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COMMONWEALTH OF MASSACHUSETTS 1

THE TRIAL COURT

Suffolk, ss. Superior Court Dept.
Suffolk Division

)
FATHERS AND FAMILIES, INC., )
TODD W. SANDAHL, )
MICHAEL T. FOGG )
DAVID SATLOFF )
DAVID LITTLE )
ROBERT THOMPSON )
PAUL DIONNE )
RICHARD DiPALMA )
BOBBIE FEUERSTEIN )
SHAWN GLIKLICH, )
JOHN RICE, )
STEVEN MAYNARD, )
Plaintiffs, )
)
vs. ) CIVIL ACTION No. 09-1069-E
)
Hon. ROBERT A. MULLIGAN, )
In His Official Capacity, and )
THE JUSTICES OF THE TRIAL )
COURT OF MASSACHUSETTS, )
In Their Official Capacity, )
Defendants. )
)

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Introduction

1. This complaint seeks declaratory and injunctive relief against Robert A. Mulligan, in his

official capacity as Chief Justice for Administration and Management of the Massachusetts

Trial Court, and the Justices of The Trial Court of Massachusetts, in their official capacities,

to enjoin the mandatory use of new Child Support Guidelines (“New Guidelines”), which

were effective after January 1, 2009, until the defendants comply with the laws and

Constitution of the United States and Massachusetts.

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Parties

2. Plaintiff Fathers And Families, Inc. (“Fathers and Families”) is a Massachusetts non-profit

corporation, with a principal place of business at 20 Park Plaza, Suite 628, Boston,

Massachusetts. Fathers and Families has thousands of members, many of whom are

divorced, re-married, or never-married fathers who seek reform of child custody and child

support policies. The majority of its members pay child support and are subject to the

Massachusetts child support guidelines. Some members are women who are second wives or

partners, with or without children, whose families and children are negatively impacted by

payment of inequitable and excessive amounts of child support to first families.

3. Plaintiff Todd W. Sandahl, is a natural person residing in Walpole, Massachusetts, and has

one child for whom he pays child support. He will be directly and negatively affected by the

implementation of the New Guidelines. He is not a member of Fathers and Families.

4. Plaintiff Michael T. Fogg, is a natural person residing in Holyoke, Massachusetts, and the

adoptive father of five children for whom he is paying child support. He will be directly and

negatively affected by the implementation of the New Guidelines. He is not a member of

Fathers and Families.

5. Plaintiff David Satloff, is a natural person residing in the state of Rhode Island, and the father

of one son for whom he is paying child support. He will be directly and negatively affected

by the implementation of the New Guidelines. He is not a member of Fathers and Families.

6. Plaintiff David Little, is a natural person residing in New Ashford, Massachusetts, and the

father of four children for whom he is paying child support. He will be directly and

negatively affected by the implementation of the New Guidelines.

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7. Plaintiff Robert Thompson, is a natural person residing in Bradford, Massachusetts, and the

father of two children for whom he is paying child support. He will be directly and

negatively affected by the implementation of the New Guidelines.

8. Plaintiff Paul Dionne, is a natural person residing in Danvers, Massachusetts, and the father

of two children for whom he is paying child support. He will be directly and negatively

affected by the implementation of the New Guidelines.

9. Plaintiff Richard DiPalma, is a natural person residing in Brookline, New Hampshire, and

the father of three children for whom he is paying child support, and one child with plaintiff

Bobbie Feuerstein. He and the new child will be directly and negatively affected by the

implementation of the New Guidelines. He is a member of Fathers and Families.

10. Plaintiff Bobbie Feuerstein, is a natural person residing in Brookline, New Hampshire, and

the fiancé of Plaintiff Richard DiPalma, with whom she has one child. She and her new child

will be directly and negatively affected by the implementation of the New Guidelines.

11. Plaintiff Shawn Gliklich, is a natural person residing in Boxford, Massachusetts, and the

father of two children for whom he is paying child support. He will be directly and

negatively affected by the implementation of the New Guidelines.

12. Plaintiff John Rice, is a natural person residing in Waltham, Massachusetts, and the father of

two children for whom he is paying child support. He will be directly and negatively

affected by the implementation of the New Guidelines.

13. Plaintiff Steven Maynard, is a natural person residing in Washington, D.C., and the father of

one child for whom he is paying child support. He will be directly and negatively affected by

the implementation of the New Guidelines. He is a member of Fathers and Families.

14. Defendant Robert A. Mulligan, is the Chief Justice for Administration and Management

(“CJAM” or “Justice Mulligan”) for the department of the Trial Court of the Commonwealth
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of Massachusetts, with its rincipal place of business at 2 Center Plaza, Suite 540, Boston,

Massachusetts. He is named as a defendant in his official capacity only.

15. Defendant Justices of The Trial Court of Massachusetts are judges within the various

departments of the judicial branch of the Commonwealth of Massachusetts, and are

mandated to apply the New Guidelines to any case involving child support in Massachusetts.

They are named as defendants in their official capacity only.

Standing of Plaintiff Fathers and Families

16. Plaintiff Fathers And Families has standing to bring this complaint on behalf of its individual

members. Its membership consists of, in substantial part, fathers who are obligated to pay

child support in Massachusetts and who are subject to the Massachusetts Child Support

Guidelines, and who will experience increases in the amounts of child support owed under

the New Guidelines. Its membership also consists of women, some in second families, with

or without children, whose families and children are negatively affected by payment of child

support to first families by spouses or partners.

17. Individual members of Fathers And Families also have individual standing to sue.

18. Plaintiff Fathers and Families seeks to protect interests that are fundamental to its purpose,

namely to address issues of the payment of child support by its members.

19. Neither the claims made by Fathers and Families, nor the relief that it requests, absolutely

require the participation of its individual members in the suit.

