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March 27, 2026 Get Citation Alerts Download PDF Add Note

Regina L. Fallace v. David R. Fallace.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0436

• Precedential Status: Non-Precedential

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (38.9K)

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Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-436

REGINA L. FALLACE

vs.

DAVID R. FALLACE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David R. Fallace (husband), the former spouse of Regina L.

Fallace1 (wife), appeals from a judgment of the Probate and

Family Court which, among other things, effectively dismissed

his complaint for modification in which he sought a reduction in

his child support obligations. The judge made detailed and

substantial findings of fact, all of which support her award of

current and retroactive child support for the parties' two

children, who were fourteen and sixteen years old at the time of

the modification trial. As we discuss in more detail below, we

1As is our practice, we use the names of the parties as
they appear in the initial complaint. We recognize that the
wife's name is now Regina L. Altreuter.
discern no basis to disturb the judgment, which we affirm in its

entirety.

Background. We summarize the relevant facts as found by

the judge, supplemented where necessary by the undisputed

evidence in the record. See Pierce v. Pierce, 455 Mass. 286,

288 (2009). The parties had been married for almost twenty

years when they were divorced by a judgment of divorce nisi

(divorce judgment) in January 2018. As part of their separation

agreement (agreement), which was merged in part with the divorce

judgment, the husband was required to pay weekly child support

to the wife in the amount of $1,384 based on an imputed income

of $400,000. In addition, the husband was required to pay

(1) fifteen percent of his "gross employment-related income"

over $400,000 and up to $600,000 to the wife, and (2) twenty

percent of his "gross employment-related income" over $600,000

and up to $800,000 into existing § 529 college savings accounts

for the parties' children (529 accounts). "Gross employment-

related income" was defined in the agreement to exclude passive

investment income.

In August 2019, the husband had been working for Polaris

Partners as an advisor for about two years when his position was

eliminated and he became unemployed. Due to his loss of income,

he filed a complaint for modification, seeking a recalculation

of his child support obligation "in accordance with the amount

2
that would result from application of the Child Support

Guidelines" then in effect. See Child Support Guidelines (July

2023) (guidelines or child support guidelines). Prior to trial

on the modification complaint and on a separate modification

complaint filed by the wife, the husband sought and obtained a

temporary order in January 2020, which reduced his child support

obligation to $335 per week and required him to seek employment.

About one year later, in January 2021, the husband amended his

complaint for modification and requested sole legal and primary

physical custody of the parties' children, the termination of

his child support obligation, and that the wife pay him child

support.

The trial began in October 2021 before a different judge

and had proceeded for three nonconsecutive days when, in

December 2021, the judge suspended it so that the parties could

resolve discovery issues with a discovery master, whom the judge

appointed. During the suspension, the wife filed a motion

seeking to increase the husband's temporary child support

obligation, which the judge allowed. The new temporary order,

dated September 21, 2022, reversed the January 2020 temporary

order by reinstating the husband's $1,384 weekly child support

obligation retroactive to January 15, 2020, and requiring the

husband to make a retroactive child support payment of $163,796.

The husband filed a motion seeking relief from this temporary

3
order, which was denied. In denying the motion for relief, the

judge explained that the husband "filed a financial statement,

and the parties filed a Stipulation of Uncontested Facts,

showing income for 2019 through the present from all sources

equivalent to or in excess of that earned by [the Husband] at

the time of . . . the original support order." She also noted

that the September 2022 temporary order "puts the parties back

to the same position as at the time of divorce . . . without

prejudice to the arguments and evidence advanced at trial."

The trial then resumed in September 2023 and concluded,

after five more nonconsecutive days, in January 2024. In a

comprehensive judgment of modification and separate findings of

fact, the judge first found that at the time of the divorce, the

husband's annual salary was $300,000. By 2019, that salary had

increased to $600,000. The judge credited the husband's

testimony that he then lost his job in 2019. However, the judge

did not credit the husband's testimony that he declined to

accept a severance agreement, which would have provided him with

total severance of $200,000, because doing so "would make him

unmarketable for his job search." The judge also found that the

"vast majority of [the husband's] employment search efforts were

focused on establishing his own" venture capital fund (fund).

