Joanna L. Fico v. Daniel A. Dittler.

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-109

JOANNA L. FICO1

vs.

DANIEL A. DITTLER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties, Joanna L. Fico (mother) and Daniel A. Dittler

(father), are the never married parents of one child. The

father appeals from a July 30, 2021 modification judgment issued

by a judge of the Probate and Family Court that, among other

things, (1) calculated his modified child support obligation

using attributed income and actual unemployment income; and (2)

ordered him to pay $377,255.71 toward the child's college

expenses.2 For the reasons that follow, we vacate so much of the

modification judgment as pertains to child support and college

1 As is our custom, we set forth the plaintiff's name as it
appears in the initial complaint, despite that later pleadings
refer to her as Joanna L. Mannion.
2 The father also appeals from so much of an October 18, 2021

order as partially denied his motion to amend the judge's
findings.
expenses, and remand the case for further proceedings consistent

with this memorandum and order.3

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' child

was born in December 2004. In August 2008, the mother filed a

complaint pursuant to G. L. c. 209C in the Probate and Family

Court.

On February 9, 2009, the parties filed an agreement

regarding custody, parenting time, child support, and

educational expenses, among other things (2009 agreement). The

2009 agreement, which was incorporated and merged into a

judgment, provided, in relevant part, that the mother would have

primary physical custody of the child, the parties would have

shared legal custody, and the father would pay child support of

$2,124 per month. The 2009 agreement further provided that,

"[c]ommencing in 2009, the father will contribute [twenty

percent] of his net after tax bonus through his employment to an

education fund for [the child] and will provide proof of said

contribution to the mother."

3 The mother, who was represented by counsel below but is
unrepresented on appeal, declined to file a brief.

2
In October 2014, the mother filed a complaint for

modification seeking, among other things, changes to the

parenting plan and adjusted child support consistent with those

changes. The parties both filed financial statements in

connection with the 2015 modification proceedings. On the

mother's March 2015 financial statement, she reported gross

weekly income of $1,864.31 (excluding child support). On the

father's March 2015 financial statement, he reported gross

weekly income of $7,414.86 (consisting of $3,653.85 in base pay,

and $3,758.54 in bonus income). In the assets listed on his

financial statement, the father included a Fidelity account

labeled as "[the child's] education account pursuant to . . .

[j]udgment of 2-9-2009," having a balance of $377,255.71.

In August 2015, the parties entered into an agreement for

modification (2015 agreement), which was incorporated and merged

with a judgment. The 2015 agreement provided, in relevant part,

that:

"No previous judgment or agreement between the parents
relating to [the child] prior to this [a]greement shall
have any force or effect . . . regardless of whether legal,
equitable or otherwise. All such previous judgments and
agreements are, from this moment and forever, null and void
as if they had never existed, it being the intent of the
parents that this [a]greement shall be the sole and
exclusive embodiment of their entire [a]greement concerning
their child . . . and shall be the sole repository of all
agreements and understandings between them concerning [the
child], as if there had never been any other agreements
between them concerning [the child].

3
. . . .

"Each party hereto declares and acknowledges that this
[a]greement constitutes the entire agreement between them
. . . . This is an Integrated Agreement, as defined in the
Restatement (Second) of the Law of Contracts, § 209."

The 2015 agreement provided that the parties would continue

to have shared legal custody of the child; however, the

parenting plan was modified such that the child would spend

approximately fifty percent of the time with each parent

(instead of residing primarily with the mother).

With respect to child support, the 2015 agreement provided

that the father would continue to pay monthly child support of

$2,124 "based on his base salary," and that if "either parent

seeks to modify the amount of child support" in the future, "the

current child support amount shall have no precedential weight

or authority. In such event, child support shall be determined

by [a judge of] the Probate [and Family Court] as if anew

according to the then current Child Support Guidelines

[guidelines] and other applicable laws."

With respect to educational expenses for the child, the

2015 agreement provided, in relevant part, that:

"[The] [f]ather shall bear the entire cost of [the child's]
college education, which shall be funded through [the]
[f]ather's bonus . . . . If [the] [f]ather, in his sole
discretion, determines that [the child] should apply for
educational loan(s) in connection with his college
education, . . . [the] [f]ather alone[] shall be
responsible for the repayment of said educational loans in

4
full, . . . which repayment shall be funded through [the]
[f]ather's bonus."

