M.K.C. v. K.G.C.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-7

M.K.C.

vs.

K.G.C.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In April 2011, then-married spouses M.K.C. (wife) and

K.G.C. (husband) executed a surviving "post-nuptial agreement"

(i.e., marital agreement) setting forth provisions related to

property division and support in the event of a divorce.

Relevant here, the agreement (1) excluded the wife's inheritance

from the property division; (2) provided for an equal division

of all other property between the parties; (3) contained a

reciprocal alimony obligation under which each party's "gross

income," including "capital gains," would be "divided equally,

as alimony, between [the parties]"; and (4) reserved the issue

of child support for determination by a judge, while providing

that the parties would share equally in the children's college

expenses. In subsequent divorce proceedings, a judge of the

Probate and Family Court ultimately found the agreement to be
fair and reasonable, and thus enforceable, pursuant to Ansin v.

Craven-Ansin, 457 Mass. 283 (2010).

In postdivorce litigation involving complaints for

modification and contempt, the husband sought child support from

the wife and the wife claimed that the husband was in contempt

for failing to pay alimony from his gross income as required by

the agreement (including from the capital gain that he realized

from selling the former marital home, which he received as part

of the division of marital assets). In judgments entered

October 21, 2022, the same judge (1) ordered the wife to pay

retroactive child support of $153,455; (2) adjudicated the

husband not guilty of contempt but established his alimony

arrearage at $102,416.19, excluding from this amount any portion

of the capital gain realized by the husband from the sale of the

marital home; and (3) declined to award the wife prejudgment

interest on the arrearage. The wife appealed. 1 For the reasons

1 Multiple, separate judgments/decrees all were entered on
October 21, 2022. Of those judgments, the wife did not notice
appeals from a judgment/decree on complaint for modification
(docket #322), or from three additional judgments/decrees on
complaints for contempt (docket ## 323, 327, and 329); those
judgments are not before us. Although the wife noticed appeals
from the judgments/decrees on the complaint for contempt filed
April 5, 2017 (docket #324), and on the complaint for contempt
filed September 28, 2017 (docket #325), she raises no argument
in her briefing addressing those judgments and, for that reason
and although those judgments are before us, we need not discuss
them further. See Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019) ("The appellate court need not pass
upon questions or issues not argued in the brief"). The

2
that follow, we conclude that it was error to exclude the

marital home capital gain from the husband's gross income for

purposes of alimony. We therefore vacate the portion of the

judgment establishing the husband's arrearage and remand for

further proceedings consistent with this memorandum and order.

The judgments are affirmed in all other respects.

Background. We summarize the trial judge's relevant

findings, supplementing them with undisputed facts in the

record, and reserving other facts for later discussion. See

Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties were

married in 1988 and divorced in 2016. They had four children

together during the marriage; by the time the modification and

contempt trial concluded in August 2022, all but the youngest of

the children (who was eighteen and about to attend college) were

emancipated.

The wife commenced divorce proceedings in 2015, seeking to

enforce the agreement. The husband asserted that it was

unenforceable, claiming that it was the product of duress or

coercion. The divorce proceedings were bifurcated into two

phases; the first phase was to determine the validity of the

agreement. The judge found the agreement to be enforceable and

remaining judgments before us are the judgments/decrees on the
complaint and counterclaim for modification (docket #326), and
on the August 9, 2019 complaint for contempt (docket #328).

3
the husband appealed. A different panel of this court upheld

the trial judge's determination that the agreement was not a

product of duress or coercion, but vacated the judgment and

remanded for further proceedings so that the judge could address

whether she found the agreement to be fair and reasonable at the

time of divorce. Following a trial on remand, the judge issued

an "amended supplemental judgment on remand" (remand judgment)

that, among other things, (1) vacated certain portions of the

divorce judgment; and (2) declared that the agreement was fair

and reasonable at the time of the divorce and was therefore

enforceable. The husband did not appeal from the remand

judgment.

Although the parties were divorced in 2016, the disposition

of the former marital home was not resolved until 2020. The

parties purchased the marital home in 1999 for $1.635 million.

