What Does The Repair Ticket Show For 17v-652

J.Southward. vs. C.C.

454 Mass. 652

April 6, 2009 - September x, 2009

Suffolk County

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

Parent and Kid, Custody, Child back up. Evidence, Kid custody proceeding. Probate Courtroom, Findings by judge, Attorney'due south fees, Costs.

In a custody dispute in Probate and Family unit Court, the judge did not err in awarding physical custody to the mother, where the evidence supported the guess's thorough and conscientious factual findings and conclusions that the mother had the ability to parent the child going forwards and that the father's concerns virtually the maternal uncle's beliefs in relation to the child were dramatically overstated, and where the estimate acted well within her considerable discretion in adopting the findings and conclusions of the guardian advertising litem that the begetter's unsubstantiated beliefs about the uncle (and his attempts to prove those beliefs) interfered both with his ability to share custody with the female parent and with his ability to parent effectively. [656-659]

This courtroom concluded that a determination whether and to what extent the undistributed earnings of a Subchapter S corporation should be deemed available income to meet a parent's child support obligation must exist made based on the particular circumstances presented in each instance, including the parent-shareholder's level of control over corporate distributions, as measured by his or her ownership involvement; the legitimate business interests justifying retained corporate earnings; and the presence of affirmative evidence of an attempt to shield income by means of retained earnings [659-664]; further, this court placed the burden on the parent-shareholder to present bear witness that he or she does non have access to retained income, regardless of the shareholder's ownership per centum in the corporation, given that the shareholder is the party with greater access to the prove [664-665].

Where the tape of a custody dispute reflected that the judge, without giving any specific consideration to particular facts or circumstances, deemed the father's entire undistributed earnings from a Subchapter Southward corporation to exist bachelor income to run into his child back up obligation, this courtroom remanded the matter to the Probate and Family Court to allow for further consideration of the issue. [665]

In a custody dispute, the probate judge acted within her discretion in ordering the husband to pay a portion of the mother's legal fees, based on her conclusion that the father'due south actions had unnecessarily complicated and prolonged the litigation. [665-666]

CIVIL Activeness filed in the Suffolk Division of the Probate and Family Court Section on Baronial 15, 2003.

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The case was heard by Nancy Gould, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

J. S., pro se.

Paul P. Perocchi (Rachel Lipton with him) for the female parent.

BOTSFORD, J. This case arises out of the parties' dispute over the custody of their child, Sapphire. [Note 1] A guess in the Probate and Family Court granted joint legal custody of Sapphire to the defendant (mother) and the plaintiff (male parent), and physical custody to the female parent, subject to the male parent's right of visitation; the judge also ordered the male parent to pay child support in the amount of $1,000 per week, as well as various expenses related to the child. In addition, the gauge ordered the male parent to pay a portion -- $100,000 -- of the female parent's attorney's fees.

The begetter has appealed, arguing that (1) the judge erred in the award of physical custody to the mother; (ii) the judge erred in treating as bachelor to the father, for purposes of determining child support, the father's entire share of the 2005 undistributed earnings of the Subchapter S corporation (S corporation) in which the father held a bulk ownership interest; and (three) the approximate erred in awarding attorney's fees and costs to the mother. We affirm the judge'south concrete custody and attorney's fee awards to the mother. We conclude, however, that the gauge erred in her treatment of the S corporation'south retained earnings for purposes of determining the begetter'due south child support obligation and remand the case for further consideration of that effect.

ane. Background. Sapphire was built-in to the male parent and mother, who never married, in 1997. The father and mother had a troubled relationship, and permanently ceased living together in 2002. In Dec, 2002, the parties retained a mediator to help them resolve issues regarding parenting and finances, and in connectedness with the mediation process, executed a written parenting agreement on March 21, 2003, that gave them shared legal and physical custody of Sapphire.

In August, 2003, the father filed a complaint for custody of the child pursuant to Thou. L. c. 209C, § x (a), prompted in large role by his belief that the child's maternal uncle was a pedophile.