In September 2020, the father filed a complaint for

modification seeking, among other things, (1) recalculation of

his child support obligation based on an application of the

then-current guidelines; and (2) reallocation of the child's

college expenses, which were to be paid entirely from his bonus

income pursuant to the 2015 agreement. As changed

circumstances, the father alleged that he had been laid off by

his former employer, Fidelity Investments, in December 2018, and

he no longer received "any regular or bonus income." A one-day

modification trial was held on July 16, 2021. Both parties were

represented by counsel, and each party testified. On July 30,

2021, the trial judge issued the modification judgment and

accompanying findings of fact.

With respect to the father's child support obligation, the

trial judge reduced the amount to $1,231 per month. At the time

of the modification trial, both parties had been laid off from

their prior full-time positions that they held at the time of

the 2015 agreement. The mother had obtained part-time

employment, whereas the father was working as the manager of

Surrimassini, Inc. (Surrimassini), a company that he purchased

in 2016. Despite working approximately forty hours per week for

Surrimassini, the father claimed that he was not drawing a

5
salary because the company could not afford it. In determining

the father's income available for support, the judge attributed

income to him of $55,000 per year, and added that attributed

income to the unemployment income that he was receiving at the

time of trial. The judge calculated the modified child support

order pursuant to the guidelines, based on the following income

figures for the parties (taking into account their shared

parenting schedule): $1,042 per week for the mother (consisting

of earned income, overtime, and unemployment benefits), and

$2,228 per week for the father (consisting of attributed income

of $1,058 per week, and unemployment benefits of $1,170 per

week).

As for the issue of college expenses, the modification

judgment provided that the father "shall pay $377,255.71 and the

[m]other shall pay $25,000 toward the child's college education

as defined in the [2015 agreement] . . . . Thereafter, the

parties shall share college costs up to the maximum of the in-

state resident cost of UMass Amherst with the [f]ather paying

[sixty percent] and the [m]other paying [forty percent]."4 The

father filed motions to amend the judgment and the findings of

fact; the former was denied and the latter was allowed in part.

The judge issued amended findings on October 18, 2021. In her

4 At the time of the modification trial, the child was sixteen
and about to enter his junior year at a private high school.

6
amended findings, the judge added several findings in support of

her decision regarding college expenses, including that the

father breached his "fiduciary obligation to maintain the funds"

in the Fidelity account reported "on his [March 2015] financial

statement that were designated for the child's education." The

present appeal by the father followed.

Discussion. The father contends that the judge erred in

modifying the college expense provision of the 2015 agreement to

require him to pay $377,255.71 toward the child's college

education. He also claims error in the judge's decision to

attribute income to him for purposes of calculating the modified

child support order. We address his contentions in turn.

1. College expenses. "When an agreement merges, and does

not survive the judgment as an independent contract, a party

seeking modification [must] demonstrate . . . a 'material change

of circumstances' since the earlier judgment." Huddleston v.

Huddleston, 51 Mass. App. Ct. 563, 564 n.2 (2001), quoting

Harris v. Harris, 23 Mass. App. Ct. 931, 932 (1986). "When the

judgment to be modified incorporates an agreement of the

parties, we have said that, notwithstanding that the agreement

does not survive the judgment as a binding contract, we

nevertheless will 'review the findings to determine whether the

judge gave appropriate consideration to the parties' intentions

as expressed in their written agreement, . . . and to any

7
changes in their circumstances since the last modification

judgment.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134

(2004), quoting Huddleston, supra at 568. We review the judge's

ultimate decision on a request for modification for an abuse of

discretion. Cooper, supra.

Here, the father sought modification of the 2015

agreement's provision requiring him to pay for one hundred

percent of the child's college expenses with his bonus income,

requesting that those expenses instead be shared equally by the

parties (up to fifty percent of the in-state resident cost of

UMass Amherst). The father asserted that his termination from

Fidelity in December 2018, which resulted in the loss of his

bonus income, constituted a material change in circumstances.

The judge could have appropriately treated the loss of the

father's bonus income as a material change warranting

modification of the requirement that the child's college

expenses be paid from said bonus income. The loss of the

father's bonus income, however, was not dispositive as to

whether he met his burden of demonstrating a material change in

his ability to satisfy his bargained-for obligation to be solely

responsible for the child's college expenses. To make this

determination, the judge properly considered the totality of the

parties' financial circumstances. See Emery v. Sturtevant, 91

Mass. App. Ct. 502, 508 (2017).

