Lizardo v. Ortega

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16-P-1070 Appeals Court

VIRGILIO LIZARDO vs. NAYSI ORTEGA.

No. 16-P-1070.

Essex. March 7, 2017. - June 12, 2017.

Present: Vuono, Meade, & Maldonado, JJ.

Divorce and Separation, Child support, Modification of judgment.
Parent and Child, Child support. Public Welfare,
Supplemental security income payments.

Complaint for support filed in the Essex Division of the
Probate and Family Court Department on April 27, 2006.

A complaint for modification, filed on August 27, 2015, was
heard by Peter C. DiGangi, J.

Anna Schleelein Richardson (Eve Elliott also present) for
the plaintiff.
Brittany Williams, Assistant Attorney General, for the
Department of Revenue.

MEADE, J. The plaintiff, Virgilio Lizardo (father),

appeals from a modification judgment of the Essex Division of

the Probate and Family Court Department (Probate Court) that

increased his child support payments to the defendant, Naysi

Ortega (mother), for the parties' younger daughter (daughter),
2

who was born in June, 1995,1 and that ordered him to pay the

mother approximately $13,296 from a retroactive lump-sum

distribution of Social Security disability income (SSDI)

benefits, which was to be applied to the father's child support

arrearage. The father contends that the judge (1) erred in

ordering him to make a payment from his lump-sum SSDI benefits

that exceeded the limit imposed by the Federal Consumer Credit

Protection Act (CCPA), 15 U.S.C. § 1673(b) (2012); (2) erred in

ordering postminority child support absent written or oral

findings regarding the factors set forth in the Massachusetts

Child Support Guidelines (2013) (guidelines); (3) infringed on

his equal protection rights by mandating postminority support

notwithstanding that married parents have no such financial

obligation; and (4) erred in failing to dismiss his complaint

for modification and threatening him with contempt proceedings.

For the reasons that follow, we reverse the portion of the

judgment that ordered the father to make a child support

arrearage payment to the mother in excess of the garnishment

limitation imposed by the CCPA. In all other respects, we

affirm.

1. Background. The record is largely silent regarding the

history between the mother and the father, a veteran of the

1
The parties' older daughter is not a subject of these
proceedings.
3

United States Army. It appears that they once were married but

subsequently were divorced. A complaint for support pursuant to

G. L. c. 209, § 32F, was filed in the Probate Court on April 27,

2006, and the resulting judgment has been modified several times

over the past decade.

On June 24, 2013, the mother filed a complaint for

modification of a 2010 judgment that had ordered the father to

pay seventy-five dollars per week in child support. The mother

claimed that because the daughter was graduating from high

school and had been accepted to several colleges, the daughter

required additional financial assistance from her parents. On

March 25, 2014, a modification judgment entered that

incorporated and merged a written agreement between the parties

pertaining to child support obligations. In light of a change

in his income, the father agreed to make child support payments

by wage assignment in the amount of $150 per week, plus an

additional fifty dollars per week that would be applied to his

arrearage. Although the father's child support obligation was a

departure from the guidelines, pursuant to which he would have

been required to pay $191 per week, the parties agreed that the

deviation was in the best interests of the daughter.2

2
The parties also agreed to cosign an educational loan that
would pay for the daughter's college expenses once all other
sources of financial aid had been exhausted. Prior to the
signing of such loan, the mother agreed to provide the father
4

A few months later, the father was hospitalized for

depression and posttraumatic stress disorder. Although he had

been employed as a vocational rehabilitation specialist, this

temporary position ended during his hospitalization. On July

29, 2014, the father filed a complaint for modification of his

child support obligation due to a loss of income. While

awaiting a hearing on his complaint, the father began to receive

service-related disability benefits in the amount of $1,041.39

per month from the Department of Veterans Affairs (VA).3 At

around the same time, the father started a compensated work

therapy (CWT) program at the Bedford VA Medical Center, earning

$400 per week. On September 19, 2014, judgment entered on the

father's complaint for modification. The father's child support

payments were reduced to seventy dollars per week, his

additional payment of fifty dollars per week for his arrearage

was preserved, and all prior orders were to remain in effect

except as so modified.

In June, 2015, the father lost consciousness while sitting

in his car at a stop sign. As a consequence, his driver's

license was revoked and he was unable to complete the CWT

with documentation of the daughter's full-time enrollment in
college, as well as the sources and amounts of financial aid
that the daughter had received.
3
On December 1, 2014, the father's disability benefits from
the VA increased to $1,059.09 per month, due to a cost of living
adjustment.
5

program. On August 27, 2015, the father filed another complaint

for modification, asserting that he had been unable to work due

to his disability, that his only source of income was his

disability benefits from the VA, and that he believed that his

daughter was emancipated. The father requested a termination of

his child support obligation or, if his daughter was not

emancipated, an adjustment to reflect his disability and reduced

income. He also sought the establishment of a more suitable

payment obligation with respect to his arrearage. The mother

did not file any responsive pleadings to the father's complaint.