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Thereafter, the mother counterclaimed for custody. The parties stipulated to the appointment of Dr. Robin K. Deutsch, a licensed psychologist and codirector of a programme dealing with children and the police at Massachusetts General Infirmary, to serve as guardian ad litem (GAL) to investigate the male parent's claim that the maternal uncle had engaged in inappropriate sexual behavior with Sapphire. The parties later agreed to expand Dr. Deutsch'south duties to include evaluation of Sapphire's all-time interests in relation to custody. Dr. Deutsch's comprehensive investigation resulted in 2 lengthy reports. [Note 2]

Between October and Dec of 2006, the judge conducted an 8-solar day trial on the problems of custody and back up. In her conclusion issued in Jan, 2007, the judge found that from the time of Sapphire'due south nascence, both parents were active in caring for her, although there were times in the child's life when 1 or the other of them took a more dominant role. [Note three] Sometime in 2001, the father developed the belief that Sapphire's maternal uncle was a pedophile, based on (1) games she had played at the uncle's house a handful of times when she was effectually three years old (in whatever event non past the age of four) and always in the mother'due south presence [Note 4]; and (two) a photograph of Sapphire and her cousin, taken at the uncle'south house, which the father believed depicted Sapphire wearing makeup. As to the games, the estimate credited

Page 655

the testimony of Dr. Deutsch, and of Dr. John Daignault, a licensed forensic psychologist who testified on behalf of the female parent, that the games showed no indication of inappropriate sexual bear on the part of the uncle; the judge, however, concluded independently that the games were inappropriate, simply that they did not ascension to the level of sexual abuse. As to the photograph, the approximate credited the mother's testimony that Sapphire was non wearing makeup, and concluded that the photograph was not indicative of sexual abuse. The approximate further credited Dr. Deutsch's conclusions that as a general thing, there was no show of sexual abuse of the kid or of any threat posed past the uncle, but that the father had constructed an elaborate theory of abuse through "faulty reasoning, misinterpretation of data, and errors of attribution."

The judge further found the following. The begetter did not report his suspicions of sexual abuse to law enforcement or confront the uncle directly, but he did begin to "stockpile and overanalyze any morsel of data that could profile [the female parent's brother] as a pedophile." [Annotation 5] The father also secretly videotaped interviews with Sapphire, and, on March 21, 2003, the aforementioned day the parties executed the parenting agreement, conducted a secret "pre- briefing" with the parties' designated parenting coordinator where he presented claimed evidence of abuse only insisted that the mother not be informed of the show. The father also spoke about his behavior of corruption with a number of people in Sapphire's and the mother's respective communities, including the caput of Sapphire's former school, her and so current teacher, and common friends of the mother and father. According to the begetter, the mother "suffered from serious mental health conditions including bipolar disorder," had bug with rage, and had reported hearing voices. [Annotation 6] Dr. Deutsch reported that the child was "acutely aware" of the father'southward scrutiny of the female parent's actions, and the

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kid twice had threatened to study the female parent to the father if she did not get her manner.

This case was filed when the father tried and failed to convince the parenting coordinator to block a trip by the mother and Sapphire to visit the female parent'southward family outside the Commonwealth, claiming that the maternal uncle was dangerous, and that the mother suffered from mental affliction and was trying to get out the State with Sapphire permanently -- claims that the judge found were unsupported. When the parenting coordinator refused to forbid the trip, the father told the child he had a stomach ache, brought the child to the emergency room of Massachusetts General Hospital to avoid transferring Sapphire'due south custody to the mother at the scheduled time, and rescheduled the mother'southward airplane tickets without telling her so that he would have fourth dimension to file for an emergency club to forestall the trip.

The guess credited and adopted Dr. Deutsch's conclusion that the father's unsubstantiated behavior and attempts to prove those beliefs had interfered both with his power to share custody with the mother, and with his ability to parent Sapphire finer. As a result, the judge ordered that the mother accept physical custody of Sapphire, field of study to substantial rights of visitation by the father. [Notation vii] The father appealed, and we transferred the case here on our ain motion.

We reserve for later discussion facts specific to the gauge's child support and attorney's fee orders.

