Croak v. Bergeron

Following a trial in the Probate and Family Court on the plaintiff’s (Robert Croak’s) complaint for modification, the judge determined that Croak had failed to demonstrate a material and substantial change in circumstances sufficient to justify a reduction in his child support obligations. We affirm the judgment denying Croak’s complaint for modification and directing him to pay to his former wife, Lorraine Bergeron, accrued child support in the amount of $118,640.76.

*7511. Background. The parties were married on December 13, 1991, and were divorced on April 2, 1998. Two children were bom of the union.

Prior to the present controversy, Croak’s support obligations had been the subject of various orders. A separation agreement incorporated into the final divorce judgment required Croak to pay weekly child support of $240. In April, 1999, while a complaint for modification filed by Bergeron was pending, the parties agreed that Croak would pay an additional $270 per week as alimony, thus increasing Croak’s total support obligation to $510 per week. After a trial on Bergeron’s complaint, a judge of the Probate and Family Court, applying the Child Support Guidelines (guidelines), entered a judgment of modification on October 6, 1999, increasing child support to $969.54 per week.1

On March 14, 2000, Croak filed the present complaint for modification seeking to reduce his child support obligation due to his alleged involuntary unemployment. On September 13, 2000, a temporary order was issued by a second probate judge, reducing the child support payment to $156.92 per week, but directing that the balance of the $969.54 was to continue to accrue until a hearing on the merits.2

After a trial on Croak’s complaint for modification,3,4 the *752second judge found that Croak has a consistent history of working in the nuclear power industry although he, at times, has experienced periods of unemployment. The judge noted, however, that Croak had “carefully orchestrated his periods of unemployment to coincide with court appearances so that he [could] report that he [was] unemployed at that point in time and thereby evade the payment of guidelines support.” Continuing, the judge found that in the year 2000 Croak’s “aggregate gross income from all sources includable under the . . . Guidelines [including wages, business income, premature Individual Retirement Account (IRA) distributions in the amount of $64,159, and proceeds received by Croak in the amount of $60,000 in settlement of a claim against his father’s estate 5 ]was $187,365.00 or $76,756.00 more than he made in 1999, the year in which the [earlier] modification judgment was entered.” For the year 2001, Croak reported on his Federal tax return a reduced gross income of $56,206 (including a premature IRA distribution of $12,193), but, the judge stated, he “could also live on the substantial assets accumulated at the end of 2000.” The judge found that Croak’s aggregate gross income for 2002 was $120,703, which sum included a trust distribution of $50,000 that Croak received as an inheritance from a relative.6 In 2003, Croak’s total earnings, considered to July 8, 2003, amounted to $4,272. In summary, the judge stated that since *753September 13, 2000, when his support order was temporarily reduced, Croak had received $447,700 in “income and assets” 7 while Bergeron and the children had struggled to meet their living expenses on a tiny fraction of that amount. On these facts, and others (which we shall discuss, infra), the judge concluded that Croak had failed to demonstrate a material change in circumstances and, in fact, had “wrongfully and considerably benefitted from the reduction in his child support during the pendency of this action.” By a judgment dated November 19, 2003, the probate judge denied Croak’s complaint for modification and ordered him to pay $118,640.76 to Bergeron, said sum representing the child support accrued ($964 per week minus $156.92 per week) during the 147-week period from September 13, 2000, to July 8, 2003 (the date of the Rhode Island support order, which was issued shortly before the hearing on the merits of Croak’s complaint).8 Croak has appealed.

2. Discussion. Croak argues that the judgment must be reversed as the judge grossly overstated for guidelines purposes his (Crook’s) income during the three-year period under review. More specifically, he asserts that (1) it was error for the judge to count as income the one-time payments received by him from the settlement and the trust distribution or inheritance, and (2) it was improper “double counting” to treat funds prematurely withdrawn from his IRAs as income for child support purposes as those funds had already been divided as part of the marital estate upon divorce. He requests that the matter be remanded to the Probate and Family Court for a recalculation of child support based on “the correct income figures.”

*754“[Cjhild support is controlled by G. L. c. 208, § 28, and the Massachusetts Child Support Guidelines.” Korff v. Korff, 64 Mass. App. Ct. 94, 95-96 n.5 (2005).9 Except as otherwise stated therein, the guidelines have presumptive application to actions to modify existing orders. Child Support Guidelines, preamble.10 This presumption may be rebutted upon a finding that the guidelines would be unjust or inappropriate in a particular case and that the best interests of the child have been considered. Ibid. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 205-206 (1992), quoting from Department of Rev. v. G.W.A., 412 Mass. 435, 439-440 (1992) (upon a finding rebutting the presumptive application of the guidelines, the judge was obliged “to fashion a more equitable order” and to base that effort on “all the relevant considerations”). Although a purpose of the guidelines is to “encourage joint parental responsibility for child support in proportion to, or as a percentage of, income *755. . .” (emphasis supplied),11 Child Support Guidelines, preamble; see Crowe v. Fong, 45 Mass. App. Ct. 673, 677 (1998); Richards v. Mason, 54 Mass. App. Ct. 568, 575 (2002), we have stated that the “guidelines indicate that a judge is to consider the totality of the parties’ circumstances in determining their support obligations.” Buckley v. Buckley, 42 Mass. App. Ct. 716, 723 (1997). See Schuler v. Schuler, 382 Mass. 366, 373-376 (1981) (a pre-guidelines case); Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 736-737 (1995); Brooks v. Piela, 61 Mass. App. Ct. 731, 734-735 (2004). See also Kindregan & Inker, Family Law and Practice § 39.7 (3d ed. 2002).

