Stephanie A. Howard v. David W. Howard.

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

23-P-498

STEPHANIE A. HOWARD

vs.

DAVID W. HOWARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David W. Howard (father), the former spouse of Stephanie A.

Howard (mother), appeals from a judgment of divorce nisi

(divorce judgment) issued by a judge of the Probate and Family

Court, claiming error in the judge's determinations of custody

(both legal and physical) and child support. The father also

appeals from an order issued by a single justice of this court

on May 25, 2023, denying the father's motion to stay the divorce

judgment.1 We affirm.

1The father filed additional notices of appeal, from (1) a
judgment of contempt and several orders dated September 28,
2022, and (2) an order dated April 6, 2023, issued by a
different Probate and Family Court judge denying the father's
motion to stay the divorce judgment. The September 28, 2022
orders were subsumed by the contempt and divorce judgments and
are not separately appealable (nor did the father set forth any
Background. We summarize the trial judge's relevant

findings, supplementing them with undisputed facts in the

record, and reserving other facts for later discussion. See

Pierce v. Pierce, 455 Mass. 286, 288 (2009).

The parties were married in 2004. Four children were born

of the marriage: two sons and two daughters. Both parties

worked full time during the early years of the marriage;

however, the mother reduced her hours after the birth of the

first child and, shortly before the birth of the second child,

she left her job to care for the children full time. The

father, a mechanical engineer, worked for a company until late

2016, when he started his own firm. Though the firm was

successful during the first few years, with the father earning

in excess of $200,000 annually, its revenues began to decline

after the mother commenced divorce proceedings in February 2019.

1. The divorce proceedings. The father's reaction to the

mother filing for divorce was "nuclear." He became "hostile,"

"nasty," and "abusive" in his communications with the mother,

and he insisted on immediately having equal parenting time with

argument in his brief regarding those orders). Moreover, the
father did not set forth any argument in his brief regarding the
contempt judgment or April 6, 2023 order (nor did he provide
copies of them in the record appendix); accordingly, we do not
consider them. See Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019); Board of Registration in Med. v. Doe,
457 Mass. 738, 743 n.12 (2010).

2
the children, despite that the mother had been the children's

primary caregiver since birth.

After the mother filed for divorce, both parties initially

remained living in the marital home with the children. In

September 2019, the judge issued a temporary order incorporating

the parties' agreement for temporary shared legal and physical

custody, which allotted relatively equal parenting time to them.2

The father, however, refused to comply with the temporary

parenting schedule and failed to shield the children from his

anger toward the mother. During a confrontation in January

2020, the father threatened the mother that their next

confrontation would become "physical." The mother thereafter

obtained a G. L. c. 209A abuse prevention order against the

father (which was extended for one year) and moved out of the

marital home.

As the divorce litigation progressed, the boys' previously

"very close" relationship with the mother deteriorated. The

boys became increasingly hostile and combative toward the

2 The temporary parenting schedule provided that the
children would (1) be in the mother's care from Monday morning
until Wednesday afternoon, (2) in the father's care from
Wednesday afternoon until Friday morning, and (3) spend
alternating weekends in each parent's care. It was later
adjusted (in a 2020 temporary order) to a "two-week" rotating
schedule, with the father having slightly less parenting time
than the mother (the children would be in the father's care from
Thursday afternoon to Sunday afternoon on "week 1," and from
Wednesday afternoon to Friday morning on "week 2").

3
mother, and both expressed their desire to spend less time with

her and more time with the father. On several occasions, the

father did not produce the boys for their scheduled parenting

time with the mother, sometimes claiming that the boys refused

to see her and that he would not force them to do so. The

discord between the boys and the mother reached an apex in

January 2022, when the father was jailed for contempt based on

his failure to pay child support. On learning of the father's

incarceration, the eldest son (who was fifteen at the time)

became enraged and verbally abusive toward the mother. After

the father was released from jail, the children visited him at

his home. When the mother came to pick the children up, the

boys were "extremely angry" with her. When they returned to her

home, the younger son (who was fourteen at the time) yelled and

verbally abused her while backing her into the kitchen counter.