Two months later, the Social Security Administration (SSA)

notified the father that he was eligible to receive monthly SSDI

benefits in the amount of $1,196.40. Around November 3, 2015,

the father began to receive such benefits, of which $519.60 was

withheld each month for the payment of his child support

obligation. Because the SSA determined that the father had been

entitled to receive these benefits beginning in December, 2014,

the father anticipated that he would receive a retroactive lump-

sum SSDI payment.

A hearing on the father's complaint for modification was

held on November 10, 2015.4 The father first expressed

4
Approximately one week before this hearing, the father
filed a motion for temporary orders. He requested termination
of his child support obligation, an order to pay eighty-seven
dollars per week toward his arrearage in conformity with the
6

uncertainty about whether the daughter was enrolled in college,

and whether she was financially dependent on the mother. Next,

the father's attorney informed the probate judge that the

father's child support arrearage was approximately $58,000,

which included interest and penalties.5 In response to the

judge's inquiry why the father had "such an outrageously high

arrearage," counsel explained that the father had been unable to

work due to multiple hospitalizations and ongoing struggles with

disabilities. Counsel told the judge that the father expected

to receive a retroactive lump-sum SSDI payment soon, and counsel

requested that the payment be split in half, with fifty percent

being retained by the father and fifty percent going toward his

arrearage. Because the amount of this payment had not yet been

determined by the SSA, the judge ordered the matter continued

for one month, and he stated that proceedings would resume in

the Department of Revenue (DOR) session. In the meantime, the

judge issued a temporary order directing the father to pay

ninety-seven dollars per week in child support, plus an

additional twenty-three dollars per week toward his outstanding

guidelines, and permission to maintain a bank account with up to
$2,500 per month exempt from levy so long as his weekly payment
toward the arrearage was timely made.
5
As of November, 2015, the father owed $38,822.23 in
arrearages, $13,184.87 in interest, and $6,591.90 in penalties.
Of the arrearages, $27,644.52 was due to the mother, and
$11,177.71 was due to the Department of Revenue for
reimbursement of public assistance paid to the family.
7

arrearage. The order further stated that the father's

retroactive lump-sum SSDI payment should be held in escrow by

the father's attorney, pending further determination by a judge

regarding those funds. The mother was ordered to provide

documentation to the father, prior to the next hearing,

regarding the daughter's enrollment in college.6

On December 17, 2015, the hearing resumed in the DOR

session on the father's complaint for modification. According

to the DOR's7 unchallenged representation, the father had become

satisfied that the daughter was enrolled in college.

Nonetheless, given that the mother had not filed a responsive

pleading, the father moved to withdraw his complaint so he could

assess whether his VA benefits were going to be reduced in light

of his receipt of SSDI benefits. See Mass.R.Dom.Rel.P.

41(a)(1). When the DOR indicated that it was ready to initiate

contempt proceedings if the modification complaint was

dismissed, the father decided to withdraw his motion to dismiss

6
Before the next hearing date, the father moved to
voluntarily dismiss his own complaint for modification pursuant
to Mass.R.Dom.Rel.P. 41(a)(1). As reason therefor, the father
stated that, assuming that the mother provided adequate
documentation of the daughter's enrollment in college, he was
satisfied that the daughter was not emancipated. The father
reserved the right to withdraw his motion in the event that the
mother failed to produce such documentation as ordered by the
judge.
7
The DOR was acting on behalf of the mother, as it also
does on appeal.
8

and, instead, to pay $123 per week in child support, which was

the amount set forth in the guidelines. With respect to the

father's arrearage, the DOR explained that it was holding

approximately $10,296 that the SSA had withheld from the

father's retroactive lump-sum SSDI payment, and the father's

attorney stated that he held the remaining $6,864 of such

payment in escrow.8 The father argued that $10,296 should go

toward his arrearage, and that the escrowed funds should be

released to him because the CCPA, 15 U.S.C. § 1673(b)(2) (2012),

only permits the DOR to garnish, at most, sixty-five percent of

his lump-sum SSDI benefits for the payment of his arrearage.

The judge declined to give the father all of his escrowed funds.

Final judgment on the father's complaint for modification

entered on December 21, 2015. The judge increased the father's

child support payments to $123 per week, in conformity with the

guidelines. With respect to the father's retroactive lump-sum

SSDI payment, the judge ordered the DOR to release all of the

money it held to the mother, and he ordered the father's

8
As the DOR notes in its brief, nothing in the record
indicates the exact amount of the father's entire retroactive
lump-sum SSDI payment. Based on the unchallenged representation
from the DOR that it held $10,296 (which corresponds to the
amount withheld by the SSA), and the unchallenged representation
from the father's counsel that he held $6,864, we shall assume
that the father's total retroactive lump-sum SSDI payment was
$17,160. We note that a financial summary report from the DOR
showed that the amount of arrears paid in December, 2015, was
$10,427.60.
9

attorney to distribute $3,000 from the escrow account to the

mother, with the remainder going to the father. The father's

checking account was deemed to be exempt from any lien by the

DOR. The present appeal ensued.

