Olimpia Raquel Sapers v. David J. Sapers.

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-60

OLIMPIA RAQUEL SAPERS

vs.

DAVID J. SAPERS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a judgment of the Norfolk Probate

and Family Court modifying his child support obligation. On

appeal, the father maintains that the judge abused her

discretion in (1) determining the parties' incomes, (2)

incorrectly applying the Massachusetts Child Support Guidelines

("guidelines"), and (3) awarding attorney's fees to the mother.

The father also takes issue with the judge's decision to quash a

trial subpoena directed to the mother's current husband

("husband"). We affirm and remand to permit the motion judge to

consider the release of escrowed funds awarded to the mother.

Background. We summarize the relevant facts found by the

judge, supplementing them with undisputed evidence in the record

that supports those findings, and reserving other facts for

later discussion. See Pierce v. Pierce, 455 Mass. 286, 288
(2009). In 2015, the parties were divorced pursuant to a

judgment that incorporated their separation agreement

("agreement").1 Under the agreement, the parties shared custody

of their child and the father agreed to pay the mother $3,462 in

monthly child support (above the minimum presumptive guidelines

amount), subject to a yearly recalculation.2 At the time of the

divorce, the father earned a yearly income of $199,992 from his

successful candy business and the mother was unemployed with no

income.

Between 2016 and 2018, the father's candy business

deteriorated and, by 2018, closed. In December 2016, he

unilaterally decided to begin paying only $1,303 in monthly

child support.3 In September 2017, the mother filed a complaint

for modification. By a counterclaim, the father sought a

retroactive reduction of his child support obligations beginning

1 The provisions of the separation agreement pertaining to the
parties' child merged with the divorce judgment.
2 The agreement was written with the expectation that the mother

would become employed by August 15, 2015. Pursuant to the
agreement, the parties were to recalculate the child support
payments on or about August 15 each year, or if there was a
significant change in income for either party. To facilitate
this recalculation, the parties agreed to exchange tax returns
and pay stubs at the time of review.
3 The mother testified -- credibly, as found by the judge -- that

she did not agree to the reduction in child support. She filed
a complaint for contempt; however, the father was adjudicated
not guilty because the parties had failed to timely exchange tax
returns and recalculate child support as agreed. The father's
support obligation remained unchanged, but he continued to pay
only the reduced amount.

2
in December 2016.4 The parties then entered into a partial

modification agreement ("modification agreement") that, among

other things, required them to recalculate child support on

November 15 each year "based on the prior year's tax returns"

and "pursuant to the then current Massachusetts Child Support

Guidelines." The judge incorporated the modification agreement

into a partial modification judgment on the father's

counterclaim.

The sole issue remaining for trial was whether a

retroactive reduction in the father's child support obligations

was warranted for 2017 through 2020. After trial, the judge

determined that the father's income did not significantly

diminish in 2017 and 2018 and left his support obligations for

those years unchanged. The judge retroactively modified the

father's child support obligations for 2019 and 2020 to $624 and

$479 per week, respectively. The judge also awarded attorney's

fees to the mother.

a. Father's income. As of the last day of trial, the

father was unemployed and described himself as having "multiple

failed businesses." Throughout the proceedings, he failed to

comply with the mother's discovery requests and filed incomplete

financial statements indicating a sharp decline in his income.

4 The father argued that, based on the "auto-adjusting" language
in their agreement, a retroactive modification was required.

3
The mother filed multiple motions to compel and subpoenaed

documents directly from financial institutions, the responses to

which produced evidence of the father's financial circumstances.

The judge found that since the divorce, the father regularly (1)

received financial assistance in the form of gifts and forgiven

loans from his family;5 (2) misrepresented his income to

financial institutions and the court; (3) spent more than his

reported income but had little to no debt; and (4) played high-

stakes poker, resulting in large deposits and transfers. After

closely examining the evidence, the judge included in the

father's income his monetary gifts from family and forgiven

loans. The judge then imputed to the father a weekly income of

$5,400 for purposes of calculating his 2017 and 2018 child

support obligations, and imputed total weekly incomes of $4,800

and $3,092 for his 2019 and 2020 support obligations,

respectively.

b. Mother's income. The mother remarried in 2018 and was

unemployed at the time of trial. Pursuant to an antenuptial

agreement, the mother and her new husband (husband) maintained

separate assets and filed separate tax returns. Throughout the

proceedings, the mother disclosed her finances; her financial

statements reflected loans she received from her husband. Based

5 Based on the evidence, the financial assistance from the
father's family totaled around $478,200.

4
on the mother's trial testimony and financial statements, the

judge found that that although the husband paid the "vast

majority of their household's expenses," the mother reimbursed

him each month for her child-related expenses, and at the time

of trial, owed him $75,000 in living expenses and attorney's

fees. Based on evidence of the mother's employment history and

financial circumstances, the judge attributed to her a weekly

income of $600 for 2017 through 2020,6 excluding from that amount

the contributions received from her husband.