2. Discussion. a. The custody conclusion. The male parent argues first that the gauge erred in granting physical custody of Sapphire to the mother. The judge made her decision with reference to the best interests of the child, pursuant to M. L. c. 209C, § 10 (a). See Rolde v. Rolde, 12 Mass. App. Ct. 398 , 402 (1981) (in deciding issues involving custody, overriding concern must be best interests of child). "The determination of which parent will promote a child'south best interests rests within the discretion of the judge . . . [whose] findings in a custody instance 'must stand up unless they are plainly wrong.' " Custody of Kali, 439 Mass. 834 , 845 (2003), quoting Rosenberg v. Merida, 428 Mass. 182 , 191

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(1998). Run across Matta v. Matta, 44 Mass. App. Ct. 946 , 947 (1998). "Findings of fact shall not be set up aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mason 5. Coleman, 447 Mass. 177 , 186 (2006), quoting Mass. R. Dom. Rel. P. 52 (a) (2006). "Even so, we will not sustain an award of custody 'unless all relevant factors in determining the best interests of the kid have been weighed.' " Custody of Kali, supra, quoting Rosenberg v. Merida, supra.

The male parent argues first that the judge failed to consider "overwhelming" evidence presented at trial and weighing in his favor. He asserts the evidence showed that he was Sapphire'southward primary flagman for a significant role of her life and at least an equal caretaker for the balance, and the child thrived nether his care; the female parent had a history of mental health issues, inability to control her rage, and violence against the male parent and the child; the maternal uncle exposed the child to inappropriate, sexually tinged behavior; and the mother had exposed the kid to unsafe atmospheric condition in the maternal grandmother's dwelling.

The gauge specifically considered and rejected the father's arguments, terminal that the mother and male parent had carve up custody equally since 2002; each had fully and adequately cared for Sapphire's physical needs when Sapphire was in each of their care; the father's claims about the mother's anger were non credible; and the female parent had successfully dealt with some problems affecting her mental health, so that the judge had confidence in her ability to parent Sapphire going forward. The judge also plant that the father's concerns about the uncle's behavior in relation to Sapphire -- including, virtually prominently, the games that had not been repeated since Sapphire was four years old -- were dramatically overstated. The guess heeded the male parent's concerns virtually the maternal grandmother, and ordered that the child not be left lonely in the maternal grandmother's care, but also noted that the mother had taken steps to protect the child. Nosotros accept thoroughly reviewed the record, [Annotation eight] and conclude that the judge'south factual findings and the conclusions she drew are supported by the evidence

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presented at trial, and were well within her discretion to make.

The father adjacent asserts that certain of the estimate'due south findings were clearly erroneous. In particular, the father challenges the judge'due south findings that he did not written report his concerns virtually the maternal uncle to law enforcement; Sapphire's threat that the father would "write another book" about the female parent referred to the "GAL General Fact-Conference Volumes" prepared past the father; he "began to obsessively collect and document information regarding members of the [mother's] family"; he told a doctor that he believed the uncle had previously sexually abused Sapphire and may do so again; his participation in mediation was disingenuous, and in fact his purpose was secretly to seek out and collect information nigh the mother and her family; and he revealed damaging information most the female parent to some xviii people with personal ties to Sapphire or the mother.

It is not clear that the estimate's determination considered as a whole, with its 158 separate findings of fact, would represent an abuse of discretion fifty-fifty if the father's contentions most the erroneous nature of the discrete findings just described were correct; in any instance, we conclude that the approximate'southward findings were supported by the evidence. [Note 9]

Finally, the father argues that the judge improperly relied on Dr. Deutsch's GAL reports and testimony in concluding that the

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male parent's disclosures to members of the mother and kid'southward communities had a negative affect on Sapphire, and that the begetter'southward "obsessive and hyper-focused method of viewing issues involving [the kid] compromise[d] his power to parent and co-parent." The argument fails. The estimate acted well within her considerable discretion in adopting Dr. Deutsch's findings and conclusions. Run across Pizzino five. Miller, 67 Mass. App. Ct. 865 , 875-876 (2006), quoting Sarkisian v. Benjamin, 62 Mass. App. Ct. 741 , 745 (2005). The father raises a number of alleged weaknesses in Dr. Deutsch's investigation, but these points were ably presented to the approximate, who nonetheless chose in her discretion to credit Dr. Deutsch and the substance of her exhaustive reports. The approximate'south conclusions notice more than than acceptable support in the facts already discussed.

