Massachusetts Legal Blog

An Adventure into the Pitfalls of Child Support Modification

Lupoli v. Zografos

Authored by: Anthony J. Low, Esq.

Nicholas Lupoli was so convinced that his change in income, new paternal duties, and financial submissions, that he vigorously argued to the Massachusetts Court of Appeals that he deserved of a reduction in his child support obligation.

The Massachusetts Court of Appeals did not agree.

Mr. Lupoli (hereafter “the Father”) filed a complaint for modification in the trial court, seeking a reduction of his child support obligation. To be successful in an action to modify a judgment for child support, a petitioner must demonstrate a material and substantial change of circumstances since the entry of the earlier judgment. Whelan v. Whelan, 74 Mass.App.Ct. 616, 620 (2009).

During the trial, the Father’s income received blistering scrutiny from both the Opponent and the Court. It also was examined by a court-appointed Guardian ad Litem. The Father’s argument was straightforward; he modified his hours of employment to have more time with the children of his former marriage. It thusly followed, that fewer hours meant less income. Therefore, (argued the father) there existed a material change in circumstances.

Regrettably, the father’s trial strategy was not water-tight. The father’s brother and business partner – Salvatore – reported to the court appointed Guardian ad Litem, that he “never hesitated to give [the father] money.” Salvatore also confided that he didn’t approve of the Father having another child with a 19-year old woman. Ultimately, after learning of Salvatore’s GAL confession, the trial judge surmised that the Father was concealing other income. The trial judge’s suspicions were confirmed later in the trial.

The trial court judge also learned that the Father had received so-called “kick-backs” from his employer (also a family business). The benefits included paid health insurance, a vehicle, and fuel for the vehicle. Taken collectively, the father’s income was markedly more than what he represented to the Court.

The Father was found to further misrepresent his assets. It was determined that he had an interest in a property which was purchased for $600,000.00. When assessed in 2009, it assessed at $1.04m. Despite this, the Father represented the property to be worth $600,000.00 on his 2012 financial statement.

On appeal, the Court of Appeals was asked to determine whether the trial judge had committed an abuse of discretion, in not reducing the Father’s child support obligation. See Chin v. Merriot, 470 Mass. 527, 538 (2015).

On appeal, the Father argued, inter alia, that the trial judge had orally accepted most of the Father’s proposed findings of fact at trial. Despite this, the Father claimed the trial judge abused his discretion in denying Father’s prayer for relief.

The Appeals Court concluded that while the trial judge did accept some of the Father’s proposed findings, it did not abuse its discretion, as the judgment was the product of independent judgment, and contained the “badge of personal analysis.” Cormier v. Carty, 381 Mass. 234, 237 (1980) (citation omitted).

The Appeals Court also rejected the Father’s argument, that raising a subsequent child should permit a reduction in his child support obligation. By way of stare decisis, the Court applied the rule of Mandel, which holds “Obligations to a subsequent family . . . should not be considered a reason to decrease existing orders.” Massachusetts Child Support Guidelines II-H (2013). See also Mandel v. Mandel, 74 Mass.App.Ct. 348, 357 n.11 (2009) (husband’s self-imposed, voluntary assumption of his stepson’s expenses should not be a factor in determining his ability to support previous family). See generally Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 13-16 (1980).

Lupoli sends a chilling message to those whom have a purported “iron memory”; those who claim to remember an event often should re-explore the event vigorously before standing on it. The Court of Appeals in Lupoli made it palpably clear that the judiciary has a low tolerance for litigants who are not forthcoming and truthful in their financial disclosures to the Court.

Source: Lupoli v. Zografos 14-P-1450 (November 3, 2015)

Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at alow@