20. The Executive Director for Massachusetts Fathers And Families, Ned Holstein, M.D., (“Dr.

Holstein”), served on The Child Support Guidelines Task Force which developed the New

Guidelines, and authored a minority report that refuted many of the findings and

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recommendations of the Task Force. He served on the Task Force, as a representative of

Plaintiff Fathers and Families.

21. A significant portion of the budget and time of the paid staff and volunteers of Fathers and

Families is devoted to addressing issues involving the child support obligations of its

members. Fathers and Families personnel have advocated for child support reform for many

years, have sought and obtained public hearings about the issue, have participated in the

public hearings in large numbers, have submitted recommendations for improvements to the

Guidelines on several occasions in past years, and have sponsored speakers and

informational programs and discussions to inform its members about child support law and

issues.

22. Fathers and Families and its members participated in prior public hearings concerning earlier

revisions of the Massachusetts Child Support Guidelines, and submitted recommended

changes at those times.

Facts

Establishment, Duties, and Composition of the Task Force and Duty of Justice Mulligan

23. On October 6, 2006, Defendant Justice Mulligan appointed a Child Support Guidelines Task

Force (“Task Force”) to conduct a comprehensive review of the Massachusetts Child Support

Guidelines, pursuant to the requirements of Federal Statute 42 USC §667, which requires a

review of state child support guidelines at least every four years.

24. Federal Regulation 45 CFR §302.56 requires that each state must consider economic data on

the cost of raising children and analyze case data gathered from sampling or other methods

when it reviews its child support guidelines each four years.

25. The Executive Director of Massachusetts Fathers and Families, Dr. Ned Holstein, M.D., was

appointed by Justice Mulligan as one of eleven members of the Task Force.

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26. The Task Force met a number of times, after which the majority of its members propounded

recommendations for new Child Support Guidelines, and issued a report describing the

process and the rationale by which they were derived, a copy of which report is attached as

Exhibit 1. (“Task Force Report”)

27. Dr. Holstein prepared a Minority Report, in which he argued against many of the

methodologies and conclusions of the majority, and documented many undesirable

consequences of the New Guidelines. Two other members of the Task Force signed on to

important parts of the minority report, where indicated in its text. A copy the Minority

Report is attached as Exhibit 2. (“Minority Report”)

28. Justice Mulligan requested that the Task Force members “commit themselves to an open

process.” However, the Task Force operated in secret and imposed a partial confidentiality

requirement at the outset of the process and a strict, comprehensive confidentiality

requirement one year into the two-year process. While the Task Force heard testimony from

the public in three hearings, its ultimate recommendations ignored or directly contravened

the positions overwhelmingly favored by the public, who had no further role in the process

subsequent to the hearings. The Minority Report only briefly describes the large discrepancy

between the wishes of the public and the recommendations of the Task Force because

Defendant Justice Mulligan arbitrarily limited the length of the minority report to only six

pages. (Task Force Report, Exhibit 1, p. 19; Minority Report, Ex. 2, pp. 5-6)

29. On November 5, 2008, Justice Mulligan, in his official capacity as CJAM, promulgated the

New Guidelines, which must be applied to any cases determining child support in the Probate

and Family Court after January 1, 2009. See Exhibit 3 attached (“New Guidelines” with

worksheet and chart).

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30. Justice Mulligan adopted and promulgated the New Guidelines verbatim as received from

the Task Force, together with its incorporated arithmetic formula, Worksheet and text.

31. In setting forth the duties of the CJAM, the Legislature has never delegated or authorized the

CJAM to formulate new child support guidelines, in lieu of the state legislature. See M.G.L.

c. 211B §§9, 16, 17 & 19. Chapter 208 and 209C contain conclusory references to using the

child support guidelines issued by the CJAM, but do not grant the power to issue them.

32. The Massachusetts Legislature has never considered, debated or voted upon the New

Guidelines, nor sent them to the Governor for signature or veto.

33. At least twenty-five states, including California, Texas, Illinois, New York, New Jersey,

Virginia, Ohio, Wisconsin, Florida, Georgia, Pennsylvania, Washington, and many others,

require a vote of the state legislature to enact child support guidelines into law.

34. The New Guidelines apply to all child support determinations made by any department of

The Trial Court pursuant to Massachusetts General Laws Chapter 208, Section 28, related to

child support in divorce, M.G.L. c. 209C §9, related to child support in a paternity case,

M.G.L. c. 209A §3, related to child support in domestic abuse restraining order cases, M.G.L.

c. 209 §32F, related to actions for separate support of married persons, M.G.L. c. 210 §2,

related to voluntary terminations of parental rights, M.G.L. c. 119 §§24 and 26, relating to

support in care and protection of minor children cases, and M.G.L. c. 201 §40, regarding

child support under guardianships.

35. All departments of the Trial Court may have occasion to enter child support orders,

(excepting the Land Court) and thus be subject to the required use of the New Guidelines.

36. Employees of the Trial Court, representatives of major bar associations, two judges, as well

as representatives of two state agencies whose power and budget would be enhanced by

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larger child support orders, constituted the majority of the members of the Task Force, and

were given the majority of input into the process of determining the New Guidelines.

Task Force Ignores Federal Requirement to Use Data On the Cost of Raising Children

37. In formulating the New Guidelines, the Task Force did not rely upon data from the study

conducted pursuant to P.L. 100-485 1or on data gathered pursuant to 45 C.F.R. §302.56 (h)2,

or any other study showing the costs of raising children in Massachusetts or anywhere else.