Discussion. 1. Standard of review. "Our review of a

child support modification judgment is limited to whether the

judge's factual findings were clearly erroneous, whether there

were other errors of law, and whether the judge appears to have

based his decision on the exercise of sound discretion."

Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692 (2017). "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

6 This attributed income amount was based on the mother's
capacity to earn $15 per hour working forty hours per week,
which the mother conceded, and the father did not challenge, at
trial.

5
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 changes in their circumstances since the last modification

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

(2004), quoting Huddleston, supra at 568. "[A] judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made 'a clear error of judgment in

weighing' the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.

27 (2014).

2. Income for purposes of child support. At the heart of

the father's appeal is his contention that it was error for the

judge to exclude from the mother's income financial household

contributions from her husband, while at the same time including

monetary gifts and forgiven loans from the father's family in

the father's income.7 "Section I-A of the guidelines explicitly

7 The father maintains that the judge erred by not assessing the
child's initial need for support before determining the parents'
income and applying the guidelines. This argument is not
supported by the authority cited, including M.C. v. T.K., 463
Mass. 226, 231 (2012), which holds that a parent has a duty to
support their child.

6
instructs on the definition of 'income,' and how that income

should be calculated when determining a child support order.

'[I]ncome is defined as gross income from whatever source

regardless of whether that income is recognized by the Internal

Revenue Code or reported to the Internal Revenue Service or

state Department of Revenue or other taxing authority'; some

twenty-seven sources of income are then listed," along with a

catchall provision allowing for any form of income "not

specifically itemized" in the guidelines. Hoegen v. Hoegen, 89

Mass. App. Ct. 6, 9 (2016), quoting Child Support Guidelines

§ I(A) (Aug. 2013).8 "The [child support] guidelines and our

case law leave the definition of income flexible, and the

judge's discretion in its determination broad." Casey v. Casey,

79 Mass. App. Ct. 623, 634 (2011), citing Whelan v. Whelan, 74

Mass. App. Ct. 616, 625 (2009).

a. Spousal contributions after remarriage. The judge did

not err in excluding from the mother's income her husband's

financial contributions to their household. "[T]he guidelines

do not reflect a direct prohibition on contributions from a

present spouse, nor do they include a direct command to include

them." Murray v. Super, 87 Mass. App. Ct. 146, 155 (2015).

8 This language is identical to that in the guidelines' 2018
definition of income, except that the 2018 guidelines list
twenty-nine potential sources of income. Child Support
Guidelines § I(A) (June 2018).

7
Rather, a judge is directed to consider several factors,

including "how those funds [received from a spouse] are

expended[,] . . . the lack of an obligation of the mother's

husband to support the children, the manner in which the

mother's and the children's lifestyles are altered by these

funds, the discretion that the mother's husband maintains in

payment of these funds, and the manner in which the mother would

support her household absent these funds." Id. See Fehrm-

Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 529 (2016)

(inclusion of household members' financial contributions in

parents' income must be justified by detailed findings). The

judge weighed these factors in context, including the fact that

(1) the mother and husband were married subject to an

antenuptial agreement that created "no joint assets" between

them, (2) the mother and husband had no joint bank accounts and

the husband paid "the vast majority of their household's

expenses," but was reimbursed monthly by the mother for expenses

related to the child, and (3) the mother testified -- credibly,

as found by the judge -- that she owed the husband $75,000 for

attorney's fees and living expenses. The judge's credibility

assessments are not lightly to be disturbed. See Johnston v.

Johnston, 38 Mass. App. Ct. 531, 536 (1995) (credibility is

"quintessentially the domain of the trial judge, in which the

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

8
except on the most compelling of showings"). We see no abuse of

discretion in the judge's treatment of the contributions from

the mother's husband. See Murray, supra, at 148, 155; Johnston,

supra.

b. Imputation of income to the father. "Public policy

dictates that children be supported by the financial resources

of their parents insofar as is possible," M.C. v. T.K., 463

Mass. 226, 231 (2012), and "child support should be calculated

as a percentage of parental income, up to a maximum income

amount." Id. at 232. "The imputation of income is appropriate

where a party has made vague, misleading, or untruthful entries

on a financial statement," M.C., supra, at 240, and when "the

[c]ourt finds that a parent has . . . undocumented or unreported

income, [it] may reasonably impute income to the parent based on

all the evidence submitted." Child Support Guidelines § I(D)(1)

(June 2018).

