On July 1st the Supreme Judicial Court resolved, at least partly, a question concerning child support for a child born out of wedlock where the father also has an intact family. Department of Revenue v. Mason M., 439 Mass. 665 (2003). Mark Zarrow represented Mason M. (a pseudonym) before the Massachusetts Supreme Judicial Court on the appeal by the Department of Revenue.

The father was a physician earning $104,408.20 per year. He was married and had one child of his marriage, when the non-marital child was born to the unwed mother. At the time of the hearing a second child of the marriage had been born. The mother had no other children and was unemployed.

At the time of the hearing the Massachusetts Child Support Guidelines applied only to a support provider with a maximum income of $75,000 per year. Where income exceeded the maximum the Guidelines formula provided the "minimum presumptive level of support to be awarded" and the trial judge had discretion to award additional support based on income above that level. (The maximum income to which the Child Support Guidelines apply has subsequently been raised to $100,000 for the non-custodial parent and $135,000 as the combined income of the mother and father.)

In Mason M. the trial judge stated that applying the guidelines to the minimum presumptive level of income would result in an order of $389.42 per week. That amount was based on $75,000 per year, or $1,442.31 per week. The judge went on, however, to state that such an order would be unfair to the father's intact family. He chose to first fashion a "hypothetical" order for the father's children. Applying the Guidelines for the two children and taking into account his wife's income resulted in a "hypothetical" award of $432.69. He deducted this "award" from the father's income and based the award for the non-marital child on the father's income minus the deductions. Using the Guidelines formula at the lower income level, $1,009.62 per week, he arrived at a support award of $272.60.

The Supreme Judicial Court held that the judge's application of the Guidelines was erroneous. The Court acknowledged that the father did have a duty to support his marital children. Nevertheless, the Court concluded that the judge should not have deducted the "hypothetical" support of order from his gross income of more than $104,000. It pointed out that the marital children's "hypothetical" support order could have been satisfied from income that was in excess of $75,000. "The father's financial circumstances were such that no downward adjustment to Erin's support order was necessary to ensure his ability adequately and equitably to support all three of his children.... The effect of the child support judgment entered here was to treat Erin in a manner that was grossly inferior to the treatment of the two marital children. Such treatment was contrary to the fundamental social policies set forth in the guidelines."

The ruling helps answer questions concerning the application of the Guidelines in cases with facts similar to the ones in DOR v. Mason M. Thus, when the father in an intact family also has a child out of wedlock and has adequate income over the maximum income covered by the guidelines to cover the "hypothetical support order" (calculated using the "minimum presumptive income" as the basis for the order, the non-marital child support should also be ordered on the basis of the minimum presumptive amount without deduction. The extent to which a judge has discretion to vary the amounts was not discussed. (It has been held in other cases that the trial judge has "considerable discretion" in fashioning a Guidelines order for an out of wedlock child, both when the husband has an intact family to support and when he does not. See e.g. O'Meara v. Doherty, 53 Mass.App.Ct. 599 at 604-605 (2002); Richards v. Mason, 54 Mass.App.Ct. 568, 572 (2002); Department of Revenue v. G.W.A., 412 Mass. 435, 441 (1992)). Furthermore, it will be the rare case indeed that has similar facts to Mason M. There will be far more cases in which the father in an intact family will be less well off. The question remains as to what discretion a judge has in the far more common case where money is tight to fashion an equitable order. Must the non-marital child(ren) be treated identically to the family child(ren)? And what does it mean to treat children identically where the father also has a legal obligation to support his spouse? Such questions must await an answer at another time.