38. The Task Force did not attempt to acquire such data.

39. The Task Force considered various models for calculating the cost of raising children, but

“ultimately…. decided not to rely directly on any one particular economic model or specific

set of results” for formulating the New Guidelines. Ex. 1, p. 24. Every model, method, and

metric considered by the Task Force was rejected as invalid in its report as substantially

inaccurate in some fashion. Ex. 1, pp. 20-25.
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The applicable federal regulation, 45 C.F.R. §302.56 (h), states, in pertinent part:

(h) As part of the review of a State's guidelines required under paragraph (e) of this section,
a State must consider economic data on the cost of raising children and analyze
case data, gathered through sampling or other methods, on the application of, and
deviations from, the guidelines. The analysis of the data must be used in the State's review
of the guidelines to ensure that deviations from the guidelines are limited. [Emphasis Added]

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Section 128 of Public Law 100-485, enacted by Congress in 1988, requires:

The Secretary of Health and Human Services shall, by grant or contract, conduct a study
of the patterns of expenditures on children in 2-parent families, in single-parent
families following divorce or separation, and in single-parent families in which the
parents were never married, giving particular attention to the relative standards of living
in households in which both parents and all of the children do not live together. The
Secretary shall submit to the Congress no later than 2 years after the date of the enactment
of this Act a full and complete report of the results of such study, including such
recommendations as the Secretary may have for legislative, administrative, and other
actions. There are authorized to be appropriated such sums as may be necessary to carry
out this section. [Emphasis added]

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40. The Task Force established the New Guidelines with arbitrary and capricious figures, based

upon unproven and esoteric “broad principles”, not on economic data reflecting the cost of

raising children when the parents are apart, or on any economic model that approximates

those costs. The three “broad principles” were: “the importance of an economically sound

household to a child”; the percentage of income devoted to children’s needs levels off or

declines at higher income amounts; and “assumptions that older children are more expensive

as a percentage of household income than younger children have not been proven.” Id. at p.

24. None of these “broad principles” is set forth in applicable Federal or Massachusetts law.

The dominant broad principle, “the importance of an economically sound household to a

child”, is directly contrary to the Federal mandate that the amounts of child support payments

be based on child-raising costs. Ex. 1, p. 24.

41. The presumption of the Task Force and Justice Mulligan in establishing the New Guidelines

is that child support payments should depend primarily on income and number of children,

not at all on data collected about the actual costs incurred by the custodial parent to raise the

child. This approach is not supported by Federal or state law.

42. The New Guidelines do not accomplish any consistent goal, objective, or rationale, and are

arbitrary and capricious. For instance:

A. They are not based on the actual amounts parents spend on their children;

B. They do not reflect reasonably defined “basic needs” of children;

C. They are substantially excessive in many cases;

D. They are not based upon the Payor’s ability to pay;

E. They are not based upon the Recipient’s actual need;

F. They do not treat similarly situated persons equally;

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G. Children of a first relationship are treated differently from children of a subsequent

relationship.

43. The Task Force failed to account for the differential impact of Federal and Massachusetts

income taxes, Social Security and Medicare taxes, state sales taxes, excise taxes on items

such as fuel, earned income credits, head of household status, assignment of child

exemptions, progressive tax rates, payment of alimony, and many other tax related issues on

parents situated in various circumstances, which can result in a wide disparity of available

income to parties, even those who may have identical gross incomes.

44. When costs of health insurance, college or private school education costs, extra-curricular

activities ranging from summer camp to sports to music lessons are added by court order to

the amount of the basic child support order, child support payments go much higher still.

Payment of such costs (except for health insurance) are not mandated for married parents.

45. In setting required child support payments, the Task Force and Justice Mulligan failed to

adjust for the impact on non-custodial parents of necessary expenditures that they must make

for food, shelter, clothing, transportation, and other essentials to maintain a household for

their children during their parenting time.

46. The New Guidelines do not account for the necessary initial expenditures incurred in setting

up a separate household in which the child will reside for the presumed one third of the time

with the non-custodial parent. (See Ex. 1, pp. 38-39) These costs include first and last

month’s rental and security deposits, mortgage closing costs, new furnishings and household

necessities, new utility deposits, clothing, and an additional vehicle, which were previously

held in common in the intact household.

47. The amounts that parents actually spend on raising children vary substantially by income,

class, region, culture, and individual choice. The amounts required to be paid under the New

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Guidelines at middle and high income levels substantially exceed reasonable estimates of the

actual costs of supporting children.

48. The Task Force did not obtain or rely on data about the marginal costs of adding a child to a

household, as opposed to fixed expenditures that would exist with or without the addition of

a child, such as the cost of an automobile.

49. The Massachusetts Department of Children and Families has determined that the amount of

$116 per week per child is the cost of raising one child for purposes of compensating foster

parents, regardless of their income. See Ex. 3, Minority Report, p. 5.

50. The child support amounts mandated by the New Guidelines start to exceed this $116 cost

per week of raising one child at the Payor’s approximate weekly income level of $469, when

the Recipient has no income.

51. The amounts of child support mandated in the New Guidelines range all the way up to $915

per week for one child, or $1098 for two children. They can be further increased for the

costs of day care, health insurance or dental costs, or by judicial discretion. Justice Mulligan

and the Task Force provided no rationale for such a large discrepancy in the amount of

required child support above the $116 per week level deemed appropriate for a foster child.

Inequities and Deficiencies of New Guidelines

52. Application of the New Guidelines would result in the imposition of great hardship or

impoverishment of many of the non-custodial members of Plaintiff Fathers and Families, as

well as the individual Plaintiffs and their families.

53. Financial pressure from excessive child support Orders often requires non-custodial parents

to work overtime or obtain a second job rather than spend time with their children.

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54. Failure to pay the amounts ordered pursuant to child support Guidelines can often result in

imprisonment.

55. The Minority Report, attached as Exhibit 2, does not fully set forth the inequities inherent in

the New Guidelines, because Defendant Justice Mulligan arbitrarily limited the report to six

pages, as opposed to fifty-two pages in the Majority Report. The Minority Report

demonstrates that under the New Guidelines, in almost all middle class cases, the standard of

living of a custodial parent will be almost double that of the non-custodial parent with equal

earnings, even after accounting for greater expenditures by the custodial parent on the child.

