Facts: Plaintiff and Defendant were divorced and the
judgment provided that the plaintiff would maintain health insurance for the
defendant and the minor child. In 2008 the plaintiff and defendant filed cross
claims. The plaintiff claimed that the defendant could obtain better insurance
from her employer and the defendant contended that the plaintiff’s child
support should be in better accord with the guidelines. Defendant was ordered
to seek health insurance through Tufts, her employer, for which the plaintiff
continued to pay and the plaintiff’s weekly child support payments increased.
The plaintiff then filed a motion to amend judgment seeking to have his
attributable income reduced to match the defendant’s because his capital gains
should be excluded for income purposes. He also sought attorney’s fees. In
2010, the court granted the motion and granted $21,855 to the plaintiff for
attorney’s fees instead of the $39,097.50 that he requested. Plaintiff
appealed.
Issue:
Whether the judge’s apparent exclusion of capital gains
income in determining child support under the governing statute and the
Massachusetts Child Support Guidelines was an abuse of discretion when it
deviated from the guidelines
Yes. The judge shall follow the guidelines, with a
rebuttable presumption that the amount resulting from the application of the
guidelines is the appropriate amount of child support. The divorce judge and
the 2009 modification judge initially followed this amount. Deviating from the
guidelines may be overcome if there are specific written findings from the
court to warrant such findings. Income is defined as “gross income from
whatever source…” Capital gains in real and personal property transactions to
the extent that they represent a regular source of income are included in gross
income. The plaintiff alleges that he had no choice but to generate more income
in order to pay his support, which would in turn create a self-perpetuating
process by which he would be continuously have to generate more income to pay
for the increased support obligation that resulted solely from his increased
capital income. He claims that this results in a double dip. Subsequently in a
margin endorsement, the 2009 modification judge was persuaded by this argument
and stated that capital gains should not be included in the income calculation.
However, although the judges have discretion to deviate from the guidelines, he
abused her discretion in doing so because there were no specific written
findings to that effect. Thus, capital gains should be counted towards his
attributable income.
Issue 2: Whether the decision to attribute income to
defendant was unsupported.
No. The Judge may attribute income when she determines that
the party failed to take another job despite its easy availability or the party
owns substantial assets. At the time of divorce, the defendant was working at
three different universities and was earning approximately $34,944. No finding
that her income decreased. There are ample findings to support her income of
$26,000.
Issue 3: Whether the judge should have attributed additional
income to the plaintiff.
No. The divorce judge attributed income to the plaintiff equal
to that of the defendant because they both had similar educational backgrounds.
While the 2009 modification judge lowered the defendant’s income to $26,000,
she didn’t adjust the plaintiff’s to match hers. The judge subsequently
adjusted the plaintiff’s income. There is no finding in any changes to
plaintiff’s earning potential so there is no error.
Issue 4: Regarding attorney’s fees, whether the judge has
discretion to award attorney’s fees.
There was no abuse of discretion because the judge determined
that the defendant was being litigious. Also the claims brought to appeal were
not frivolous so an award of appellate attorney’s fees is not appropriate to
either party. (ML)
