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revision and are superseded by the advance sheets and bound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

14-P-1491                                             Appeals Court

            PATRICK J. HOEGEN    vs.   CHRISTINE M. HOEGEN.


                             No. 14-P-1491.

      Worcester.         October 21, 2015. - January 22, 2016.

              Present:    Green, Hanlon, & Massing, JJ.


Divorce and Separation, Child support, Modification of judgment,
     Separation agreement, Findings, Attorney's fees. Parent
     and Child, Child support. Waiver.



     Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on March 17, 2010.

     An amended complaint for modification, filed on May 23,
2013, was heard by Joseph Lian, Jr., J.


     Warren M. Yanoff for Christine M. Hoegen.
     Penelope A. Kathiwala (Barbara A. Cunningham with her) for
Patrick J. Hoegen.


    HANLON, J.     The defendant, Christine M. Hoegen (mother),

appeals from a modification judgment of the Probate and Family

Court which held that her former husband, Patrick J. Hoegen

(father), was not obligated to include income realized from
                                                                   2


vested restricted stock units (RSU) in the calculation of child

support for the parties' minor children.1    We reverse.

     Background.    The parties were divorced by a judgment of

divorce nisi, incorporating by reference a separation agreement,

which survived as an independent contract, except as to matters

relating to the children.2    Under the agreement, the father's

child support obligation was $1,020 biweekly,3 which the parties

agreed was higher than the presumptive amount of support under

the Massachusetts Child Support Guidelines at that time.     The

agreement also required that the parties "confer on April 1st of

each year to evaluate whether the child support should be

adjusted."4    Exhibit D to the agreement (captioned

"Pension/Retirement Funds, Etc.") explicitly stated that the

mother "acknowledges that she is aware that the [father] does

participate in a stock plan through his employment; the [mother]

waives all rights, title and interests in these accounts."



     1
         The parties have two children, one born in 2003 and one in
2004.
     2
       An attorney prepared the agreement, but the parties filed
pro se their joint petition for divorce pursuant to G. L.
c. 208, § 1A.
     3
         Every other week.
     4
       In April, 2010, by agreement, the father's child support
obligation increased to $575 per week, with another increase to
$582 per week in April, 2012. The modification judgment
increased the amount to $608 per week.
                                                                   3


    On February 5, 2013, the father filed a complaint for

modification, seeking to define more fully the shared parenting

schedule, that is, to provide more specificity about weekday,

holiday, and vacation schedules along with related

transportation, and also to incorporate language regarding

relocation of the children outside of Massachusetts; he also

sought to extend the review of his child support obligation from

every year to every three years.   The father amended his

complaint on May 23, 2013, requesting not only the original

relief, but also that he be granted the tax exemption for both

children.

    On June 27, 2013, the mother filed an answer to the amended

complaint and a counterclaim, seeking, in addition to

adjustments to the parenting schedule and responsibilities, to

recalculate child support to include "all" of the father's

income.   On January 13, 2014, the parties resolved by

stipulation the issues relating to the parenting schedule, and

proceeded to trial only on the issues of child support and the

tax exemptions.

    On March 25, 2014, the judge ordered the entry of judgment

on the father's modification complaint, incorporating the

parties' stipulation, and increasing the father's child support

obligation to $608 per week, based on base pay and bonuses, but

excluding the RSU income.   The judge found that "the mother did
                                                                     4


not prove that the father's income from [RSU] should be included

in calculating child support as there was no evidence that said

[RSU] income was not derived from the stock plan listed as an

asset on the father's financial statement at the time of the

divorce and in which any interest of the mother in said stock

plan was waived by the mother in the parties' separation

agreement."5    The mother timely appealed.

     Discussion.    RSU income.   First, the mother challenges the

judge's order that the RSU income should not be included in

calculating the father's child support obligation, arguing that

income for child support purposes, as defined in the guidelines,

is "expansive and effectively constitutes income from any and

all sources."    The father counters that, as part of the marital

asset division at the time of divorce, he retained sole

ownership of his "stock plan" and, under the provisions of that

agreement, which independently survived the divorce judgment,

the mother waived "all rights, title and interests" in it.     He

claims that, because the mother waived her right to this asset,

using the RSU income derived from it for the purpose of

calculating child support essentially would be "double dipping."

     5
       Because the balance of the divorce judgment remained in
full force and effect, the status quo was maintained as to the
tax exemption issue, with each party claiming one child on his
or her income tax return until the time that only one child is
available to claim; at that point, the parties will alternate
their exemption claims from year to year.
                                                                    5


    "'[C]hild support is controlled by G. L. c. 208, § 28, and

the Massachusetts Child Support Guidelines.' . . .   Except as

otherwise stated therein, the guidelines have presumptive

application to actions to modify existing orders."   Wasson v.

