Joel A. Fisak v. Latoya T. Fisak.

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

24-P-207

JOEL A. FISAK

vs.

LATOYA T. FISAK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Joel Fisak (father) appeals from a judgment of divorce nisi

issued by a judge of the Probate and Family Court. The judgment

awards Latoya Fisak (mother) child support in three forms:

(1) direct payment from the father, (2) use and occupancy of the

parties' former marital home (home or marital home) by the

mother and the children, and (3) the father's payment of the

mortgage on the home. The judgment also orders the father to

contribute toward repairs necessary to maintain the home; defers

the sale of the home and the division of its equity until the

youngest child is emancipated; and awards no alimony to either

party. We vacate the provisions of the judgment relating to
child support, the home, and alimony, and we remand for further

proceedings.

Background. "We present the relevant facts and procedure

as found by the Probate and Family Court judge, supplemented by

undisputed facts in the record, and reserving certain facts for

later discussion." Cavanagh v. Cavanagh, 490 Mass. 398, 399

(2022) (Cavanagh I).

The parties married in 2004 and have three children, who

were fifteen, twelve, and three years old at the time of the

trial in 2023. In 2008, after the birth of their second child,

the parties' purchased the home. In 2020, the father filed for

divorce, seeking custody of the children, child support, and an

equitable division of the marital estate. Both parties

continued to reside in the home until the time of trial.

At trial, the father sought to buy the mother out of her

portion of the equity in the home and remain there with the

children. For purposes of context we note that father testified

that his motivation was "all about the children, their safety

and their comfort and where their friends are, where . . . their

quality of life is good. And not being uprooted or being

subjected to any disruption due to this divorce is my primary

concern." He stated that he had no desire for the children to

move from the town where they lived, because he knew what "it

feels like to be moved around as a kid, and I wouldn't want that

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on my children." He also testified that the mother did not have

the ability to buy out his interest in the home and did not have

a job.

The judgment issued in July 2023, along with findings of

fact and a rationale. The mother was awarded primary physical

custody of the children. The judge ordered child support

"whereby the Mother is granted sole use and occupancy of the

[parties'] Marital Home, . . . the Father is ordered to timely

make all required mortgage payments for the Marital Home, and

the Father is ordered to pay the Mother $449.00 per week." The

judge then divided the marital estate and ordered neither party

to pay alimony.

In dividing the assets, the judge found that the parties'

"largest" asset was the home, with an equity of approximately

$114,000. She also found that the father had minimal cash on

hand, limited funds in a credit union account, and substantial

credit card and tax debt.1

The judge divided the equity of the home equally between

the parties and assigned the remaining assets and liabilities to

the father. The judge delayed the distribution of the equity in

the home, however, until the youngest child was emancipated.

1 The judgment contains no discussion of the assets or
liabilities, if any, in the mother's name.

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The judge also ordered that, in the interim, the mother shall

not commit waste, and the "parties shall share equally in the

cost of any necessary or prudent repairs" to the home, except

that, if the mother "does not have the ability to pay her share

of the cost," then the father shall pay the entire cost and "be

entitled to a credit for the Mother's share" when the home is

later sold.

In so deciding, the judge found that it was in the best

interest of the children to remain in the home until their

emancipation. She credited the father's testimony that the

youngest child "would likely have a very difficult time if the

Mother was forced to leave the Marital Home," and the testimony

of a Department of Children and Families social worker that the

children are "doing very well" in their town "and would likely

benefit from the consistency of staying in the same school

system." The judge found that the mother would "not have an

ability to find adequate housing if she was forced to vacate the

Marital Home."

The judge concluded that where the mother will "be allowed

to remain in the Marital Home," her need for support was

reduced, and that where the father will be required to obtain

new suitable housing, his ability to pay was reduced. She found

that, in these circumstances, it was fair and equitable for

neither party to pay alimony to the other. She then calculated

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$884 per week as the presumptive child support order under the

Child Support Guidelines (guidelines). She determined that the

most equitable support was an award of child support to the

mother in the form of sole use and occupancy of the home, the

father's payment of the mortgage of approximately $435 per week,

and direct payments of $449, representing the difference between

the mortgage payments and the child support guidelines

presumptive order.

Discussion. 1. Division of the marital home. Although

the father does not challenge the equal division of the marital

home, he contends that the judge erred in her handling of the

asset in other ways. He claims that the judge impermissibly

"connect[ed] child support with property division" and

improperly extended the marital partnership by (1) awarding use

and occupancy and mortgage payments as child support and

(2) delaying the sale of the home, and therefore the

distribution of its value, until the termination of the child

support order. The father relies on language in Cavanagh I, 490

Mass. at 409, stating that "child support and alimony serve

distinct purposes" and that "it makes little sense to tie the

availability of alimony to the provision of child support."

