Wasson v. Wasson
81 Mass. App. Ct. 574
| Mass. App. Ct. | 2012Background
- Divorce in 2004; health insurance for defendant and child was on the line.
- 2005 cross-claims for modification; 2008 claims dismissed/resolved; fees only issue.
- 2009 modification awarded Tufts insurance at plaintiff’s expense, higher weekly child support, no fees to either.
- Plaintiff later sought to amend judgment to exclude capital gains from income and to recover fees.
- 2009 modification judge amended; capital gains issue became central; order appealed.
- Appellate review for abuse of discretion; need written findings when deviating from guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Capital gains as income for support | Wasson argues gains are principal withdrawals, not income. | Gains are a regular income source and should be included. | Capital gains inclusion required; deference to guidelines; need written findings if deviating. |
| Deviation from guidelines and required findings | Deviation warranted to address double dipping and equities. | Deviation allowed without explicit findings is permissible. | Deviation requires specific written findings; absence constitutes abuse of discretion. |
| Health insurance order status and waiver | Waivability argued; plan deemed good; contested on appeal. | Issues resolved by trial; res judicata not applicable. | Issue waived on appeal; pretrial concession resolved the question. |
| Attribution of income to defendant and plaintiff | Judge improperly attributed/adjusted incomes; equalization flawed. | Earning capacity evidence supports allocations; no clear error. | Attribution supported; remand for proper equalization findings as necessary. |
Key Cases Cited
- Adams v. Adams, 459 Mass. 361 (Mass. 2011) (guidelines presume application; deviations require findings)
- Croak v. Bergeron, 61 Mass. App. Ct. 750 (Mass. App. Ct. 2006) (deviation from guidelines requires specific findings)
- Dalessio v. Dalessio, 409 Mass. 821 (Mass. 1991) (double dipping considerations; equities govern)
- Champion v. Champion, 54 Mass. App. Ct. 215 (Mass. App. Ct. 2002) (double dipping discussions; equities matter)
- Noonan v. Noonan, 261 Neb. 552 (Neb. 2001) (capital gains may be income if regular source)