MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After trial, a judge of the Probate and Family Court modified a custody agreement (agreement) and child support order that were incorporated in the parties’ judgment of divorce. The modification judgment awarded the father joint physical custody of the parties’ two minor children and increased his child support obligation. On appeal, the mother claims that (1) the judge erred in failing to explicitly find a material change in circumstances, (2) the evidence did not support the judges conclusion that modification of custody was in the childrens best interests, (3) the child support calculations were incorrect, (4) the modification of child support should have been made retroactive to the date the mother served her complaint for modification, (5) the father should have been ordered to provide health insurance for the children, and (6) the mothers motion for a stay of the modification judgment should have been allowed. We remand for further proceedings regarding retroactive application of the order modifying the fathers child support payments. Otherwise, we affirm.
Background. The parties were divorced in 2016, when their children were four and five years old.
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Pursuant to the agreement, the parents shared legal custody of the children, who resided primarily with the mother. The father had parenting time overnight on Wednesdays and alternating weekends, after school on Mondays following a weekend with the mother, and during specified holidays. The agreement required the mother to provide health insurance for the children. The father paid biweekly child support in the amount of $357.
The father filed a complaint for modification in March of 2019, seeking an increase in his parenting time and an adjustment in child support based on that modification. The complaint alleged that (1) “[t]he children are older and desirous of spending additional time with the [father],” and (2) the parties’ financial circumstances have changed since 2016. In April, the mother filed her own complaint for modification, seeking an increase in the fathers child support obligation based on commissions he had earned since the judgment of divorce. Prior to trial, the parties stipulated that the father would provide health insurance for the children.
The judge found that the father had a new job as a loan officer and that his income had increased since 2016. The new job had a flexible schedule and the father often worked from home. At trial, the father volunteered to add the children to his employer-sponsored health care plan, but did not know how much such a change would cost.
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On November 20, 2019, the judge allowed the fathers request for a modification of custody and increased his child support obligation to $233 per week, effective December 2, 2019. The judge declined to modify the health care provision of the agreement.
Discussion. 1. Parenting time. A judgment providing for the care, custody, and support of minor children may be modified where the judge “finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.” G. L. c. 208, § 28. “[T]he change in circumstances must be ‘of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the [modification] will be conducive to the welfare of the [children].’ ” R.S. v. M.P., 72 Mass. App. Ct. 798, 803 n.9 (2008), quoting Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262 (2001). “Whether ․ a change shall be ordered is a matter ‘peculiarly within the province of the judge, who observed the witnesses.’ ” Palmer v. Palmer, 357 Mass. 764, 764 (1970), quoting Grandell v. Short, 317 Mass. 605, 608 (1945). We review a modification judgment only to determine “whether the factual and legal bases for the decision are in error, or whether the judge otherwise abused [her] discretion.” Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017).
First, we see no merit in the mothers argument that the judge failed to find a material change in circumstances justifying a modification in the fathers parenting time. The judges findings that the children were older and wished to spend more time with their father, and that the father had a more flexible work schedule, were changed circumstances. While the judge did not use the words “material change in circumstances,” such a finding was implicit in her conclusion that increased parenting time for the father was in the childrens best interests. See Rosenthal, 51 Mass. App. Ct. at 262.
Second, we are not persuaded by the mothers argument that the evidence did not support the judges conclusion that the modification of parenting time was in the childrens best interests. The judge found that the fathers new work schedule allowed him to spend more time at home and more time parenting the children. Although the mother testified that the modification would be disruptive to the childrens routine, the judge found that the new schedule actually provided for fewer transitions between the mother and father. It was the judges province to assess the parties’ credibility, weigh the evidence, and determine what was best for the children. See E.K. v. S.C., 97 Mass. App. Ct. 403, 408-409 (2020); Rosen v. Rosen, 90 Mass. App. Ct. 677, 689 (2016). Her findings were “grounded in the evidence,” Rosenthal, 51 Mass. App. Ct. at 262, and supported her conclusion that modification of custody was in the childrens best interests. Accordingly, we discern no abuse of discretion in the modification of the fathers parenting time. See Pierce v. Pierce, 455 Mass. 286, 293 (2009).