Following the 2016 divorce, the wife remained in the marital

home until June 2019, after purchasing a new home. In February

2020, the parties appeared for a hearing to resolve the marital

home issue. By that time, the home had fallen into disrepair

and had been vacant for several months. Each party sought to

retain the marital home and buy out the other party's interest

therein. The wife claimed that the husband intended to "flip"

the home for a profit, which the husband denied. After a

subsequent hearing in July 2020, the judge found the marital

4
home's fair market value to be $2.495 million and issued an

order permitting the husband to buy out the wife's one-half

interest for $1,040,292.32, 2 in part because the wife had

purchased another home. After buying out the wife's interest in

September 2020, the husband spent approximately $185,000 on

improvements to the home and sold it for $3.675 million in May

2021.

At the 2022 contempt trial, the wife claimed that she was

entitled to alimony in the amount of $477,972, representing one-

half of the husband's "profits" from the sale of the marital

home, which she asserted was a capital gain constituting gross

income under the agreement's alimony provision. The wife

asserted that the husband had committed a "fraud upon the

[c]ourt" when he stated at the February 2020 hearing that he did

not intend to "flip" the marital home for a profit. 3 The wife

further asserted that the husband had failed to pay alimony from

his other gross income for several years. The husband admitted

2 The buyout amount of $1,040,292.32 reflected one-half of
$2,495,000, less any outstanding mortgages, liens, or other
encumbrances, and less $75,000 for repairs that would have
needed to be made to prepare it for sale. The buyout also
appeared to reflect a credit to the wife for payments that she
made since December 2016 that reduced the mortgage principal
balance.
3 The judge implicitly discredited this allegation when she found

the husband not guilty of contempt. Our decision does not
determine, or rely on, the credibility of the wife's allegation
that the husband lied about whether he intended to "flip" the
marital home.

5
that he owed the wife some alimony but disagreed with the wife

as to the amount. The judge ultimately determined that (1) the

husband was not obligated to pay alimony from the profit on the

marital home, but (2) he owed the wife $102,416.19 from other

income that he earned largely between December 2016 and December

2020. The judge declined to find the husband in contempt and

further declined to award any statutory prejudgment interest on

the alimony arrearage. As for the husband's request for child

support, the judge ordered the wife to pay retroactive child

support in the amount of $153,455, from April 2017 to June 2022.

On appeal, the wife contends that the judge erred in

(1) declining to treat the husband's profit from the sale of the

marital home as a capital gain for purposes of calculating his

alimony obligation under the agreement; (2) finding the husband

not guilty of contempt; (3) declining to award prejudgment

interest; and (4) awarding retroactive child support to the

husband. We address her contentions in turn.

Discussion. 1. Capital gain. In determining that the

husband did not owe the wife "any alimony on the profits" from

the sale of the marital home, the judge essentially concluded

that the parties did not intend for capital gains, interest, or

dividends derived from the sale or transfer of marital assets to

be treated as gross income when calculating alimony under the

agreement. The judge reasoned that "[t]his home was a marital

6
asset that was already divided between the parties when the

[h]usband purchased the [w]ife's interest." In so concluding,

the judge noted that the wife did not pay the husband any

alimony from the interest or dividends earned on the marital

home buyout funds that she subsequently invested.

The wife claims that the judge's ruling amounted to legal

error in contravention of the agreement's "unambiguous" language

requiring all capital gains to be treated as gross income for

purposes of alimony. The husband, however, contends that the

term "capital gains, in a vacuum, is ambiguous" because it is

undefined in the agreement and is susceptible to more than one

accepted meaning, comparing the different definitions set forth

in the United States tax code and the Child Support Guidelines

(guidelines). 4 Compare 26 U.S.C. § 1222, with Child Support

Guidelines § I(A)(17) (Jan. 2009) (treating as gross income for

purposes of child support "capital gains in real and personal

property transactions to the extent that they represent a

4 The husband further contends that the judge implicitly
recognized the ambiguity and resolved it by resorting to
extrinsic evidence (i.e., the parties' understanding of the
agreement, and their postdivorce conduct). The wife, however,
points out that nowhere in the judge's findings, conclusions of
law, or rationale did the judge conclude that the term capital
gains was ambiguous.

7
regular source of income"). 5 For the reasons that follow, we

agree with the wife.

The interpretation of an agreement is a question of law we

review de novo. Colorio v. Marx, 72 Mass. App. Ct. 382, 386

(2008). See Balles v. Babcock Power Inc., 476 Mass. 565, 571

(2017) (interpretation of contract language is question of law

we review de novo). We must construe the agreement based on "a

fair construction of the contract as a whole and not by special

emphasis upon any one part" (quotation omitted), Kingstown Corp.

v. Black Cat Cranberry Corp., 65 Mass. App. Ct. 154, 158 (2005),

while also recognizing that "every word is to be given force so

far as practicable" (quotation omitted). MacDonald v. Hawker,

11 Mass. App. Ct. 869, 872-873 (1981). "[W]hen the language of

a contract is clear, it alone determines the contract's

meaning." Balles, supra. Where, however, the words of a

contract are ambiguous, the court may consider extrinsic

evidence to ascertain the parties' intent. Id.

