P.F. vs. DEPARTMENT OF REVENUE.

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 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. [Note 1]

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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. [Note 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, [Note 3] and at which the child support enforcement division of the Department of Revenue (DOR) appeared on behalf of the mother, [Note 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 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

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(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). [Note 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." 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 seventy-two dollars per week and, therefore, "[i]n most cases this would result in a

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reduction of support." The judge nevertheless denied the father's modification request, concluding that (a) it 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), [Note 6] or where the payor owns "substantial assets." Wasson v. Wasson, 81 Mass. App. Ct. at 581, quoting from Flaherty v. Flaherty, supra. See 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," [Note 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

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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. [Note 8] Furthermore, in 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. [Note 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.

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;

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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. [Note 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. See guidelines, IV. [Note 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

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financial resources to pay support." Guidelines, IV. [Note 12]

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 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

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(both psychological and financial) caused by the father's abuse. [Note 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 them by the father's sexual abuse of the child. [Note 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, [Note 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 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

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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 deviating from the guidelines" in this case. Department of Rev. v. Foss, supra at 456-457. [Note 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. [Note 17] See Richards v. Mason, 54 Mass. App. Ct. at 574 (father's support

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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.