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2. Child support. The mother claims that the judge erred when she modified the child support order based on the revised parenting schedule. Because we conclude that the judge did not abuse her discretion in modifying the parenting schedule, there was no error in using that schedule to calculate child support.
Next, the mother claims that the modified child support order should have been made retroactive to the date that her complaint for modification was served on the father. “With respect to any period during which a complaint for modification is pending, a party is entitled to a retroactive modification of a child support order where a judge finds that the parties’ circumstances have materially changed and that such modification is in the best interests of the children.” Whelan v. Whelan, 74 Mass. App. Ct. 616, 627 (2009), citing G. L. c. § 119A, § 13 (a). “A judge is not required to make an order for modification retroactive, but ‘absent a specific finding that retroactivity would be contrary to the childs best interests, unjust, or inappropriate,’ these factors should be considered.” Whelan, supra, quoting Boulter-Hedley v. Boulter, 429 Mass. 808, 812 (1999).
Here, the judge found that the fathers income had increased beginning in October 2017, resulting in the calculation of a higher obligation under the Child Support Guidelines. “If the father [had] been paying less than would otherwise have been required under the Guidelines, this ‘necessarily implies that the [children had] been receiving insufficient support during the pendency of the complaint.” Whelan, 74 Mass. App. Ct. at 627, quoting Boulter-Hedley, 429 Mass. at 812. Where the judge did not make the modified child support order retroactive, and made no findings from which we can conclude that she considered whether the children received sufficient support during the pendency of the mothers complaint for modification, additional consideration of this issue is required. On remand, the judge should consider whether the modified order of child support should be retroactive to the date the complaint for modification was served on the father. If the judge concludes that it should not be retroactive, she should make the findings required by Whelan.
3. Health insurance. The mother claims that the judge abused her discretion when she declined to adopt the parties’ stipulation that the father pay for the childrens health insurance. We address this argument only briefly as it is cursory and unsupported by legal authority. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 86 (1995). Whether a change in health insurance coverage was in the childrens best interests was a question of law for the judge to decide notwithstanding the parties’ stipulation. See Goddard v. Goucher, 89 Mass. App. Ct. 41, 45 (2016).
The judge forewarned the parties at the close of trial on November 6, 2019, that they should provide any additional information to her quickly because she would be working on her decision. Nevertheless, the health insurance stipulation was not included with the proposed findings submitted by the parties on November 18 and 19, 2019. Even after the session clerk advised the parties on November 20, 2019, that the judge had requested that they file the health insurance stipulation “by 5:00 P.M. today,” the stipulation was not forthcoming. Ultimately, the stipulation was filed on November 22, 2019, two days after judgment entered. In these circumstances, where the health insurance stipulation was not timely filed, and the issue was not raised in the mothers motion to stay the judgment, the judge was not required to consider the stipulation.
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Conclusion. The case is remanded to the Probate and Family Court for further proceedings on the issue of retroactive application of the modified child support order. Otherwise, the modification judgment is affirmed. The orders denying the mothers motion for a stay pending appeal, and for a short order of notice of hearing, are also affirmed.
So ordered.
Remanded and affirmed
FOOTNOTES
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. The parties were divorced in New Hampshire. The decree was registered in Massachusetts in 2017.
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. After the judgment entered, the parties submitted a supplemental stipulation which stated, “[t]he [father] shall forthwith provide health insurance coverage, Anthem Platinum PPO 15/250/10% family plan, through his current employer, for the benefit of the minor children, so long as coverage is available at a reasonable cost. The current cost to the [father] is $200 per month.”
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. Deciding the case as we do, we need not separately address the mothers argument that her motion for a stay of the custody modification pending appeal should have been allowed. The mother did not establish the reasonable likelihood of success on appeal required for a stay. See Commonwealth v. Nash, 486 Mass. 394, 404 (2020) (defining reasonable likelihood of success on appeal).
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. The parties are free to renew on remand, and the judge is free to consider, a request to incorporate the health insurance stipulation as part of the final modification judgment.