John Thomas O'Donnell v. Kylee Christine Granfield.

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-1262

JOHN THOMAS O'DONNELL

vs.

KYLEE CHRISTINE GRANFIELD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is a case about child support. The father appeals

from an "Amended Judgment of Modification," and raises three

principal arguments: (1) that the judge erred in ordering the

father to pay one-half of his eleven year old daughter's private

school expenses, (2) that the judge erred in ordering the father

to pay one-half of the daughter's extracurricular expenses, for

activities such as ice hockey, lacrosse and summer camps, and

(3) that the judge did not properly calculate the father's gross

income and thus the ordered child support payment of $712 per

week was improperly inflated. Finding no merit in the father's

arguments, we affirm.
Background. The father and the mother were never married

and this proceeding concerns their one child. The father is the

owner and operator of a business, O'Donnell Paving and

Landscaping (OP & L). A central question at trial was

determining the father's gross income from the business. The

mother presented evidence of the father's actual income through

an accounting expert; the father through his business

accountant. As the judge put it:

Father is the sole owner of OP & L. Given this, he is able
to manage the finances of the business in any way he
chooses; and he does. The business pays myriad personal
expenses for father and other family members, even for
family pets. It would be an impossible task for this Court
to quantify with certainty the expenses paid by the
business that are not 'ordinary and necessary expenses
required to produce income,' but they are quite substantial
and significantly reduce father's taxable income related to
the business.

The judge concluded that the father's actual gross income

from OP & L was $279,202 per year, and that applying the child

support guidelines (and accounting for the mother's yearly

income), the father was to pay $712 per week. The judge also

ordered the father to pay one-half of the daughter's private

school expenses. The judge noted that the mother has sole legal

custody, and reasoned that "[t]he Court is satisfied that [the]

mother had good reasons to enroll [the child] in private school;

and it appears that the child is thriving in that academic

setting." The judge reached a similar conclusion in ordering

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the father to pay one-half of the daughter's extracurricular

activities: "[w]here [the] father is able to pay for 'extras'

for himself, his older daughter and other members of his family

through the cash flow generated by his business, he has the

ability to do the same for [the child]."

1. Discussion. The order to pay for private school. The

father first challenges the order that he pay one-half of the

child's private school expenses, claiming that the judge is not

authorized by the applicable statute, G. L. c. 209C, § 9, to

order a parent "to pay secondary school tuition." That

contention is simply incorrect. The statute states that in

determining child support, the judge "shall apply the child

support guidelines promulgated by the chief justice of the trial

court." G. L. c. 209C § 9. Those guidelines, in turn, state

that "in cases where the Court makes a determination that there

are additional child-related expenses such as . . . private

school . . . which are in the best interest of the child and

which are affordable by the parties, the Court may allocate

costs to the parties on a case-by-case basis." Child Support

Guidelines § II(M) (Oct. 2021). See M.C. v. T.K., 463 Mass.

226, 237-239 (2012) (remanding for determination of whether, as

per guidelines, private school expenses were affordable by

parties and in best interests of child).

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During oral argument, the father's counsel suggested a

different argument, which was that the guidelines themselves,

insofar as they authorized payment for private secondary school,

exceeded the authority granted to the drafters of those

guidelines. The father's counsel did not point us to any

relevant authority on the issue, however, and more importantly,

the argument was made for the first time on appeal. We will not

upset a trial judge's order based upon an argument that was not

made to her. See Commonwealth v. Bettencourt, 447 Mass. 631,

633 (2006).

As the order to pay for private secondary school education

was authorized, we review it for abuse of discretion. See

Bobblis v. Costa, 94 Mass. App. Ct. 264, 266 (2018); Wasson v.

Wasson, 81 Mass. App. Ct. 574, 576 (2012). We discern no abuse

of discretion here. While we think an order requiring a parent

to pay for private secondary school education requires a showing

of appropriate circumstances, the judge expressly found that

"good reasons" existed here, and such was borne out by the

evidence at trial. The child has some learning impediments and

had been struggling in public school; she was doing much better

in the private school due to the flexibility of the private

school teaching environment. Finally, we note that the judge

ordered the parents to split the costs of the school, thereby

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ensuring that the mother would bear a significant financial

burden and would not make the choice lightly.

