Fehrm-Cappuccino v. Cappuccino

• Decision Date: 18 October 2016
• Docket Number: No. 15–P–484.,15–P–484.
• Citation: 60 N.E.3d 1180,90 Mass.App.Ct. 525
• Parties: Carolyn FEHRM–CAPPUCCINO v. Gary J. CAPPUCCINO.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 525

60 N.E.3d 1180

Carolyn FEHRM–CAPPUCCINO

v.Gary J. CAPPUCCINO.

No. 15–P–484.

Appeals Court of Massachusetts, Norfolk.

Argued April 11, 2016.

Decided Oct. 18, 2016.

Karen W. Stuntz, Acton, for the mother.

Jonathan E. Fields, Wellesley, for the father.

Present: CYPHER, AGNES, & MASSING, JJ.

CYPHER, J.

In this appeal from a “judgment on complaint for modification and complaint for contempt” entered by a judge of the Probate and Family Court on February 21, 2014, Carolyn Fehrm–Cappuccino (mother), the former wife of Gary J. Cappuccino (father), challenges the downward modification of child support and the lack of a contempt finding against the father. We address the mother's arguments in turn.

1. Modification. The parties were divorced on January 4, 2010, pursuant to a judgment of divorce that incorporated their separation agreement. Pursuant to the separation agreement, the mother received primary physical custody of the parties' four children and the father was required to pay weekly child support of $577. The first two years of the father's child support payments were deemed “prepaid” in exchange for the mother's receipt of the marital home, with the father's weekly child support payments scheduled to “resume” in January, 2012. On January 12, 2012, the father filed a complaint for modification of his child support obligation. On February 21, 2014, a judge of the Probate and Family Court entered a judgment reducing the father's weekly child support obligation to $371, retroactive to January 24, 2012. On appeal, the mother challenges the reduced child support amount, asserting that it was the result of several errors made by the judge when determining the parties' respective incomes.¹ a. Exclusion of the father's rental income. The mother first contends that the judge improperly excluded the father's rental income from Canton Lanes Limited Partnership (Canton Lanes) of approximately $507 per week when calculating child support.²

The Child Support Guidelines (guidelines) “have presumptive application to actions to modify existing [child support] orders.” Croak v. Bergeron, 67 Mass.App.Ct. 750, 754, 856 N.E.2d 900 (2006). The guidelines define “income ... as gross income from whatever source ... includ[ing] ... income derived from businesses/partnerships ... [and] net rental income.” Child Support Guidelines § I.A(7) & (26) (effective August 1, 2013). Accordingly, there is a “rebuttable presumption” that net rental income derived from a partnership “should be included when calculating income for a child support obligation.” Wasson v. Wasson, 81 Mass.App.Ct. 574, 577–578, 965 N.E.2d 882 (2012).

Notwithstanding that presumption, the judge in this case excluded the father's Canton Lanes rental income on the basis that it “emanat[es]” from an asset assigned to the father at the time of the divorce. The judge concluded that the mother's waiver of “all right, title and interest in and to” Canton Lanes in the separation agreement operated as a waiver of her right to support from the father's Canton Lanes rental income. However, in so concluding, the judge overlooked the fact that the parties considered the father's Canton Lanes income when setting his initial child support obligation in the separation agreement.³ See Cooper v. Cooper, 62 Mass.App.Ct. 130, 134, 815 N.E.2d 262 (2004), quoting from Huddleston v. Huddleston, 51 Mass.App.Ct. 563, 568, 747 N.E.2d 195 (2001) (“When the judgment to be modified incorporates an agreement of the parties, we ... will ‘review the findings to determine whether the judge gave appropriate consideration to the parties' intentions as expressed in their written agreement’ ”). Moreover, “even if the mother did waive her right to any interest in the income at issue, that waiver could not operate to waive her children's right to child support from that income.” Hoegen v. Hoegen, 89 Mass.App.Ct. 6, 11, 43 N.E.3d 718 (2016).