We will not disturb the judge's findings about the

imputation of income, which were properly based on evidence that

the father obstructed the discovery process, underreported

income, and misrepresented his financial resources to the court

and financial institutions.9 See Johnston, 38 Mass. App. Ct. at

9 "In circumstances where the [c]ourt finds that a parent has
unreported income . . . [it] may adjust the amount of income
upward by a reasonable percentage to take into account the
absence of income taxes that normally would be due and payable

9
536; Child Support Guidelines § I(D)(1) (June 2018). See also

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

calculating father's child support obligation, judge considered

father's evasiveness as to his finances); Crowe v. Fong, 45

Mass. App. Ct. 673, 678-679 (1998) (court entitled to draw

inferences adverse to evasive party from uncertainties

surrounding party's financial affairs). Given the guidelines'

expansive definition of income, the amount and ongoing nature of

the assistance the father received, the evidence of his

spending, and the absence of debt, we see no abuse of discretion

in the judge's imputation of frequent gifts and forgiven loans

to the father as income. 10 See Croak v. Bergeron, 67 Mass. App.

on the unreported income." Child Support Guidelines § I(D)(3)
(June 2018). We see no abuse of discretion in the judge's
upward adjustment of the father's income by twenty-five percent
given the evidence of his unreported income. See Johnston, 38
Mass. App. Ct. at 536; Child Support Guidelines § I(D)(3) (June
2018).
10 Although "the modified judgment should take into account the

earlier, expressed desires of parties," Bercume v. Bercume, 428
Mass. 635, 644 (1999), "[p]arents may not bargain away the
rights of their children to support from either one of them."
Knox v. Remick, 371 Mass. 433, 437 (1976). See Cavanagh v.
Cavanagh, 490 Mass. 398, 409, 418 (2022). The judge interpreted
the parties' agreement to calculate child support "based on" the
prior year's tax returns as allowing "other income of the
parties" to be included in the calculation, an interpretation
that was not clearly erroneous. We see no error in the judge's
conclusion that excluding other sources of income from the
calculation would have improperly eliminated the father's child
support obligations for 2017 and 2018, where his tax returns
reflected negative income. See Knox, supra. The finding was
supported by the evidence.

10
Ct. 750, 755-756 (2006) (judge may properly deny payor's request

for downward modification of child support where, considering

payor's financial circumstances -- including evasiveness about

finances -- payor failed to meet burden of demonstrating

material change in circumstances); Child Support Guidelines

§ I(D)(1) (June 2018) (imputation of income may be based on

evidence of "parent's lifestyle, expenses and spending

patterns").

3. Retroactivity of support order. The father takes issue

with the judge's denial of his request for a retroactive

reduction in his child support obligation for 2017 and 2018.

The father contends, among other things, that the judge

erroneously declined to modify the parties' 2015 agreement for

support that exceeded the minimum presumptive guidelines order

for those years. Although the father maintains that the judge

abused her discretion in "departing" from the guidelines for

2017 and 2018, she did not. Rather, she concluded that the

father failed to meet his burden of demonstrating a material

change in circumstances for 2017 and 2018, because his imputed

income for those years exceeded his income at the time of the

2015 agreement. Because the judge found that the father failed

to demonstrate that his income decreased in 2017 and 2018 as

compared to 2015, and she found no other relevant material

change in circumstances for those years, she concluded that he

11
was not entitled to a downward modification of his support

obligation for 2017 and 2018. In her written findings, the

judge emphasized the recency of the parties' original agreement

that the father would pay more than the guidelines amount and

ruled that the father had failed to provide sufficient evidence

of a change in either his circumstances or in the child's needs

since that time to warrant a decrease in his support

obligations. See Hoegen, 89 Mass. App. Ct. at 11, quoting

Whelan, 74 Mass. App. Ct. at 627 ("a party is entitled to

retroactive modification of a child support order 'where a judge

finds that the parties' circumstances have materially changed

and that such modification is in the best interests of the

children'"). This ruling was supported by the evidence. See

Wasson v. Wasson, 81 Mass. App. Ct. 574, 577-578 (2012)

(presumption in favor of guidelines may be rebutted where

applying guidelines would lead to order that is unjust,

inappropriate, or not in best interests of child).

