Fehrm-Cappuccino v. Cappuccino
90 Mass. App. Ct. 525
| Mass. App. Ct. | 2016Background
- Parties divorced 2010; separation agreement gave mother primary custody of four children and required father to pay $577/week child support, with first two years prepaid in exchange for mother receiving the marital home.
- Father filed for modification of child support on January 12, 2012; judge reduced support to $371/week retroactive to January 24, 2012, and consolidated a later contempt complaint into the proceeding.
- Father owns a 14.62% interest in Canton Lanes LP, producing about $507/week (2012 share); mother owns one-third of Fiddlers Landing with rental income (~$284/week gross).
- Mother cohabits with a boyfriend who allegedly contributes $1,500/month toward the mortgage; judge attributed $346/week to mother based on that contribution.
- Mother had intermittent independent-contractor work at $25/hour; judge attributed $750/week earning capacity to her. Mother contested reduction of support and the judge’s refusal to find father in contempt for failing to pay a $10,000 lump sum ordered in March 2013.
Issues
| Issue | Plaintiff's Argument (Fehrm-Cappuccino) | Defendant's Argument (Cappuccino) | Held |
|---|---|---|---|
| Whether father’s Canton Lanes rental income should be included in income for child support | Rental income should be included under Guidelines; judge erred excluding it | Income from an asset assigned at divorce need not be counted; exclusion was proper | Exclusion was abuse of discretion; rental income must be included (mother’s rental income also to be included on remand) |
| Whether mother’s boyfriend’s contributions may be attributed as her income | Contributions should not be treated as mother’s income without detailed findings | Contributions can be considered under judge’s discretion/catch‑all | Attribution set aside for lack of required detailed findings; remand for further findings |
| Whether it was proper to impute $750/week earning capacity to mother | Imputation excessive given limited work history, childcare responsibilities, and lack of evidence of 30 hrs/week availability | Mother can reasonably work 30 hrs/week at $25/hr based on past contract work | Imputation was an abuse of discretion; no record support for 30 hrs/week or availability; remand to recalc support |
| Whether father should be held in civil contempt for not paying $10,000 lump sum | Judge erred in denying contempt where evidence shows father failed to pay | Trial judge found insufficient direct evidence to meet clear & convincing standard | Contempt ruling vacated and remanded for the judge to explain rationale or revisit disposition (mother’s uncontradicted testimony insufficiently explained) |
Key Cases Cited
- Croak v. Bergeron, 67 Mass. App. Ct. 750 (presumptive application of Child Support Guidelines)
- Wasson v. Wasson, 81 Mass. App. Ct. 574 (partnership/rental income presumptively included in income)
- Morales v. Morales, 464 Mass. 507 (modification presumptively required when existing order inconsistent with Guidelines)
- Hoegen v. Hoegen, 89 Mass. App. Ct. 6 (waiver of asset does not waive children’s right to support from income generated by that asset)
- Zeghibe v. Zeghibe, 82 Mass. App. Ct. 614 (distinguishing liquidation/asset-as-income where double counting would be inequitable)
- Dalessio v. Dalessio, 409 Mass. 821 (permitting counting of an asset as both property and income where no redistribution occurs)
- Casey v. Casey, 79 Mass. App. Ct. 623 (standards for imputing income and evidentiary burden on contempt)
- Murray v. Super, 87 Mass. App. Ct. 146 (need for detailed findings when including household member contributions)
- K.A. v. T.R., 86 Mass. App. Ct. 554 (civil contempt requires clear and convincing evidence of disobedience)