NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

15-P-484                                               Appeals Court

       CAROLYN FEHRM-CAPPUCCINO       vs.   GARY J. CAPPUCCINO.


                               No. 15-P-484.

           Norfolk.       April 11, 2016. - October 18, 2016.

               Present:    Cypher, Agnes, & Massing, JJ.


Divorce and Separation, Modification of judgment, Child support.
     Parent and Child, Child support. Contempt. Practice,
     Civil, Contempt.



     Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on July 14, 2008.

     A complaint for modification, filed on January 12, 2012,
and a complaint for contempt, filed on November 20, 2013, were
heard by George F. Phelan, J.


    Karen W. Stuntz for the mother.
    Jonathan E. Fields for the father.


    CYPHER, J.        In this appeal from a "judgment on complaint

for modification and complaint for contempt" entered by a judge

of the Probate and Family Court on February 21, 2014, Carolyn

Fehrm-Cappuccino (mother), the former wife of Gary J. Cappuccino

(father), challenges the downward modification of child support
                                                                     2


and the lack of a contempt finding against the father.     We

address the mother's arguments in turn.

     1.    Modification.   The parties were divorced on January 4,

2010, pursuant to a judgment of divorce that incorporated their

separation agreement.      Pursuant to the separation agreement, the

mother received primary physical custody of the parties' four

children and the father was required to pay weekly child support

of $577.   The first two years of the father's child support

payments were deemed "prepaid" in exchange for the mother's

receipt of the marital home, with the father's weekly child

support payments scheduled to "resume" in January, 2012.        On

January 12, 2012, the father filed a complaint for modification

of his child support obligation.     On February 21, 2014, a judge

of the Probate and Family Court entered a judgment reducing the

father's weekly child support obligation to $371, retroactive to

January 24, 2012.    On appeal, the mother challenges the reduced

child support amount, asserting that it was the result of

several errors made by the judge when determining the parties'

respective incomes.1


     1
       As an initial matter, the mother argues that the father's
complaint should have been dismissed as he failed to plead facts
sufficient to warrant modification. However, based on the
record before us, it appears that the mother did not assert this
defense until after the trial was held and the judgment was
entered. As this defense was not timely raised below, see
Mass.R.Dom.Rel.P. 12(a)-(b), it is deemed waived on appeal and
we decline to consider it. See Carey v. New England Organ Bank,
                                                                     3


     a.     Exclusion of the father's rental income.   The mother

first contends that the judge improperly excluded the father's

rental income from Canton Lanes Limited Partnership (Canton

Lanes) of approximately $507 per week when calculating child

support.2

     The Child Support Guidelines (guidelines) "have presumptive

application to actions to modify existing [child support]

orders."    Croak v. Bergeron, 67 Mass. App. Ct. 750, 754 (2006).

The guidelines define "income . . . as gross income from

whatever source . . . includ[ing] . . . income derived from

businesses/partnerships . . . [and] net rental income."      Child

Support Guidelines § I.A(7) & (26) (effective August 1, 2013).

Accordingly, there is a "rebuttable presumption" that net rental


446 Mass. 270, 285 (2006). The mother further argues that
modification of child support was inappropriate because there
had been no "material change" in the parties' financial
circumstances since the divorce. This argument fails because
the judge did not find "material change in circumstances," see
Pierce v. Pierce, 455 Mass. 286, 293 (2009); rather, he found an
"inconsistency" between the amount of the existing child support
order and the amount that would result from application of the
Child Support Guidelines (guidelines). See Morales v. Morales,
464 Mass. 507, 511 (2013) ("[W]hen a complaint seeking
modification of a child support order is filed, modification is
presumptively required whenever there is an inconsistency
between the amount of child support that is to be paid under the
existing support order and the amount that would be paid under
the guidelines").
     2
       Canton Lanes holds title to a shopping center and receives
rental income from its tenants. The father's 14.62009 percent
interest in Canton Lanes was valued at $774,860 in 2009. The
father's share of the 2012 rental income from Canton Lanes was
$26,379, which averages out to $507 per week.
                                                                     4


income derived from a partnership "should be included when

calculating income for a child support obligation."     Wasson v.

Wasson, 81 Mass. App. Ct. 574, 577-578 (2012).