Opposite to the male parent's characterization of the judge's decision, we conclude that it represents a thorough, careful examination and evaluation of the trial show, reflecting a balanced weighing of facts and independent judgment. The estimate recognized the father's deep love of his child and capacity to care for her, but ultimately reached a conclusion that is contrary to the father's ain view of the pertinent facts and circumstances. Based on the record presented, the estimate was entitled to do so.

b. Child support accolade and inclusion of S corporation "pass-through" earnings. The male parent argues that the approximate erroneously included undistributed earnings of a closely held S corporation in her calculation of his income for purposes of determining his

Page 660

child support obligation. "We review child support orders . . . to determine if at that place has been a judicial abuse of discretion." Department of Revenue v. C.Chiliad.J., 432 Mass. 69 , 75 (2000). Run across Department of Revenue v. G.W.A., 412 Mass. 435 , 441 (1992); Freedman v. Freedman, 29 Mass. App. Ct. 154 , 155 (1990).

The record includes the following facts. The begetter is the principal executive officer and 60-five per cent owner of a closely held corporation that has elected to exist an Due south corporation. [Notation ten] On his fiscal statement filed with the court, the begetter indicated that his gross income for 2005 was $92,001.65, consisting largely of salary or wages paid to him past the corporation. He did not list any other monies from the corporation as function of his gross income. He did, yet, indicate in an explanatory notation that, while his tax returns reflected corporate profits or losses, he rarely received distributions from the corporation other than in the amount required to pay whatsoever tax liability attributable to the pro rata laissez passer through of the corporation's income for income tax purposes. (Come across note x, supra.)

At the time of trial in Oct, 2006, neither the male parent nor the corporation had filed taxation returns for 2005. Nonetheless, the estimate institute, based on the father's testimony, that its 2005 profits were likely to exist $400,000 to $500,000, and that the father would therefore report 60-five per cent of that figure, or $260,000 to $325,000, on his individual tax return. She ended that in calorie-free of the begetter's sixty-five per cent ownership involvement in the corporation, his almanac income in 2005 was probable to exist at least $352,000 ($92,000 from salary and at least $260,000 from earnings or income attributable to him). The father argues that the judge erred in because the pass-through earnings reported or to be reported on his income tax render equally role of his gross income because those earnings were probable to be retained by the corporation rather than distributed to him.

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Neither this courtroom nor the Appeals Courtroom has directly addressed how to treat, for purposes of determining a parent'southward child support obligation, undistributed earnings of an S corporation that for income tax purposes are attributable to the parent-shareholder. [Note xi] In doing so here, we begin with the Massachusetts Child Support Guidelines (Guidelines) because in cases where they apply, the Guidelines generally govern the determination of child support. See G. 50. c. 209C, § 9 (c). Cf. Croak v. Bergeron, 67 Mass. App. Ct. 750 , 754 (2006). [Note 12] The Guidelines in outcome at the time of trial determined a parent's child support obligation based on his or her available income, and defined the term "income" equally "gross income from whatever source," including "income derived from business/partnerships." Guidelines I(A). This definition leaves open up the question whether undistributed earnings passed through to an S corporation shareholder solely for tax purposes authorize as "income derived from" the South corporation. As a event, the definition provides no useful guidance for determining the corporeality of income bachelor to run across a child back up obligation. [Note 13]

Courts in a number of other jurisdictions have considered

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how to care for the retained earnings of an Southward corporation that are passed through to a shareholder for purposes of measuring and imposing a kid support obligation. In our view, the better reasoned decisions require a example-specific, factual inquiry and decision that is like to that suggested by the new Massachusetts Child Back up Guidelines (New Guidelines) discussed in note 13, supra. [Note 14]

Nosotros follow the lead of these cases, and similarly conclude that a conclusion whether and to what extent the undistributed earnings of an Southward corporation should exist deemed available income to meet a child support obligation must exist made based on the

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particular circumstances presented in each case. Such a fact-based inquiry is necessary to remainder, inter alia, the considerations that a well-managed corporation may exist required to retain a portion of its earnings to maintain corporate operations and survive fluctuations in income, but corporate structures should not exist used to shield available income that could and should serve every bit available sources of child support funds. Meet Zold v. Zold, 911 And so. 2nd 1222, 1232-1233 (Fla. 2005) (Zold); Matter of the Wedlock of Brand, 273 Kan. 346, 357 (2002) (Brand).