Wasson, 81 Mass. App. Ct. 574, 576 (2012), quoting from Croak v.

Bergeron, 67 Mass. App. Ct. 750, 754 (2006).   "In furtherance of

the public policy that dependent children shall be maintained as

completely as possible from the resources of their parents and

upon a complaint filed after a judgment of divorce, orders of

maintenance and for support of minor children shall be modified

if there is an inconsistency between the amount of the existing

order and the amount that would result from the application of

the child support guidelines.'"   Morales v. Morales, 464 Mass.

507, 511 (2013), quoting from G. L. c. 208, § 28, as amended,

effective July 1, 2012.   See Massachusetts Child Support

Guidelines § III-A(1) (2013).   In addition, as the principles to

the guidelines state, if one parent comes to enjoy a higher

standard of living, a child is entitled to enjoy that higher

standard.   It is clear, therefore, that the guidelines must be

applied in determining the amount of a parent's child support

obligation, particularly in a case such as this one, where there

is no contrary agreement between the parties and where the
                                                                      6


combined income of the parties is below the guidelines maximum

of $250,000.6    See id. at § II-C.   See also Wasson, supra at 577.

     Section I-A of the guidelines explicitly instructs on the

definition of "income," and how that income should be calculated

when determining a child support order.     "[I]ncome 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 Service or state Department of Revenue or

other taxing authority"; some twenty-seven sources of income are

then listed.    While income derived from stock or RSUs is not

specifically included, the last item on the sample list is a

catch-all phrase stating that "any other form of income or

compensation not specifically itemized" may be included.

Massachusetts Child Support Guidelines I-A(28).

     "[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."    L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d

     6
       There are many reasons why parties may agree to a child
support amount below that suggested by the guidelines. However,
such an agreement may not constitute a waiver. In any future
modification, the guidelines that would have been applicable in
the absence of an agreement, along with the reasons for any
deviation, must be considered.
                                                                    7


9, 15 (1st Cir. 2008).     We acknowledge that the judge has a

measure of discretion in how to value and how to characterize

stock, bonuses, and contingencies because "a 'one size fits all'

rule is both impractical and potentially unfair."      Brower v.

Brower, 61 Mass. App. Ct. 216, 221 (2004).     However, as this

court has held, income derived from stock options is considered

"gross annual employment income" for the purpose of calculating

child support orders.    Wooters v. Wooters, 74 Mass. App. Ct.

839, 843 (2009).   "[C]ommon sense dictates that the income

realized from the exercise of stock options should be treated as

gross employment income:     It is commonly defined as part of

one's compensation package, and it is listed on W-2 forms and is

taxable along with the other income."     Ibid.   If not

characterized as such, "a person could potentially avoid his or

her obligations merely by choosing to be compensated in stock

options instead of by a salary."     Ibid.   See Champion v.

Champion, 54 Mass. App. Ct. 215, 221 (2002) (rejecting the

proposition that "an improper double benefit exists whenever

income produced by an asset included in a party's equitable

share of the marital estate is considered in determining the

need for or the ability to pay support orders").

    In this case, the father received as part of the

compensation package in his offer of employment a certain number

of RSUs.   In addition, as indicated by the father's employee pay
                                                                    8


stubs, he regularly earned income from his employer-issued RSUs.

As a result, contrary to the father's argument, these monies

should have been included as gross income, along with his base

salary and bonus compensation, in calculating his child support

obligation.   See ibid.   In light of this, the judge's finding

that the mother failed to "prove that the father's income from

[RSUs] should be included in calculating child support" was

error.   The error was compounded by the fact that the judge

failed to make written findings as to why he excluded the RSU

income from the child support calculation, apart from noting

that any claim to that income was waived.    See Wasson, 81 Mass.

App. Ct. at 579 (judge abused discretion in failing to make

specific written findings in excluding capital gains income).

    In addition, it does not appear from the modification

judgment that the judge considered the disparity in the

standards of living between the parties' households, which is

inconsistent with the principles underlying the guidelines.       See

Katzman v. Healy, 77 Mass. App. Ct. 589, 599 (2010), quoting

from Brooks v. Piela, 61 Mass. App. Ct. 731, 734 (2004)

("Implicit in the judge's consideration of this disparity [in

income] is consideration of the children's needs, defined in the

light of [the father's] higher standard of living").    We are

satisfied that failure to consider the income derived from the

RSUs in determining an appropriate child support order in this
                                                                    9


case would result in an inequity.    See Croak, 67 Mass. App. Ct.

at 759.