     Notwithstanding that presumption, the judge in this case

excluded the father's Canton Lanes rental income on the basis

that it "emanat[es]" from an asset assigned to the father at the

time of the divorce.   The judge concluded that the mother's

waiver of "all right, title and interest in and to" Canton Lanes

in the separation agreement operated as a waiver of her right to

support from the father's Canton Lanes rental income.     However,

in so concluding, the judge overlooked the fact that the parties

considered the father's Canton Lanes income when setting his

initial child support obligation in the separation agreement.3

See Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting

from Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 568 (2001)

("When the judgment to be modified incorporates an agreement of

the parties, we . . . will 'review the findings to determine

whether the judge gave appropriate consideration to the parties'

intentions as expressed in their written agreement'").

Moreover, "even if the mother did waive her right to any

     3
       The separation agreement provides, in relevant part, that
the father "is presently unemployed and receiving a combination
of unemployment insurance benefits and Schedule K-1
distributions from his interest in Canton Lanes Limited
Partnership. The parties agree that the [father] [shall] pay
child support in the amount of $577 per week or $30,000
annually."
                                                                   5


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).

     To the extent that the judge relied on Zeghibe v. Zeghibe,

82 Mass. App. Ct. 614 (2012), for the proposition that treating

Canton Lanes both as an asset and as a stream of income would

constitute inequitable "double counting,"4 that reliance was

misplaced.    In Zeghibe, a case involving modification of child

support, this court set aside the attribution of income to the

husband stemming from his liquidation of an individual

retirement account (IRA), as the husband had "received the IRA

funds at the time of the divorce as part of the division of

assets and not as a stream of income for purposes of computing

support."    Id. at 621.   Here, unlike in Zeghibe, 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

     4
       The term "double counting" (or "double dipping") is used
"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 support obligations." Croak v. Bergeron,
67 Mass. App. Ct. at 758-759, quoting from Champion v. Champion,
54 Mass. App. Ct. 215, 219 (2002). "Although '[c]ourts and
commentators have often disagreed . . . as to what constitutes
double-dipping,' . . . there is nothing . . . that prohibits
double dipping as matter of law." Id. at 759, quoting from
Sampson v. Sampson, 62 Mass. App. Ct. 366, 374 (2004). "Rather,
. . . the judge must look to the equities of the situation to
make [his] determination." Ibid.
                                                                    6


Canton Lanes] as a marital asset as well as a source of income

by which [the father] can meet his support obligations."

Champion v. Champion, 54 Mass. App. Ct. 215, 221 (2002).    See

Dalessio v. Dalessio, 409 Mass. 821, 828 (1991).5   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.    See Hoegen v.

Hoegen, 89 Mass. App. Ct. at 8-11.

     We note that the judge also excluded from his child support

calculation the mother's rental income from Fiddlers Landing LLC

(Fiddlers Landing), an asset which she received in the divorce.6

While the father has not appealed the exclusion of the mother's

rental income, the mother's counsel acknowledged at oral

argument that each party's rental income should have been


     5
       "So long as 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 (thus avoiding redistribution by an alimony or
support order of specific assets that already have been
equitably assigned), 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. at 828.
     6
       The mother has a one-third interest in Fiddlers Landing,
which holds title to real property that is currently rented out
at $3,700 per month. The mother's one-third share of the
Fiddlers Landing rental income is approximately $284 per week,
though it appears that this figure represents gross -- rather
than net -- rental income.
                                                                   7


included in the child support calculation.    Accordingly, when

recalculating child support on remand, the judge should include

the father's net rental income from Canton Lanes and the

mother's net rental income from Fiddlers Landing.

     b.    Contribution from the mother's cohabiting boy friend.

The mother next contends that the judge abused his discretion by

attributing income to her based on contributions from her

cohabiting boy friend.

     While "'[t]he guidelines and our case law leave the

definition of income flexible, and the judge's discretion in its

determination broad[,]' . . . . that discretion is not without

bounds."    Murray v. Super, 87 Mass. App. Ct. 146, 155 (2015),

quoting from Casey v. Casey, 79 Mass. App. Ct. 623, 634 (2011).