56. For lower-income Payors, the child support obligations under the New Guidelines are so high

that basic living expenses cannot be paid on the available remaining income. A minimum

wage Payor under the New Guidelines will have only $9,978 per year to live on after paying

income taxes, payroll taxes and child support of over $4,000, not enough to pay rent alone in

Boston.

57. In some cases, the New Guidelines double or triple the child support payments that non-

custodial parents must make, as compared to the pre-2009 guidelines. This result occurs in

cases where the child is economically well cared for because the Recipient earns $75,000 or

more per year. See Exhibit 2, Minority Report.

58. For upper-income Payors, the child support obligations are astronomical, and far exceed the

actual costs of caring for a child. The Task Force provides no rationale for these excessive

amounts or the enormous increases from prior levels.

59. For example, the New Guidelines set annual child support for one child at $12,480, $22,828,

and $47,580 per year for non-custodial parents with annual pre-tax incomes of, respectively,

$50,000, $100,000 and $250,000, subject to adjustment based on the incomes of the custodial

parent. The amounts are significantly higher for two to five children, and yet higher when

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health insurance or day care costs are added. For three children, the annual amounts of child

support mandated in the New Guidelines are $15,875, $29,083, and $60,770 respectively.

For the higher income cases, these amounts are greatly in excess of any reasonable estimates

of the actual costs of raising a child in Massachusetts.

60. When taxes, mandatory health insurance, day care, and other “add-ons” such as college costs

or extra-curricular activities allowed by the New Guidelines are considered in the

calculations above, the remainder which the Payor has available to support himself or a

second family is generally a modest fraction of the Payor’s gross income.

61. Justice Mulligan fails to offer any rationale for such drastic diminution of Payor income.

Since the child support orders required by the New Guidelines are not based on the actual

costs of raising children, they are therefore arbitrary and capricious.

62. The New Guidelines fail to cap the child support obligation of high-income Payors at the

highest level set in the New Guidelines. Instead, that level is described as a presumptive

minimum for those who earn higher incomes than those subject to the Guidelines, subject to

judicial discretion, depriving the high-income Payor of certainty – the purpose of the

Guidelines – and requiring aggrieved Payors to engage in expensive and time-consuming

litigation to avoid excessive child support orders.

63. The New Guidelines allow the Court to order the non-custodial parent to pay the full amount

of child support to the custodial parent until a child reaches the age of 23 if the child attends

college, even if the child does not continue to reside with the custodial parent, whereas a

married parent has no legal obligation to support a child in any amount after the child reaches

the age of 18 or emancipation, regardless of college attendance. See Ex. 1, pp. 41-42.

64. The New Guidelines permit the Court to order a non-custodial parent to pay half (or more) of

the costs of attending college, in addition to the full amount of the basic child support order,

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thus requiring the Payor to pay twice for costs of shelter, food and clothing, whereas a

married parent has no such obligation. See Ex. 1, pp. 41-42.

65. The New Guidelines require non-custodial parents to pay prescribed large portions of their

incomes to custodial parents, but Massachusetts law does not hold married parents to any

particular standard of support of their children other than the avoidance of gross neglect.

66. The same non-custodial parent who also has a child by a second marriage may be required by

the New Guidelines to pay a lavish amount of support for his first child, while having no

legal duty to support his second child above the level of gross neglect, which creates a gross

inequity between the legal rights of children of first and second families.

67. The New Guidelines, for the first time, apply this approach to parents awarded equal shared

physical custody. (New Guidelines, Ex. 3, pg. 4-5)

68. Under the New Guidelines, the cost of health insurance is not equitably allocated. By statute,

health insurance must be ordered for children as part of a child support order. The Recipient

cannot be ordered to provide health insurance for a child, but the Payor can be ordered to do

so. However, under the New Guidelines, the Payor can only deduct the cost of health

insurance from gross income prior to calculating the support amount. Thus, in most cases,

the Payor will be responsible for at least 75-85% of the cost of health insurance, regardless of

the financial circumstances of the recipient.

69. The New Guidelines do not account for the differences in the costs of supporting a child

which result from the proportion of time that a child has with each parent, which encompass

a wide disparity in costs for such items as food, transportation, activities, toys, books, and

clothing.

70. The New Guidelines are based on the premise that a child will spend one third of the time

with the non-custodial parent. See Ex. 1, Pages 38-39. However, they make no provision,

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nor provide any credit against the amount of support due, for the Payor’s direct expenditures

for the cost of housing, food, clothing, transportation, books, toys, and other expenses made

necessary by having a fully equipped second home for the child, nor for any variations in the

cost due to the amount of time the child spends with the Payor.

71. The New Guidelines do not account for income received by custodial parents in various

forms of direct or in-kind public assistance, such as Section 8 housing assistance, fuel

assistance, WIC vouchers, food stamps, state-paid health insurance, and the like, which can

amount to many thousands of dollars of income, or income-equivalent, per month.

72. The New Guidelines treat divorced and never-married persons inequitably and unequally by

assuming that alimony can be included as part of the child support obligation, without

adjusting for the more favorable tax treatment which alimony receives in the U.S. Tax Code

for divorced persons. However, a never-married parent cannot have part of his child support

obligation treated as alimony. (See Ex. 1, Task Force Report, pp. 34-35).

73. The Task Force Report blurs the distinction between alimony and child support, and in so

doing, reveals its intention to provide spousal support (or an equivalent under paternity cases)

under the guise of child support. See Task Force Report, Ex. 1, p. 36. (“The maximum

[income subject to the guidelines] was increased to provide equal treatment for children born

of married and never-married parents, recognizing that alimony is not available to never-

married parents.” Exhibit 1, Task Force Report at p. 7.)

