#65, Drano Series
 
 
       
    Petition for Interlocutory Relief from Application of
    Child Support Guidelines
    Where Father Has No Visitation
    * This appeal was immediately and summarily denied.  
    For Massachusetts folks: this petition was brought pursuant to M.G.L. c, 231, sec, 118.  There is no appeal from a denial of a single-justice petition in the Appeals Court.
    The only way to get it to the Supreme Judicial Court of Massachusetts is to file a Complaint in the nature of a petition for certiorari.  I have written that document.  It constitutes Drano Series #70.




    COMMONWEALTH OF MASSACHUSETTS
    APPEALS COURT 

    BRISTOL, SS.                                                                      C.A. NO. ________

    ---------------------------------------------------------
    James Linnehan 
                                                     Petitioner 

    v. 

    Robyn L. (Gerry) Sylvia 
    Bristol County Probate & Family Court 
                                                     Respondents 
    ----------------------------------------------------------

    PETITION FOR INTERLOCUTORY RELIEF

    This petition is comprised of the following sections: (1) Statement of the Case and Facts, (2) Jurisdiction of the Single Justice, and the four sections mandated by the Standing Order Concerning Petitions to the Single Justice pursuant to G.L. c. 231, sec. 118 (first paragraph): (3) Request for Interlocutory Review, (4) Statement of the Issues, (5) Statement of the Specific Relief Requested, (6) a Copy of the Order of the Trial Court. (7) an addendum. 

    A certificate of service is at the end of each pleading.
     

    ~NOTE:~
    This section was written by the national expert on Child Support Guidaelines, Laura Wish Morgan, Esq., Family Law Consulting, Charlottesville, Virginia (originally from Connecticut).





    1. STATEMENT OF THE CASE AND FACTS

    Robyn L. Gerry Sylvia (mother) and James Linnehan (father) are the parents of THE CHILD, born February 9, 1985. A paternity action was filed, and a temporary custody order was entered granting the father visitation. In September 1986, the father brought an action to enforce visitation which the mother had unreasonably denied. In January 1987, while the paternity action was still pending, the mother fled with the child from Maine to Massachusetts. The father found the mother and child in New Bedford, Massachusetts. That was the last time the father saw his son.

    On June 24, 1988, the father brought an action to establish paternity and custody in Bristol County Probate and Family Court. Paternity was established, but no custody or visitation order was entered. Child support was set at $98.50 per week.

    On May 7, 2001, the mother brought an action for modification of child support. The father answered and counter-claimed for custody/visitation with his son. Both parties moved for temporary orders regarding child support and custody. 

    The mother did not provide the father with any mandatory financial affidavits, forms, or disclosure until one hour before the hearing on the temporary orders. At the hearing, the father was not allowed to cross-examine the mother as to the veracity of her financial disclosure. 

    On November 14, 2001, the court ordered no change of custody, and ordered the father to pay $228.27 per week in child support. 

    The father appeals this order of the trial court.

     

    2. JURISDICTION OF THE SINGLE JUSTICE

    The temporary child-support order appealed from is interlocutory and appealable under G.L. 231, sec. 118. Callahan v. Superior Court, 410 Mass. 1001 (1991). Given that the child will be 17 years old within two months, an appeal to a panel is impractical. 

    3. REQUEST FOR INTERLOCUTORY REVIEW

    The review currently sought is from the order applying the Massachusetts Child Support Guidelines, promulgated by the Chief Justice of the Trial Court pursuant to M.G.L. c. 211B, sec. 15 (repealed) and mandated by 42 U.S.C. secs. 666 and 667, to the order of child support in the underlying case, where there is no visitation or custody arrangement.

    In the lower court's Findings of Fact and order, nary a statute or rule or legal authority was cited, and the iteration of facts therein does not support the lower-court's action. 

     

    ~NOTE:~
    This section was written by the national expert on Child Support Guidaelines, Laura Wish Morgan, Esq., Family Law Consulting, Charlottesville, Virginia (originally from Connecticut).

    4. STATEMENT OF THE ISSUES

    I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO DEVIATE FROM THE CHILD SUPPORT GUIDELINES TO ACCOUNT FOR THE FATHER'S LACK OF VISITATION AND CUSTODY RIGHTS.

    II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO ALLOW THE FATHER TO INQUIRE INTO THE MOTHER'S INCOME AND EXPENSES.


    ARGUMENT

    I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO DEVIATE FROM THE CHILD SUPPORT GUIDELINES TO ACCOUNT FOR THE FATHER'S LACK OF VISITATION AND CUSTODY RIGHTS.

    The law of child support went through no less than a revolution in 1988, when Congress enacted the Family Support Act, Pub. L. 100-485, 102 Stat. 2343.1

    1 Codified primarily at 42 U.S.C. secs. 666, 667.
    This Act required each state, as a condition of receipt of federal funds for child support enforcement services, to enact mandatory presumptive child support guidelines:

    There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.
    42 U.S.C. sec. 667(b)(2). Accord 45 C.F.R. sec. 302.56. Thus, in any judicial proceeding for support, whether an initial determination of child support or a modification of support, the state must apply its child support guidelines as the presumptively correct amount of support to be awarded. 