The judge did, however, find a relevant material change in

circumstances for 2019 and 2020. The judge found that, in 2018,

the parties agreed to cap child support in future years at the

minimum presumptive order under the guidelines. The judge

therefore considered the parties' intentions as expressed in

their 2018 agreement, Cooper, 62 Mass. App. Ct. at 134, and for

2019, although the parties' combined income exceeded $250,000,

12
she calculated the father's support obligation at the minimum

presumptive guidelines amount, consistent with the parties' 2018

agreement. For 2020, the judge reasonably found that the

parties' combined income of $191,984 was below the guidelines'

maximum of $250,000. Therefore, the guidelines presumptively

applied to the entirety of the parties' 2020 combined income,

and the judge calculated the father's support obligation at the

presumptive guidelines amount. See Child Support Guidelines

§ II(C)(2) (June 2018).

4. Motion to quash. Twenty days before trial, the father

subpoenaed the mother's husband, who filed a motion to quash and

for a protective order. The judge quashed the subpoena on the

first day of trial. Arguing that this was an abuse of

discretion and deprived him of a fair trial, the father appeals.

"Trial judges have broad discretion to make discovery and

evidentiary rulings conducive to the conduct of a fair and

orderly trial" (quotation and citation omitted). Mattoon v.

Pittsfield, 56 Mass. App. Ct. 124, 131 (2002). "It is within

[the] court's power to vacate any subpoena which it determines

is unreasonable, oppressive, irrelevant, or improper." Hull

Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co.,

414 Mass. 609, 616 (1993); see Mass. R. Dom. Rel. P. 45 (b)

(identical to Mass. R. Civ. P. 45 (b), as appearing in 470 Mass.

13
1402 (2015)). We review for abuse of discretion. See Chambers

v. RDI Logistics, Inc., 476 Mass. 95, 110 (2016).

The father did not attempt to depose the mother's husband

or otherwise seek evidence of his financial resources and

support of the mother during discovery; instead, just twenty

days before trial, he served the mother's husband with a trial

subpoena demanding his testimony and seeking detailed financial

information, including documents and records related to all bank

accounts, credit cards, investment accounts (whether

individually or jointly held), paystubs, and copies of tax

returns, utility bills, and mortgage statements for the prior

two or three years. Whether the judge viewed the subpoena as

overbroad, or untimely, or seeking information that was

irrelevant and duplicative, as the mother suggested, or as an

end-run on the discovery process, or some combination of the

above, the judge was within her broad discretion in granting the

husband's motion to quash and for a protective order protecting

the husband or others from testifying about his finances. See

Bishop v. Klein, 380 Mass. 285, 288 (1980) (denial of discovery

motion not abuse of discretion where defendant waited four years

to raise issue of access to plaintiff's records and sought

production of those records only after case called for trial).

5. Attorney's fees. We have been asked to consider the

award of attorney's fees in three contexts.

14
First, the father objects to the trial judge's posttrial

award of fees to the mother. The court may, in its discretion,

award costs and expenses or legal fees to a party. G. L.

c. 208, § 38. If an award of attorney's fees "is within the

range of reasonableness based on an objective evaluation of the

services performed, it will be affirmed on appeal" (quotation

and citation omitted). Schechter v. Schechter, 88 Mass. App.

Ct. 239, 260 (2015). The judge, after trial, found that the

father's noncompliance with discovery warranted an award of fees

to the mother, ordered the father to pay a portion of the

requested fees ($25,000) and held that the parties "shall

otherwise be responsible for their own counsel fees and costs."

The award was reasonably based on the judge's well-supported

findings about the mother's costs in obtaining discovery, which,

the judge found, increased because of the father's obstructive

conduct. See Cooper, 62 Mass. App. Ct. at 141, quoting Downey

v. Downey, 55 Mass. App. Ct. 812, 819 (2002) (opposing party's

"obstructionist conduct which prolonged the proceedings"

relevant to determination of attorney's fees).11

11The father notes that he requested fees in connection with his
successful summary judgment motion, and that the judge deferred
ruling on those fees. In connection with trial, the father
neither requested these fees nor provided an affidavit of
counsel to support such an award. The judge did not address the
award of fees from the father's summary judgment matter, and the
issue is not properly before us.

15
Second, the mother has asked this panel to order the

release from escrow of funds awarded to her by the judge. In

the alternative, she asks that the judge be "empowered" to

address the issue. The judge, perhaps believing that the filing

of this appeal divested her of jurisdiction to enforce the award

of fees to the mother, denied the mother's motion to release

fees "without prejudice subject to any ruling from the Appeals

Court." On remand, the judge may, consistent with her prior

rulings and our decision today, order the release to the mother

of these escrowed funds.

Third, the mother requested appellate attorney's fees

pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654

(2019). This request is denied.

Judgment affirmed and case
remanded for further
proceedings consistent with
this memorandum and order.

By the Court (Sullivan,
Massing, &
Hershfang, JJ.12),

Clerk

Entered: March 21, 2023.

12 The panelists are listed in order of seniority.

16