2. Discussion. A. Standard of review. Our review of a

child support modification judgment is limited to whether the

judge's factual findings were clearly erroneous, whether there

were other errors of law, and whether the judge appears to have

based his decision on the exercise of sound discretion. See

Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). "[A]

judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge 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) (citation omitted).

B. Garnishment in conformity with CCPA. The father

contends that the judge erred in determining that the mother was

entitled to receive approximately $13,296 from his retroactive

lump-sum SSDI payment, which represented more than seventy-seven

percent of such payment, where garnishment for arrearages is

capped at sixty-five percent under the CCPA, 15 U.S.C.

§ 1673(b)(2) (2012). The father claims that sixty-five percent

of his lump-sum distribution already had been withheld by the
10

DOR as payment toward his arrearage. That being the case, the

father argues that the additional payment of $3,000 to the

mother from the funds being held in escrow by the father's

attorney caused the father's garnishment to exceed the limit

permitted under Federal law.9 We agree.

The collection and distribution of child support payments

by a State are governed by the Child Support Enforcement Act

(CSEA), Title IV, Part D of the Social Security Act, 42 U.S.C.

§§ 651-669b (2012). See Rosen v. Rosen, 90 Mass. App. Ct. 677,

682 & n.8 (2016). In Massachusetts, the DOR has been designated

as the Commonwealth's so-called "IV-D agency" charged with

responsibility for providing child support enforcement services,

including the establishment, modification, and enforcement of

child support obligations. G. L. c. 119A, §§ 1, 1A. See

Morales v. Morales, 464 Mass. 507, 510 n.5 (2013). Pursuant to

G. L. c. 119A, § 6(a), the DOR is authorized to institute

collection procedures for all accrued child support arrearages,

including income garnishments, tax refund intercepts, property

9
The father states that he is not seeking the return of the
$3,000 because he wants to fulfil his child support obligation
as soon as possible. He is concerned, however, that it appears
to be a common practice for the DOR to pursue, and Probate Court
judges to order, child support payments in excess of the limits
specified in the CCPA. Given that the issue has been fully
briefed and argued by the parties, is one of public importance,
and is likely to recur, we address its merits. See Smith v.
McDonald, 458 Mass. 540, 543 n.4 (2010); Custody of Victoria,
473 Mass. 64, 65 n.2 (2015).
11

liens, and contempt proceedings. Such authority, however, is

not unlimited.

Congress enacted the CCPA for the purpose, among others, of

enabling debtors to retain sufficient earnings to support their

basic needs, thereby averting the necessity of having to declare

bankruptcy. See Kokoszka v. Belford, 417 U.S. 642, 651 (1974).

The CCPA establishes the maximum amount of "aggregate disposable

earnings of an individual for any workweek" that can be

garnished to enforce a support order. 15 U.S.C. § 1673(b)(2)

(2012). The term "earnings" means "compensation paid or payable

for personal services, whether denominated as wages, salary,

commission, bonus, or otherwise, and includes periodic payments

pursuant to a pension or retirement program." 15 U.S.C.

§ 1672(a) (2012). The term "disposable earnings" means "that

part of the earnings of any individual remaining after the

deduction from those earnings of any amounts required by law to

be withheld." 15 U.S.C. § 1672(b) (2012). Under the CCPA,

where an individual is not supporting a spouse or dependent

child who is not the subject of the support order, and where

support has been owed for more than twelve weeks, garnishment

shall not exceed sixty-five percent. 15 U.S.C. § 1673(b)(2)

(2012). The CCPA further provides that "[n]o court of the

United States or any State, and no State (or officer or agency
12

thereof), may make, execute, or enforce any order or process in

violation of this section." 15 U.S.C. § 1673(c) (2012).

The father's retroactive lump-sum distribution of SSDI

benefits constituted earnings. Such payment was the equivalent

of wages because it represented compensation for personal

services that was lost as a consequence of the father's

inability to work once he became disabled. See Martin v.

Martin, 70 Mass. App. Ct. 547, 549-550 (2007), and cases cited.

See also United States v. Ashcraft, 732 F.3d 860, 864 (8th Cir.

2013) (disability payments are designed to function as wage

substitutes and, therefore, are "earnings"); Rosenberg v.

