Philip T. McNamara v. Sheena M. McNamara.

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-759

PHILIP T. MCNAMARA

vs.

SHEENA M. MCNAMARA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Sheena McNamara (mother) appeals from a modification

judgment that resulted in a "slight increase" of the child

support obligation of Philip McNamara (father). The mother

argues that the judge (1) erred in calculating the father's

income by underestimating the amount of overtime income he would

earn, (2) abused her discretion by attributing income to the

mother, and (3) abused her discretion by failing to make the

modification judgment retroactive. We affirm in part and

reverse in part.

Discussion. "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 h[er] decision on the

exercise of sound discretion." Lizardo v. Ortega, 91 Mass. App.
Ct. 687, 691–692 (2017). We "give due regard to the judge's

assessment and determination of credibility of the witnesses and

the weight of the evidence." E.K. v. S.C., 97 Mass. App. Ct.

403, 409 (2020). See Mass. R. Dom. Rel. P. 52 (a).

"Public policy dictates that children be supported by the

financial resources of their parents insofar as is possible."

Murray v. Super, 87 Mass. App. Ct. 146, 154 (2015), quoting M.C.

v. T.K., 463 Mass. 226, 231 (2012). The appropriate amount of

child support to be ordered is presumptively that set forth in

the Massachusetts Child Support Guidelines (guidelines). See

G. L. c. 208, § 28. The statute dictates that "when a complaint

seeking modification of a child support order is filed,

modification is presumptively required whenever there is an

inconsistency between the amount of child support that is to be

paid under the existing support order and the amount that would

be paid under the guidelines." Morales v. Morales, 464 Mass.

507, 511 (2013).

1. Calculation of the father's income. The mother

challenges the judge's finding that the father "makes an average

of $2,069.80 a week as reflected in his year-to-date income for

2022 which does include overtime." The judgment did not

articulate the basis for the calculation of the father's income,

and we are unable to reproduce the calculation or discern the

judge's rationale.

2
The father, employed as a line repairman for the

Massachusetts Bay Transportation Authority, routinely earned

premium overtime, double overtime, and compensation for overtime

meals before the divorce. He earned gross income of $2,285.73

per week at the time of the divorce; however, he also reported

that he was scheduled to switch to the day shift in January

2020. Because the day shift was eligible for only straight

overtime, he expected his total weekly income to decrease

substantially. At the modification trial, the mother's counsel

argued that the father had changed his schedule back to nights

and continued receiving premium or double overtime after the

divorce proceedings ended. 1

The guidelines define income broadly as "gross income from

whatever source." Child Support Guidelines § I(A) (Aug. 2021).

The judge may disregard some or all of a parent's overtime

income only after giving "due consideration . . . to the history

of the income, the expectation that the income will continue to

be available, the economic needs of the parties and the children

. . . and whether the overtime work is a requirement of the

job." Child Support Guidelines § I(B)(1).

The father's amended financial statement for the

modification trial listed his gross weekly income as $2,325.18.

1 The mother has not alleged that the father deliberately reduced
his income in bad faith.

3
According to the statement, his base pay, including both regular

pay and ten hours of straight overtime, was $2,118.80, and he

received $166.85 in premium overtime. His income on the

statement also included a small weekly gift of $39.53 from his

sister. The income reported on the financial statement is

consistent with, albeit slightly lower than, the paychecks in

evidence. If one divides the father's total year-to-date pay

based on the first four full pay periods of 2022 (eight weeks)

or the five paychecks the father had received as of March 4,

2022 (ten weeks), his average income also appears to be roughly

$2,300 per week. 2

How the judge arrived at the figure of $2,069.80 per week

is a mystery, and does not appear to be supported by any view of

the record, especially in light of the judge's statement that

the figure includes overtime. Accordingly, we must remand the

case for the judge to recalculate the father's income and to

issue detailed findings of fact explaining how the calculation

comports with the guidelines.

2. Attribution of income to the mother. The judge found

that the mother "could earn a minimum of at least minimum wage

2 The father's 2021 Form W-2 suggests gross income of $2,669.49
per week, and based on a pay statement dated March 4, 2022, the
mother calculated the father's gross income as $2,571.79 per
week.

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weekly or $570.00 per week." The mother contends that the

judge's decision to attribute income was an abuse of discretion.

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

of discretion. See Davae v. Davae, 100 Mass. App. Ct. 54, 57

(2021). However, we review the underlying factual

determinations for clear error, see id. at 58, and in this

regard, the modification judge's "credibility finding is

decisive. In a bench trial credibility is quintessentially the

domain of the trial judge[,]" and the judge's "assessment is

close to immune from reversal on appeal except on the most

compelling of showings" (quotation and citation omitted).

Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 495-496 (2012).

The modification judge's decision to attribute income to

the mother was based on a constellation of factors. The judge

specifically discredited the mother's financial statement.

The record supports the judge's finding that the mother earned

income, not reflected in the financial statement, from

photography, selling items on line, and class action suits.

The mother could not verify payment of the $125 weekly rental

expense to her parents reported on her statement. Moreover, the

judge found that the mother made a number of large, unaccounted

for expenditures on items such as vacations and the purchase of

a jet ski.

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As to the mother's ability to earn income, the judge

specifically found that the mother "was not credible when she

testified that she is unable to work due to her disability of

edema, her hip replacement, and hip problems." The judge, who

had also entered the original divorce judgment, had ample

opportunity to evaluate the mother's testimony and demeanor.

Giving "due regard to the judge's assessment and determination

of credibility," Murray, 87 Mass. App. Ct. at 148, we discern no

error in the judge's determination that the mother had the

ability to earn $570 per week. The judge's decision to

attribute income to the mother was within the range of

reasonable alternatives.

3. Retroactivity of modified child support obligation.

The mother argues that the judge abused her discretion by

failing either to apply the modified child support order

retroactively to the date of the divorce judgment or to make

specific findings on why retroactivity was inappropriate.

Whether to order retroactive application of a modified

child support order is the judge's discretionary decision. See

Cavanagh v. Cavanagh, 490 Mass. 398, 425 (2022). To deny

retroactivity and fail to explain that conclusion, however, is

an abuse of discretion. See Boulter-Hedley v. Boulter, 429

Mass. 808, 811-812 (1999). This is particularly true here,

where the modified judgment corrected the prior, erroneous

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treatment of the mother's Supplemental Security Income benefits

as income. "[T]he failure of the findings to support the

judge's orders will constitute an abuse of discretion and

require reversal" (quotation omitted). Prenaveau, 81 Mass. App.

Ct. at 486.

We agree that specific findings were necessary, and that

the absence of findings requires reversal. However, child

support may not be modified except during the period when a

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

§ 13 (a) ("a judicial . . . action to enforce [a child support]

judgment . . . shall not be subject to retroactive modification

except with respect to any period during which there is pending

a complaint for modification, but only from the date that notice

of such complaint has been given, . . . where the obligee is the

plaintiff, to the obligor"). The mother's request for

retroactive relief, therefore, can date back only to July 20,

2021 -- the date she served her modification complaint on the

father.

Conclusion. The modification judgment (on the complaint

for modification filed July 1, 2021), entered April 11, 2022, is

vacated as it relates to the amount of the father's income and

the denial of retroactive application of the father's increased

child support obligation. In all other respects, the

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modification judgment is affirmed. The case is remanded for

further proceedings consistent with this decision.

So ordered.

By the Court (Massing,
Henry & Grant, JJ. 3),

Clerk

Entered: December 4, 2023.

3 The panelists are listed in order of seniority.

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