While unemployed, the husband's annual gross income was

temporarily reduced to approximately $370,000 in 2020 and about

4
$230,000 in 2021. However, once the fund was established and

generating income, the husband earned over $1.2 million in 2022

and "[a]t least $1,559,000" in 2023. As of the last day of

trial, the husband was owed an additional $900,000 for work that

he performed in 2023. The judge did not credit the husband's

testimony that he anticipated earning less income in 2024. The

judge found that the wife's income had also increased, from

approximately $80,000 per year at the time of the divorce, to

$150,000 per year at the conclusion of the trial.

The judge concluded that the parties' increased incomes was

a material and substantial change in circumstances justifying a

modification of the husband's child support obligation. The

judge then modified the percentage-based child support

obligation, relating to the husband's annual income in excess of

$400,000, in two ways. First, the judge removed any reference

to "gross employment-related income," as defined in the

agreement. Second, the judge ordered the husband to pay ten

percent of "all gross income over $800,000" per year to the

wife. These modifications were retroactive through 2022 and

2023, and the husband was ordered to pay $45,839.10 for 2022 and

$133,400 for 2023, "representing 10% of [the husband's] . . .

income over $800,000" in those years. As to the husband's

weekly child support obligation, however, the judge made no

changes.

5
Discussion. The husband argues that (1) the judgment's

provision for weekly child support is inconsistent with the

child support guidelines presumptive amount and unsupported by

required findings; (2) the judge abused her discretion by

failing to retroactively reduce his weekly child support

obligation; (3) the judge abused her discretion by modifying his

percentage-based child support payments; and (4) the judge

miscalculated his 2023 income in establishing his retroactive

payment for that year. He also argues that several of the

judge's factual findings are clearly erroneous.

We begin our discussion of the issues with a summary of the

pertinent legal framework. Pursuant to the child support

guidelines, "[a] child support order may be modified if . . .

[t]here is an inconsistency between the amount of the existing

order and the amount that would result from the application of

the guidelines" or if "[a]ny other material and substantial

change in circumstances has occurred." Guidelines, § III(A).

When determining the appropriate amount of child support, there

is "a rebuttable presumption that the amount of the order which

would result from the application of the guidelines is the

appropriate amount of child support to be ordered." G. L.

c. 119A, § 13. This presumption may be overcome, however, in

certain circumstances, including by an agreement of the parties

or where the presumptive order would be unjust, inappropriate,

6
or not in the best interests of the parties' children. See

Guidelines, § IV(B). When deviating from the guidelines, a

judge must enter "specific written findings" to support the

deviation. Guidelines, § IV(A). Alternatively, a judge may

"apply [an] existing deviation" from the guidelines when

modifying a child support obligation, if the obligation already

diverged from the guidelines presumptive order. Guidelines,

§ III(B).

We review a modification of child support for an abuse of

discretion, see Smith v. Smith, 105 Mass. App. Ct. 505, 508

(2025), and "accept the judge's findings of fact as true unless

they are clearly erroneous" (citation omitted), Whelan v.

Whelan, 74 Mass. App. Ct. 616, 619 (2009).

1. The weekly child support obligation. The husband first

argues that his current weekly child support obligation should

have been reduced to $1,079 per week on the grounds that the

amount awarded ($1,384) was (1) inconsistent with the guidelines

presumptive amount and (2) unjust in light of the wife's

increased income at the time of trial. He further contends that

the judge erred by not making the written findings required by

section IV of the guidelines to support a deviation from the

presumptive amount. See Wasson v. Wasson, 81 Mass. App. Ct.