According to the father, because "alimony and property division

are specifically intertwined," this language prohibits a judge

from connecting child support with property division.

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To the extent the father argues that Cavanagh I now

prohibits a judge from crafting a child support order that

permits minor children to remain in a marital home and that

delays of the sale of that asset until the children's

emancipation are impermissible, we are not persuaded. "A

provision allowing minor children to remain in the marital home

is a traditional child support provision." Hartog v. Hartog, 27

Mass. App. Ct. 124, 128 (1989). The judge also had the

authority to "defer sale of the marital home [and the father's

receipt of the proceeds therefrom] until the children were

emancipated." Pestana v. Pestana, 74 Mass. App. Ct. 779, 782

(2009). Likewise, although "[p]roperty settlements are designed

largely to effectuate a final and complete settlement of

obligations between the divorcing spouses," Heins v. Ledis, 422

Mass. 477, 483 (1996), such a disposition as this may be

warranted, or even expected, when in the best interests of the

parties' children. See Pestana, supra at 783 ("we are aware of

no reported case in which a judge ordered the sale of the former

marital home despite finding that remaining in the marital home

would be in the best interests of the parties' minor children").

Cavanagh I, 490 Mass. at 410, is not to the contrary.

Although a judge must consider the separate purposes of child

support and alimony, and alternative dispositions as to each

form of support, she is still required to consider both the

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children's need for support and the alimony factors set forth in

G. L. c. 208, § 53 (a), together, before "fashion[ing] an order

which would be the most equitable for the family before the

court."2 Cavanagh I, supra.

Notwithstanding, the judge's findings of fact and rationale

are insufficient to support the judgment. See Pestana, 74 Mass.

App. Ct. at 782-783 ("the judge's stated findings and rationale

[must] support the . . . judgment"). To begin, the judgment is

silent as to how the father will meet his "essential living

expenses" where the father leaves the marriage with minimal

assets and what appears to be all of the substantial marital

debt. Id. at 783. In particular, the judge did not make any

findings regarding the possibility of refinancing or borrowing

against the equity in the home. See id. Likewise, the judge

determined the amount of equity in the home at the time of

trial, and could have assigned the home to the mother and

ordered her to pay the father his share of equity. See Tatar v.

2 The father disputes the finding that the mother would not
be able to find suitable alternative housing, contending that
the judge could reasonably have found instead that the mother
would be able to relocate within the town using the proceeds
from the sale of the home, if sold. However, "we accept the
judge's finding[] of fact" as to the mother's ability to find
substitute housing where the finding was not "clearly
erroneous," Kendall v. Selvaggio, 413 Mass. 619, 620 (1992), as
it was supported by detailed subsidiary findings and by the
trial evidence, even if the judge could have reasonably found
otherwise.

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Schuker, 31 Mass. App. Ct. 534, 535-736 (1991) (no abuse of

discretion to value property and transfer it to custodial parent

on divorce but postpone buyout payment until emancipation of two

year old). See also Downing v. Downing, 12 Mass. App. Ct. 968,

969 (1981).

In addition, the judgment is ambiguous as it relates to the

maintenance costs for the home. The judgment is silent as to

whether the father's contributions are to be considered as child

support, as a component of property division, or otherwise. Nor

is it apparent from the judge's findings what those costs are

expected to be. See Pestana, 74 Mass. App. Ct. at 782-783

(judgment must be apparent from findings).

2. Alimony and child support. The father further argues

that the judge erred in calculating alimony and child support by

failing to conduct the analysis required by Cavanagh I, 490

Mass. at 410-411; by deviating from the guidelines presumptive

amount; by making clearly erroneous findings as to the mother's

income; and -- predicated on the premise that some aspects of

the ultimate support order should be considered alimony -- by

ordering him to make the mortgage payments without finding that

the father had the ability to pay alimony and ordering the

payments for a period potentially in excess of the durational

limits for alimony set forth by G. L. c. 208, § 49.

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First, we agree that the judge failed to follow the three-

step framework set forth in Cavanagh I, 490 Mass. at 410-411.