Without undertaking to provide an exhaustive list, nosotros note some relevant factors that the judge should weigh in determining what portion of undistributed corporate earnings may exist available to a shareholder for a child support obligation. First, a shareholder'due south level of control over corporate distributions -- every bit measured by the shareholder's buying involvement -- is a gene of substantial importance. See Zold, 911 So. second at 1233; Hubbard County Health & Human Servs. 5. Zacher, 742 N.West.2d 223, 228 (Minn. Ct. App. 2007) (Hubbard). A minority shareholder defective the ability unilaterally to order a distribution may exist relatively unlikely to have access to retained income of the corporation. See Riepenhoff 5. Riepenhoff, 64 Ohio App. 3d 135, 138 (1990); Roberts v. Roberts, 666 N.Westward.2nd 477, 483 (S.D. 2003). A majority shareholder may be relatively more likely to take admission to retained funds and ability to manipulate pass-through income, and a sole shareholder fifty-fifty more so. Run into Zold, 911 So. 2d at 1232; Brand, 273 Kan. at 360. Cf. Merola 5. Exergen Corp., 423 Mass. 461 , 464 (1996), quoting Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842 , 851 (1976) (majority involvement in shut corporation has "large measure of discretion in declaring or withholding dividends").

Second, the judge should evaluate the legitimate business organisation interests justifying retained corporate earnings. [Note 15] See Zold, 911 So. 2d at 1233; Fennell v. Fennell, 753 A.2d 866, 869 (Pa.

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Super. Ct. 2000). Although the business judgment rule cannot shield the shareholder from the factual enquiry we describe here, fifty-fifty majority shareholders in a close corporation may be constrained by their duty of utmost good faith and loyalty to the minority shareholders. Come across Bernier five. Bernier, 449 Mass. 774 , 787 (2007), quoting Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578 , 593 (1975).

Third, the estimate should counterbalance affirmative evidence of an attempt to shield income past means of retained earnings. See, e.chiliad., Williams v. Williams, 74 Ohio App. 3d 838, 843-844 (1991); Fennell v. Fennell, 753 A.2d at 869. In that regard, the corporation's history of retained earnings and distributions may be relevant. Run across Tebbe v. Tebbe, 815 N.East.2nd 180, 184 (Ind. Ct. App. 2004); Brand, 273 Kan. at 359.

Finally, it is of import to consider the allocation of burden of proof in relation to the handling of an Due south corporation's undistributed earnings for purposes of determining income available for kid back up; this is an issue on which courts in other jurisdictions are split. Some courts shift the burden of proof depending on the shareholder's level of command over the corporation: a minority shareholder is presumed non to accept access to retained income and therefore does non carry the burden of proof, while a majority or sole shareholder is presumed to have access to retained income and does conduct the burden of proof. Run across, e.g., Brand, 273 Kan. at 354; Fennell v. Fennell, 753 A.2d at 869. Encounter also Tebbe v. Tebbe, 815 North.E.2nd at 183 & n.5 (indorsing Fennell instance in dicta). Other courts place the burden on the shareholder to present show that he or she does not accept access to retained income regardless of the shareholder'south ownership percentage in the corporation; they reason that the shareholder is the party with greater access to the show. See, e.chiliad.,

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Zold, 911 So. 2d at 1233; Walker 5. Abound, 170 Md. App. 255, 281 (2006); Hubbard, 742 N.W.2d at 228. We are persuaded that the second approach is more than appropriate, because we agree that regardless of the percent of his or her buying involvement, the shareholder is likely to have greater access to relevant information about the corporation than a party who is not continued to it.

