CHRISTINE A. DENNIS vs. HENRY P. DENNIS.

WARNER, C.J. By a judgment of divorce nisi entered on December 22, 1982, the parties were ordered to comply with the provisions of a separation agreement which was incorporated and merged into the judgment, but which, by its express terms, survived the judgment with independent legal significance. The agreement provides, among other things, that the wife (Christine) have physical custody of the two minor children of the marriage [Note 1] and that the husband

Page 162

(Henry) pay $55 a week as child support. Christine has the right to live in the former marital home until she remarries or the younger child is emancipated, at which time the house is to be sold and the net proceeds divided between the parties in accordance with a formula set out in the agreement. Christine is entitled to the income from the property, and is responsible for the payment of the first mortgage, insurance and taxes, as well as the costs of maintenance and repair. Henry is responsible for the payment of a debt owed by the parties to the Danvers Municipal Credit Union. Each party waives the right to seek alimony.

On February 1, 1985, Christine filed a complaint for modification requesting that Henry's child support obligation be increased to $150 a week. She alleged, in the complaint as twice amended, that both Henry's income and the needs of the children had increased, and that the level of available support for the children was inadequate as she was incapable financially of meeting her obligation for support. Henry answered, pleading the separation agreement in bar.

After hearing, a judge of the Probate Court found that Henry had experienced a substantial increase in income since 1982 and that Christine had experienced an increase in expenses of approximately $200 a week, attributable, in large part, to the increased needs of the children. The judge concluded that there had been a material change in circumstances since the time of the divorce and that the level of available support for the children was inadequate as Christine was incapable financially of meeting her obligation for child support as expressed in the agreement. By a modification judgment entered August 30, 1988, the judge ordered Henry to pay $180 a week as child support until such time as a child was emancipated, after which his obligation would be reduced to $90 a week. On appeal, Henry disputes the judge's findings and argues that the separation agreement should have been specifically enforced. We affirm.

A separation agreement which fixes interspousal or child support, and which survives a divorce judgment and is valid

Page 163

at the time of the entry of that judgment, [Note 2] should be specifically enforced, absent "changed circumstances . . . [which] give rise to countervailing equities." Ames v. Perry, 406 Mass. 236, 240, 241 (1989). See also Knox v. Remick, 371 Mass. 433, 436-438 (1976); DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. 231, 235-236 (1987). "But a Probate Court support order may recast the burden of support for a child, as expressed in a separation agreement, for example, where (a) a support order would be entered or modified, as the case may be, in the absence of such an agreement and (b) the level of available support for the child is inadequate in the circumstances because one former spouse is incapable financially of meeting his or her obligation for child support expressed in that agreement." Knox v. Remick, 371 Mass. at 437-438. [Note 3] See Ames v. Perry, 406 Mass. at 240; DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. at 236 & n.7 . It is clear from the judge's findings that in modifying the divorce judgment he employed the two-part example set forth in Knox.

We have little difficulty concluding that the first part of the Knox example was satisfied. Since the time of the divorce, Henry has remarried (his present wife is employed) and his earnings, including overtime, have increased from $276.83 a week to $675 a week. Christine's income, on the other hand, as the judge found and as Henry concedes in his brief, has remained relatively stable, [Note 4] and her expenses, including

Page 164

those on behalf of the children, have increased from $390.16 a week to $582.89 a week. The judge could properly find that the changes in Henry's financial position and in the needs of the children would support an increase in child support under the general rules governing modifications of support in the absence of a surviving agreement. See Schuler v. Schuler, 382 Mass. 366, 367, 370 (1981); Heistand v. Heistand, 384 Mass. 20, 26-28 (1981). That Christine had made career changes, and, in addition, expected to receive some monies upon the parties' refinancing of the former marital home, [Note 5] would not, in the circumstances, require a different result. Compare Schuler v. Schuler, 382 Mass. at 373-374.

There also was support for the judge's finding that the second part of the Knox example was satisfied. Christine testified that she had been unable to support the children on $55 a week, supplemented by her own income, and had been forced to obtain bank loans and to borrow money from her father in order to make repairs to the home and to meet living expenses. Additionally, there had been times when she

Page 165

had fallen behind on her food bill and credit card payments and did not have enough money for groceries.

Henry points to a number of circumstances which, in his view, are inconsistent with Christine's claim that she cannot meet the children's needs under the terms of the agreement, and claims that she has the "obvious ability to maintain and even surpass the necessities of child support." These circumstances include Christine's demonstrated ability to pay back (or make timely payment on) numerous loans taken by her, her purchase of wall-to-wall carpeting, a new washer and dryer and two television sets for the home, her payment of the children's uninsured medical expenses, her expenditure of approximately $750 per year for vacations for herself and the children, and her ability to pay for modeling lessons for her daughter [Note 6] and for the "common extras" incurred by her son at school.

Upon review of the testimony and exhibits, we cannot say that the judge's finding is clearly erroneous. See Mass.R.Dom.Rel.P. 52(a), as amended (1984). See also Ames v. Perry, 406 Mass. at 241 ("[m]uch will be left to the good sense of the Probate Court judge in analyzing the specific case"). While there is indication in the record that Christine has been able to meet certain financial obligations since the time of the divorce, the record as a whole paints a picture of a custodial parent whose expenses as well as needs for child support contemplated under the agreement have escalated beyond her reasonable ability to keep financial pace. Christine's purchases in the past of household furnishings and her expenditure of modest sums of money for vacations do not require a finding that support presently available for the children is adequate. Indeed, a judge may consider a child's "standard of living" in deciding whether the level of available support for that child is inadequate. Id. at 242-243. We also are mindful of the court's admonition in Ames that "every inquiry on a proposed modification of child support provisions must necessarily include as one weighty `equity,'

Page 166

the fact that the subject of the provisions, the child, was not a party to the agreement." Id. at 241.

Judgment affirmed.