574, 579 (2012) ("while it is in the sound discretion of the

judge to modify an existing child support order, when the

7
modification involves a deviation from the guidelines, both

[G. L. c. 208, § 28,] and the guidelines require that the judge

explain the deviation in specific written findings").2

We discern no abuse of discretion. First, we note that the

husband's total child support obligation was inconsistent with

the presumptive guidelines figure at the time he filed his

complaint for modification and at the time that the modification

judgment entered, because it required the husband to pay more

than ten percent of his annual income over $400,000.

Guidelines, § II(C) ("In cases where combined available income

is over $400,000 . . . the Court should consider the award of

support at the $400,000 level as the minimum presumptive order

. . . [and] any percentage applied to the payor's income above

the maximum level . . . should be below" ten percent). In

addition, although section IV of the guidelines requires a judge

to make specific findings when deviating from the presumptive

guidelines amount, section III of the guidelines separately

2 We are not persuaded by the wife's claim that the husband
"waived or abandoned" this issue because the husband's amended
complaint for modification does not allege an inconsistency
between the divorce judgement's child support order and the
guidelines presumptive order or a change in circumstances as to
the wife's income. In his amended complaint, the husband
requested that he pay "child support payments to the [wife] in
accordance with the amount that would result from application of
the Child Support Guidelines." This request sufficiently
preserved the issue.

8
allows for the continued application of preexisting deviations.

See Guidelines, § III(B). In this case, the judge specifically

found that "[t]he parties agreed to . . . a deviation" at the

time of the divorce.3 Section III states that "the Court shall

apply the existing deviation to the modification action if"

three conditions are met: (1) the facts giving rise to the

deviation still exist; (2) the deviation continues to be in the

children's best interests; and (3) the guidelines amount would

be unjust or inappropriate under the circumstances. Id.

These conditions were met in this case. First, as to the

facts giving rise to the deviation, the judge found that the

parties agreed that the husband would pay a weekly amount and

that, "as [the husband's] income increased, . . . he would pay

child support of a specific percentage . . . given that [the

husband's] variable income exceeded the maximum amount"

considered by the guidelines.4 After trial, the husband's income

3 We assume arguendo that this was a deviation. But see
Smith, 105 Mass. App. Ct. at 516.

4 At oral argument, the husband challenged this finding,
arguing that the fact giving rise to the deviation was the
"attribution" of $400,000 of annual income to the husband in the
agreement, when he actually earned $300,000 per year. Where the
husband earned more than $400,000 per year by the conclusion of
trial, he contends that the fact giving rise to the original
deviation no longer existed. However, the agreement imputed,
rather than attributed, the income to the husband, and he
stipulated for the modification trial that he earned over
$400,000 at the time of the divorce.

9
continued to be variable and to exceed the amount considered by

the guidelines. As to the other criteria, the judge found that

a reduction in the husband's weekly support obligation,

including during the period when the husband was unemployed and

building his fund, "would be contrary to the children's best

interests and inappropriate in this case." In so finding, the

judge "considered [the husband's] lack of forthrightness

relative to his job search, his income, his assets, . . . and

the totality of the circumstances, most importantly the needs of

the children." Accordingly, the judge did not abuse her

discretion in declining to modify the husband's weekly child

support obligation. Nor has the husband provided any authority

for the proposition that the judge was required to make

deviation findings pursuant to section IV(A) of the guidelines

when she applied the existing deviation under section III(B).

Although "§ IV of the guidelines requires that the judge make

specific written findings when deviating from the guidelines,"

Wasson, 81 Mass. App. Ct. at 577, no such requirement appears in

section III. We will not read a requirement into the guidelines

which is not there. Cf. City Elec. Supply Co. v. Arch Ins. Co.,

481 Mass. 784, 789 (2019) ("Where language in certain provisions

is noticeably absent from other provisions of the same statute,

such as here, we have consistently held that the language should

not be implied where it is not present" [citation omitted]).