"Where a request for alimony is made in a case in which child

support payments are likely to be ordered, the judge must

evaluate the request in three steps." Cavanagh v. Cavanagh, 105

Mass. App. Ct. 620, 628 (2025) (Cavanagh II). In step one, the

judge must "calculate alimony first . . . , and then calculate

child support . . . using the parties’ postalimony incomes."

Id. In step two, the judge must "calculate child support first,

and then calculate alimony." Id. Finally, the judge must

"compare the base awards and tax consequences resulting from

steps one and two, and determine the 'most equitable' order for

the family." Id., quoting Cavanagh I, 490 Mass. at 410-411.

Here, the judge "erred in step one by considering the

availability of child support when evaluating the mother's need

for alimony" and when evaluating the father's ability to pay

alimony. Cavanagh II, 105 Mass. App. Ct. at 629. More

specifically, she found that the mother's use and occupancy of

the home, "a traditional child support provision," "provides a

benefit to the Mother . . . [and] a detriment to the Father" in

light of which "it is fair and equitable to order that neither

party pay alimony to the other." Thus, the judge did not

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consider alimony independently of child support.3 This was

error.

Furthermore, in fashioning the final order of support, the

judge awarded the mother exclusive use and occupancy of the

home, but the judge did not consider the value of the use and

occupancy. This must be addressed on remand.

Where we remand for clarification, we need not address

whether the child support order was a deviation from the

guidelines presumptive figure, except to state that, to the

extent that a child support order issues on remand which

deviates from the guidelines figure, the judge shall make the

findings required to support the deviation.

Furthermore, we cannot conclude that the judge's findings

as to the mother's income were clearly erroneous, where they

were based on the judge's credibility determinations and where

the father did not include the parties' financial statements or

any trial exhibits in the record appendix. See Johnston v.

3 We note that G. L. c. 208, § 53 (b), contemplates alimony
awards of amounts up to thirty to thirty-five percent of the
difference between the parties' gross incomes. Here, thirty-
five percent of the difference in the parties' incomes, as found
by the judge, is greater than the presumptive guidelines order.
Thus -- setting aside the value of the use and occupancy, which
is discussed below -- the failure to consider alimony
independently could place the mother in a worse position than
she would be in if the parties had had no children. This
suggests that a dual order may be appropriate in these
circumstances, should alimony otherwise be warranted.

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Johnston, 38 Mass. App. Ct. 531, 536 (1995) ("the credibility of

a party or other witness who appeared at trial is

quintessentially the domain of the trial judge, in which the

judge's assessment is close to immune from reversal on appeal

except on the most compelling of showings"). Nor do we agree

with the father's premise that the mortgage payments, the use

and occupancy of the home, or the maintenance costs for the

home, were necessarily and indisputably in the nature of

alimony, as opposed to child support. The judge specifically

ordered that "neither party shall pay alimony to the other,"

included all of the father's financial contributions in the

"child support" section of the judgment, and deducted the

mortgage payments from the guidelines presumptive order when

calculating weekly child support. Thus, "[t]he judge made clear

beyond peradventure that the order for use and occupancy of the

marital home" and for the mortgage payments "was a form of child

support." LoStracco v. LoStracco, 32 Mass. App. Ct. 1, 4

(1992).4

4 The father makes two arguments in passing which we also
find unpersuasive. First, he contends that the judgment is
internally inconsistent where the paragraph describing the sale
of the home does not repeat the language ordering reimbursement
to the father for his payment of the mother's share of the costs
of necessary repairs at the time of such sale. We do not agree
that this reimbursement language needs to be repeated in order
to be given effect and conclude that the two provisions of the
judgment can be read together. Second, the father argues that
the order requiring him to make mortgage payments, when combined

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3. Conclusion. We vacate so much of the judgment as

relates to child support, the marital home, and alimony and

remand for further proceedings consistent with this memorandum

and order. In all other respects the judgment is affirmed.

So ordered.

By the Court (Meade, Walsh &
Hodgens, JJ.5),

Clerk

Entered: November 7, 2025.

with his weekly support payments to the mother, constitutes a
"double dip" where the mother obtains the benefit of the
reduction in the principal on the mortgage, citing Trethewey v.
Trethewey, 104 Mass. App Ct. 114, 117-118 (2024). However,
"double dipping" describes "the seeming injustice that occurs
when" property is divided in the marital estate and "also
considered as a source of income" to calculate support. Id. at
118. That has not occurred here, although we reiterate our
concerns about the possible inequity arising from the mother
being awarded both exclusive use and occupancy and equity in the
home, without the value of the use and occupancy being
considered.

5 The panelists are listed in order of seniority.

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