Alfred W. Wasson v. Silvia M. Wasson, 81 Mass.App.Ct. 574 (2012)
The case was remanded to the Probate Court on the issue of whether the inclusion of capital gains income as presumptively required by the Guidelines results in an increasing support obligation that is unjust or inappropriate under the circumstances. On his Complaint for Modification, the plaintiff was successful in modifying his child support obligation and his health insurance obligation (by agreement on the first day of trial). After trial, he was also successful in recovering $21,855 of his requested $39,097 for legal fees based on the judge’s finding that, on the issue of health insurance, the defendant was simply being litigious for the sake of being litigious. The defendant appealed, arguing that the judge improperly excluded plaintiff’s capital gains income in determining child support. The plaintiff argued that his capital gains were actually principal withdrawals generated by liquidating assets to pay child support and not income. He also asserted the theory that including that income in the child support calculations was “double dipping.” While the Appeals Court rejected his theory of “double dipping,” the case was remanded. Neither party was successful in recovering legal fees on the appeal.