Nosotros return to the case earlier usa. The record plainly reflects that the estimate deemed, without giving whatever specific consideration to particular facts or circumstances, the father's entire income as measured for income tax purposes as available income for purposes of determining an appropriate kid support order. [Note 16] The record too reflects, even so, that at the trial itself, the parties and the judge gave almost no consideration to the effect of how the father's laissez passer-through income should be treated in relation to child support. In the circumstances, remand is appropriate to allow for further consideration of the begetter's financial resources and the child back up club in light of the standard we set out in this stance (as well as the New Guidelines). [Note 17], [Note 18]

c. Legal fees. The father challenges the judge'due south society that he pay a portion of the female parent's legal fees. [Note 19] "Such an honour is

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within the sound discretion of the gauge and will not ordinarily be disturbed." DeMatteo v. DeMatteo, 436 Mass. 18 , 38-39 (2002). In this example, the estimate concluded that a fee award was justified because the litigation was "unnecessarily complicated and prolonged" by the actions of the father -- in particular by the father'south bear during discovery, his "relentless pursuit of information and unsubstantiated allegations" against the female parent, and the large amount of extraneous information produced past the father during litigation. The estimate had an opportunity to observe the parties through extended pretrial discovery and move practice as well as trial, and also had before her a detailed itemization of the female parent'south chaser'southward fees. The gild that the father pay $100,000 of the mother's $365,000 in attorney's fees was within the judge'southward discretion. Come across, e.g., Silverman five. Spiro, 438 Mass. 725 , 730 (2003) (partial fee award demonstrated consideration of countervailing factors); Moriarty v. Stone, 41 Mass. App. Ct. 151 , 159 (1996) (deferring to judge's "considerable discretion" based on "intimate familiarity" with parties' circumstances and hubby'southward superior financial position).

iii. Determination. The judgment of the Probate and Family Court on the plaintiff's complaint for custody is affirmed with the exception of Paragraphs 5 through 9, which concern child support. The order on kid support in Paragraphs 5 through 9 is vacated and the affair is remanded to the Probate and Family Court for further consideration and orders solely on the issue of ability to pay child support and consequent with this opinion. The separate judgment on the plaintiff's motion for attorney's fees and costs is affirmed.

So ordered.

FOOTNOTES

[Note 1] A pseudonym.

[Notation 2] In connection with the start report, filed in the Probate and Family Court on July 18, 2004, Dr. Robin Yard. Deutsch conducted approximately seven hours of interviews with each parent; 2 hours of interviews and half dozen hours of observation with Sapphire; an interview with the maternal uncle; psychological testing of the parents; collateral contacts with nine other parties; and reviews of dozens of records, including some 450 pages of "GAL General Fact Briefing Volumes" prepared by the father. The guess later on requested an updated study, which was filed on October 23, 2006. In preparing the 2d report, Dr. Deutsch conducted an additional 8 hours of interviews with the parents; over two hours of interviews with the child; collateral contacts with 4 other parties; and reviews of a number of additional documents. The ii reports together are 131 pages long.

[Note iii] At the fourth dimension of trial in 2006, when Sapphire was nine years old, the mother and male parent were sharing physical custody of the child equally.

[Note iv] In one game, after Sapphire's bath, she would run back and forth naked between two clothed adult family unit members, unremarkably including a parent, who would each lift her up in the air, place her back on the ground and allow her run dorsum to the other adult. In the other game, an adult would place a long flotation device known every bit a "pool snake" in the dorsum of a child'south pants or underwear as part of a game of tag played with other children.

[Notation 5] For example, the father prepared a statistical assay for Dr. Deutsch purporting to show a 98.48 per cent probability that the uncle was a pedophile, based on factors such as the games, the photograph, the uncle'due south age, and his left-handedness. The document listed, equally additional factors perhaps affecting the probability, the uncle'southward numeric e-mail accost and alleged psychiatric and family unit history.

[Note 6] The begetter'southward claims concerning the mother's mental illness and instability were disputed by the mother'due south treating psychiatrist and ultimately rejected by the gauge.