In the instant matter, it is apparent that the judge considered the “totality of the parties’ circumstances” in dismissing Croak’s complaint for modification. At the outset, it is to be emphasized that notwithstanding the judge’s findings concerning Croak’s earned income during the three years in question, the judge found that Croak had a pattern of nondisclosure and evasion with respect to his finances and, as we have indicated, that he carefully orchestrated his periods of unemployment to coincide with court appearances so that he could evade the payment of guidelines support. See Crowe v. Fong, 45 Mass. App. Ct. at 678-679 (judge entitled to draw inferences adverse to an evasive party from uncertainties attending that party’s financial affairs); Salten v. Ackerman, 64 Mass. App. Ct. 868, 872-873 (2005) (in determining the amount of child support, the judge could take into account the husband’s evasiveness as to finances). Although the judge did not attribute to Croak a specific amount of additional income, as a judge may when she determines that a party is earning substantially less than he or she could through reasonable effort, see Child Support *756Guidelines II-H; Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996); Crowe v. Fong, supra at 679-680, the judge’s findings, taken together, suggest strongly the view that Croak may have forgone (or manipulated) employment opportunities and that the income reported by him may not reflect the income he was capable of earning.

The judge also considered the settlement and the inheritance received by Croak as well as the straitened financial circumstances of Bergeron and the children. While acknowledging that the judge was “certainly entitled” to consider the inheritance and settlement proceeds received by him subsequent to the divorce in determining his ability to pay child support, Croak asserts that “these distributions should have been treated not as income, but as assets, with [only] the income attributable to such assets considered in determining the appropriate level of child support.” See Crowe v. Fong, supra at 679 (judge would have been justified in treating at least $75,000 of $115,000 that the father received when he liquidated his business interests as available to him to produce interest income of approximately $115 per week for purposes of calculating his support obligation). See also Child Support Guidelines I-A(22) (including as a source of “income,” “income from interest in an estate [direct or through a trust]” [emphasis supplied]). Implicit in Croak’s argument is the proposition that the judge could not consider as income for guidelines purposes the inheritance or settlement itself.12

Notwithstanding the judge’s findings that the settlement and *757inheritance proceeds were includable in their entirety as income under the guidelines (a proposition we find troubling in view of the nonperiodic nature of the distributions), we think it is apparent that the judge had in mind that Croak had substantial resources upon which he could draw to pay child support during the three years under review. Indeed, the judge referred specifically in her findings and rationale to Croak’s ability to “live on” his assets and to the substantial “income and assets” (emphasis supplied) he had received during the years in question. Even were we to assume that the one-time inheritance and settlement distributions should not have been included as “income” for purposes of the guidelines, the judge was not precluded from considering, as she did, the entire amount of those “assets” (not merely the income the assets could generate) in determining whether to modify Croak’s child support obligation. Cf. Crowe v. Fong, supra (judge not limited to considering the income that the father could earn on $75,000 that he received upon liquidation of his business interests; “[i]t would have been permissible to treat the $75,000 as a fund out of which weekly support payments were to be made”).13 Such an approach is consistent not only with the pre-guidelines principle that a party’s “ownership of a valuable asset demonstrates ability to pay,” Schuler v. Schuler, 382 Mass. at 375 (modification action), quoting from Krokyn v. Krokyn, 378 Mass. 206, 213-214 (1979), but with the express policies of the guidelines “[t]o provide the standard of living the child would have enjoyed had the family been intact” and “[t]o meet the *758child’s survival needs in the first instance, but to the extent either parent enjoys a higher standard of living to entitle the child to enjoy that higher standard.” Child Support Guidelines, preamble. A consideration of resources would seem particularly appropriate in the instant matter in view of Croak’s use of his assets to support himself (and for other purposes beneficial to him) during, as found by the judge, his orchestrated periods of unemployment, while Bergeron and the children struggled to defray their living expenses.14 It is for the judge, in the exercise of her discretion upon consideration of all the circumstances, to determine how substantial the assets possessed by a support provider must be (in circumstances where the support provider has otherwise experienced a decrease in income) to justify the dismissal of a modification complaint. Schuler v. Schuler, 382 Mass, at 375.15

Finally, we perceive nothing in Croak’s argument that the judge engaged in improper “double counting” (or “double dipping”) by treating his IRA funds “as both assets in the property division[16] and later, as income when Croak liquidated them,” that would cause us to disturb the judgment.17 “Commentators use the phrase ‘double dipping’ to describe the seeming injustice *759that 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.” Champion v. Champion, 54 Mass. App. Ct. 215, 219 (2002). Sampson v. Sampson, 62 Mass. App. Ct. 366, 373-374 (2004). Adlakha v. Adlakha, 65 Mass. App. Ct. 860, 865 (2006). See Dalessio v. Dalessio, 409 Mass. 821, 828 (1991), S.C., 413 Mass. 1007 (1992). Although “[cjourts and commentators have often disagreed ... as to what constitutes double-dipping,” Sampson v. Sampson, supra at 374, we have stated that there is nothing in the Supreme Judicial Court’s Da-lessio decision, supra, or in G. L. c. 208, § 34,18 that prohibits double dipping as matter of law. See Champion v. Champion, supra at 222. Rather, as Croak acknowledges in his brief, the judge must look to the equities of the situation to make her determination. See ibid.

Even were we to assume that the concept of double counting has application in the present case, and were to assume further that the judge engaged in some double counting, we would conclude that, in the circumstances presented here (including, as we have discussed, Croak’s use of his IRA funds as a replacement for earnings and for his own support and benefit during his periods of unemployment, and the parties’ disparate economic positions), a failure to consider the IRAs would have resulted in an inequity. See ibid.

Upon review of the totality of the circumstances, and giving due deference to the discretion accorded the judge, we conclude that the judge did not err in dismissing Croak’s complaint for modification.19

Judgment affirmed.

Order denying postjudgment motions affirmed.