Merida, 428 Mass. 182, 186 (1998), citing Miller v. Miller, 890

P.2d 574, 576-577 (Alaska 1995) (SSDI payments represent

earnings from parent's past contributions to Social Security

Trust Fund). See generally guidelines § I.A (defining sources

of income).10 In our view, the father's lump-sum SSDI payment

constituted earnings during the work week in which he (and the

DOR on his behalf) received it. We have found no authority, and

10
We do not decide which non-Social Security lump-sum
payments constitute earnings within the meaning of 15 U.S.C.
§ 1672(a) (2012). Cf. Aetna Cas. & Sur. Co. v. Rodco Autobody,
965 F. Supp. 104, 109 (D. Mass. 1996) ("[L]ump sum severance
payments by the employer do not fall within the protective
umbrella of 15 U.S.C. § 1673"); Pallante v. International
Venture Invs., Ltd., 622 F. Supp. 667, 669 (N.D. Ohio 1985) (The
fact that a severance payment is made in a lump sum places it
outside the statutory provisions"). See also Kokoszka v.
Belford, 417 U.S. at 651 (exploring reach of 15 U.S.C. § 1673).
13

the DOR has cited none, for the proposition that this payment

should be retroactively reapportioned over the ten months from

December, 2014, through September, 2015, when the father was

entitled to receive SSDI benefits. Given that the father's

refund of such benefits was a lump-sum disbursement, we treat it

as a single aggregate distribution for one work week.

As we have noted, the father only takes issue with the

portion of the judgment that directed the father's attorney to

release an additional $3,000 from the escrow account to the

mother. The father correctly asserts that the DOR already held

$10,296 from his lump-sum SSDI distribution as payment toward

his arrearage. This latter amount represented sixty percent of

the total SSDI disbursement of $17,160. See note 8, supra.

Because the maximum allowable garnishment under the CCPA for an

individual in the father's circumstances is sixty-five percent,

only an additional $858 could be released from the escrow

account to the mother, bringing the father's total garnishment

to $11,154, or sixty-five percent of his retroactive lump-sum

SSDI payment. The judge erred in ordering the release of the

$3,000 to the mother because such payment resulted in a

garnishment that exceeded the permissible limit under the CCPA.

The purpose of the CCPA -- to protect a basic level of income --

is defeated if a noncustodial parent is required to make

payments toward arrearages in excess of the statutory limits.
14

C. Postminority support. The father contends that the

judge erred by ordering postminority support for the daughter

without making any findings regarding the factors set forth in

the guidelines. He asserts that the judge considered only

whether the daughter was enrolled in college, and whether there

was an outstanding child support arrearage. No evidence was

presented, and no findings were made, as to whether the daughter

remained financially dependent on the mother. In the father's

view, the judge abused his discretion by ordering the father to

pay postminority support. We disagree.

At the hearing on December 17, 2015, the DOR informed the

judge that the father was satisfied that the daughter was

enrolled in college. The father, who was represented by

counsel, did not challenge the DOR's statement. Moreover, the

father subsequently agreed to the imposition of a weekly child

support obligation of $123, which was the amount suggested by

the guidelines. In doing so, the father withdrew his motion to

dismiss his complaint for modification under Mass.R.Dom.Rel.P.

41(a)(1). It is apparent from the record that the father's

decision was influenced by the fact that the DOR was prepared to

initiate contempt proceedings if the father did, in fact,

dismiss his own complaint. Nonetheless, as the agency charged

with responsibility for providing child support enforcement

services, the DOR would have been acting well within its
15

statutory authority by commencing such proceedings. See G. L.

c. 119A, § 6(a) (DOR authorized to initiate contempt proceedings

to collect all accrued child support). Had a contempt

proceeding occurred, the father could have mounted a defense by

arguing that he genuinely did not have the ability to comply

with existing child support orders. Given the alternatives, the

father considered his options and decided to accept the

imposition of a weekly child support obligation of $123. In

these circumstances, the father has waived his right to argue on

appeal that the judge abused his discretion in ordering

postminority support. See Moran Travel Bureau, Inc. v. Clair,

12 Mass. App. Ct. 864, 865 (1981); Litchfield v. Litchfield, 55

Mass. App. Ct. 354, 357 (2002).

D. Right to equal protection. The father contends that

the judge infringed on his right to equal protection under the

law by mandating the payment of postminority support for the

daughter notwithstanding the fact that married parents have no

such financial obligation. However, because the father did not

raise this argument in the Probate Court, it is waived. See

Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

3. Conclusion. So much of the December 21, 2015,

modification judgment as ordered the father to pay the mother an

additional $3,000 (beyond the $10,296) toward his child support

arrearage, an amount that exceeded the maximum allowable
16

garnishment under the CCPA, is stricken from the judgment.

Given that the father does not seek a return of his overpayment,

see note 9, supra, we need not remand the matter to the Probate

Court for further proceedings. In all other respects, the

December 21, 2015, modification judgment is affirmed.

So ordered.