74. Alimony was not intended by the Legislature to provide “additional support for the children

of divorced or divorcing parents,” (Task Force Report, pg. 37), but to provide spousal support

only.

75. The New Guidelines create new law, concerning the application of alimony, by effectively

requiring never-married parents as well as divorced parents to pay alimony.

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76. Child support amounts that include alimony are not permitted under Massachusetts law.

There is no provision in Massachusetts law that authorizes courts to compel never-married

persons to pay alimony, either to childless “partners” or to “partners” with children, and

Massachusetts does not recognize common law marriage. In cases where a divorced parent

becomes subject to an order to pay alimony, the amounts in the New Guidelines effectively

produce double-paying, as the implicit alimony in the new child support amounts is added to

the explicit alimony that the parent is also ordered to pay. Such situations could produce

combined child support and explicit alimony orders mandating that a non-custodial parent

pay half or even three-quarters of his or her after-tax income to a custodial parent.

77. The New Guidelines provide no adjustment for the Payor’s income, payroll, or other taxes,

when the Recipient’s income is untaxed, or when the Recipient receives untaxed public

benefits such as public housing, food stamps, and health care in lieu of taxable income, or

when the rates of taxation of both parents are significantly different, resulting in large net

income inequities in some cases.

78. The New Guidelines and the Task Force failed to adjust for the impact of tax advantages that

accrue to custodial parents, but which are unavailable to non-custodial parents. These include

the right to claim children as exemptions, the Child Tax Credit, the lower tax rates for those

filing as “head of household” rather than as “single,” and the fact that child support is paid

from the Payor’s after-tax income, with no deduction, and is totally tax-free to the Recipient.

79. The New Guidelines contain no requirement, or even a rebuttable presumption, that the

parent paying more than half of the child-raising expenses for a child is entitled to take the

tax exemption for the child.

80. The New Guidelines do not account for the serious problems of children of second or step-

families, where the non-custodial parent must pay for the expenses of new children (and wife

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or partner) in addition to those of the child or children for whom he is already paying child

support. As a result, the New Guidelines greatly increase the financial burden on non-

custodial parents trying to support a new family, causing great hardship not only for them,

but also for the new children, who are themselves entitled to receive appropriate support but

are not eligible for court-ordered support. In most cases, children of second families will

have considerably less financial support than children of first families. (Minority Report, pp.

4-5.) No rationale is given why children of second families should be discriminated against

in favor of children of first families, which results from application of the New Guidelines.

81. The Task Force Report (Ex. 1, p. 10), states that the expenses of a second family may be used

as a “shield” but not a “sword”; that is, they can be used to defend against an increased order,

not but used to reduce an existing order, in violation of Massachusetts statute, which requires

the Court to take the expenses of second families into consideration in all cases.

82. The New Guidelines do not account for substantial differences in the cost of housing and

other expenses which vary greatly throughout the Commonwealth.

83. The New Guidelines do not require any accounting or accountability by the Recipient of

child support payments, to assure that the child support payments are expended for costs

actually incurred in raising the child, rather than for the sole benefit of the custodial parent.

84. The New Guidelines mandate inequitable and disparate treatment between a new child in the

family of the custodial parent and a new child in the family of the non-custodial parent. A

non-custodial parent must continue to pay child support at the same rate despite becoming

responsible for one or more new children, while the custodial parent who has a new child can

cease employment, rely upon the non-custodial parent’s child support and/or the income of a

new spouse or significant other, and thereby obtain an even larger child support award under

the New Guidelines, due to the decrease in her income.

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85. The New Guidelines mandate that non-custodial parents pay very large amounts to custodial

parents with high incomes of their own, even where the income of the recipient substantially

exceeds the income of the non-custodial parent. (Exhibit 2)

86. Under the New Guidelines, the child support obligations of most non-custodial parents will

increase substantially, in some cases dramatically. The Task Force made no showing that

children’s needs are not being met at the amounts set in the pre-2009 Guidelines. Public

testimony showed that child support amounts set under the pre-2009 Guidelines are often

excessive, even before the increases.

87. The New Guidelines increase the maximum incomes of both parents to which they apply by

$115,000 (from $135,000 to $250,000, more than 85%) from the pre-2009 Guidelines. They

increase the maximum income of the non-custodial parent to which they apply by $150,000

(from $100,000 to $250,000, or 150%), from the current Guidelines (which increased the

maximum income by one third several years ago). Inflation in the four-year period since the

last Guidelines were set has been on the order of 15%. The only justification for this

enormous increase presented by the Task Force is the statement: “The maximum was

increased to provide equal treatment for children born of married and never-married parents,

recognizing that alimony is not available for never-married parents.” (Task Force Report p.

7) This change alone can result in enormous increases for non-custodial parents with

incomes between $100,000 and $250,000, with no showing whatsoever that children’s needs

are not being met at the amounts set in the pre-2009 Guidelines.

88. The New Guidelines create a rebuttable presumption that the amount of child support they

determine is the correct amount. But they cannot be rebutted if a petitioner cannot know on

what assumptions they are based. For example, if the Recipient has a substantial variance

from the average housing cost, such as a fully paid-for home, while the Payor has a large

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mortgage, the Court has no basis to adjust the child support order, because no data was used

to determine the portion of the support order which constitutes the cost of housing.

89. If a Recipient receives Title IV-A benefits from the Commonwealth of Massachusetts, the

Payor’s child support payments are paid to the Commonwealth, not the Recipient, and are

treated as ordinary revenue, rather than being dedicated to the needs of the Payor’s children.

Therefore, such child support payments constitute a tax, charge, or levy on Payors.