The incident frightened the mother, and she was concerned about

exposing the girls to similar incidents in the future, so she

returned the boys to the father's house and had little parenting

time with them in the following months leading up to trial.

2. The trial and divorce judgment. Approximately three

months later, in May 2022, a two-day trial was held. Two of the

major disputed issues at trial were custody (both legal and

physical) and the father's income for purposes of calculating

child support. With respect to custody, the father proposed

4
that the parties be granted shared legal custody and shared

physical custody of all four children but that he be granted

primary physical custody of the boys. He asserted that the

boys' relationship with the mother deteriorated because of his

incarceration, and that the last time they were in the mother's

care, the environment was "unsafe." The judge disagreed and

found that the boys' animosity toward the mother had been fueled

by the father expressing his anger about her to the boys and

"embroil[ing]" them in the conflict between the parties. The

judge concluded that the father had "intentionally interfer[ed]

with [the] mother's relationship with [the boys]." The judge

further found that, throughout the litigation, the father

"refused to communicate respectfully and cooperatively about the

children" with the mother. The judge ultimately granted primary

physical custody of the girls to the mother, shared physical

custody of the boys to both parents, and sole legal custody and

decision-making authority for all four children to the mother.

With respect to determining the father's income for

purposes of calculating child support, the father claimed that

his income from his firm had drastically declined through no

fault of his own, due in part to the COVID-19 pandemic,

decreasing from approximately $235,000 in 2018 to less than

$100,000 by 2020 (as reported on his tax returns for those

years). At the time of the May 2022 trial, the father had not

5
yet filed his 2021 tax returns. The father proposed that the

judge calculate child support using an annual income for him of

$100,000. The judge, however, did not find the father credible

regarding his income. She ultimately concluded that he was

voluntarily underemployed, attributed an annual income to him of

$165,000, and ordered him to pay child support of $655 per week.

The father appealed, challenging the aspects of the divorce

judgment pertaining to custody and child support. We address

his contentions in turn.

Discussion. 1. Custody. The father contends that the

judge committed reversible error by granting the mother sole

legal custody of all four children, and by granting the parties

joint physical custody of the boys while allowing the mother to

retain sole decision-making authority.

As an initial matter, we address the father's contention

that by vesting sole legal custody (and thus sole decision-

making authority) in the mother, the judge effectively granted

the mother sole physical custody of the boys because she retains

decision-making authority when they are in the father's care.

"[C]ustody is divisible into two components:" (1) "legal

custody," and (2) "physical custody." Mason v. Coleman, 447

Mass. 177, 181 (2006). See G. L. c. 208, § 31. Legal custody

involves making "major decisions regarding the child's welfare

including matters of education, medical care and emotional,

6
moral and religious development." G. L. c. 208, § 31 ("Sole

legal custody" vests decision-making authority in one parent;

"[s]hared legal custody" requires "continued mutual

responsibility and involvement by both parents in major

decisions"). Physical custody, by contrast, pertains to

parenting time; that is, how much time the child is in each

parent's care. G. L. c. 208, § 31 ("Sole physical custody"

defined as child "resid[ing] with and be[ing] under the

supervision of one parent, subject to reasonable visitation by

the other parent; "[s]hared physical custody" defined as child

"hav[ing] periods of residing with and being under the

supervision of each parent . . . in such a way as to assure a

child frequent and continued contact with both parents"). See

Mason, supra at 181-182.

Here, the father was granted equal parenting time pursuant

to a schedule that ensured frequent and continued contact with

the boys, consistent with the statutory definition of "[s]hared

physical custody." G. L. c. 208, § 31. Moreover, while the

custody arrangement in this case was perhaps less common than

other custody arrangements, our courts have affirmed the grant

of sole legal custody to one parent where the parents have

shared physical custody. See, e.g., Malachi M. v. Quintina Q.,

483 Mass. 725, 731, 741 (2019); Custody of a Minor (No. 1), 21

Mass. App. Ct. 985, 987 (1986) ("mother has been granted joint

7
physical custody . . . to satisfy her important interests in

sharing the child's time and in exercising her responsibility

for the child's upbringing. In view of the antagonism presently

existing between the parents, it was not unreasonable" to grant

father sole legal custody). Accordingly, we do not agree with

the father's assertion that the grant of shared physical custody

was illusory.

