It is pretty well-established in Massachusetts that the Massachusetts Uniform Child Support Guidelines govern the amount of child support to be ordered in most cases. Deviation from the guidelines is not taken lightly and not ordered without justification. To what extent might deviation be ordered when the payor of child support is incarcerated? A recent decision of the Appeals Court answered that question.
In P.F. v. Department of Revenue,[1] an incarcerated father filed a complaint for modification of his child support payment, asking the court for a reduction. The father cited his inability to pay child support while he was incarcerated. The father’s conviction resulted from his indecent assault and battery on his daughter, for whom he was paying child support. At the time of the appellate arguments, the father was undergoing evaluation for commitment as a sexually dangerous person.
The Probate and Family Court denied the modification request, holding that father’s loss of employment and loss of income were foreseeable consequences of his conviction. The judge specifically considered the father’s crime in that decision, essentially reasoning that the father acted voluntarily when he abused his daughter, and that he should have foreseen the consequences, including his loss of income. The trial judge chose to attribute income to the father, even though no such income existed.
The Appeals Court disagreed and held that the trial judge abused his discretion. In order for a deviation from the amount of support dictated by the guidelines, the Court explained, there must be a clear finding that the guidelines amount is unjust or inappropriate; the facts of the case must justify departure from the guidelines; and the departure must be consistent with the “best interests of the child” standard. In regards to attribution of income, the Court noted that such attribution is appropriate where the payor either has substantial assets or where the payor is capable of working yet is unemployed or underemployed. Those situations did not occur here, the Appeals Court said: “a payor serving a criminal sentence cannot obtain gainful employment through ‘reasonable efforts’ while he is incarcerated. Accordingly, it was not a proper exercise of the judge’s discretion to attribute income to the incarcerated father based on his prior earning capacity.”[2]
The Appeals Court then discussed the trial judge’s consideration of the crime committed by the father as another reason not to modify child support payments. “The guidelines identify thirteen specific circumstances that a judge may consider when determining whether deviation is appropriate,” the Court noted. “Although the list is not exhaustive, there is nothing in the guidelines to suggest that the judge may consider the nature of an incarcerated payor’s crime as a factor warranting upward deviation.” [3] In fact, the Court pointed out, the guidelines specifically provide that a downward deviation may be made in the case of an incarcerated payor. The Court vacated the order and remanded it to the trial court for further proceedings.
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[1] P.F. v. Department of Revenue, No. 15-P-771 (May 12, 2016-December 6, 2016).
[2] Id., at 8.
[3] Id., at 9-10.