90. Payments made under Title IV-A are not a fee, because they vary widely from one Payor to

another, and are not reimbursement to the Commonwealth, because they bear no relationship

to the amounts obtained by the Recipient, or the amount expended on the children of the

Payor.

91. Similarly situated Payors, whose children all receive the same Title IV-A benefits, are treated

differently, because they must pay the Commonwealth greatly differing amounts.

Impact of the New Guidelines on Plaintiffs

92. Many members of Fathers and Families and individual Plaintiffs will suffer irreparable harm

as a result of the implementation of the New Guidelines.

93. The members of Fathers and Families and the individual Plaintiffs have varying economic,

family, custody, employment and tax situations, but many of them will suffer harm within a

reasonably short period of time, as a result of the imposition of higher support orders under

the New Guidelines. Some are divorced and single, some never-married, some divorced and

re-married. Some have new children, some are wage-earners, and some are self-employed.

There is a large income range among the Plaintiffs, from low to high.

94. In contrast to the pre-2009 Guidelines, the New Guidelines permit complaints for

modification of child support to be brought to the Probate and Family court without any

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showing of a change in circumstances, provided that the current child support Order has been

in effect for three or more years, including the three years preceding January 1, 2009.

95. The New Guidelines provide at least ten bases for deviations from the specified child support

amounts. Because the specified amounts in the New Guidelines are extremely high, it can be

expected that desperate Payor parents will litigate to achieve deviations. This litigation will

be complex, protracted, contentious, and fact-specific, and will impose heavy burdens on

Payors, Recipients, and the Court.

96. Plaintiff Todd Sandahl pays child support for one child in the amount of $345 per week, per

order of the Norfolk Probate and Family Court. Under the New Guidelines, his child support

obligation will rise by $50 per week.

97. Plaintiff Michael Fogg pays child support for five children in the amount of $96 per week,

per order of the Hampshire Probate and Family Court. Under the New Guidelines, his child

support obligation will rise to $194 per week.

98. Plaintiff David Satloff pays child support for one child in the amount of $300 per week, per

order of the Norfolk Probate and Family Court. Under the New Guidelines, his child support

obligation will rise to an indeterminate amount.

99. Plaintiff Robert Thompson should pay child support for two children in the amount of

$202.50 under the old guidelines, but will pay $255 plus other expenses under the New

Guidelines.

100.Plaintiff David Little pays child support for four children in the amount of $480 per week,

per order of the Berkshire Probate and Family Court. Under the New Guidelines, his child

support obligation will rise to $617 per week.

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101.Plaintiff Paul Dionne pays child support for two children in the amount of $225 per week,

per order of the Essex Probate and Family Court. Under the New Guidelines, his child

support obligation will rise to $380 per week.

102.Plaintiff Shawn Gliklich pays $511 per week in child support for two children, plus alimony

under an order from the Essex Probate and Family Court. Under the New Guidelines, his

support could rise to as much as $1063 per week.

103.Plaintiff John Rice pays $200 per week in child support for two children. Under the New

Guidelines, he will have to pay about $324 per week plus health insurance costs.

104.Plaintiff Steven Maynard pays $1,100 per month in child support for one child, from a

Middlesex Probate and Family Court order. He will pay about $1,500 per month under the

New Guidelines.

Count I –Declaratory Relief

105.All averments in the preceding paragraphs are re-asserted and incorporated into this count.

106.The Task Force and Justice Mulligan did not base the calculation of the New Guidelines on

economic data on the costs of raising children, as required by P.L. 110-485, 42 USC §667,

and 45 CFR §302.56.

107.Justice Mulligan exceeded his statutory (M.G.L. c. 211B §9) and constitutional authority

and usurped the jurisdiction of the State Legislature and the Governor, when he convened a

Task Force to formulate new child support guidelines, and then enacted them into law

unilaterally, in violation of the laws and the Constitution of the Commonwealth.

108.Implementation of the New Guidelines by the Defendants violates the constitutionally

protected due process rights of the Plaintiffs and other similarly situated persons, by

depriving them of property without due process of law.

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109.Implementation of the New Guidelines by the Defendants violates the equal protection

rights of the Plaintiffs and other similarly situated married, divorced, and never-married

parents, by treating them differently in the matter of the support of their children, without

legal justification.

110.Implementation of the New Guidelines by the Defendants violates the equal protection

rights of the Plaintiffs, in that they treat their similarly situated children from first and second

families differently, without justification.

111.The New Guidelines violate the equal protection rights of the Plaintiffs and other similarly

situated persons, in that they treat similarly situated persons differently on the basis of

employment status, receipt of public benefits, tax status, and other class distinctions.

112.Defendant Justice Mulligan unilaterally “enacted” a new law with broad and sweeping

effects, in violation of the “separation of powers” clause of Article XXX of the

Massachusetts Declaration of Rights, which substantially affects the rights and property of

hundreds of thousands of people in the Commonwealth, including the Plaintiffs, and in so

doing, usurped the functions of the legislative and executive branches.

113.By unilaterally enacting the New Guidelines, the Defendants have usurped the power of the

state legislature in violation of Article XXIII of the Massachusetts Declaration of Rights,

which vests the power to levy any tax, subsidy, impost, or charge solely to the State

Legislature.

114.This Court can declare the rights, duties, status and other legal obligations of any interested

party pursuant to M.G.L. c. 231A §1ff.

115.The Plaintiffs have established the existence of an actual legal controversy, regarding the

promulgation and implementation of the New Guidelines in violation of the legal and

constitutional requirements set forth herein.

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116.The issue is ripe for judgment, because the New Guidelines went into effect on January 1,

2009, to the legal detriment of the Plaintiffs and all other similarly situated persons.

117.A ruling in this matter will resolve the controversy among the parties.

