Kristine L. Andren v. Michael J. Fucci.

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-954

KRISTINE L. ANDREN

vs.

MICHAEL J. FUCCI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Michael J. Fucci (father) appeals from two judgments issued

by a Probate and Family Court judge, one a final judgment on the

bifurcated complaint of Kristine L. Andren (mother) to establish

paternity of the parties' child and set child support, and the

second a judgment on the mother's complaint for contempt for

failure to pay child support. On appeal, the father argues that

in ordering him to pay child support, the judge abused her

discretion in calculating the parties' income. We vacate so

much of the final judgment as pertains to child support. We

remand for the limited purpose of further factual findings on

the issue of the mother's income and for recalculation of the

father's child support obligations. We otherwise affirm.
Background. Beginning in January 2018, the parties dated

for about one year; they never married each other. During their

relationship, the father paid for the parties to stay in hotel

rooms as many as five days a week, frequented a casino where he

gambled large amounts of money, and bought restaurant meals and

luxury gifts for the mother. In the spring of 2018, the mother

became pregnant. By January 1, 2019, the parties ended their

relationship.

In 2019, the parties' child was born. The mother is the

child's primary caregiver and has sole physical and legal

custody. The father does not have a relationship with the

child. For fifty-eight weeks after the child's birth, the

father failed to contribute any financial support for the child.

In September 2019, the mother filed the complaint to

establish paternity, also seeking child support. In February

2020, an order entered adjudicating the father's paternity of

the child. The parties jointly stipulated to a temporary order

requiring the father to pay $200 per week in child support

beginning on February 24, 2020. In February 2022, the mother

filed the complaint for contempt, alleging that the father was

$2,200 in arrears in paying child support.

The case was tried on so much of the paternity complaint as

claimed child support, and on the contempt complaint. In

setting child support, the judge considered the testimony of

2
both parties as well as documentary evidence including the

parties' financial statements and the father's tax returns and

business records. The judge found that the father was $2,200 in

arrears in paying child support.

The mother was unemployed and received weekly social

security disability insurance (SSDI) benefits. Given her

disability, the judge did not impute any income to the mother.

The father testified that he was willing to pay child

support, which the judge credited; she also found that the

father "could not offer an amount he believes he should pay for

[the child]'s support." As of trial, the father was self-

employed as a chef and owner of a restaurant that he had opened

in June 2019. From evidence including the amounts of the

owner's draw that the father had taken from the restaurant, the

judge made factual findings as to the father's weekly income in

2019, 2020, 2021, and the first quarter of 2022. Based on those

weekly income amounts, the judge calculated the amounts of child

support using the 2018 and 2021 Massachusetts Child Support

Guidelines. On so much of the bifurcated complaint to establish

paternity as sought child support, judgment entered ordering the

father to pay child support, including the amounts in arrears.

3
A contempt judgment also entered for the father's failure to pay

child support. The father appeals from both judgments.1

Discussion. 1. The father's income. Our review of a

judgment setting child support is "limited to whether the

judge's factual findings were clearly erroneous, whether there

were other errors of law, and whether the judge appears to have

based [her] decision on the exercise of sound discretion."

Lizardo v. Ortega, 91 Mass. App. Ct. 687, 691-692 (2017). "The

method for calculating and modifying child support orders is

governed by statute and by the [Massachusetts Child Support

Guidelines (Guidelines)]." Morales v. Morales, 464 Mass. 507,

509-510 (2013). The Guidelines broadly define "income" 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." Guidelines § I(A) (Aug. 2021). See

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

The father argues that the judge erred in calculating his

income from evidence including the amounts of his owner's draws

from the restaurant, as well as donations from an online

crowdfunding campaign that he created in the spring of 2021 to

1 Where both judgments entered on the same date and the
notice of appeal identifies the judgments at issue only by date,
we treat the father's appeal as from both judgments.

4
fund the restaurant. The father argues that the judge

improperly "disregarded" his testimony that the draws were used

to pay business expenses and to repay a loan from his wife, and

the judge improperly "discredited" his testimony that his wife

was a fifty percent owner in the business; the father contends

that the judge should have "simply divided the owner's draw in

half."2 We are not persuaded.

When the judge calculated the father's income from his

self-employment as a chef, the judge made multiple findings that

supported a conclusion that the father commingled his business

and personal expenditures.3 See Whelan v. Whelan, 74 Mass. App.

Ct. 616, 626-627 (2009). See also Guidelines § I(C) (Aug.

2021). The judge did not abuse her discretion in making those

factual findings, particularly given the lack of documentation

of the father's claims that the owner's draws were used for

business expenditures or to repay a loan from his wife. See

2 On appeal, the father misstates the judge's findings in
arguing that the judge impermissibly included owner's draws as
income for 2019. The judge's findings were based on the
father's lifestyle, cookbook sales, his decision to open a
restaurant, and the business records from the restaurant. No
owner's draws were included in that sum.

3 The judge found that the father's business bank account
was used to pay for his and his wife's personal expenses; the
father intermingled use of business credit cards for personal
use; the father wrote checks transferring funds between his
business account and his personal account; and the father paid
for his personal legal fees using the business account.

5
Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 406 (1998)

(upholding judge's finding that "additional income . . . was

camouflaged as business income, with the business paying for

somewhat lavish personal expenses as if they were expenses of

the business"). See also Croak v. Bergeron, 67 Mass. App. Ct.