10
At the same time, the increase in the wife's income, which

was modest relative to the husband's, would not necessarily

constitute a change in circumstances requiring a reduction of

the weekly award, where the wife's income was but one of

multiple factors the judge could have considered. "Of the

several factors which the judge may consider in modifying a

decree for child support, . . . this court has never required

that they be accorded equal weight or conjunctive application"

(citation omitted). Brooks v. Piela, 61 Mass. App. Ct. 731, 734

(2004). "In any given case the judge as fact finder may thus

attribute greater significance to a change in the husband's net

worth than to changes in the needs or life style of the wife or

children" (citation omitted). Id. at 734-735. It was not an

abuse of discretion for the judge to give more weight to the

parties' agreement, the children's needs, and the husband's

income and assets, than to the wife's increase in income.

1. Retroactive weekly child support payments. The husband

argues that the judge abused her discretion when she declined to

grant him a retroactive reduction of his weekly child support

obligation due to his reduced income from January 2020 through

September 2022. Again, we disagree.

The husband first argues that a retroactive reduction was

required because the wife testified that she was able to pay for

the children's expenses during the time his weekly child support

11
payments were reduced by the temporary order entered in January

1. In effect, he argues, without citation to any authority,

that child support payments can be reduced so long as the

recipient parent is able to cover all child related expenses.

This argument is flawed for a number of reasons, not the least

of which is that it is not supported by the record. While the

wife covered the children's expenses, she did so by withdrawing

funds from her retirement accounts, thereby reducing the amount

of her assets.

Next, the husband challenges certain findings relating to

his efforts to find employment, the severance offered by his

former employer, and whether he was "forthcoming with his income

and assets" as clearly erroneous. However, he does not dispute

that while he was unemployed, he declined a severance agreement,

made successful efforts to establish a fund, and maintained his

lifestyle. Nor does he dispute that his assets had increased in

value by the conclusion of trial, or that his reduction in

income was temporary. See Schuler v. Schuler, 382 Mass. 366,

373 (1981) (where payor's "reduced income is temporary, a

modification is not necessarily mandated"); P.F. v. Department

of Revenue, 90 Mass. App. Ct. 707, 710 (2016) (ownership of

valuable assets may be considered when determining payor's

ability to pay child support). Instead, he focuses on

subsidiary findings about the sincerity of his efforts to obtain

12
traditional employment, his reasons for not accepting severance

from his former employer, and his disclosure or nondisclosure of

certain assets. Those findings did not contribute materially to

the judge's ultimate analysis as to this issue, and thus, even

if they were erroneous, there was no abuse of discretion.

Furthermore, at least some of these findings were based on the

judge's credibility determinations, which we accord "the utmost

deference" (citation omitted). Yahna Y. v. Sylvester S., 97

Mass. App. Ct. 184, 185 (2020).

1. Percentage-based child support. The husband also

argues that the judge abused her discretion by modifying his

percentage-based child support obligation to remove the

limitations imposed by the agreement as to the form and amount

of his income considered in determining the obligation. He

contends that the change was contrary to the desires of the

parties as expressed by the agreement and excessive in light of

the needs of the parties' children, where the judge found that

the husband's lifestyle did not materially change "after the

parties' divorce."

The husband is correct insofar as "[a] judge who modifies a

divorce judgment does not write on a tabula rasa. To the extent

possible, and consistent with common sense and justice, the

modified judgment should take into account the earlier,

expressed desires of the parties" (citation omitted). Katzman

13
v. Healy, 77 Mass. App. Ct. 589, 598 (2010). But agreements are

nonetheless modifiable as to child support, and "[p]arents may

not bargain away the rights of their children to support"

(citation omitted). Cavanagh v. Cavanagh, 490 Mass. 398, 418

(2022). Furthermore, the judge's findings and rationale show

that she did, in fact, take the agreement into account when

modifying the husband's child support obligation. Not only did

the judge specifically refer to the agreement and its terms, she

preserved the general structure of the award, including the

weekly baseline child support order and the unique provision

that the husband pay a portion of his obligation directly into

the 529 accounts that had been established for the parties'

children, rather than to the wife.