    Under the federal mandate, a deviation from the state's guidelines can only be supported by a written finding or a finding on the record that the presumptively correct amount of support, as determined by the guidelines, is unjust or inappropriate in the particular case. No longer may child support be predicated on the amorphous and ever-changing "best interests of the child" standard. Rather, the best interests of the child are presumed in the child support guidelines. See generally Laura W. Morgan, Child Support Guidelines: Interpretation and Application sec. 1.02 (Supp. 2001) [hereafter Child Support Guidelines]. 

    In accordance with the federal mandate, Massachusetts enacted its Child Support Guidelines ["Guidelines"] by court rule.2

    2 The version now in effect was made effective 1 January 1998.
    The Guidelines repeat, in toto, the federal mandate:

    There shall be a presumption that these guidelines apply, absent agreement of the parties, in all cases seeking the establishment or modification of a child support order. A specific, written finding that the guidelines would be unjust or inappropriate and that the best interests of the child have been considered in a particular case shall be sufficient to rebut the presumption in that case.
    See generally Quinn v. Quinn, 49 Mass.App.Ct. 144, 727 N.E.2d 92 (2000) (there is a rebuttable presumption that the amount of the order which would result from the application of the child support guidelines is the appropriate amount of child support to be ordered).

    Although the application of child support guidelines are mandatory, it is critical to remember that they are presumptive only. The trial court has the power to deviate from the presumptive award when an application of the guidelines would be unjust or inappropriate in the case before it.  Leonardo v. Leonardo, 40 Mass. App. Ct. 572, 665 N.E.2d 1034 (1996) (specific, written findings that child support guidelines would be unjust or inappropriate and that best interests of children have been considered in particular case is sufficient to rebut presumption that guidelines apply); Department of Revenue v. G.W.A., 412 Mass. 435, 590 N.E.2d 176 (1992); Canning v. Juskalian, 33 Mass. App. Ct. 202, 597 N.E.2d 1074 (1992). Indeed, if the trial court did not have the power to deviate from the guidelines when the circumstances so required, and instead the guidelines were mandatory and irrebutable, then the guidelines would be an unconstitutional usurpation of the judicial function. See, e.g., Schenek v. Schenek, 161 Ariz. 580, 780 P.2d 413 (Ct. App. 1989) (constitutional challenge to Arizona guidelines, that they usurp judicial function, overruled); Coghill v. Coghill, 836 P.2d 921 (Alaska 1992). See also Mistretta v. United States, 488 U.S. 361 (1989) (federal sentencing guidelines do not violation constitutional separation of powers).

    As a general matter, deviation from child support guidelines is appropriate when the assumptions embedded in the guidelines are not true in the particular case. As stated by one authority:

    All states' child support guidelines are based on assumptions about economic expenditures in the average family. These assumptions are derived from statistical data gathered by numerous federal and state agencies concerning the average cost of raising children. The guidelines are thus stating, in essence, "When the average set of circumstances underlying the guidelines is true, then support shall be X amount for dollars."          . . . Thus, when the circumstances render application of the guidelines "unjust or inappropriate," the presumption of the guidelines is rebutted, and the court may deviate from the presumptive guidelines award. These "unjust or inappropriate" circumstances arise when the circumstances in the case are at variance with the economic assumptions that form the basis of the guidelines.
    Morgan, Child Support Guidlines sec. 4.01 at 4-5 to 4-6 (Supp. 2000).

    One presumption that all child support guidelines embody is that the noncustodial parent will exercise at least "ordinary" visitation of 20% (every other weekend, two weeks in summer, another week or two for miscellaneous holidays, for a total of 73-80 days). See generally Karen Czapankiy, "Child Support, Visitation, Shared Custody and Split Custody," in Child Support Guidelines: The Next Generation (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1994). Thus it is appropriate to deviate when that assumption underlying the guidelines does not hold true:

    The guidelines themselves make clear the interrelatedness of visitation and support in many ways. First, the guidelines based the presumptive award on an assumption that the child will spend 20% of the time with the noncustodial parent. Second, the guidelines make an adjustment when parents share physical custody of the child. Third, the guidelines make an adjustment when the noncustodial parent has extended visitation. Because the guidelines make an adjustment for more visitation, there is no reason the guidelines should not make an adjustment for less visitation where the failure of the noncustodial parent to exercise visitation is directly related to the fault of the custodial parent.
    Thus, when a noncustodial parent is unable to exercise visitation because the custodial parent has denied the noncustodial parent visitation, the court should deviate down from the guidelines. 