118.WHEREFORE, Plaintiffs request a declaration by this Honorable Court, that, by

promulgating the New Guidelines, the Defendants have:

- Violated the protected due process rights of the Plaintiffs;

- Deprived the Plaintiffs of equal protection of the law;

- Violated Article XXX of the Massachusetts Declaration of Rights;

- Violated Article XXIII of the Massachusetts Declaration of Rights.

Count II –Violation of Equal Protection

119.All averments in the preceding paragraphs are re-asserted and incorporated into this count.

120.The United States and Massachusetts Constitutions provide that the state may not deny to

any person within its jurisdiction the equal protection of the laws.

121.The New Guidelines are discriminatory on their face and as applied, in that, without

justification, they impose substantial burdens on unmarried parents that are not imposed on

married parents, as set forth in detail above.

122.The New Guidelines are discriminatory on their face and as applied, in that divorced parents

are treated differently from similarly situated parents who were never married, because the

former can re-categorize child support as alimony, carrying with it a tax deduction, which is a

benefit denied to the latter.

123.The New Guidelines are discriminatory on their face and as applied, in that they treat

similarly situated children of a parent, from first and from second families, in a different

manner, without justification.

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124.The New Guidelines are discriminatory on their face, in that they treat similarly situated

children of “second families” in a different manner than those who are born into families

whose parents are married, or those whose parents were married, or those whose parents

were never married, or other children of the Payor in the custody of the other parent.

125.The New Guidelines will have a highly disparate and negative impact on men as applied, in

comparison with women, because approximately 95% of Payors are men.

126.The New Guidelines are discriminatory on their face, as the non-custodial parent must make

child support payments based on gross income, without accounting for a disparity between

the parties in tax treatment and other involuntary reductions that substantially reduce

disposable income.

127.The New Guidelines are discriminatory on their face in that they allow a court to order that

divorced or never married parents pay the full specified amount of child support for a child

up to age 23, whereas married parents cannot be legally required to supply support to a child

after the age of 18 in Massachusetts, pursuant to M.G.L. Ch. 231 §85P.

128.The New Guidelines are discriminatory on their face in that they allow a court to require

divorced or never married parents to pay college costs of their children, whereas married

parents cannot be legally required to pay such costs.

129.The New Guidelines are discriminatory on their face in that they allocate the substantial and

legally mandated cost of health insurance unequally and inequitably, with most of the cost to

be borne by the non-custodial parent, regardless of the resources of the custodial parent.

130.WHEREFORE, the Plaintiffs request declaratory and injunctive relief, as set forth in

Counts I, V, and VI, declaring that the New Guidelines violate the right of the Plaintiffs to

equal protection under the law, and to enjoin implementation of the New Guidelines until the

state has met the requirements set forth in Count VI below.

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Count III –Violation of Due Process

131.All averments in the preceding paragraphs are re-asserted and incorporated into this count.

132.The Massachusetts and United States Constitutions assert that the state may not deprive any

person of life, liberty, or property, without due process of law.

133.Defendant Justice Mulligan deprived the Plaintiffs and other persons similarly situated of

due process of law when he promulgated the New Guidelines based solely on the income of

the parents, rather than on the actual costs of raising children in the Commonwealth of

Massachusetts.

134.The Massachusetts Legislature, as the elected representatives of the Plaintiffs, did not have

an opportunity to consider or vote on the New Guidelines after their promulgation by

Defendant Justice Mulligan, nor did the Governor have an opportunity to sign or veto the

New Guidelines, depriving the Plaintiffs of due process of law.

135.The New Guidelines provide no mechanism by which to challenge their applicability to the

individual situation of the Plaintiffs, which deprive them of property without due process of

law.

136.WHEREFORE, the Plaintiffs request declaratory and injunctive relief, as set forth in

Counts I, V, and VI, declaring that the New Guidelines violate the due process rights of the

Plaintiffs, and enjoining implementation of the New Guidelines until the state has met the

requirements set forth in Count VI below, and return to the Plaintiffs any child support

unjustly collected from them in violation of their rights.

Count IV –Massachusetts Declaration of Rights – Article XXX - Separation of Powers

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137.All averments in the preceding paragraphs are re-asserted and incorporated into this count.

138.Article XXX of the Massachusetts Declaration of Rights states, in pertinent part:

“The Judicial [Department] shall never exercise the legislative and executive power, or

either of them: to the end that it may be a government of laws and not of men.”

139.The Legislature may delegate execution of certain of its functions, but only under explicit

legislative standards and guidelines.

140.The Legislature has not provided guidelines or standards of any sort to Defendant Justice

Mulligan or to the Task Force with respect to setting the New Guidelines.

141.The Legislature enumerated the powers granted to the CJAM in M.G.L. c. 211B §§9, 16, 17

and 19. No power was granted to the CJAM to determine child support guidelines in that

statute.

142.The Legislature could not delegate the power to determine child support guidelines to the

Judicial Department, as it falls within the ambit of legislative action, not judicial

determination.

143.The Legislature has no power to delegate the power to establish, fix, lay, or levy, under any

pretext whatsoever, any tax, subsidy or charge, pursuant to Article XXIII of the

Massachusetts Declaration of Rights.

144.The Legislature did not consider debate or vote on legislation to enact the New Guidelines

into law, nor did the governor have an opportunity to sign or veto such legislation.

145.When Defendant Justice Mulligan unilaterally “enacted” the New Guidelines, without

consideration by or a vote of the state Legislature, he improperly usurped the legislative

power, and imposed a government “of men”, in fact, of a single man, in violation of Articles

XXX and XXIII of the Massachusetts Declaration of Rights.

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146.WHEREFORE, the Plaintiffs request declaratory and injunctive relief, as set forth in

Counts I, V, and VI, declaring that the New Child Support Guidelines violate the

Legislature’s sole authority to impose charges, or subsidies or taxes under Article XXIII of

Massachusetts Declaration of Rights, or the separation of powers required under Article

XXX of the Massachusetts Declaration of Rights, and enjoining implementation of the New

Guidelines until the state has met the requirements set forth in Count VI below.