8
Here, the judge declined the father's request to reallocate

the college expenses equally between the parties, finding that,

between 2015 and 2019, the father received total gross income of

$5.7 million. The judge found that, during that same period,

the father liquidated the Fidelity brokerage account containing

the funds earmarked for the child's education expenses, paid off

his mortgages in excess of $1 million (because he no longer

derived a tax benefit from carrying the mortgages), invested

$766,000 in Surrimassini, contributed $60,000 to his 401K, and

paid off a $25,500 loan. The judge also found that the father

lacked credibility regarding various aspects of his finances,

including inflating several of his reported living expenses and

claiming to not know how much his spouse (who is employed as a

physician) earns. Moreover, although not explicitly addressed

in the judge's findings, we note that the father's sworn

financial statement entered into evidence at the modification

trial reflected an increase in his total assets by over $400,000

since the 2015 agreement, despite that he had been unemployed

(aside from working for Surrimassini without pay) for

approximately two and one-half years at the time of the 2021

9
modification trial.5 Finally, the judge found that the mother's

income had decreased since the time of the 2015 agreement.

In light of the uncontroverted evidence and the judge's

findings regarding the father's substantial expenditures between

2015 and 2019, his lack of credibility regarding various aspects

of his finances, the increase in his assets since 2015, and the

decline in the mother's income, the judge was well within her

discretion to conclude that the father failed to meet his burden

to demonstrate that modification of his agreed-upon obligation

to pay for the child's entire college education was warranted.

See Croak v. Bergeron, 67 Mass. App. Ct. 750, 755-757 (2006) (in

dismissing payor's complaint for modification, judge may

consider totality of circumstances, including payor's

evasiveness regarding his financial circumstances, his available

assets, and his use of assets to support himself while claiming

reduced ability to support child). See also Crowe v. Fong, 45

Mass. App. Ct. 673, 679 (1998).

Here, however, the judge went a step further and, instead

of simply denying the father's request to be relieved of his

obligation to pay for the child's entire college education, she

ordered him to pay $377,255.71 toward the child's college

5 On his March 2015 financial statement, the father reported
total assets of $1,458,493.95. On his July 2021 financial
statement, the father reported total assets of $1,885,650.82.

10
expenses. The judge found that, "pursuant to the [2009

agreement]," the father "designated $377,255.71 that was in a

[F]idelity brokerage acc[ount] for the child's education." The

judge acknowledged that, as a result of the 2015 agreement, the

father was "no longer ordered" to contribute twenty percent of

his net, after-tax bonus to the child's education account;

"[i]nstead, [he] agreed to 'bear the entire cost' of the child's

college education funded through [his] bonus." However, the

judge found that the father, in subsequently liquidating the

$377,255.71 held in the Fidelity brokerage account, had

"breached his fiduciary obligation to maintain the funds

[reported] on his financial statement that were designated for

the child's education." The father contends that his obligation

to maintain a college fund for the child was revoked by the 2015

agreement, thus the judge improperly found him to have a

fiduciary duty to maintain the college fund account and thus

abused her discretion in ordering him to contribute the previous

balance of that account to the child's future college expenses.

We agree.

Fiduciary duty may arise "as a matter of law," or "as

determined by the facts established, upon evidence indicating

that one person is in fact dependent on another's judgment in

business affairs or property matters" (quotations and citations

omitted). UBS Financial Servs., Inc. v. Aliberti, 483 Mass.

11
396, 406 (2019). Here, however, the father's duty to maintain

an account for the child's educational expenses arose from

contract -- specifically, the 2009 agreement. The 2009

agreement required the father to contribute twenty percent of

his net, after-tax bonus to an "education fund" for the child.

Because the education account was within the father's possession

and control, his obligation to fund the account was accompanied

by a duty to preserve the funds deposited therein for the

child's benefit. The 2015 agreement extinguished this duty,

rendering it "null and void as if [it] had never existed." The

2015 agreement thus not only relieved the father of any future

obligation to contribute to an education fund for the child, it

also voided the father's past obligation to do so. See Black's

Law Dictionary (11th ed. 2019) (defining "void contract" as "[a]

contract that is of no legal effect, so that there is really no

contract in existence at all"). See also Computer Sys. of Am.,

Inc. v. Western Reserve Life Assur. Co. of Ohio, 19 Mass. App.