    This principle was first applied in In re Marriage of Damico, 7 Cal. 4th 673, 29 Cal. Rptr. 2d 787 (1994). This case held that when the custodial parent wrongfully conceals the child from the noncustodial parent, the noncustodial parent will not be liable for child support. Accord Schaffer v. Haynes, 847 S.W.2d 814 (Mo. Ct. App. 1992) (court did not err in abating father's support obligation where mother had alienated children's affections from father by denying visitation without good cause); Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994) (court may suspend child support where custodial parent deprives noncustodial parent of visitation and there is no showing that children are in need); Hiross v. Hiross, 224 A.D.2d 662, 639 N.Y.S.2d 70 (1996) (custodial parent's deliberate frustration of visitation rights can warrant suspension of child support); Doyle v. Doyle, 198 A.D.2d 256, 603 N.Y.S.2d 525 (1993) (while interference with visitation does not excuse arrearages, such interference may provide basis for prospective suspension of support).

    The Massachusetts Guidelines likewise embody certain assumptions about visitation. Guidelines II(D)(1) states that the guidelines are based "upon traditional custody and visitation arrangements." Guidelines II(D)(2) further provides, 

    These guidelines recognize that children must be allowed to enjoy the society and companionship of both parents to the greatest extent possible. The court may adjust the amount of child support beyond the 2 percent range after taking into consideration the parties' actual time sharing with the children and the relative resources, expenses, and living standards of the two households.
    Clearly, then, when the "traditional custody and visitation arrangement" are not in place, and then a child is not allowed to enjoy the society and companionship of one parent due the fault of another parent, the court should deviate from the guidelines to account for that fact.3
    3 Two Appellate Division cases hold that a father has a duty to support his minor child even though the child has been wrongfully taken by its mother to a foreign state where the father could not visit or enjoy the company of the child. Parson v. Parsons, 29 Mass.App.Dec. 155 (1964); Parmelee v. Parmelee, 20 Mass.App.Dec. 26 (1960). 
    In the present case, the trial court specifically found that the father had not seen his son in 13 years. The trial court thus specifically found that the assumptions that underlie the guidelines did not obtain to the facts. It was therefore error for the court to fail to deviate from the Guidelines' presumptive award to take into account the mother's repeated and continuous failure to allow the father any kind of parental rights. 

    II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO ALLOW THE FATHER TO INQUIRE INTO THE MOTHER'S INCOME AND EXPENSES.

    Because a determination of child support is income driven, each party in a child support proceeding has the obligation to provide complete and accurate financial data to the court and to the other party. Otherwise, there is no evidence on which the court can base its decision as to the appropriate amount of child support. Crowe v. Fong, 45 Mass.App.Ct. 673 (1998). Hence, the failure to present records substantiating claimed expenses is cause to disregard those claimed expenses. Smith-Clarke v. Clark, 44 Mass.App.Ct. 404 (1998). 

    Further, each party has the right to present evidence and be heard on his or her request for relief. This right is no less than due process demands. Broome v. Broome, 40 Mass.App.Ct. 148 (1996).

    In the present case, the mother provided to the father her financial information literally on the court house steps, minutes before the hearing on temporary orders. The father had no opportunity to independently discover the mother's income and expenses. Further, the trial court refused to allow the father to cross-examine the mother regarding her income and expenses, but instead just adopted the mother's statements without inquiry. These actions deprived the father of his due process rights to have the court determine an appropriate amount of child support.

    CONCLUSION

    The father has demonstrated that the trial court erred by refusing to deviate from the Guidelines, and by denying him the right to cross-examine the mother regarding her income and expenses, thus denying him his due process rights. The father will suffer irreparably injury if this Honorable Court does not reverse the trial court's determination of temporary support. 
     

    5. STATEMENT OF THE SPECIFIC RELIEF REQUESTED

    Plaintiff James Linnehan does not seek extraordinary relief. Linnehan's goal is to have his first evidentiary hearing on the issue of child support, something he has not been allowed in over the 13 years working within our court system. 

    6. A COPY OF THE ORDER OF THE TRIAL COURT

    The order issued by Probate & Family Court Justice Elizabeth O'Neill LaStaiti and appealed from is included as Item #2 in the addendum to this petition. Included also are the Docket Sheets of Probate & Family Court case and the Opposition to Plaintiff's Motion for Temporary Orders on Complaint for Modification.
     

       Respectfully submitted,.
       PLAINTIFF JAMES LINNEHAN, 
       By his attorney, 

      Barbara C. Johnson

    20 December 2001                Barbara C. Johnson, Esq. 
                                               6 Appletree Lane 
                                               Andover, MA 01810-4102 
                                               978-474-0833
     
     

    CERTIFICATE OF SERVICE

    I, Barbara C. Johnson, hereby certify that on this day served true and accurate copies of the above pleading and addendum and the supporting memorandum by first-class mail on _______ New Bedford, MA 02740-6021; Attorney General, Government Bureau, 200 Portland Street, Boston, MA 02114; and The Honorable Elizabeth O. LaStaiti, Bristol Probate & Family Court, 11 Court Street, Taunton, MA 02780. 

    21 December 2001           _________________________________
                                               Barbara C. Johnson, Esq.