    As noted, the father counters that the mother waived all

interest in his RSU income at the time of the agreement.     That

waiver, in his view, forecloses any consideration of RSU income

in determining child support.   The mother responds that the

waiver was invalid because the father failed to disclose to her

the nature of the stock options.     In her view, by listing the

stock options under "Pension/Retirement Funds, Etc.," the

father, at the time of the agreement, concealed that portion of

his income from her.   In addition, at the time of the negotiated

child support increase in effect at the time of the modification

judgment, the father had "blocked out his bonus income" and RSU

income on the pay stub that he showed the mother as part of his

obligation to confer regarding child support.

    We need not reach the issue whether the mother's waiver was

valid as to her own right to alimony or the division of property

because it is clear that her waiver cannot operate to waive her

children's right to appropriate child support pursuant to the

guidelines.   "[I]t is axiomatic under Massachusetts law that

'[p]arents may not bargain away the rights of their children to

support from either one of them.'"     Okoli v. Okoli (No. 1), 81

Mass. App. Ct. 371, 377 n.10 (2012), quoting from Knox v.

Remick, 371 Mass. 433, 437 (1976).     See White v. Laingor, 434
                                                                     10


Mass. 64, 66-67 (2001).   See also Quinn v. Quinn, 49 Mass. App.

Ct. 144, 146 n.4 (2000) ("General Laws c. 208, § 28, was amended

to provide that after a complaint for divorce '[a] modification

of child support may enter notwithstanding an agreement of the

parents that has independent legal significance' and to require

that support obligations for minor children be consistent with

the child support guidelines promulgated by the Chief Justice

for Administration and Management.   St. 1993, c. 460, § 61").

    As a result, even if the 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.

For all of these reasons, the judge abused his discretion, and

the modification judgment cannot stand.

    Retroactive award.    The mother also argues that the judge

abused his discretion in failing to modify retroactively the

increased child support order, and in failing to make written

findings explaining his rationale for not doing so.     It has been

established that, during a period in which a complaint for

modification is pending, a party is entitled to retroactive

modification of a child support order "where a judge finds that

the parties' circumstances have materially changed and that such

modification is in the best interests of the children."      Whelan

v. Whelan, 74 Mass. App. Ct. 616, 627 (2009).    See G. L.

c. 119A, § 13(a); G. L. c. 208, § 28.     "A judge is not required
                                                                    11


to make an order for modification retroactive, but 'absent a

specific finding that retroactivity would be contrary to the

child's best interest, unjust, or inappropriate,' these factors

should be considered."     Whelan, supra, quoting from Boulter-

Hedley v. Boulter, 429 Mass. 808, 812 (1999).     The judge here

failed to make any such findings.

    Although the father contends that a retroactive order is

not warranted because he has been paying more than the

guidelines amount, he fails to account for the fact that the

child support he has been paying has never included the

substantial income realized from his RSUs.     It appears from this

record that, when the father's RSU income is included in his

gross weekly income (along with his base salary and bonus

amount), it is not unlikely that the father has been underpaying

significantly.    "If the father has been paying less than would

otherwise have been required under the Guidelines, this

'necessarily implies that the child has been receiving

insufficient support during the pendency of the complaint.'"

Ibid., quoting from Boulter-Hedley, supra.

    Attorney's fees.      Finally, the mother asserts that she is

entitled to an award of her attorney's fees, and the judge

abused his discretion in denying her request without

explanation.     We recognize that a judge has discretion in

awarding attorney's fees in appropriate circumstances.     In
                                                                   12


addition, a "judge has discretion to award fees even in the

absence of bad faith or frivolous claims or defenses."     Wasson,

81 Mass. App. Ct. at 582.   See G. L. c. 208, § 38.   In the

present case, it appears that the judge considered the motion

and denied it, but he did not provide any explanation for the

denial.   See Coppinger v. Coppinger, 57 Mass. App. Ct. 709, 714

(2003).

    Conclusion.    The modification judgment of March 25, 2014,

is vacated and the matter is remanded to the Probate and Family

Court for the recalculation of an appropriate child support

order based on the father's gross weekly income including his

base salary, bonus income, and RSU income.   The new modification

judgment shall be retroactive to February 5, 2013.    On remand,

the judge shall determine, based on affidavits or hearing,

whether to award attorney's fees to the mother and, if so, the

appropriate amount of attorney's fees to be awarded.     Until a

new modification judgment enters, the modification judgment of

March 25, 2014, shall remain in full force and effect.

                                    So ordered.