2. Extracurricular activity costs. The father also

challenges the order that he pay one-half of the child's

extracurricular activity costs, including sports teams in ice

hockey and lacrosse, and summer camps. The father appears to be

arguing that the costs are simply too high –- that the child

does not need to do all of the activities. For reasons similar

to those noted above, we are not persuaded. As the judge put

it: "father deferred to mother's judgment when he agreed to

give her sole legal custody, and mother decided that [the child]

would benefit from these activities, as well as summer camps.

By all accounts . . . [the child] is flourishing generally while

maintaining the activities schedule established for her by

mother."

3. The child support payment. Finally, the father

challenges the judge's child support order because, he claims,

the judge miscalculated his gross income. We understand this

argument to be that the judge's findings were clearly erroneous,

meaning that there was either no evidence to support them, or

that despite supporting evidence, "'the reviewing court . . .

[must be] left with the definite and firm conviction that a

mistake has been committed.'" Bldg. Inspector of Lancaster v.

Sanderson, 372 Mass. 157, 160 (1977), quoting United States v.

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United States Gypsum Co., 333 U.S. 364, 395 (1948). Again, we

are not persuaded.

The judge found as fact that the father's income was

comprised of two components –- a salary of $102,00 per year, and

the ordinary business income of OP & L, which was attributable

to father as the sole owner. As to the latter amount, the judge

first averaged the past three years as reported on OP & L's tax

returns, arriving at an average business income of $145,303 per

year. However, the judge noted that OP & L took many deductions

against its ordinary business income that were not appropriate,

because they were not "ordinary and necessary expenses required

to produce income." These deductions artificially reduced the

father's gross income for child support purposes. Stating that

it was an "impossible task" to quantify all such improper

expenses, the judge chose to add back to OP & L's income only

two such items -– (1) the expenses for the father's Maserati

(one of seven vehicles expensed through the business), and (2)

depreciation expenses. The adjustments resulted in an annual

income of $279,202 per year ($102,000 plus $145,303 plus

$31,899).

The father objects to this figure, but his arguments are

without merit. At one point the father states, somewhat

incredibly, that the correct figure is just the $102,000 salary;

at another he suggests that it should be $266,318, rather than

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$279,202. The only concrete argument he makes is that OP & L's

income for 2020 included a one-time COVID Paycheck Protection

Program Forgiven Loan (PPP) of $92,000; he argues that the judge

erred by not excluding the PPP payment, and that the judge's

figure thus was inflated by one-third of that amount, or

approximately $30,000. We are not convinced that it was error

to include the PPP payment in the father's gross income, as it

was money actually received, but in any event, it is clear that

the judge took a conservative approach in calculating the

father's ordinary income, as there were several other

questionable expenses that the judge chose not to add back. We

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discern no abuse of discretion. 1,2

Amended judgment of
modification dated February
22, 2022, affirmed.

By the Court (Wolohojian, 3
Englander & Brennan, JJ. 4),

Assistant Clerk

Entered: May 29, 2024.

1 The mother requests appellate attorney's fees in her
brief. However, she does not cite any authority as the basis
for her request. Accordingly, in the exercise of our discretion
the request is denied.

2 The father also claims that error arose because the
mother's (former) live-in boyfriend did not respond to a trial
subpoena, and did not testify. The father presents no evidence
that the mother procured this absence, but in any event, the
father made no offer of proof as to what he expected the
boyfriend to say, and thus made no showing of prejudice. Again,
there was no error. To the extent the father makes additional
arguments, "they 'have not been overlooked. We find nothing in
them that requires discussion.'" Commonwealth v. Sosa, 493
Mass. 104, 124 n.12 (2023), quoting Commonwealth v. Domanski,
332 Mass. 66, 78 (1954).

3 Justice Wolohojian participated in the deliberation on
this case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.

4 The panelists are listed in order of seniority.

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