The determination whether the contractual language contains

an ambiguity presents a question of law for the court. See Bank

v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008). "Contract

language is ambiguous 'where the phraseology can support a

reasonable difference of opinion as to the meaning of the words

5 The 2009 guidelines were in effect when the parties executed
the agreement.

8
employed and the obligations undertaken'" (quotation omitted).

Id. "The mere existence of the parties' disagreement does not

make the language ambiguous." Browning-Ferris Indus., Inc. v.

Casella Waste Mgt. of Mass., Inc., 79 Mass. App. Ct. 300, 307

(2011). Rather, "[a]n ambiguity arises from language

susceptible of different meanings in the eyes of reasonably

intelligent persons." Id. "To answer the ambiguity question,

the court must first examine the language of the contract by

itself, independent of extrinsic evidence concerning the

drafting history or the intention of the parties." Bank, supra.

See Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973)

(words of agreement remain most important evidence of

intention).

Turning to the language of the agreement, we note two key

provisions that, when read together, reflect that the parties

did not intend to exclude capital gains realized from the sale

of marital assets. See General Convention of the New Jerusalem

in the United States of Am., Inc. v. MacKenzie, 449 Mass. 832,

835 (2007) ("The words of a contract must be considered in the

context of the entire contract rather than in isolation").

First, the alimony provision plainly states, without

qualification, that "all gross income, including but not limited

to . . . capital gains . . . shall be divided equally, as

alimony, between [the parties]." Second, the agreement

9
expressly excludes from the calculation of alimony "capital

gains income derived from the [wife's inherited property]." The

agreement contains no express exclusion of capital gains derived

from marital assets. Had the parties intended to exclude

capital gains earned on assets divided in the divorce, they

could have included language to that effect, but they did not.

Cf. Computer Sys. of Am., Inc. v. Western Reserve Life Assur.

Co. of Ohio, 19 Mass. App. Ct. 430, 437 (1985) ("if the parties

had intended at-will termination, they could have said so . . .

expressly"). The exclusion of capital gains derived from the

wife's inherited assets, with no similar exclusion for capital

gains derived from any other assets, implies that capital gains

realized on all other assets (including marital assets assigned

in the property division and any assets acquired by each party

after the divorce) would be included. 6

The husband asserts that the term "capital gains" is

inherently ambiguous because a one-time capital gain that would

be treated as taxable income under the tax code might not

necessarily constitute gross income for purposes of calculating

child support under the guidelines (to the extent that it is not

a regular source of income). However, there is no indication in

the agreement that the parties intended to limit capital gains

6 In light of this holding, we take no position on what, if any,
arrearage might be owed by the wife.

10
to regularly occurring gains, or that the parties intended to be

bound by the guidelines definition of gross income. 7 The

parties' disagreement at trial hinged on whether the agreement

required the parties to pay alimony from capital gains derived

from marital assets. Because we see nothing in the agreement

reflecting an intention to exclude capital gains from such

assets, we conclude that the judge erred in excluding the

husband's gain from the sale of the marital home when

calculating his alimony arrearage.

This brings us to the remaining question of how to

calculate the husband's capital gain under the unique

7 Among the many changes brought about by the Alimony Reform Act
(act), which went into effect in 2012, was the establishment of
a statutory definition for income that a judge may consider when
calculating alimony. The act provides that "income shall be
defined as set forth in the [guidelines]," G. L. c. 208,
§ 53 (b), except for "capital gains income and dividend and
interest income which derive from assets equitably divided
between the parties under [G. L. c. 208, § 34]." G. L. c. 208,
§ 53 (c) (1). However, the act's definition of income does not
replace the parties' definition of gross income set forth in
their agreement, which was executed five months before the act
was approved by the Legislature on September 26, 2011. St.
2011, c. 124, § 3 (effective Mar. 1, 2012). The parties
acknowledged in the agreement that "in the future each may
acquire additional rights . . . as a result of changes in the
laws of the Commonwealth of Massachusetts, case law, [or]
statutes . . . which would result in . . . a different spousal
support award. Any such changes shall have no effect upon the
waivers and provisions of this Agreement . . . . The parties
have executed the within Agreement fully cognizant of [its]
binding and permanent effect . . . [and] fully cognizant that
they are waiving rights which they may acquire after the date
hereof."

