This сase arises from a Probate and Family Court judgment on a complaint for modification, as amended by
Background. Defendant Silvia M. Wasson and plaintiff Alfred W. Wasson were divorced in 2004. The divorce judgment provided, among other things, that the plaintiff would maintain health insurance for the defendant and the minor child. In 2005, the parties filed cross claims for modification. In 2008, both claims were dismissed or otherwise resolved, with the only genuine issue being whether the parties would be paid their attorney’s fees. The divorce judge decided not, generally concluding that the claims by each, while ultimately not meritorious, were not frivolous. A panel of this court affirmed. Monteleone-Wasson v. Wasson,
Soon after the 2008 mоdification judgment issued, and while it was on appeal, the parties again filed cross claims for modification. The plaintiff, contending that adding the defendant to his insurance was becoming prohibitively expensive, and noting that she could obtain health insurance through her employer, Tufts University (Tufts), at greatly reduced cost, wanted the defendant tо get insurance through Tufts. (He still would reimburse her for that insurance.) Although the Tufts coverage apparently was better than that provided by the plaintiff, the defendant resisted. For her part, the defendant wanted the plaintiff’s child support obligation modified to be in better accord with the guidelines as she interpreted them.
On the morning of the first day of trial оn the cross complaints for modification, the defendant conceded that the plan through Tufts was a “good” plan, withdrew her objection, and indicated her willingness to voluntarily sign up for insurance through Tufts. As such, the 2009 modification judgment ordered the defendant to seek health insurance through Tufts, for which the plaintiff would continue to pay; increasеd the plaintiff’s weekly child support payments; and denied requests for attorney’s fees by both parties. The decision noted, however, that the award of
The plaintiff then filed a motion to amend judgment, seeking to have his attributable income reduced to match the defendant’s, requesting a change to exclude his capital gains from his over-all investment income, and seeking attorney’s fees from the defendant. In an order dated April 18, 2010, the 2009 modification judge granted all of the plaintiff’s requests fоr relief and awarded him $21,855 in attorney’s fees instead of the $39,097.50 that he requested. The defendant filed the current appeal.
Discussion. 1. Recalculation of plaintiff’s child support obligation. The defendant claims that the 2009 modification judge erred as a matter of law by excluding the plaintiff’s regular use of assets from the calculation of his income. Specifically, the defendant argues that the judge should have counted as income capital gains from the liquidation of certain investments. The plaintiff contends that the evidence presented showed that these gains were actually principal withdrawals, not income.
When assessing a decision regarding a modification of child support, an appellate court “review[s] for аn abuse of discretion.” Richards v. Mason,
“By statute, Massachusetts fixes child support guidelines.” Adams v. Adams,
The preamble of the guidelines states, “There shall be a rebuttable presumption that these guidelines apply in all cases establishing or modifying a child support order.” Furthermore, tracking the statute, § IV of the guidelines requires that the judge make specific written findings when deviating from the guidelines, including findings “that such departure is сonsistent with the best interests of the child.” Section IV of the guidelines then sets forth examples of “[cjircumstances which may support deviation[,j including] . . . [that] absent deviation, application of the guidelines would lead to an order that is unjust, inappropriate or not in the best interests of the child, considering the Principles of these guidelines.”
Of relеvance here, § I of the guidelines addresses the definition of income, and how it should be calculated when determining a child support obligation: “For purposes of these guidelines, income is defined as gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Servicе or state Department of Revenue or other taxing authority. Those sources include, but are not limited to, the following: . . . capital gains in real and personal property transactions to the extent that they represent a regular source of income.” Therefore, to the extent that capital gains represent a regular source of income, there is a rebuttable
In the present case, there is evidence on the record that the plaintiff’s use of capital gains constituted a regular source of income. More specifically, in 2006, the plaintiff had capital gains of $41,863; in 2007 he had capital gains of $25,204; and in 2008 he had capital gains of $141,575.
The divorce judge appears to have followed the guidelines and counted the plaintiff’s capital gains as income for purposes of calculating his child support obligation, setting the amount that he could generate from investments at $60,000 per year. Three years later, the 2009 modification judge initially followed this formula, leaving the plaintiff’s obligation undisturbed. In her decision, the judge noted that thе plaintiff’s unearned income should include attributed interest, dividend income, and income derived from capital gains due to a lack of evidence by which to distinguish these amounts.
In the plaintiff’s motion to amend, he contended that capital gains should be excluded from the calculation of his income, and that the amount of his child support should thereby be reduced from $361 per week to $261 per week. He stated:
“Plaintiff’s testimony, as well as the tax returns, also demonstrate that his reported income from capital gains resulted from his sale of stocks, which, as Plaintiff testified, was necessary solely in order to generate sufficient income to pay his support obligation. In faсt, in 2007 Plaintiff’s entire income, excluding capital gains, was $47,366, or about half the amount on which the child support obligation was based; and in 2008 this income was reduced further to $43,075. Plaintiff had no choice but to generate more income in order to pay his support. Such capital gains thus do not represent a true gain from which his support obligation shоuld be calculated. This would create a self-perpetuating process by which Plaintiff would be continuously required to create more capital gain incomesolely to pay the increased support obligation that resulted solely from his increased capital gain income. This results in a ‘double dip’ that was clearly not сontemplated by the Child Support Guidelines” (second emphasis supplied).
