Massachusetts divorce lawyer James M. Lynch examines recent case law dealing with the factors considered in determining what is “income” for child support calculation.
In a case decided on October 18, 2016, the Massachusetts Appeals Court overturned a modification and judgment issued by Norfolk Probate & Family Court judge, Hon. George F. Phelan, in a 15-page decision dealing with child support calculation and the law of contempt. This blog will examine the child support calculation aspect of that case, while the contempt aspect will be taken up in a future blog. (For more information on what constitutes “income” for child support purposes, check out Attorney Owens’s article on Calculating Self-Employment Income in Child Support Cases.)
In Fehrm-Cappuccino vs. Cappuccino (2016), the parties were divorced in 2010 and the mother received primary physical custody of the parties’ four children. The first two years of the father’s child support payments were deemed “pre-paid” in exchange for the mother’s receipt of the marital home. When the actual $577 weekly support payments began, two years after the divorce was finalized, the father immediately filed a complaint to modify the weekly payment amount downward. In early 2014, the Court entered a judgment lowering the father’s child support obligation to $371 per week. The Appeals Court found that the trial judge committed error in his determination of the child support in three respects:
Table of Contents for this Blog
- 1. Rental Income Constitutes Income to Father in Child Support Calculation, even though Rent-Producing Property was Previously Divided in Divorce
- 2. Financial Contributions of Mother’s Cohabitating Boyfriend are not Grounds for Reducing Biological Father’s Child Support Obligation After Divorce
- 3. Judge’s Attribution of Income to Mother Reversed where Father Failed to Present Evidence of Mother’s Work Experience, Employability or Ability to Work While Caring for Young Children
- Order on Reversal: Original Child Support Order Reinstated
1. Rental Income Constitutes Income to Father in Child Support Calculation, even though Rent-Producing Property was Previously Divided in Divorce
As part of the division of marital assets, the parties agreed that the father would retain his entire interest in a Limited Partnership. At the time of the divorce, rental income generated from the partnership was included in the child support guidelines calculation of $577.00 per week. In the modification case, however, the probate and family court judge excluded the rental income generated by the Limited Partnership. The judge agreed with the father’s argument that, because the mother waived “all right, title and interest in and to” the Limited Partnership, her waiver operated as a waiver of her right to support from the father’s Limited Partnership rental income.
The Appeals Court found, however, that even though the mother waived ownership interest in the rental property, she did not waive her children’s right to child support from income generated by the property:
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.
The Appeals Court also noted in passing that the parties considered the limited partnership rental income when they set the father’s child support obligation in the divorce agreement, a fact that the Appeals Court observed that the trial judge “overlooked”. The Court also rejected the lower court’s finding using the father’s rental income to calculate child support constituted “double-dipping”:
Here … 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. … 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.
2. Financial Contributions of Mother’s Cohabitating Boyfriend are not Grounds for Reducing Biological Father’s Child Support Obligation After Divorce
In his child support calculation, the trial judge considered added the contributions of the mother’s cohabitating boyfriend – a $1,500 monthly payment towards the mortgage – to the mother’s income when calculating child support. As a result of this attribution of income, the financial burden on the biological father was reduced – and replaced – by the boyfriend’s financial support for the mother and child. Notably, in reversing the lower court’s decision, the Appeals Court used nearly language that was nearly identical to its holding in Frost-Stuart, another case in which Judge Phelan attempted to attribute income based on a boyfriend’s earnings. In Frost-Stuart, decided only one month earlier, the Appeals Court held:
[I]n attributing income in the form of contributions from the cohabiting boy friend, the judge did not make the findings necessary for a determination that those contributions constitute the mother’s income for purposes of child support. “Additional findings that would aid our analysis include, but are 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, supra.
In Fehrm-Cappuccino vs. Cappuccino, the Court repeated the point, with additional emphasis:
With respect to financial contributions from a household member, the guidelines neither prohibit, nor specifically require, their inclusion when calculating child support. … Instead, the judge must make detailed findings to justify including contributions from a household member in a child support recipient’s income. … 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.
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. … 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.”
“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.” … Accordingly, the attribution of income to the mother based on her boy friend’s contribution is set aside and remanded for further findings. [Citations omitted.]
An important theme emphasized by the Court in each decision is that biological parents – not boyfriends, girlfriends or stepparents -are obligated to provide financial support for their children. By attributing income to a mother based on her boyfriend’s earnings, the Court appears to suggest, in both decisions, that the probate court judge shifted the financial burden for the child away from the biological father and towards an unrelated third party. In the alimony context, a former spouse’s cohabitation with a new partner can lead to the termination of alimony. The same is not true in the child support context, when a custodial parents begins cohabitating with a new boyfriend, girlfriend or stepparent. As these two cases make clear, the Appeals Court has taken a skeptical view of reducing a biological parent’s child support based on the custodial parent’s cohabitation with a new partner, where the responsibility for paying for the child should not shifted to an unrelated third party.
3. Judge’s Attribution of Income to Mother Reversed where Father Failed to Present Evidence of Mother’s Work Experience, Employability or Ability to Work While Caring for Young Children
The Massachusetts Child Support Guidelines allow judges to attribute an earning capacity to a non-working parent in the child support calculation formula. Among the factors to be considered are the education, training, health, past employment history of the parent, and the availability of employment at the attributed level. And if the Court determines that a parent is earning less than he or she could be earning through reasonable effort, the Court can consider potential earnings capacity rather than actual earnings in making the support order. In addition, the Guidelines require Probate & Family Court judges to consider the age, number, needs and care of the children covered by a support order.
Here, the trial judge assigned the mother a $750 per week earnings capacity even though she was not employed and that number entered into the judge’s child support calculation. The judge found that the mother, at “some point” after the divorce, worked as an independent contractor for $25 an hour but was not working at the time of the trial. From this, the trial judge assigned the mother an earnings capacity of $25 an hour and that she was capable of working 30 hours per week, even though there was no evidence that she ever worked 30 hours per week or that such contract work was currently available to her. The mother claimed that she was no longer receiving the contract work because of her unavailability when her children were experiencing medical issues.
The Appeals Court found that, where the mother does not have a college degree, has minimal work experience and is responsible for the overwhelming majority of the children’s care, the trial judge’s attribution of a $750 earnings capacity was an “abuse of discretion” and “clear error”:
[T]here is no indication in the judge’s findings, or in the record, that the mother has ever worked thirty hours per week, or that thirty hours per week of contract work is currently available to her. Moreover, while the judge did not credit the mother’s assertion that she “cannot accept more work” due to her child care responsibilities, the parties’ four children are in the mother’s care all but two weekends per month pursuant to the separation agreement.
Under these circumstances, where there is no evidence to support the judge’s finding that thirty hours per week of contract work is currently available to the mother, and where the mother does not have a college degree, has minimal work experience, and is responsible for the overwhelming majority of the children’s care, the amount of income attributed to the mother “is not appropriate.”
In a parting note, the Appeals Court went on to observe that, even though the father was seasonally unemployed, the trial judge did not attribute any additional income to him for his earnings capacity during his down time.
Order on Reversal: Original Child Support Order Reinstated
For the reasons above, the Appeals Court reversed the lower court judgment setting child support at $371 per week, reinstated the original child support order of $577 per week, and sent the case back to the trial judge for recalculation based upon further evidence, if necessary. The Appeals Court also vacated the trial judge’s finding of contempt against the mother – a subject for an upcoming blog.