11
circumstances presented here. In keeping with the spirit of the

parties' agreement to split all marital property and gross

income equally, we think the only means of achieving an equal

split of a capital gain derived from marital property is to

include only the portion of the gain that accrued after the

division of that asset. In other words, the portion of the gain

realized during the marriage must be excluded when calculating

alimony (even if the marital portion is reported on a party's

tax return). Here, that necessitates treating the 2020 fair

market value of the marital home (rather than its original 1999

purchase price) as the property's basis. See 1 C.P. Kindregan,

Jr., M. McBrien, & P.A. Kindregan, Family Law and Practice

§ 16:4 (4th ed. 2013) ("gain is based on the difference between

the 'basis' of the property and the amount realized from sale").

Accordingly, we conclude that, for purposes of the agreement's

alimony provision, the husband's capital gain realized from the

sale of the marital home was $810,944.35, 8 thereby entitling the

wife to $405,472.18 (one-half of the husband's gain). We

8 This figure is computed as follows: the amount realized from
the 2021 sale of $3,490,944.35 (i.e., the sale price of $3.675
million less selling costs of $184,055.65), minus the property's
adjusted basis of $2.68 million (i.e., the 2020 fair market
value of $2.495 million, plus $185,000 spent on improvements).
See 1 C.P. Kindregan, Jr., M. McBrien, & P.A. Kindregan, Family
Law and Practice § 16:4 (4th ed. 2013) (capital gain calculated
by deducting property's "adjusted basis," i.e., purchase price
plus expenditures for improvements, from "amount realized,"
i.e., sale price less selling costs).

12
therefore vacate the portion of the judgment setting the

husband's alimony arrearage at $102,416.19, and remand for the

limited purpose of entering a new judgment setting the arrearage

at $507,888.37. On remand, the judge may, in her discretion,

fashion a repayment schedule for the arrearage in installments

as she deems appropriate.

2. Contempt. The wife next contends that the judge

erroneously found the husband not guilty of contempt where he

failed to pay alimony for four years.

"We review the judge's ruling that the husband was not in

contempt for abuse of discretion." Smith v. Smith, 93 Mass.

App. Ct. 361, 363 (2018). "To prove civil contempt a plaintiff

must show two elements: there must be (1) clear disobedience of

(2) a clear and unequivocal command." Id. "The contempt must

be proved by clear and convincing evidence, and the court is to

consider 'the totality of the circumstances.'" Id., quoting

Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009).

Here, the judge found the husband not guilty of contempt

because the agreement did not contain "a deadline or timetable

for the payment of alimony. It was also not clear to both

parties what was owed." The wife contends that it was error to

find the husband not guilty of contempt in light of his

admission that he owed the wife alimony, and the well-settled

principle that the time for performance under a contract only

13
extends for a "reasonable time" if no deadline is specified.

Charles River Park, Inc. v. Boston Redev. Auth., 28 Mass. App.

Ct. 795, 814 (1990).

The judge's contempt ruling, however, was based not only on

the ambiguity caused by the lack of payment deadlines in the

agreement, but also on the uncertainty surrounding the amount

owed by the husband. Ambiguities "are regularly resolved in

favor of the alleged contemnor." Sax v. Sax, 53 Mass. App. Ct.

765, 772 (2002). Accordingly, we conclude that the husband's

"violation of [the] order to pay alimony [did] not necessarily

require a finding of contempt," and therefore discern no error.

Smith, 93 Mass. App. Ct. at 364. See Wooters, 74 Mass. App. Ct.

at 844 (husband not guilty of contempt where his failure to pay

alimony obligation in full was result of good faith dispute over

amount owed). 9

3. Prejudgment interest. The wife contends that the judge

erred in not awarding prejudgment interest, as the husband

should have been found in contempt and thus required to pay

interest under G. L. c. 215, § 34A, or in the alternative, under

9 The wife seeks to distinguish Wooters because the husband in
that case, unlike the husband here, paid some alimony while the
dispute over the remaining amount was ongoing. However, in
Wooters, 74 Mass. App. Ct. at 844, the only ambiguity was with
respect to the amount owed by the husband. Here, because there
was ambiguity regarding both the amount owed and the due date,
we cannot say that the judge abused her discretion in declining
to find the husband in contempt.

