Can Child Support Modifications be Retroactive by Agreement? Calabria v. Calabria

With the release of the updated 2017 Child Support Guidelines, everyone is talking about how the new guidelines will change current child support orders. Right at the cusp of the child support alteration was a case in the middle of the child support debate around court v. self-modification of child support orders: Calabria v. Calabria, 91 Mass. App. Ct. 763 - Mass: Appeals Court 2017. 

In Calabria, the stipulations in the initial separation agreement of the couple in question were as follows:

“The parties agree that upon any change in his or her employment of income he or she shall immediately notify mother/father of the change, the child support will be reviewed.

This Wife is currently unemployed. The Husband’s income has been cut in half. Both parties are obligated to notify the other upon any change of employment or salary status. Parties agree to immediately seek to modify the child support obligation and said modification to be retroactive to the change of employment or salary date. Parties shall also exchange by March 15th of each year, any and all W-2's; 1099's or other documents evidencing income earned or received." 

The wife filed a complaint for modification upon learning of a past increase in the father’s income. The judge ordered, in accordance with the Child Support Guidelines from 2013, that the father pay a deficit of $9,924 for the period he did not pay fully based on this increased income. 

Upon receipt of this judgement for modification, the father refuted that the judge did not have the ability to increase his child support payments for time before the file for modification. He reasoned that as G. L. c. 119A, § 13(a) states:

"Any payment or installment of support under any child support order issued by any court of this commonwealth. . . shall be on or after the date it is due, a judgment by operation of law,  provided that said judgment shall not be subject to retroactive modification except with respect to any period during which there is pending a complaint for modification.” 

However, the Appeals court decided that the divorce agreement language for self-modification took precedence over the statutory limitation.  This should be read as a companion case for Rosen v. Rosen, which highlighted the importance of entering agreements for changes to be enforceable retroactively.  

This is another example a situation in which parties can add clarity to their Agreements which can better define their rights, and in some cases expand on the rights provided by statute.  For more examples of agreements that parties can make that a Judge couldn't do, read our prior posts:

Things a Judge Can't Do, but You Can! - Part 1: Dispute Resolution Provisions

Things a Judge Can't Do, but You Can! - Part 2: Self-Executing Adjustments

Things a Judge Can't Do, but You Can! - Part 3: Survived Agreements

Things a Judge Can't Do, but You Can! - Part 4: Parent Coordinators

 Written by Justin Kelsey & Patricia Cordischi