750, 758 (2006).

Similarly, the judge did not abuse her discretion in

finding that the father is the sole owner of the restaurant.

The judge was not required to credit the father's testimony that

his wife is a part owner, particularly because the father

stipulated that he is "the sole manager and currently owns and

operates" the restaurant. See Whelan, 74 Mass. App. Ct. at 619

(accepting facts unless clearly erroneous). See also Johnston

v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) ("the credibility

of a party . . . who appeared at trial is quintessentially the

domain of the trial judge").

The father also argues that the judge abused her discretion

in finding that the father's income in 2019 was "at least

$95,000." In calculating that amount, the judge considered the

father's tax returns and the restaurant's business records from

the latter half of 2019. The judge also considered the father's

"lifestyle in 2018" and his profit from publication of a

cookbook. The father contends that doing so was error because

his spending in 2018 was "irrelevant" to his income in 2019

6
because it was "before the child's birth," and there was

insufficient evidence to attribute income based on sales of his

cookbook. We disagree.

The judge found that the father's "financial statements and

reporting of his income, expenses, assets and liabilities are

inconsistent and contradictory," and thus "wholly unreliable."

It was thus within the judge's broad discretion to impute income

based on all the evidence, including the father's "lifestyle,

expenses and spending patterns." Guidelines § I(D) (Aug. 2021).4

See M.C. v. T.K., 463 Mass. 226, 240 (2012) (imputation of

income "appropriate where a party has made vague, misleading, or

untruthful entries on a financial statement"). See also Croak,

67 Mass. App. Ct. at 755.

Moreover, when a judge calculates a child support award,

that judge must consider the child's needs, which "are to be

defined, at least in part, by their parents' standard of

living." Brooks v. Piela, 61 Mass. App. Ct. 731, 737 (2004).

See Guidelines, principles par. 2 (Aug. 2021). It was not an

abuse of discretion to consider the father's lifestyle during

the parties' relationship in 2018, which was mere months before

the child's birth, where findings about the father's spending

4 The same language appears in the 2018 version of the
Guidelines.

7
illustrated his standard of living and therefore the child's

needs. See Macri v. Macri, 96 Mass. App. Ct. 362, 368 (2019)

(upholding unallocated support award where judge considered

prior "upper-class" standard of living though lifestyle had

since deteriorated).

As to the father's claim that there was no evidence to

impute income based on the sales of his cookbook, it is

unavailing. When asked if his cookbook, which was published in

about 2018, was still being sold online, the father testified

that he did not think so; the judge did not credit that

testimony. The judge noted that the husband's 2018 tax return

reported "[o]ther income" of $60,256, referring to an attachment

that the father did not provide to the judge. The judge found

it "more likely than not" that that amount was royalty income

from cookbook sales. We find no reason to disturb the judge's

imputation of income here, where imputation was justified by the

father's underreported income and financial misrepresentations.

See M.C., 463 Mass. at 240; Johnston, 38 Mass. App. Ct. at 535.

2. The mother's income. The father also argues that the

judge abused her discretion in declining to impute income to the

mother or make factual findings as to the mother's earning

capacity, given that the mother "received, at a minimum,

disability payments."

8
The judge noted that the mother's financial statements

reflect that she received weekly disability income of $205 as of

June 2020 and July 2021, and $238 as of June 2022; the judge

found that this benefit was for the mother and not a dependency

benefit for the child. The mother also testified at trial that

she was receiving Social Security disability payments. However,

it is unclear how the judge considered this evidence in

calculating the mother's income for the purposes of determining

the father's child support obligations. See Guidelines

§ I(A)(9) (Aug. 2021). See also Schmidt v. McCulloch-Schmidt,

86 Mass. App. Ct. 902, 903 (2014) (affirming judgment where

custodial mother's SSDI benefits were attributed as gross

income). Accordingly, we remand for the judge to make further

findings clarifying what, if any, of the mother's income was

used to calculate the father's child support obligations and for

recalculation of same.

The father seems to be arguing that the judge should have

attributed additional income to the mother because she is

capable of working. Attribution of income is appropriate where

a party is voluntarily underemployed or unemployed, or capable

of earning more with reasonable effort. See Emery v.

Sturtevant, 91 Mass. App. Ct. 502, 509 (2017). See also

Guidelines § I(E) (Aug. 2021). That was not the case here,

where the judge believed the mother's testimony that she is

9
disabled and receives disability benefits because she is unable

to or limited in her capacity to work. See Guidelines § I(E)(3)

(requiring judge to consider health of parent when attributing

income). See also Emery, supra.

Conclusion. We vacate paragraphs 2, 3, and 4 of the final

judgment on the bifurcated complaint to establish paternity

dated April 14, 2023. The matter is remanded for the limited

purpose of further findings clarifying what, if any, of the

mother's income was used to calculate the father's child support

obligations beginning January 15, 2019, and for recalculation of

the father's child support obligations consistent with this

memorandum and order. The father shall pay temporary child

support of $691 per week during the pendency of the remand

unless otherwise ordered by the judge. The final judgment is

otherwise affirmed. The judgment of contempt dated April 14,

2023, is affirmed.

So ordered.

By the Court (Ditkoff,
Grant & Toone, JJ.5),

Clerk

Entered: March 27, 2025.

5 The panelists are listed in order of seniority.

10