14
G. L. c. 231, § 6C, for interest due on a money judgment arising

out of a contractual obligation.

In light of our conclusion that the judge permissibly found

the husband not guilty of contempt, there was nothing improper

in declining to award prejudgment interest under G. L. c. 215,

§ 34A ("Any monetary contempt judgment shall carry with it

interest, from the date of filing the complaint, at the rate

determined under the provisions of section six C of chapter two

hundred and thirty-one of the General Laws").

We therefore turn to the wife's remaining contention that

she is entitled to prejudgment interest under G. L. c. 231,

§ 6C. 10 Section 6C provides, in pertinent part, that "[i]n all

actions based on contractual obligations, upon a . . . finding

or order for judgment for pecuniary damages, interest shall be

added by the clerk of the court to the amount of damages." Id.

The thrust of the wife's rather cursory argument set forth in

her main brief is that prejudgment interest is "mandated" under

§ 6C because the husband's alimony obligation arises from a

contractual obligation in the parties' surviving agreement.

While the wife is correct that she could seek relief by way of a

breach of contract action in the Superior Court, she has not

10The wife also made a passing claim in her opening brief that
she was entitled to interest under G. L. c. 231, § 6H, but she
appeared to abandon that argument in her reply brief.

15
cited to any authority establishing that statutory prejudgment

interest under § 6C is mandated when a Probate and Family Court

judge presiding over a contempt action finds an alimony payor

not guilty of contempt but nevertheless orders him to pay

alimony due under a surviving agreement. The sole case cited in

her main brief, Karellas v. Karellas, 54 Mass. App. Ct. 469

(2002), pertains to postjudgment interest under G. L. c. 235,

§ 8, and does not address the applicability of prejudgment

interest under G. L. c. 231, § 6C. 11 Accordingly, the wife has

failed to demonstrate error.

4. Retroactive child support. Finally, the wife claims

error in the order requiring her to pay retroactive child

11In Karellas, 54 Mass. App. Ct. at 474, this court noted that
interest under G. L. c. 215, § 34A, "is not a substitute for
statutory interest upon a money judgment under G. L. c. 235,
§ 8," as "[t]he statutes serve different purposes," suggesting
that § 34A "fills in a gap and provides for interest that would
not be otherwise available" because "an order for . . . alimony
. . . may not qualify as a 'judgment for the payment of money'
under G. L. c. 235, § 8, and might not thus carry such statutory
interest." In her reply brief, the wife asserts that the
significance of Karellas is that prejudgment interest under
§ 34A does not act as a substitute for other statutory interest.
The additional cases that she cites in her reply brief do not,
however, provide any examples of prejudgment interest under § 6C
being applied to the type of judgment that issued in this case
(i.e., a Probate and Family Court judgment in a contempt action
ordering the husband to pay alimony due under a surviving
agreement). See, e.g., O'Malley v. O'Malley, 419 Mass. 377,
377-379 (1995) (holding that prejudgment interest under § 6C
should be added to Superior Court judgment ordering wife to pay
amount owed as part of property division in surviving separation
agreement).

16
support because (1) there was no evidence that the child's needs

were not being met during the period in question; and (2) the

judge improperly failed to attribute income to the husband.

We review a judge's decision on a complaint for

modification regarding child support for an abuse of discretion.

Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004). Here, the

judge calculated the minimum presumptive order that would have

been due under the guidelines for the period between April 2017

(when the wife received notice of the husband's complaint for

modification) and June 2022 (when the youngest child graduated

from high school at age eighteen). See Child Support Guidelines

§ II(C) (Aug. 2013) (minimum presumptive order calculated on

first $250,000 of the parties' combined available income). 12 The

judge declined to order any additional, discretionary support

beyond the minimum presumptive order.

Turning to the wife's first contention -- that it was error

to award retroactive child support in the absence of a finding

(or evidence) that the child's needs were not being met during

the period in question -- we are unpersuaded. The judge was not

obligated to make such a finding when ordering the wife to pay

the minimum presumptive order, because the amount of that order

12The combined available income threshold was increased to
$400,000 in 2021. See Child Support Guidelines § II(C)(2) (Oct.
2021).