We next turn to the father's claim that the judge's

determinations as to legal and physical custody amounted to

reversible error. We review custody determinations for an abuse

of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239,

245 (2015). "In custody matters, the touchstone inquiry [is]

. . . what is 'best for the child.'" Hunter v. Rose, 463 Mass.

488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840

(2003). "In making an order or judgment relative to the custody

of children, the rights of the parents shall, in the absence of

misconduct, be held to be equal, and the happiness and welfare

of the children shall determine their custody." G. L. c. 208,

§ 31. "When considering the happiness and welfare of the child,

the court shall consider whether or not the child's present or

past living conditions adversely affect his physical, mental,

moral or emotional health." Id. "The determination of which

parent will promote a child's best interests rests within the

discretion of the judge . . . [whose] findings . . . 'must stand

8
unless they are plainly wrong.'" Hunter, supra, quoting Custody

of Kali, supra at 845.

a. Legal custody. In granting the mother sole legal

custody, the judge cited the father's "inability to communicate

civilly and effectively" with the mother. The father asserts

that the judge, in essence, deprived him of shared legal custody

to "punish" him for being "uncivil." We disagree.

"[F]or joint custody or shared responsibility to work, both

parents must be able mutually to agree on the basic issues in

child rearing and want to cooperate in making decisions for

[their] children." Macri v. Macri, 96 Mass. App. Ct. 362, 369

(2019), quoting Rolde v. Rolde, 12 Mass. App. Ct. 398, 404

(1981). Joint legal custody is not appropriate where "the

relationship of the parties has been dysfunctional, virtually

nonexistent, and one of continuous conflict." Carr v. Carr, 44

Mass. App. Ct. 924, 925 (1998), cert. denied, 525 U.S. 1073

(1999).

Here, the judge found that the father had demonstrated an

unwillingness "to communicate respectfully and cooperatively

about the children" with the mother, sending her "abusive,

disrespectful" messages, refusing to discuss various matters

pertaining to the children (including their schedules,

activities, and medical care), and making unilateral decisions

regarding the children over the mother's objection. The judge

9
found, among other things, that the father (1) called the mother

a "disgusting sad excuse for a human being" and berated her for

not immediately receiving a job offer after being out of the

workforce for over a decade to raise the children; (2)

unilaterally signed the younger son up for club hockey over the

mother's objection; (3) refused to consent to (or even discuss

with the mother) the girls receiving COVID-19 vaccinations as

recommended by their pediatrician;3 (4) refused to answer the

mother when she asked if he was planning to buy one of the girls

a cell phone, stating that it was "[n]one of [her] business";

(5) refused to tell the mother whether he intended to pick the

elder son up from school when he became ill during the school

day, informing the mother that it was "[n]ot [her] concern"; and

(6) refused to discuss the holiday parenting schedule with the

mother.4

3 The father claims that the judge erroneously found that he
refused to consent to the girls receiving COVID-19 vaccines
against the advice of their pediatrician. He asserts that his
unrebutted testimony demonstrated that the pediatrician spoke to
him over the phone and admitted that the vaccine was not
necessary. The judge, however, did not credit this testimony.
See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995).
4 The record revealed additional instances of the father's

unilateral decision-making and refusal to communicate with the
mother regarding the children's welfare. For example, the
father (1) unilaterally canceled a family therapy appointment
that the boys were supposed to attend with the mother, so that
the boys could get haircuts instead; (2) unilaterally canceled
one of the children's orthodontist appointments, over the
mother's objection; and (3) ignored the mother when she
repeatedly asked him whether he planned to pick up one of the

10
Contrary to the father's assertion, these findings were

well supported by the evidence at trial. The judge's findings,

and the evidence supporting those findings, clearly demonstrated

that shared legal custody would be unworkable in this case given

the parties' dysfunctional, high-conflict relationship,

rendering them unable to communicate effectively or

cooperatively to engage in joint decision-making regarding the

children. See Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 571

(2023) ("it is generally inappropriate to grant shared legal

custody to parents who display a high level of acrimony that

impedes their ability to jointly make decisions about the

children's welfare"). The judge properly determined that shared

legal custody was not feasible in this case. See O'Connell v.