With respect to financial contributions from a household member,

the guidelines neither prohibit, nor specifically require, their

inclusion when calculating child support.    Murray v. Super,

supra.7    Instead, the judge must make detailed findings to

justify including contributions from a household member in a

child support recipient's income.    Ibid.   This is largely due to

the fact that children should "be supported by the financial


     7
       Contributions from a household member are not expressly
included in the guidelines' expansive definition of "income."
Child Support Guidelines § I.A. However, the "catch-all"
provision allows a judge to consider "any other form of income
or compensation not specifically itemized" in the guidelines.
Id. at § I.A(28).
                                                                    8


resources of their parents[,]" rather than by the resources of

third parties.   Id. at 154, quoting from M.C. v. T.K., 463 Mass.

226, 231 (2012).

     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.8   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."   Murray v. Super, 87 Mass. App. Ct. at 155.9


     8
       The judge appeared to rely on the guidelines' catch-all
provision when treating the contributions from the mother's boy
friend as income for purposes of calculating support. However,
to the extent that the judge may have alternatively treated the
boy friend's contributions as analogous to "spousal support
received from a person not a party to this order," he was
mistaken in doing so. Child Support Guidelines § I.A(18).
     9
       The judge found that the mother's boy friend, with whom
she has been living since 2012, "contributes towards the
household expenses. The full extent of that contribution is not
fairly reflected on [the mother's] financial statement."
However, there is no mention in the judge's findings regarding
the mother's current living expenses, nor the extent to which
the boy friend's contributions serve to reduce them. We note
that the mother's January, 2014, financial statement does indeed
reflect a reduced weekly mortgage expense as a result of her boy
friend's contribution to same.
                                                                      9


"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."    Ibid.   Accordingly, the

attribution of income to the mother based on her boy friend's

contribution is set aside and remanded for further findings.

    c.     The mother's earning capacity.   The mother further

contends that the judge abused his discretion by attributing an

earning capacity to her of $750 per week.

    "Income may be attributed where a finding has been made

that either party is capable of working and is unemployed or

underemployed."   Child Support Guidelines § I.E.    In making such

a finding, "[t]he Court shall consider all relevant factors

including without limitation the education, training, health,

past employment history of the party, and the availability of

employment at the attributed income level.     The Court shall also

consider the age, number, needs and care of the children covered

by this order.    If the Court makes a determination that either

party is earning less than he or she could through reasonable

effort, the Court should consider potential earning capacity

rather than actual earnings in making its order."     Ibid.

    Here, the mother, who does not have a college degree, was

unemployed both during the marriage and at the time of the

divorce.   However, at "some point" after the divorce, the mother
                                                                   10


began accepting work as an independent contractor, earning an

hourly rate of $25.10   The judge found that "[t]he last time [the

mother] accepted a contract to do this kind of work was October,

2013 . . . . [and] she ha[s] made no effort to find any other

type of work."    The mother claimed that she was no longer

receiving contracts because she had to turn down several

contracts when two of the parties' children were experiencing

medical issues.    While the mother reported earnings of only

$46.92 per week, the judge ultimately attributed an earning

capacity to her of $750 per week.    The judge found that the

mother is capable of working thirty hours per week at her

previous hourly rate of $25.    However, there 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.11   Moreover, while

the judge did not credit the mother's assertion that she "cannot




     10
       The judge found that "[t]he only evidence on the issue of
mother's pay rate was an explanatory note 5 on her April 5, 2012
financial statement where she indicated her billing rate as an
independent field researcher at $25 per hour."
     11
       Indeed, the judge acknowledged that "[t]here was no
testimony about how many contracts and what the rate or amounts
of pay mother received per contract and how many contracts, and
their value or pay rates, she has turned down. The only
documentary evidence about [the] mother's contract work was two
1099 forms for 2012 indicating she earned a total of $4,781.25."
                                                                  11


accept more work" due to her child care responsibilities,12 the

parties' four children are in the mother's care all but two

weekends per month pursuant to the separation agreement.13

     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."   Casey v. Casey, 79 Mass. App. Ct.

at 631.14   This is especially true given that the father is



     12
       The judge found that the mother often worked until 2:00
A.M. "to accommodate clients from Europe," which "undercuts her
argument that she needs to be home to care for the children and
cannot accept more work."
     13
       While the judge found that the "[f]ather sees the
children approximately [four] days per month," the judge later
found that the mother "claimed, without persuasive proof or
documentation, that father's parenting time was only 15% and
conversely her parenting time with the children was 85%."
However, we note that the percentages asserted by the wife are
roughly equivalent to the parenting time allotted to each party
under the terms of the separation agreement.
     14
       The "imputation of income is not appropriate . . . where
[the mother's] . . . employer had reduced her hours, and there
was no reason to believe that she would be able to work more
hours at the same job. . . . Nor was there any evidence about
the availability of other full-time or part-time employment in
the same geographic area, or any evidence about the [mother's]
skill level or specialized training, or what salaries were
commonly paid to someone in her situation. . . . In addition
there were few, if any, periods during the parties' long-term
                                                                       12


