CourtListener 9480163•Deana L. Connolly v. Jonathan G. Lawit.
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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-406
DEANA L. CONNOLLY
vs.
JONATHAN G. LAWIT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father, Jonathan G. Lawit, appeals from a judgment of
the Probate and Family Court requiring him to pay certain
uninsured medical expenses and child support of $250 per week to
the mother, Deana L. Connolly. He challenges only the order of
child support, and on the ground that he was denied due process.
Concluding that the father was denied due process to the extent
that the judge ordered him to pay child support, we vacate in
part and remand for further proceedings.
1. Discussion. Although the mother filed a complaint for
contempt, "[a] Probate Court has power to modify a support order
in the context of either a complaint for contempt or a complaint
for modification." Feinstein v. Feinstein, 95 Mass. App. Ct.
230, 234 (2019), quoting Kennedy v. Kennedy, 17 Mass. App. Ct.
308, 312 (1983). "A modification on a complaint for contempt
may occur even in the absence of a contempt finding."
Feinstein, supra. Nonetheless, in the divorce context, as in
all contexts, "due process requires that defendants be given
notice and an opportunity to be heard." Sullivan v. Smith, 90
Mass. App. Ct. 743, 751 (2016).
Although the complaint for contempt did not request an
alteration of child support, it plainly raised the question
whether the mother should continue to pay child support to the
father. The father, in his answer and memorandum, similarly
addressed the question whether the order for the mother to pay
child support should remain in force. Although the parties
understood that the issue of the continuation of the mother's
payment of child support would be before the judge, the pretrial
record does not reflect that the issue of the father's payment
of child support to the mother would be addressed at the
contempt trial.
Similarly, at the trial, the mother specifically asked "to
be relieved of my child support," without objection from the
father. See Commonwealth v. Cortez, 438 Mass. 123, 126 (2002)
("There was no objection, register of surprise, or request for a
continuance by the defendant. In these circumstances, the
defendant's claim of lack of notice rings hollow"). Accord
Wojcicki v. Caragher, 447 Mass. 200, 214 (2006). The judge then
asked the mother, "are you looking for an order based upon the
2
guidelines and a shared -- a split custody arrangement?"
Although an attorney might have understood "an order based upon
the guidelines" to include the possibility of an order for the
father to pay child support to the mother, it seems unlikely
that the parties -- two lay persons -- could have understood
this question as addressing anything but the elimination of the
mother's duty to pay child support. See Sullivan, 90 Mass. App.
Ct. at 751 ("due process requires that defendants [in a child
support action] be given notice and an opportunity to be
heard"); Guardianship of Moe, 81 Mass. App. Ct. 136, 139-140
(2012) (error to decide issue not raised by parties or court).
Accord Cunningham v. Thomas, 102 Mass. App. Ct. 135, 144-145
(2023).
Accordingly, before the father can be ordered to pay child
support, he must be afforded an opportunity to be heard on the
question. In vacating the child support portion of the
judgment, we do not mean to intimate that such an order would be
unwarranted. The question has not been briefed before us, and
we express no view about it. 1
1 We do note that, contrary to the father's suggestion, the 2021
Massachusetts Child Support Guidelines (like every version of
the guidelines since 2009) explicitly exclude consideration of
the income of a non-parent guardian, such as the mother's new
husband. Mass. Child Support Guidelines § I.F (Oct. 2021).
Similarly, even without an affirmative showing of need, "[t]here
is a 'rebuttable presumption that the amount of the order which
would result from the application of the guidelines is the
3
2. Conclusion. Paragraph three of the judgment entered on
September 8, 2022, is vacated, and the matter is remanded to the
Probate and Family Court for further proceedings in accordance
with this decision. 2 The judgment is otherwise affirmed.
So ordered.
By the Court (Rubin,
Ditkoff & Grant, JJ. 3),
Assistant Clerk
Entered: March 1, 2024.
appropriate amount of child support to be ordered.'" P.F. v.
Department of Revenue, 90 Mass. App. Ct. 707, 709 (2016),
quoting G. L. c. 208, § 28. On the other hand, the father's
request for reciprocal consideration of the older child's
support needs may be considered by the judge at the judge's
discretion. See Mass. Child Support Guidelines § II.F (Oct.
2021).
2 If the father's past child support obligation is reduced on
remand, some of the money the father paid could instead reduce
the amount that the father owed in past uninsured medical and
dental expenses under paragraph four of the judgment.
3 The panelists are listed in order of seniority.
4
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