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A teenager’s funeral expenses could not be credited toward a father’s overdue support payments because the son was 19 at the time of death, a Massachusetts appeals court ruled this week. In overturning a ruling by Hampden County Probate and Family Court Judge Marie E. Lyons, the appeals court held that crediting more than $6,000 in funeral expenses to the father’s $10,000-plus arrearages was “akin to payments for the benefits of an adult [or emancipated child] — one whom the father no longer had a legal obligation to support.” The Feb. 12 decision, written by Appeals Court Judge Barbara Lenk, is T.M. vs. L.H., No. 99-P-376. Lenk further noted that by granting the credit, the Probate and Family Court had “effectively required the mother, through support, to underwrite entirely [the son's] funeral and burial.” COMPLAINTS OF CONTEMPT In August 1991, the defendant father of two was ordered to pay $35 per week ($17.50 per child) for the support of the children, a son, age 13, and a daughter, age 10. On Jan. 29, 1998, the son, who was 19 at the time, committed suicide. On March 10, 1998, the mother filed two complaints of contempt alleging that that the father had failed to comply with the support order and was behind $10,459.75 in support payments for both children. Under G.L.C. 209C, Sections 1 & 9(a), “every person is responsible for the support of his child born out of wedlock from its birth up to the age of eighteen, or, where such child is domiciled in the home of a parent and principally dependent upon said parent for maintenance, to age twenty-one,” Lenk noted. “There is no indication in the record before us that [the son], upon attaining the age of 18 and relocating to Massachusetts, was domiciled with and principally dependent upon the father for maintenance, or that the father was under court order to pay support for [the son].” After a hearing on the contempt complaints, Probate and Family Court Judge Lyons entered a “temporary order” on the mother’s complaint as to the son, directing the father to provide a headstone for the son’s grave. The judge’s order stated that if the father complied with the court’s directive by a specified date, the mother’s complaint for contempt would be dismissed. The Probate and Family Court ruling noted that the father had paid all of the son’s funeral and burial expenses of $6,000 and was responsible for the purchase of the headstone for the son’s grave, which cost $380. Lyons treated the funeral costs as payments toward the father’s “overdue child support obligation” and credited that amount against the total support. The mother argued in her appeal that the Probate Court judge erred by allowing the father a credit (or offset) for his payment of the son’s funeral and burial expenses. NO SPECIAL CIRCUMSTANCE The appeals court noted that certain jurisdictions have recognized that special circumstances of an equitable nature may arise that justify the grant of a credit to a support obligor for payments or expenditures made that were not in strict compliance with the support order or judgment. “Whether a credit is to be given necessarily depends upon the facts and circumstances of each case,” wrote Appeals Court Judge Barbara Lenk, who noted that “there is no basis for the grant of a credit in this case.” Lenk also found it “difficult to perceive” how the father’s payment of funeral expenses constitutes “substantial compliance” with the child support order. “Indeed, it is then to be presumed that the purpose of the order was to provide for the support of the children during their dependency, a duty that the father failed absolutely to fulfill,” said Lenk. The appellate judge also noted that there is no record of the mother’s consent in accepting the father’s payment of funeral expenses as an alternative method of payment of child support.

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