Greenwood, 59 Mass. App. Ct. 147, 155-156 (2003) ("in the face

of overwhelming undisputed evidence of hostility between the

parents and their disagreement on matters pertaining to the

child[ren], the child[ren]'s best interests . . . are likely

better served by ending the joint custodial arrangement," rather

than "forcing the parties into a cooperative relationship they

appear incapable of maintaining" [quotation and citation

omitted]).

children's medications (which the child was supposed to take
during the father's parenting time).

11
The judge, therefore, was tasked with determining which

parent would be more capable of making decisions in furtherance

of the children's best interests. See Hunter, 463 Mass. at 494.

Implicit in the judge's findings is her determination that, of

the two parents, the mother was more capable of separating her

own needs from those of the children in order to make decisions

that promoted their best interests.5 In light of the father's

pattern of refusing to discuss matters regarding the children's

welfare with the mother, his unilateral decision-making without

regard for the mother's input, and his general hostility when

communicating with the mother, we cannot say the judge abused

her discretion in granting the mother sole legal custody. See

id. See also Macri, 96 Mass. App. Ct. at 369-370 (affirming

grant of sole legal custody to mother where parties continuously

had conflict, were unable to communicate effectively, and father

engaged in unilateral decision-making over mother's objection

demonstrating his inability to put children's needs first).

b. Physical custody. In granting the parties shared

physical custody of the boys, the father asserts that the judge

failed to consider certain factors pertinent to the best

interest determination, including the boys' "need for stability,

5The judge found that the father had "exhibited absolutely
no ability to separate his feelings and needs from the needs and
feelings of the children."

12
the effect of their strained relationship with [the] [m]other,

and their right to the care and custody of the parent they

preferred" (i.e., the father).6 He also claims certain findings

made by the judge were erroneous, and that he ultimately "lost

custody" of the boys because he refused to "bully [them] into a

relationship they did not want" with the mother. We are not

persuaded.

In determining the boys' best interests, the judge was

permitted to "consider the widest range of permissible evidence,

including the reports and testimony of [the] court appointed

[Guardian Ad Litem (GAL)7], evidence of the history of the

relationship between the child and each parent, [and] evidence

of each parent's . . . over-all fitness to further the child's

best interests." Ardizoni v. Raymond, 40 Mass. App. Ct. 734,

738 (1996). Moreover, the judge was permitted to consider the

6 The father also contends that reversal is required because
the judge failed to consider certain factors required by G. L.
c. 209C, § 10 (a); however, that statute only applies to custody
proceedings involving children born to unmarried parents (it
does not apply to custody determinations involving children of
divorcing parents). Compare G. L. c. 208, § 31 (custody of
children born to married parents), with G. L. c. 209C, § 10
(custody of children born to unmarried parents).
7 In this case a licensed psychologist was appointed as a

"Category E" GAL to report and make recommendations as to the
issues of custody, parenting time, and parental alienation. See
Imbrie, 102 Mass. App. Ct. at 561 n.5 ("In addition to
investigating and reporting factual data to the court, a
Category E GAL develops clinical opinions to assist the judge
. . . in making custody and visitation decisions").

13
boys' "expressions of a preference" regarding custody, with the

caveat that such preference "'must be treated with caution,'

particularly where, as here, custody is hotly disputed." Id.,

quoting Hale v. Hale, 12 Mass. App. Ct. 812, 820 (1981).