In a margin endorsement, the 2009 modification judge stated, “The within motion is ALLOWED and the judgment shall be amended accordingly.” It is possible that the judge was persuaded that the plaintiff’s “double dipping” theory had overcome the presumption that the use of his capital gains should be included in the income calсulation. As noted, supra, while it is in the sound discretion of the judge to modify an existing child support order, when the modification involves a deviation from the guidelines, both the statute and the guidelines require that the judge explain the deviation in specific written findings. Here, however, there were no specific written findings. For this reason, the judge abused her discretion, аnd the child support modification cannot stand. See Department of Rev. v. Foss,
As the judge must consider the “double dipping” theory as argued by the plaintiff on remand, we note that while “Massachusetts has looked with disfavor at so-called ‘double dipping,’ ” Adams v. Adams, 459 Mass, at 394, what constitutes “double dipping” is not easily defined, and whether it is improper in a particular case must be carefully assessed. The basic law has been aptly summarized:
“ ‘Commentators use the phrase “double dipping” to describe the seeming injustice that occurs when property is awarded to one spouse in an equitable distribution of marital assets and is then also considered as a source of income for purposes of imposing suрport obligations.’ Champion v. Champion,54 Mass. App. Ct. 215 , 219 (2002). Sampson v. Sampson,62 Mass. App. Ct. 366 , 373-374 (2004). Adlakha v. Adlakha,65 Mass. App. Ct. 860 , 865 (2006). See Dalessio v. Dalessio,409 Mass. 821 , 828 (1991), S.C.,413 Mass. 1007 (1992). Although ‘[cjourts and commentators have often disagreed ... as to what constitutes double-dipping,’ Sampson v. Sampson, supra at 374, we have stated that there is nothing in the Supreme Judicial Court’s Dalessio decision, supra, or in G. L. c. 208, § 34,. . . that prohibits double dipping as matter of law. See Champion v. Champion, supra at 222. Rather, . . . the judge must look to the equities of the situation to make her determination. See ibid."
Croak v. Bergeron,
The objection lodged by the plaintiff, premised on a theory of unfair self-generating liability — that he was being compelled to generate capital gains income to satisfy the child support order (which in turn was the basis of increased income supporting in circular fashion a higher level of child support) — does not fall within the commonly expressed definition of “double dipping.” That said, however the theоry is characterized, the question remains whether the inclusion of capital gains as presumptively required by the guidelines results in an increasing support obligation that is unjust or inappropriate under the circumstances. On remand, if the judge determines that deviation from the guidelines is warranted and consistent with the best interests of the child, the judge must makе specific written findings, as required by the governing statute and the guidelines.
2. Other issues, a. Health insurance. The defendant argues that the issue of purchasing health insurance through Tufts was precluded by the 2008 modification judgment, and that the 2009 modification judgment was barred due to the doctrine of res judicata. Yet on the first morning of trial, she conceded that the insurance plan provided through Tufts was a “good” plan, and that she did not object to enrolling in that plan, effectively resolving the question. The issue is thus waived for appeal.
b. Attribution of income to defendant. The defendant claims that the decision to attribute income to her was unsupported because the 2009 modification judge made no findings that any positions were available with the level of eаrnings attributed to her; the finding that the defendant could earn additional income was not supported by the record; and the plaintiff failed to present evidence of available employment. Usually, “a judge
c. Attribution of income to plaintiff. The defendant claims that the 2009 modification judge should have attributed additional income to the plaintiff, stating that it was error for the judge to treat the parties differently and attribute income to the defendant arbitrarily, reduce the plaintiff’s attributed employment income so that it matched the defendant’s, and then ignore unchanged circumstances, both of which would point to higher levels of income for the plaintiff.
The divorce judge attributed income to the plaintiff equal tо that of the defendant because they both had “somewhat similar educational attainments” and therefore the judge assumed that their earning potentials were approximately the same. Having no record of the earning potential of the plaintiff, this formula was established and followed in an attempt to equalize the parties’ earned incomes.
The 2009 modification judge lowered the defendant’s income to $26,000, while not adjusting the plaintiff’s income to match hers, which was not consistent with the formula established in the divorce judgment. Upon realizing this apparent mistake, the judge granted the plaintiff’s motion to amend and modified the
d. Award of attorney’s fees and costs. The defendant argues that the attorney’s fees and costs awarded to the plaintiff were inappropriate and excessive because her claims were not frivolous and the plaintiff was equally responsible for the litigation. These contentions are not persuasive. A judge has discretion to award fees even in the absence of bad faith or frivolous claims or defenses. See G. L. c. 208, § 38; Cooper v. Cooper,
The defendant also argues that she was entitled to an evidentiary hearing before attorney’s fees were awarded to the plaintiff. We disagree. See Edinburg v. Edinburg,
e. Appellate attorney’s fees. The parties seek attorney’s fees for this appeal, with each claiming that the other’s appeal or arguments are frivolous and without merit. “An appeal is frivolous ‘[wjhen the law is well settled, when there can be no reasonable еxpectation of a reversal.’ ” Avery v. Steele,
Conclusion. So much of the 2009 modification judgment, and
So ordered.
Notes
“[W]e decline to disturb an award of child support for inequitable ‘double dipping’ where it is possible to ‘identify separate portions of a given asset of a divorcing spouse as the separate bases of the property assignment and any alimony or support obligations.’ ” Adams v. Adams, supra, quoting from Dalessio v. Dalessio,