasonable effort, the Court should consider potential 

earning capacity rather than actual earnings in making its child 

support order" [emphasis added]). Accordingly, the matter must 
19

be remanded for a redetermination of the father's income and a 

recalculation of child support based on that income.

Conclusion. Paragraphs 1, 4, 5, and 6 of the July 30, 2021 

modification judgment, and so much of the October 18, 2021 order 

as partially denied the father's motion to amend findings, are

vacated, and the case is remanded for further proceedings 

consistent with this memorandum and order.13 The modification 

judgment is affirmed in all other respects. During the pendency 

of the remand, the father shall pay temporary support of $1,231 

per month unless the judge orders otherwise, and the judge may 

also make temporary orders regarding the payment of college 

expenses.

So ordered.

By the Court (Meade, 

Sullivan & D'Angelo, JJ.14),

Clerk

Entered: March 14, 2023.

13 The judge may, in her discretion, take additional evidence on 

the matters that are remanded for her consideration.

14 The panelists are listed in order of seniority.