Ct. 430, 437 (1985) ("every word and phrase of a contract

should, if possible, be given meaning, and . . . none should be

treated as surplusage if any other construction is rationally

possible").6

6 The interpretation of an agreement is a question of law that we
review de novo. See Colorio v. Marx, 72 Mass. App. Ct. 382, 386
(2008).

12
Although the judge found that the father's March 2015

financial statement listing the Fidelity brokerage account was

"used in connection with" the August 2015 agreement, and that

the mother "credibly relied on the [a]greement that the [f]ather

would be responsible for the child's college tuition," there is

nothing in the 2015 agreement reflecting the parties' intent

that the father remain obligated to preserve the existing

balance in the Fidelity brokerage account for the child's

benefit. If the parties had so intended, they "easily could

have included language" to that effect in the 2015 agreement,

but they did not. Merrimack College v. KPMG, LLP, 88 Mass. App.

Ct. 803, 806 (2016). Cf. Computer Sys. of Am., Inc., 19 Mass.

App. Ct. at 437 ("if the parties had intended at-will

termination, they could have said so . . . expressly").

Instead, the 2015 agreement expressly voided the 2009 agreement

and obligated the father to "bear the entire cost of [the

child's] college education, which shall be funded through [the]

[f]ather's bonus." The 2015 agreement contained an integration

clause stating that it "constitute[d] the entire agreement

between [the parties]," see Cabot v. Cabot, 55 Mass. App. Ct.

756, 763 (2002), and "the words of an integrated agreement

remain the most important evidence of intention" (citation

omitted). Boston v. Professional Staff Ass'n, 61 Mass. App. Ct.

105, 111 n.5 (2004). Here, the language of the integrated 2015

13
agreement clearly expressed the parties' intention to void the

father's obligation to maintain an education account for the

child. See Balles v. Babcock Power Inc., 476 Mass. 565, 571

(2017) ("when the language of a contract is clear, it alone

determines the contract's meaning"). Accordingly, it was error

for the judge to conclude that the father breached his duty to

preserve that account for the child's benefit.7 The matter must

therefore be remanded for further proceedings regarding the

father's request for modification of the 2015 agreement's

college expense provision.8

2. Attribution of income. "Income may be attributed where

a finding has been made that either parent is capable of working

and is unemployed or underemployed," and that parent "is earning

7 We note that while finding that the father breached a fiduciary
duty by liquidating the account holding $377,255.71 may not have
been the appropriate remedy in this case, the judge was not
without other options to secure the father's obligation to pay
for the child's college education. See, e.g., Taverna v. Pizzi,
430 Mass. 882, 885 (2000) (judge has power, pursuant to general
equity jurisdiction conferred by G. L. c. 215, § 6, to order
security for child support obligations).
8 The father also contends that the amount ordered by the judge

constituted an impermissible deviation from the guidelines
without the requisite findings to support the deviation. See
Child Support Guidelines § II (G) (3) (June 2018) ("No parent
shall be ordered to pay an amount in excess of fifty percent of
the undergraduate, in-state resident costs of the University of
Massachusetts-Amherst, unless the [judge] enters written
findings that a parent has the ability to pay a higher amount").
We need not reach that issue, however, in light of our
disposition remanding the issue of college expenses for
redetermination.

14
less than he or she could earn through reasonable effort."

Child Support Guidelines § I (E) (1)-(2) (June 2018). In

deciding whether to attribute income to a parent:

"The Court shall consider the age, number, needs and care
of the children covered by the child support order. The
Court shall also consider the specific circumstances of the
parent, to the extent known and presented to the Court,
including, but not limited to, the assets, residence,
education, training, job skills, literacy, criminal record
and other employment barriers, age, health, past employment
and earnings history, as well as the parent's 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) (June 2018).

We review a judge's decision to attribute income to a parent for

an abuse of discretion. Davae v. Davae, 100 Mass. App. Ct. 54,

57 (2021).

Here, the judge made the following relevant findings

regarding the father's work history and earning capacity. The

father is "a skilled and experienced equity analyst," who worked

at Fidelity for approximately ten years until he was laid off on

December 31, 2018, for "unsatisfactory employment performance."