The father contends that the judge failed to adequately

consider the boys' need for stability and their preferences

regarding custody. With respect to the boys' need for

stability, the shared parenting plan set forth in the divorce

judgment granted each party essentially the same amount of

parenting time as the temporary parenting plans issued during

the pendency of the divorce proceedings (including the temporary

parenting plan agreed on by the parties in September 2019). The

judge expressly chose to not alter the existing shared physical

custody framework for the boys (apart from slightly increasing

the amount of parenting time allotted to the father under the

2020 temporary order), because the boys had become "so polarized

that it would be . . . difficult to imagine them being

comfortable with anything less than shared physical custody

which, in fact, the boys have told numerous third parties

[including the GAL] they are seeking." It is apparent from the

judge's findings and rationale that she was inclined to grant

primary physical custody of the boys to the mother but for their

expressed opposition to such an arrangement. As such, contrary

14
to the father's assertion, the judge did indeed consider the

boys' preferences regarding custody.

The father, however, claims that the judge ignored the

boys' "choice [to] reside[] primarily with [him]" after their

relationship with the mother deteriorated. Once again, we

disagree. The judge's findings reflect careful consideration of

the boys' resistance to spending time with the mother, along

with the circumstances surrounding the deterioration of their

relationship with her, and she appropriately "treated with

caution" their expressions of desire to spend more time in the

father's care. Ardizoni, 40 Mass. App. Ct. at 738, quoting

Hale, 12 Mass. App. Ct. at 820. See Bak v. Bak, 24 Mass. App.

Ct. 608, 617 (1987) (judge may consider child's preference

regarding custody, but it should "not [be] given decisive

weight"). The judge found that the father had "intentionally

interfere[ed]" with the boys' relationship with the mother and

had failed to exercise his parental authority to ensure that

they attended their scheduled parenting time with her. The

father claims this finding is clearly erroneous,8 pointing to the

8 The father also claims error in the judge's finding that
the father offered no testimony that he found the boys' behavior
toward the mother unacceptable. The father asserts that he
testified that he was "appalled" on learning of the boys'
behavior. However, he made that statement after the close of
evidence, during a colloquy with the judge where she asked if he
was concerned about the boys' behavior. Accordingly, the

15
GAL's testimony that he did not find evidence of parental

alienation by the father. The GAL, however, testified that

while he did not "find a parental . . . alienation syndrome,"

there "were elements that contribute to alienation." The GAL

further testified that the father had inadequately protected the

children from his anger and resentment toward the mother, failed

to use his parental authority to stop the boys' disrespectful

behavior toward the mother, and failed to support a positive

relationship between the boys and the mother, which the judge

apparently credited. Accordingly, we cannot say the judge's

finding that the father interfered in the boys' relationship

with the mother was clearly erroneous.

The father next asserts that the shared parenting plan

ordered by the judge is "almost certain to prove chaotic," and

that the boys' best interests require that sole physical custody

be granted to the father -- even if it "result[s] in [the]

[m]other's 'severance' from the boys." Again we are not

persuaded. The difficulty posed by the boys' resistance to

spending time with the mother -- which the judge found that the

father encouraged -- neither makes an order for joint physical

custody fruitless nor warrants the exclusion of the mother from

the boys' lives (especially where she was their primary

judge's finding that the father "offered [no] testimony" on this
point is not clearly erroneous.

16
caregiver up until the divorce proceedings). See McCarthy v.

McCarthy, 21 Mass. App. Ct. 924, 924 (1985) ("Tentative results

in difficult [custody] cases . . . do not excuse effort").

"Here, the judge's obligation was clear: to craft a creative

[parenting plan]," in the children's best interests, by "drawing

on the evaluations and recommendations of the professionals and

[the judge's] own insight, experience and knowledge." Id. The

judge found that the father had "exhibited absolutely no insight

into his own behavior and the damage that it has caused the

children by placing them in the middle of the parties'

conflict."9 The judge concluded that the father had "no ability

to promote a relationship between the children and [the]

mother," but also acknowledged the reality that the boys would

be opposed to "anything less than shared physical custody." The

judge carefully considered and weighed all relevant factors in

arriving at a determination that the boys' best interests would

be served by a shared parenting plan that ensured continued and

frequent contact with both parents. See G. L. c. 208, § 31.

We are satisfied that the judge properly applied the law,

considered all factors relevant to the children's best

9 The judge found that the mother had also put the children
in between the parties and made derogatory statements about the
father, but that this had occurred on "limited" occasions and
only "in response to tremendous stress caused by the father's
unrelenting behavior."

