Waiving, Double-Dipping and Attributing Income for Child Support Calculations

Can a parent waive the ability to receive child support? Is so-called, “double-dipping” of an asset or income prohibited by law? Can a judge assign an income to someone unemployed or underemployed? These and other important child support related questions were addressed in the recent case of Fehrm-Cappuccino v. Cappuccino, Mass. App. Ct. No. 15-P-484, October 18, 2016.

When the parties divorced in 2010, they agreed that Father’s first two years of child support were deemed “prepaid” in exchange for Father’s equity that Mother received when she took full ownership of the former marital home. In 2012, when Father was to begin paying child support, he filed a complaint for modification.

On appeal, Mother argued that rental income received by Father had not been considered for inclusion in the judge’s calculation that reduced Father’s child support payments. Father argued that Mother had waived her interest in the rental property as part of the asset division of the divorce. The court pointed out that “even if 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 (2016). The Appeals Court ruled that it was error not to include Father’s rental income in the calculation, even if Mother had waived her interest.

In addressing any potential concerns about “double counting” or “double-dipping” of the rental property as both an asset in the division of the marital estate, as well as an income source for child support calculation, the court noted, “there is nothing…that prohibits double dipping as a matter of law. Rather…the judge must look to the equities of the situation to make [his] determination. Champion v. Champion, 54 Mass. App. Ct. 215, 219 (2002) And, “there is nothing improper about including a particular asset within a spouse’s assignable estate, assigning part of it, and then counting its remainder for alimony or child support purposes.” Dalessio v. Dalessio, 409 Mass. 821, 828 (1991).

Mother also argued that the court abused its discretion by attributing income to her based on contributions from her cohabiting boyfriend. Child Support Guidelines (effective August 1, 2013) allow a judge to consider “any other form of income or compensation not specifically itemized” in the guidelines. at § I.A(28) This has become known as the “catch all” provision. Thus, the guidelines neither prohibit, nor specifically require inclusion of contribution from a household member. See Murray v. Super, 87 Mass. App. Ct. 146, 155 (2015). In this case, the judge attributed $346 of weekly income to Mother based on her boyfriend’s monthly contribution of $1,500 to the mortgage.

Mother further argued that the judge had improperly attributed income based on an earning capacity to her. She reported weekly income of only $46.92, but the judge attributed weekly income of $750 based, among other, on the judge finding Mother capable of working thirty hours a week at $25/hour. While it’s true that “income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed,” the Appeals Court found that the trial judge had abused his discretion in attributing income, due to the fact that Mother had no college degree, has minimal work experience, and is responsible for the majority of the childcare. Child Support Guidelines § I.E.

Knowing what can or can’t be included in child support calculations case can be overwhelming for someone already overwhelmed with the emotions associated from divorce or being a single parent. You need a knowledgeable and experienced attorney on your side. If you know someone who has a current child support order, or is looking to establish or modify one, contact the attorneys at Hutchins Law, P.C. today.

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