seasonally unemployed, yet the judge declined to attribute any

additional income to him.      Moreover, "to the extent that the

judge based his child support award on a presumption that the

child[ren] spend[] one-third of [their] time with [the] father,

this was error."      Id. at 635.   Accordingly, on this record, it

was an abuse of discretion to attribute an earning capacity of

$750 per week to the mother.        See L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014), quoting from Picciotto v.

Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) ("[A]

judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge made 'a clear error of

judgment in weighing' the factors relevant to the decision, such

that the decision falls outside the range of reasonable

alternatives").

     2.   Contempt.     The mother next contends that the judge

abused his discretion by declining to find the father in

contempt, where the uncontroverted evidence demonstrated that

the father failed to pay a $10,000 lump sum by June 7, 2013, as

required by the judge's March 6, 2013, judgment.15



marriage when the [mother] worked full time."        Casey v. Casey,
79 Mass. App. Ct. at 631.
     15
       The March 6, 2013, judgment required the father to pay
the mother a lump sum of $10,000 by June 7, 2013, to satisfy a
portion of his child support arrearage totaling $22,894.79. In
November, 2013, the mother filed a complaint for contempt
asserting that the father had failed to pay the $10,000 lump
                                                                   13


    "[A] civil contempt finding [must] be supported by clear

and convincing evidence of disobedience of a clear and

unequivocal command."   K.A. v. T.R., 86 Mass. App. Ct. 554, 567

(2014), quoting from Birchall, petitioner, 454 Mass. 837, 853

(2009).   Here, the judge concluded that while the March 6, 2013,

judgment was "clear and unequivocal," "there was no direct

evidence" of the father's failure to pay the $10,000 lump sum.

The judge found that "[a]lthough [the] mother testified that

[the] father owed $10,000 'as alleged in [her] complaint'" for

contempt, her "testimony falls far short of the required clear

and convincing evidence of failure to comply."   It appears that

the father did not file an answer to the mother's complaint for

contempt, and did not offer testimony, or any other evidence, to

refute the mother's allegation that he had failed to pay the

$10,000 lump sum.   While the judge is not required to accept

uncontroverted evidence, see Casey v. Casey, 79 Mass. App. Ct.

at 633, it is difficult to perceive how the mother could have

provided "direct evidence," apart from her own testimony, of

something that she claims did not occur.   As there is no

indication that the judge found the mother's testimony to lack

credibility with respect to the contempt allegation, the basis

for the judge's decision is unclear.   Accordingly, the contempt


sum. The mother's November, 2013, complaint for contempt was
thereafter consolidated with the father's January, 2012,
complaint for modification for purposes of trial.
                                                                   14


adjudication is set aside and remanded so that the judge may

further explain his rationale, or make an alternate disposition,

if necessary.

    Finally, we address an issue that will arise on remand.       In

the March 6, 2013, judgment, the father was found to be in

arrears of his child support obligation by $22,894.79, and was

ordered to pay (in addition to the $10,000 lump sum) an extra

$100 per week on top of his regular child support payments of

$577.   However, upon retroactively reducing the father's child

support payments to $371 in the February 21, 2014, judgment, the

judge "suspended" the father's obligation to pay an additional

$100 per week toward the arrearage.   Because the judge must

recalculate child support on remand, he should also determine

the father's current child support arrearage in light of the new

support amount, and set an appropriate repayment schedule.     The

judge may take additional evidence and enter further findings to

accomplish this.

    Conclusion.    For the reasons set forth above, the February

21, 2014, "judgment on complaint for modification and complaint

for contempt" is vacated and the matter is remanded for further

proceedings consistent with this opinion.   The father's prior

child support obligation of $577 per week shall be reinstated
                                                               15


without prejudice pending final disposition.   Both parties'

requests for appellate fees and costs are denied.16

                                   So ordered.




     16
       To the extent that we do not address the parties' other
contentions, "they 'have not been overlooked. We find nothing
in them that requires discussion.'" Department of Rev. v. Ryan
R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).