Moreover, the changes the judge made were not excessive,

and did not "fall[] outside the range of reasonable

alternatives" (citation omitted). Bobblis v. Costa, 94 Mass.

App. Ct. 264, 266 (2018). Instead, they were grounded in

changes in circumstances material to the issue of child support.

See Brooks, 61 Mass. App. Ct. at 735-737. Where, as here, the

husband's income had increased dramatically, it was not an abuse

of discretion to order child support on income over $800,000 per

year to account for that increase. Furthermore, given that the

husband transitioned from traditional employment to earning

income through a fund he formed and at which he was a partner,

14
it was not an abuse of discretion to expand the definition of

income to account for the husband's level of control over his

future earnings. Cf. Halpern v. Rabb, 75 Mass. App. Ct. 331,

335 (when determining whether corporate earnings should be

included when calculating child support, judge should consider

shareholder's level of control over distributions).

Furthermore, an agreement to exclude certain forms of income

"does not control when determining what income is available for

child support" in subsequent modifications. Jones v. Jones, 101

Mass. App. Ct. 673, 687 (2022). See Guidelines, § I(A) ("income

is defined as gross income from whatever source").

Finally, the husband is also correct that child support is

"rooted in a determination of need, which is defined, at least

in part, by the[] parents' standard of living" (quotation and

citation omitted). Macri v. Macri, 96 Mass. App. Ct. 362, 368

(2019). Nonetheless, we are not persuaded that the judge's

finding that the husband's lifestyle did not materially change

"after the parties' divorce" precluded modification of his

percentage-based child support obligation, as the husband

contends. Even assuming that the finding referred to his

lifestyle at the time of trial, and not only to when he was

unemployed, the husband's lifestyle was not the only relevant

factor. See Brooks, 61 Mass. App. Ct. at 734–35. There was

evidence that the expenses of the children had increased.

15
Likewise, the judge did not find that there was "no material

disparity in the standard of living in the respective parents'

households." Smith v. Edelman, 68 Mass. App. Ct. 549, 554

(2007). As such, the judge did not abuse her discretion by

considering the husband's increased income and assets when

making her determination.

1. The husband's 2023 income. The husband also challenges

the calculation of his retroactive child support obligation for

income over $800,000 for 2023, arguing that the judge's implicit

finding of his earnings in 2023 was clearly erroneous. The

husband was ordered to pay $133,400 for 2023, implying that he

earned $2,134,000 in income in that year. The husband points us

to the judge's finding that he earned "[a]t least $1,559,000" in

2023, and her finding that the chief financial officer of the

fund "credibly testified that [the husband's] total income for

2023 would be approximately $1,700,000" for the year, to support

his argument that the retroactive payment is unsupported by the

record, and therefore clearly erroneous.

The wife agrees that the amount of the husband's 2023

income implicitly found by the judge was erroneous. However,

she argues that the husband's actual income would support a

higher, rather than lower, retroactive payment. Indeed, the

record shows that the judge found, in addition to the findings

discussed above, that the husband earned $1,259,000 in

16
distributions from his fund through June of 2023, received

"guaranteed payments" of $300,000 that year, and was "owed

$900,000" in unpaid distributions for 2023 as of the last day of

trial. As such, we are not persuaded that the judge's implicit

determination of the husband's income was erroneously high.5

Modification judgment
affirmed.

By the Court (Vuono, Sacks &
Ditkoff, JJ.6),

Clerk

Entered: March 27, 2026.

5 The wife's request for appellate attorney's fees and
double costs is denied. The husband's request for attorney's
fees is similarly denied.

6 The panelists are listed in order of seniority.

17