Count V –Preliminary Injunction

147.All averments in the preceding paragraphs are re-asserted and incorporated into this count.

148.The Plaintiffs will be irreparably harmed by the implementation of the New Guidelines after

January 1, 2009, in that their child support obligations are likely to be substantially increased

by up to 200% over the orders which are currently in place, without data showing such an

increase in the cost of raising a child.

149.Plaintiffs have no adequate remedy at law other than this action, as the New Guidelines

provide no mechanism for challenging their basic premises, or their presumptive and

mandatory application to all subsequent child support orders, either through the legislative

process or on an individual basis in court.

150.Plaintiffs have no adequate remedy at law other than this action because there is no

mechanism under the law by which the Plaintiffs and other persons similarly situated could

recover excess amounts of child support after they have been paid to a Recipient pursuant to

a court order under the New Guidelines.

151.The plaintiffs are likely to succeed on the merits of this case, based on the numerous

violations of the law and the United States and Massachusetts constitutions set forth herein.

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152.While the Plaintiffs will be irreparably harmed by the imposition of substantially higher and

inequitable child support obligations pursuant to New Guidelines, neither the Defendants nor

any non-custodial parents will suffer detriment if an injunction is granted. Plaintiffs merely

seek to preserve the status quo prior to January 1, 2009, until the Court can resolve the merits

of the matter. The current child support guidelines, in place since 2001 with only minor

changes, would be operative pending the enactment of new child support guidelines in

compliance with legal and Constitutional requirements, and no Recipient’s child support

order would be reduced because of the requested injunction.

153.The public interest is greatly and negatively affected by the unilateral imposition of

confiscatory child support guidelines without basing them on factual data of child raising

costs, without due process of law, with inequitable and unjustified differences in application

to similarly situated individuals, without a vote of enactment into law by the state

Legislature, and without approval of the Governor. Hence, their application should be

enjoined until the process for their issuance complies with all lawful and constitutional

requirements.

154.WHEREFORE, the Plaintiffs request this Honorable Court issue a preliminary injunction

to enjoin the Defendants from implementation of the New Guidelines, until they have

complied with all legal and constitutional requirements for such guidelines as set forth

herein, including all the specific actions set forth under Count VI.

Count VI – Permanent Injunction

155.All averments in the preceding paragraphs are re-asserted and incorporated into this count.

156.The Plaintiffs will be permanently and irreparably harmed if the Defendants implement the

New Guidelines as presently constituted.

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157.The Plaintiffs will also be permanently and irreparably harmed by any new child support

guidelines which fail to safeguard the due process rights of the Plaintiffs, as set forth herein.

158.The Plaintiffs will be permanently and irreparably harmed by any new child support

guidelines which fail to insure equal protection of the law as set forth herein.

159.The Plaintiffs will be permanently and irreparably harmed by any new child support

guidelines, unless they are enacted by the State Legislature for debate and a vote, and for the

signature or veto of the Governor.

160.Plaintiffs will have no adequate remedy at law, if new child support guidelines are

promulgated which violate the legal and constitutional rights of plaintiffs set forth above.

161.Plaintiffs have no legal remedy to recover any excess amounts of child support ordered by a

court to be paid under the New Guidelines.

162.The plaintiffs are likely to succeed on the merits of this case, based on the numerous

violations of legal requirements and constitutional protections set forth herein.

163.While the Plaintiffs will be irreparably harmed by the imposition of substantially higher,

and inequitable and unlawful child support obligations, which have not based upon the actual

cost of raising a child in Massachusetts, and without them being enacted into law by the

Legislature or signed by the Governor, neither the defendants nor non-custodial parents will

suffer detriment from this Honorable Court requiring that Defendants comply with all legal

and constitutional requirements in promulgating future child support guidelines.

164.The public interest is greatly and negatively affected by the unilateral imposition of

confiscatory child support guidelines which have not been based upon the actual cost of

raising a child in Massachusetts, without due process of law, with inequitable and unjustified

differences in application to similarly situated individuals, without a vote of enactment into

law by the state Legislature, and without a signature of the Governor. Hence, no Defendant

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or their agents satisfy the public interest by promulgating child support guidelines which fail

to comply with all lawful and constitutional requirements.

165.WHEREFORE, the Plaintiffs request that this Honorable Court issue a permanent

injunction to enjoin the Defendants, or any of their agents, from issuance and implementation

of any new Massachusetts child support guidelines, until the Commonwealth of

Massachusetts complies with all federal and state statutory and constitutional requirements

for determining and establishing new child support guidelines, as follows:

A. That any proposed child support guidelines be enacted by the State Legislature

and approved by the Governor;

B. That any proposed child support guidelines be based on the actual costs of raising

children in the Commonwealth of Massachusetts;

C. That any proposed child support guidelines take into account as income the value

of all public benefits, account for all benefits and detriments to both parties under

the United States and Massachusetts tax codes, account for variations in the cost

of raising children in different parts of the Commonwealth,

D. That any proposed child support guidelines consider the needs of all children

equally, including the children of married, divorced, never married, and of second

families equally;

E. That any proposed child support guidelines treat similarly situated married, never-

married, and divorced parents in an equal manner;

F. That any proposed child support guidelines account for the quantity of parenting

time for each parent, and the necessity of obtaining and maintaining suitable

quarters for the children;.

G. That any unjustly collected child support be returned to Plaintiffs;

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H. Any other requirements that justice shall require.

Respectfully Submitted,
The Plaintiffs, by their Counsel,

Dated: March 16, 2009 ____________________________
Gregory A. Hession J.D.
172 Thompson Street
Springfield, MA 01109
413.746.3333
BBO No. 564457

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