17
interests, and made findings of fact (which were not contrary to

the evidence) that provided ample support for her custody

determinations. Accordingly, based on the record before us, we

discern no abuse of discretion in the judge's determinations of

both legal and physical custody. Schechter, 88 Mass. App. Ct.

at 245, 260.

2. Child support. The father next contends that the judge

abused her discretion in attributing annual income to him of

$165,000 for purposes of calculating child support.

A judge's decision to attribute income to a party is

reviewed for an abuse of discretion. Davae v. Davae, 100 Mass.

App. Ct. 54, 57 (2021). "Income may be attributed where a

finding has been made that either parent is capable of working

and is . . . underemployed," and that parent "is earning less

than he or she could earn through reasonable effort." Child

Support Guidelines § I (E) (1)-(2) (Oct. 2021). In deciding

whether to attribute income to a parent, the judge must consider

"the specific circumstances of the parent, to the extent known

and presented to the [judge], including, but not limited to,

"the assets, residence, education, training, job skills,
. . . age, health, past employment and earnings history,
. . . record of seeking work, and the availability of
employment at the attributed income level, the availability
of employers willing to hire the parent, and the relevant
prevailing earnings level in the local community" (emphasis
added). Child Support Guidelines § I (E) (3) (Oct. 2021).

18
Here, the judge's findings reflect consideration of the

aforementioned factors that were presented to her at trial

(along with other relevant factors), including the father's (1)

degrees in mechanical engineering and management; (2) employment

history earning approximately $150,000 per year, prior to

starting his own firm in late 2016; (3) earnings from his firm

averaging over $200,000 annually from 2017 to 2019, and the

rapid decline in the firm's revenues after the mother filed for

divorce;10 (4) decision not to seek alternative employment after

the firm's revenue decline, instead "cho[osing] to build the

company . . . back up"; and (5) failure to file his 2021 tax

returns prior to the May 2022 trial.

The judge found the father's testimony regarding his

finances to lack credibility. The judge concluded that the

father was voluntarily underemployed, as he had not looked for

other work despite his claim that the firm had been experiencing

significant, ongoing revenue decline for three years. See

Macri, 96 Mass. App. Ct. at 365 (attributing income to husband

10In 2017 and 2018, the father earned an average of
$234,000 per year in combined W-2 and K-1 income from his firm.
In 2019, the year that the mother filed for divorce, the
father's total income from the firm declined by approximately
seventeen percent, to $194,443. In 2020, the first year of the
COVID-19 pandemic, the father's income from the firm, as
reported on his 2020 tax returns, declined by approximately
fifty percent, to $95,655.

19
who had "not exercised reasonable efforts to secure appropriate

employment"). The judge noted the father's contradictory

testimony that he was optimistic about the firm's future and

that he had been "quite busy" with work over the past few

months, finding that the father would resume his historical

predivorce earning level with the firm following the divorce.

The judge also found that the father had artificially reduced

his income by recording his divorce legal fees as business

expenses11 and by using assets to remain current on his bills

(except for child support) rather than working.12 The judge

concluded that, "[g]iven [the father's] earning history of over

$200,000.00 annually prior to the filing of the divorce, the

attribution of $165,000.00 is more than reasonable."

The father contends that the judge's attribution of income

was "contradicted by all evidence at trial," which evidence

consisted almost entirely of his own testimony. He asserts that

the judge improperly refused without explanation to credit any

11 The father testified that he has total control over how
he is paid, and that he stopped issuing himself regular
paychecks because he had legal fees to pay.
12 Notably, despite his allegation of substantially

decreased income due to the COVID-19 pandemic and his use of
assets to meet his expenses, the father's net worth (i.e.,
assets minus liabilities) actually increased between mid 2020
($914,194.03, as reported on his June 2020 financial statement)
and the trial in 2022 ($977,006.31, as reported on his May 2022
financial statement).

20
of his testimony regarding his income and the effect of the

COVID-19 pandemic on his business.13 He also contends that the

judge unfairly drew an adverse inference regarding his 2021

income based on his accountant's failure to file the father's

2021 tax returns. The father's contentions are, in essence, a

challenge to the judge's assessment of his credibility, which we

do not disturb on appeal. See Johnston v. Johnston, 38 Mass.