17
is presumed to be appropriate. See Child Support Guidelines,

Preamble (Oct. 2021) (noting rebuttable presumptions that "these

guidelines apply in all cases establishing or modifying a child

support order" and "that the amount of the child support order

calculated under these guidelines is the appropriate amount of

child support to be ordered"). "If the [wife] 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'" for modification. Whelan v. Whelan, 74 Mass. App.

Ct. 616, 627 (2009), quoting Boulter–Hedley v. Boulter, 429

Mass. 808, 812 (1999). Here, the judge concluded that requiring

the wife to pay retroactive child support based on the minimum

presumptive order for the period in question was in the child's

"best interests because no child support order has entered in

this matter." We discern no error in the judge's determination

that retroactive support was in the child's best interests.

Whelan, supra, quoting Boulter–Hedley, supra ("A judge is not

required to make an order for modification retroactive, but

'absent a specific finding that retroactivity would be contrary

to the child's best interests, unjust, or inappropriate,' these

factors should be considered").

We are likewise unpersuaded by the wife's second

contention: that the amount of support ordered was excessive

18
because the judge should have attributed income to the husband.

The judge found that both parties were unemployed at the time of

trial; the wife had last worked outside the home twenty-nine

years earlier, whereas the husband worked during the marriage

but had not earned a salary since 2016, prior to the divorce.

Between 2016 and 2018, the husband worked for a medical device

company receiving "monetary compensation," however, that

compensation ceased when the company (which is now dissolved)

was unable to secure funding from investors in 2019. 13 The judge

found that the husband had not sought employment since October

2019, 14 apart from commencing an online job search prior to the

last day of trial in August 2022. The judge ultimately found

that both parties were "unquestionably . . . capable of

working," but the judge was unable to attribute income based on

their respective earning capacities because "no vocational

expert testified, nor did [the judge] hear sufficient credible

evidence on the factors set forth in section II(E)(3) of the

Guidelines to enable [the judge] to determine either party's

earning capacity." The judge thus relied on the parties' actual

incomes reported on their financial statements to calculate

child support for the period in question.

13 The husband also received stock options, which now appear to
be worthless.
14 At the time of trial, the husband was working approximately

one day per week for a venture capital firm.

19
The wife claims, however, that the judge's finding that the

husband had not looked for work since October 2019, along with

her other findings regarding the husband's education and work

history, were sufficient to determine his earning capacity. We

note, however, that attribution of income is not strictly

mandatory -- even where, as here, the judge has found a parent

capable of working. See Child Support Guidelines § I(E)(1)-(2)

(Oct. 2021) ("Income may be attributed where a finding has been

made that either parent is capable of working and is unemployed

or underemployed" [emphasis added]). Moreover, while the

judge's findings certainly touch on some of the relevant factors

for determining the husband's earning capacity (such as his

education, prior earnings, and work history), we see nothing in

the record compelling such a determination where the judge found

insufficient credible evidence as to all relevant factors. 15 See

Child Support Guidelines § I(E)(3) (Oct. 2021) (relevant factors

for determining earning capacity include, but are not limited

to, "the [parent's] . . . education, training, job skills, . . .

past employment and earnings history, as well as the parent's

15Insofar as the wife contends that the judge could have at
least attributed a full-time minimum wage income to the husband
based on finding him capable of working, we note that the judge
could have attributed the same income to the wife on the same
basis, which likely would have resulted in a de minimis net
change to the child support order. Regardless, we conclude that
the judge was within her discretion to decline to attribute
income to either party under the circumstances presented here.

20
record of seeking work, and the availability of employment at

the attributed income level, the availability of employers

willing to hire the parent, and the relevant prevailing earnings

level in the local community"). See also Johnston v. Johnston,

38 Mass. App. Ct. 531, 536 (1995) (judge's assessment of

credibility "close to immune from reversal on appeal except on

the most compelling of showings").

Conclusion. 16 So much of paragraph 1 of the judgment/decree

on the August 9, 2019 complaint for contempt (docket #328) that

established the husband's alimony arrearage as $102,416.19, is

vacated, and the case is remanded for further proceedings

consistent with this memorandum and order. In all other

respects that judgment is affirmed. The judgment/decree on

complaint for contempt (docket #324), the judgment/decree on

16 The husband's request for appellate fees and costs is denied.

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complaint for contempt (docket #325), and the judgment/decree on

complaint and counterclaim for modification (docket #326) are

affirmed.

So ordered.

By the Court (Green, C.J.,
Milkey & Grant, JJ. 17),

Assistant Clerk

Entered: March 25, 2024.

17 The panelists are listed in order of seniority.

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