To the extent that the judge relied on Zeghibe v. Zeghibe, 82 Mass.App.Ct. 614, 976 N.E.2d 824 (2012), for the proposition that treating Canton Lanes both as an asset and as a stream of income would constitute inequitable “double counting,”⁴ that reliance was misplaced. In Zeghibe, a case involving modification of child support , this court set aside the attribution of income to the husband stemming from his liquidation of an individual retirement account (IRA), as the husband had “received the IRA funds at the time of the divorce as part of the division of assets and not as a stream of income for purposes of computing support.” Id. at 621, 976 N.E.2d 824. Here, unlike in Zeghibe, there is no risk of double counting, where “neither the value of [the father's interest in Canton Lanes] nor the [father's] ability to earn income is diminished by treating the [father's interest in Canton Lanes] as a marital asset as well as a source of income by which [the father] can meet his support obligations.” Champion v. Champion, 54 Mass.App.Ct. 215, 221, 764 N.E.2d 898 (2002). See Dalessio v. Dalessio, 409 Mass. 821, 828, 570 N.E.2d 139 (1991).⁵ As we see nothing in the judge's findings that would overcome the presumption that the father's Canton Lanes rental income should be included when calculating child support, it was an abuse of discretion for the judge to exclude that income. See Hoegen v. Hoegen, 89 Mass.App.Ct. at 8–11, 43 N.E.3d 718.

We note that the judge also excluded from his child support calculation the mother's rental income from Fiddlers Landing LLC (Fiddlers Landing), an asset which she received in the divorce.⁶ While the father has not appealed the exclusion of the mother's rental income, the mother's counsel acknowledged at oral argument that each party's rental income should have been included in the child support calculation. Accordingly, when recalculating child support on remand, the judge should include the father's net rental income from Canton Lanes and the mother's net rental income from Fiddlers Landing.

b. Contribution from the mother's cohabiting boy friend. The mother next contends that the judge abused his discretion by attributing income to her based on contributions from her cohabiting boy friend.

While “ ‘[t]he guidelines and our case law leave the definition of income flexible, and the judge's discretion in its determination broad [,]’ .... that discretion is not without bounds.” Murray v. Super, 87 Mass.App.Ct. 146, 155, 26 N.E.3d 1116 (2015), quoting from Casey v. Casey, 79 Mass.App.Ct. 623, 634, 948 N.E.2d 892 (2011). With respect to financial contributions from a household member, the guidelines neither prohibit, nor specifically require, their inclusion when calculating child support. Murray v. Super, supra.⁷ Instead, the judge must make detailed findings to justify including contributions from a household member in a child support recipient's income. Ibid. This is largely due to the fact that children should “be supported by the financial resources of their parents [,]” rather than by the resources of third parties. Id. at 154, 26 N.E.3d 1116 quoting from M.C. v. T.K., 463 Mass. 226, 231, 973 N.E.2d 130 (2012).

Here, the judge attributed income of $346 per week to the mother based on his finding that the mother's cohabiting boy friend contributes $1,500 per month to the mortgage.⁸ However, the judge did not make “[a]dditional findings that would aid our analysis, includ[ing], but ... not limited to, ... the lack of an obligation of the mother's [boy friend] to support the children, the manner in which the mother's and the children's lifestyles are altered by these funds, the discretion that the mother's [boy friend] maintains in payment of these funds, and the manner in which the mother would support her household absent these funds.” Murray v. Super, 87 Mass.App.Ct. at 155, 26 N.E.3d 1116.⁹ “Without such findings, the facts as they presently stand are insufficient to determine whether the [boy friend's] contributions should be included in the child support calculations under the guidelines.” Ibid. Accordingly, the attribution of income to the mother based on her boy friend's contribution is set aside and remanded for further findings.

c. The mother's earning capacity. The mother further contends that the judge abused his discretion by attributing an earning capacity to her of $750 per week.

“Income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed.” Child Support Guidelines § I.E. In making such a finding, “[t]he Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level. The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order.” Ibid.

Here, the mother, who does not have a college degree, was unemployed both during the marriage and at the time of the divorce. However, at “some point” after the divorce, the mother began accepting work as an independent contractor, earning an hourly rate of $25.¹⁰ The judge found that “[t]he last time [the mother] accepted a contract to do this kind of work was October, 2013 .... [and] she ha[s] made no effort to find any other type of work.” The mother claimed that she was no longer receiving contracts because she had to turn down several contracts when two of the parties' children were experiencing medical issues. While the mother reported earnings of only $46.92 per week, the judge ultimately attributed an earning capacity to her of $750 per week. The judge found that the mother is capable of working thirty hours per week at her previous hourly rate of $25. However, there is no indication in the judge's findings, or in the...