Fazio v. Fazio
AC 16-P-106
| Mass. App. Ct. | Feb 24, 2017Background
- Husband (Army National Guard major) and wife separated in 2006; three children lived with wife; divorce trial held in 2013 after multiple deployments delayed proceedings.
- Husband was repeatedly on active duty; wife was primary caretaker and managed household finances post-separation.
- Amended judgment granted wife sole legal and physical custody, ordered husband to pay $397/week child support (final), awarded wife the marital home and required transfers of retirement/pension interests (wife received ~two-thirds of marital assets).
- Earlier temporary orders: (1) March 21, 2007 — child support raised from $450 to $1,000/week while husband on active duty; (2) October 7, 2010 — entire Basic Allowance for Housing (BAH) garnished from husband’s military pay to wife.
- Husband sought an SCRA stay for the October 7, 2010 hearing via a last‑minute facsimile from his commanding officer; judge denied the stay, conducted the hearing in his absence, and entered the BAH order.
Issues
| Issue | Fazio (Husband) Argument | Fazio (Wife) Argument | Held |
|---|---|---|---|
| Whether denial of an SCRA stay for the Oct. 7, 2010 hearing violated servicemember protections | Commanding officer’s letter showed predeployment training and inability to appear; SCRA required a continuance | Court could deny because request was last-minute and lacked required details | Denial affirmed: request did not meet SCRA §522(b)(2) requirements (no factual detail re: inability to attend or date of next availability) |
| Validity of March 21, 2007 temporary child support increase to $1,000/week | Order was warranted by increased salary and reduced expenses during active duty | Wife argued facts made guidelines inapplicable; needed higher support | Vacated as an abuse of discretion: judge failed to make written findings required to deviate from child support guidelines |
| Legality of garnishing husband’s entire BAH to wife (Oct. 7, 2010 order) | Garnishment improper; no findings justifying deviating from guidelines; BAH characterization disputed | Wife sought BAH to secure husband’s appearance and satisfy support | Vacated: whole-BAH garnishment was unsupported by findings; judge must apply guidelines or make written findings on remand |
| Valuation date for wife’s 401(k) (whether to value at separation or trial) and overall property division | Husband challenged amendment valuing 401(k) as of separation (depriving him ≈$51,000) | Wife argued she was sole contributor post-separation and delay was due to husband’s unavailability; judge adopted separation date | Affirmed: judge acted within discretion to value that account as of separation given findings about contributions and preservation of estate; overall property division not an abuse of discretion |
Key Cases Cited
- Morales v. Morales, 464 Mass. 507 (Mass. 2013) (child support calculation and need to follow guidelines)
- Zaleski v. Zaleski, 469 Mass. 230 (Mass. 2014) (broad definition of income under child support guidelines)
- Fleming v. Fleming, 62 Mass. App. Ct. 103 (Mass. App. Ct. 2004) (requirement of written findings when deviating from guidelines)
- Savides v. Savides, 400 Mass. 250 (Mass. 1987) (trial court discretion to choose valuation date for marital estate)
- Baccanti v. Morton, 434 Mass. 787 (Mass. 2001) (review of property division: findings must address §34 factors)