The Massachusetts Uniform Child Support Guidelines determine the amount of child support in most cases. Massachusetts has well-established guidelines. They do not tolerate deviation from these guidelines, and the payor must justify any change. How much deviation occurs if the child support payor 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 stated that his incarceration prevented him from paying child support. 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. It found the father’s job loss foreseeable after his conviction. The judge considered the father’s crime, reasoning that he voluntarily abused his daughter and should have foreseen the consequences, including income loss. 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. The Court explained that to deviate from the guideline amount, there must be a clear finding that it is unjust or inappropriate. Additionally, the case facts must justify the departure, and the departure must align with the “child’s best interests”.
The Court stated that income attribution is appropriate if the payor has substantial assets. The rule also applies if the payor can work but chooses to remain 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 that the guidelines allow a downward deviation for 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.