Jonathan Danforth v. Robin Smith.

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-439

JONATHAN DANFORTH

vs.

ROBIN SMITH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On a complaint for modification filed by the father,

Jonathan Danforth, against the mother, Robin Smith, a Probate

and Family Court judge issued a judgment that made no change to

the father's weekly child support obligation but calculated that

the father had a substantial credit for prior overpayment.1 On

cross appeals, the father challenges the judge's failure to

reduce his weekly child support obligation and both parties

1Although the judge did not change the overall weekly child
support obligation, the judge did substantially reduce the
father's weekly payments to account for social security
dependency benefits being received by the mother for the child's
support. See Rosenberg v. Merida, 428 Mass. 182, 188 (1998).
The judgment also reduced the father's obligation to maintain
life insurance on behalf of the child, but neither party
challenges this provision of the judgment.
challenge the judge's calculation of the credit. Concluding

that the judge was well justified in finding that the father

failed to show a change in circumstances requiring a reduction

in his child support obligation and that neither party has

demonstrated clear error in the judge's calculation of the

credit, we affirm.

1. Modification of the father's weekly child support

obligation. "To be successful in an action to modify a judgment

for alimony or child support, the petitioner must demonstrate a

material change of circumstances since the entry of the earlier

judgment." Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting

Schuler v. Schuler, 382 Mass. 366, 368 (1981). "[T]he central

inquiry in a case involving modification of both child support

and alimony is whether, and to what extent, the parties'

financial circumstances have changed since the entry of the

prior judgment." Dolan v. Dolan, 99 Mass. App. Ct. 284, 290

(2021), quoting Emery v. Sturtevant, 91 Mass. App. Ct. 502, 508

(2017). "In the case of an order of child support governed by

the Child Support Guidelines, 'orders of maintenance and for

support of minor children shall be modified if there is an

inconsistency between the amount of the existing order and the

amount that would result from application of the child support

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guidelines.'" Feinstein v. Feinstein, 95 Mass. App. Ct. 230,

234 (2019), quoting G. L. c. 208, § 28.

Here, as the judge found, the father failed to demonstrate

any material change in circumstances. A different judge in 2019

discredited the father's statements that he had no income at all

and found that he had income of $3,799 per week. The father

testified at the instant trial, consistent with his latest

financial statement, that he had weekly income of $756.50 from

social security and $250 from his wife and no other income. He

testified that he had nothing to do with Meeting House

Development LLC and had never been a manager of it. The judge

explicitly did not credit this testimony, as the father was

currently proclaiming himself to be the managing director of

Meeting House Development LLC on social media. "In a bench

trial credibility is 'quintessentially the domain of the trial

judge [so that his] assessment is close to immune from reversal

on appeal except on the most compelling of showings.'"

Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),

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

The judge's disbelief of the father's testimony is well

supported by the evidence at trial.

The father argues that there was no affirmative evidence

that he was still earning $3,799 per week. He also suggests

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that the judge should have disbelieved the mother's testimony

that her investment earnings were only $90 per year. Both of

these arguments miss the mark. It was the father's burden on

his complaint for modification to demonstrate the existence of

"a material change of circumstances since the entry of the

earlier judgment." Pierce, 455 Mass. at 293, quoting Schuler,

382 Mass. at 368. It was not the mother's burden to demonstrate

the absence of a material change. In the absence of any

credible evidence that the father's income had decreased (or

that the mother's income had increased), there was no basis for

the judge to grant the request for modification.

As stated, a demonstration that the current child support

order is inconsistent with the Child Support Guidelines would

independently entitle the father to a modification. See

Feinstein, 95 Mass. App. Ct. at 234. The father, however, also

failed to demonstrate that. The guideline calculation he

provided to the judge was based on the father's false report of

his income, which the judge rejected. So far as we can tell, a

guideline calculation based on the father's income of $3,799 per

week yields a higher number than the current child support

order.

2. Credit calculation. The Child Support Guidelines

require that social security dependency benefits received for

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the support of the child be credited towards the noncustodial

parent's child support obligation. See Child Support Guidelines

§ I.A n.1 (2023). On January 1, 2023, the mother received

$17,937 of such social security dependency benefits for the

child attributable to the father's social security. Starting on

February 3, 2023, the mother received $1,613 per month in such

benefits. Such benefits presumably ended in May 2024, when the

child turned eighteen.

On May 26, 2023, the judge reduced the father's weekly

payments to $284 per week going forward to reflect the social

security benefits. In the modification judgment, the judge

credited the father for the $17,937 payment plus two $1,750

payments taken by the Department of Revenue (department) in May

and June 2023, presumably from the father's social security

benefits.

To the extent that the mother challenges crediting the

social security benefits received towards the father's child

support obligations, the Supreme Judicial Court has held "[t]he

noncustodial parent is . . . allowed a credit equal to the

amount of the [Social Security Disability Income] dependency

benefits." Rosenberg v. Merida, 428 Mass. 182, 188 (1998).

Accordingly, the judge properly gave the father a credit for the

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social security benefits received, including the January 2023

lump payment.

Both parties appear to argue that the amount of the credit

is wrong. "The burden is on the appellant to show that a

finding is clearly erroneous." Pointer v. Castellani, 455 Mass.

537, 539 (2009), quoting Demoulas v. Demoulas Super Mkts., Inc.,

424 Mass. 501, 509 (1997), S.C., 428 Mass. 543 (1998), and S.C.,

432 Mass. 43 (2000). Neither party has met this burden.

The father argues that the credit should be increased by

$7,778 to reflect the difference between the $659 per week he

was paying from January through May 2023 and the $284 he should

have been paying once the social security benefits started.

This argument, however, is premised on the father's assertion

that "[t]here was no dispute that the father had been paying

$659 per week until the reduction by the May, 2023 order." That

assertion is not supported by the record on appeal, as the

payment records submitted by the father show that he had not

been doing so.

The mother, for her part, argues that there was "a minimal

remaining support arrearage due from Appellant of $439.00."

Even if the department's accounting reflected such an arrearage,

the department's documents show no indication that they reflect

any of the social security dependency benefits. Moreover,

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although the mother stated in her opening statement at trial

that "[t]he DOR this morning lists arrearages in $439," she

produced no evidence of that at trial, at least so far as the

record before us reflects. To the contrary, the department

accounting for November 3, 2023, entered in evidence showed no

arrears.

There is simply no way from the evidence presented to us to

determine what the father's arrears were either when the judge

zeroed them out on May 26, 2023 [R 1:130], or at the time of

trial. See Poras v. Pauling, 70 Mass. App. Ct. 535, 536-537

(2007) (judge may fix amount of arrears). Accordingly, we

cannot determine whether the social security payments from

February through May 2023 were applied to the father's arrears

or instead should have resulted in an increased higher credit,

nor can we determine whether there were additional arrears that

should have reduced the credit.

Furthermore, trial exhibit four is mysteriously absent from

the record appendix. Perhaps it would shed some light on the

matter (and perhaps not), but "it is an appellant's duty to

produce an appendix containing all portions of the record

relevant to the issues raised on appeal." Lodigiani v. Paré,

103 Mass. App. Ct. 140, 141 n.3 (2023). On the record provided

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to us, neither party has demonstrated the judge's calculation of

the father's credit was clearly erroneous.

Modification judgment entered
on January 9, 2024,
affirmed.

By the Court (Neyman,
Ditkoff & Wood, JJ.2),

Clerk

Entered: March 25, 2025.

2 The panelists are listed in order of seniority.

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