App. Ct. 531, 536 (1995) (judge's credibility determination

"close to immune from reversal on appeal except on the most

compelling of showings"). The judge was entitled to draw

adverse inferences based on the father's failure to file his

2021 tax returns before the trial,14 his vague testimony

regarding his 2021 earnings,15 and his failure to produce

13 This evidence included the father's testimony that the
firm's revenues had sharply declined in 2020 because of the
COVID-19 pandemic, which he claims was corroborated by the
testimony of a witness (who runs a forensic engineering business
similar to the father's own firm). However, when the witness
testified that his business suffered a decline in revenue
because of the COVID-19 pandemic, the mother's counsel objected,
the objection was sustained, and the testimony was struck.
14 The judge was not required to credit the father's

testimony that the delay was his accountant's choice rather than
his own.

15The father contends that the judge erroneously found he
testified to having "no idea" how much he earned in 2021. The
father is correct insofar as his actual testimony was that he
had no idea what he owed in taxes for 2021, but the judge
certainly could have found that the father was unable clearly to
explain his idea of how much he earned in 2021. At one point
during the trial, the father testified that he earned $47,015 in
2021. When the judge asked, "[W]here did you get that $47,000

21
documentary evidence (such as bank statements) of the firm's

finances for 2021 and the first quarter of 2022 (despite his

testimony that business was picking up).16 See M.C. v. T.K. 463

Mass. 226, 240 & n.16 (2012) ("In the absence of tax returns,

the judge appropriately could draw inferences adverse to the

father and impute net income based on evidence in the record");

Salten v. Ackerman, 64 Mass. App. Ct. 868, 872-873 (2005) (judge

entitled to draw adverse inferences in light of husband's

"failure to provide sufficient information" about income,

"evasiveness as to the finances of the partnership and his lack

of credibility"); Crowe v. Fong, 45 Mass. App. Ct. 673, 679

(1998) (judge entitled to draw adverse inferences from father's

failure to produce financial documents within his control and

"uncertainties surrounding his financial affairs"); Grubert v.

Grubert, 20 Mass. App. Ct. 811, 821-822 (1985) (adverse

inference permissible where "the uncertainty surrounding the

figure from," the father replied, "That is the [firm] soup,"
which included W-2 income of $12,500 (the father testified that
he had not paid himself a salary since the second quarter of
2021). When the judge asked again how he arrived at the total
$47,000 figure, the father said that it was on a spreadsheet
prepared by his accountant, which he did not produce at trial.

16The only documents that the father submitted regarding
his firm's finances for 2021 was a profit and loss statement
that he prepared using the "QuickBooks" software, which was not
supported by any documentation apart from his 2021 W-2 from the
firm.

22
husband's income and assets is his own doing; the production of

records is a matter entirely within his control").

There is nothing in the record convincing us that the

judge's assessment of the father's credibility regarding his

finances was "plainly wrong" (citation omitted). Zaleski v.

Zaleski, 469 Mass. 230, 237 (2014). Accordingly, based on the

record before us, we discern no abuse of discretion in the

attribution of income to the father and calculation of his child

support obligation. See Davae, 100 Mass. App. Ct. at 57.17

Judgment of divorce nisi
dated December 8, 2022,
affirmed.

Judgment of contempt dated
September 28, 2022,
affirmed.

Order dated April 6, 2023,
denying motion to stay,
affirmed.

Single justice order dated
May 25, 2023, denying
motion to stay, affirmed.

By the Court (Sacks, Singh &
Walsh, JJ.18),

17 Because we are affirming the divorce judgment, the
father's arguments pertaining to the denial of his motion in
this court to stay the divorce judgment are moot, and we need
not address them. That said, we discern no error or abuse of
discretion by the single justice, as the father failed to
demonstrate a likelihood of success on the merits. See C.E. v.
J.E., 472 Mass. 1016, 1017 (2015).

18 The panelists are listed in order of seniority.

23
Assistant Clerk

Entered: June 11, 2024.

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