The severance package that he received from Fidelity "permitted

him to meet his support obligations to date," however, "that

ha[s] since ended." Following his termination, he was subject

to a noncompete agreement until March 2019. He initially

searched for other positions within Fidelity, and then outside

of Fidelity when the noncompete agreement expired. In 2016,

15
while the father was still working at Fidelity, he purchased

Surrimassini, a company that transports adults with health

conditions and developmental delays to appointments and care

centers.9 The purchase price was $1,637,000, which the father

funded with personal funds and loans, using his residence as

collateral. Although the father "claimed to have carefully

researched and vetted" Surrimassini, "he ultimately found

himself owning a company that was barely 'breaking even.'"

Although the father testified that he owed $712,000 in loans,

due in August 2021, that he had not renegotiated and did "not

know how they [would] be paid," the judge did not find this

testimony credible because the father is a "talented equity

analyst and investment portfolio manager" who "testified at

length from memory with intricate details regarding

[Surrimassini] and personal investments and expenses." Although

business declined during the early days of the COVID-19

pandemic,10 it improved in 2021 and the father described

Surrimassini as "modestly profitable" as of June 2021.11 The

9 The father also owns Woodlawn Leasing, Inc. (Woodlawn), which
owns vehicles (worth $772,241) that are used by Surrimassini.
Woodlawn does not, however, generate any income.
10 Surrimassini received Paycheck Protection Program loans

totaling $310,000 in 2020 and 2021 ($160,000 had been forgiven
at the time of trial, and the father expected the remainder to
eventually be forgiven).
11 The father credibly testified that the rise of telehealth

services has caused Surrimassini to permanently lose some
business.

16
father initially hired a manager to run Surrimassini, paying him

an annual salary of $55,000. After the manager resigned for

health reasons, the father assumed the management role, working

full time without paying himself a salary. The judge did not

credit the father's claim that, if he paid himself a salary,

"the bank would accelerate his loans and he would be unable to

pay them."

The father contends that, in calculating his modified child

support obligation, the judge improperly attributed income to

him despite making insufficient findings to justify income

attribution.12 It is apparent from the judge's findings,

however, that she attributed income to the father of $55,000 per

year based on the salary that he was previously paying the

former manager of Surrimassini, a role that he assumed when the

manager resigned. Although the judge did not expressly find

that the father could earn more with "reasonable effort," Child

Support Guidelines § I (E) (2) (June 2018), this determination

is readily inferred from her subsidiary findings. The father

claims that the judge erred in concluding that Surrimassini

could afford to pay him a salary of $55,000, where

12The father also claims that the judge failed to treat the
parties even-handedly as she attributed income to the father,
but not the mother, despite both having been laid off from their
prior jobs for unsatisfactory performance. The judge, however,
credited the mother's testimony that she was laid off because of
"family scheduling conflicts."

17
"uncontroverted" evidence in the record supported his testimony

regarding the company's financial difficulties. The judge,

however, declined to credit this testimony, finding that

Surrimassini was able to the pay the previous manager $55,000

per year without taking any capital out of the company. We see

nothing in the record that warrants disturbing the judge's

assessment of the father's credibility in this regard. See

Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). The

judge's findings are sufficient to support the attribution of

income based on the salary paid to the individual who previously

performed the management job that the father is now performing.

See Crowe, 45 Mass. App. Ct. at 680.

However, in arriving at a total gross weekly income of

$2,228 for the father, the judge added the father's actual

unemployment income to his hypothetical attributed income. This

was error insofar as the guidelines permit a judge to calculate

support based on the payor's actual income or potential earning

capacity, but not both. See Child Support Guidelines

§ I (E) (2) (June 2018) ("If the Court makes a determination

that either parent is earning less than he or she could earn

through reasonable effort, the Court should consider potential

earning capacity rather than actual earnings in making its child

support order" [emphasis added]). Accordingly, the matter must

18
be remanded for a redetermination of the father's income and a

recalculation of child support based on that income.

Conclusion. Paragraphs 1, 4, 5, and 6 of the July 30, 2021

modification judgment, and so much of the October 18, 2021 order

as partially denied the father's motion to amend findings, are

vacated, and the case is remanded for further proceedings

consistent with this memorandum and order.13 The modification

judgment is affirmed in all other respects. During the pendency

of the remand, the father shall pay temporary support of $1,231

per month unless the judge orders otherwise, and the judge may

also make temporary orders regarding the payment of college

expenses.

So ordered.

By the Court (Meade,
Sullivan & D'Angelo, JJ.14),

Clerk

Entered: March 14, 2023.

13 The judge may, in her discretion, take additional evidence on
the matters that are remanded for her consideration.
14 The panelists are listed in order of seniority.

19