[Note 7] In particular, the judge ordered that the male parent have visitation each Wednesday night, and every other weekend, for a full of five overnights out of every fourteen days. The judge likewise provided for equal partition of Sapphire's Thanksgiving, Christmas, March and summer vacations.

[Note 8] Included in the evidence we accept reviewed is a videotape that shows "home videos" recorded by the uncle that do not include Sapphire, and secret recordings the father fabricated of his conversations with Sapphire. The videotape was admitted in bear witness at trial but not included in the record on appeal.

[Note 9] The approximate's inference that the begetter did not study his concerns about the mother'due south brother to constabulary enforcement was reasonable, where at that place was no evidence of such a study introduced during trial, and where, given the intensity of the father's business organisation about this issue during the entirety of this case, the guess could permissibly assume that if he had contacted the police or other police force enforcement regime, he would accept then indicated. The inference that the child'south threat referred to the guardian advert litem (GAL) fact briefing volumes also seems reasonable, in calorie-free of the length and contents of the GAL conference volumes prepared by the male parent, and the absenteeism of whatever indication of any other "book" written past the father.

The finding that the father obsessively nerveless data about the mother'south family is supported, for example, by the allegations of fact contained in the male parent's statistical assay purporting to estimate the probability that the uncle was a pedophile (come across note 5, supra). The finding that the father told his physician that the child had been sexually driveling is non entirely supported -- the contents of the conversation are non in the record -- only it is undisputed that the male parent's statements to the physician resulted in a referral by the physician to a clinical social worker, who, based on the begetter'southward statements to her, filed an abuse or neglect written report with the (then) Department of Social Services under 1000. L. c. 119, § 51A. In whatsoever case, the finding is hardly cardinal to the judge'due south conclusions.

The judge's finding that the father'south participation in mediation was disingenuous is supported by the fact that, the day the parenting agreement produced by the mediation was signed, the begetter secretly contacted the parenting coordinator designated to resolve further disputes and presented materials designed to convince the coordinator that the child was at chance of abuse, while insisting that the mother not be shown the materials. Her finding that the begetter made damaging disclosures to eighteen people with ties to the mother or child is also adequately supported -- if not equally to the exact number of eighteen, at least as to a substantial number. There was prove, inter alia, that the father told the child's kindergarten teacher that the child had been sexually abused; told a neighbor and mutual friend that the mother had been diagnosed with borderline personality disorder (a claim for which in that location is no support); and told the parenting coordinator that the child was in danger of being sexually abused and that the female parent had "meaning mental health issues."

[Annotation 10] When a minor business corporation elects to be an S corporation, its earnings or income is not taxed at the corporate entity level but is passed through and taxed to the private shareholders on a pro rata ground, determined by each shareholder'due south percentage ownership interest in the corporation; the pass-through occurs whether or not the income is actually distributed. Run into Bernier five. Bernier, 449 Mass. 774 , 775-776 north.ii (2007); Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501 , 558 (1997), citing 26 United states of americaC. §§ 1361-1379 and Yard. L. c. 62, § 17A.

[Note 11] Cf. Maillet v. Maillet, 64 Mass. App. Ct. 683 (2005). The issue in the Maillet example was whether the plaintiff hubby had misrepresented his income in the financial statement he filed in connexion with the underlying divorce proceeding because he did not include any income from his S corporation. The court remanded the affair for further findings on this issue, but the opinion contains no information about whether the South corporation'southward income or earnings were actually distributed to the husband or simply passed through to him for income tax purposes.

[Notation 12] The Massachusetts Kid Back up Guidelines (Guidelines) did not apply directly in this instance because the combined gross income of the parties exceeded $135,000. Notwithstanding, every bit the judge recognized, the principles and definitions of the Guidelines were applicable to the child support determination. See Guidelines II(C), quaternary par.

[Note 13] The Massachusetts Child Support Guidelines that took issue on Jan 1, 2009 (New Guidelines), contain expanded guidance with respect to corporate income. The New Guidelines provide that "income is divers as gross income from any source regardless of whether that income is recognized by the Internal Acquirement Code or reported to the Internal Revenue Service" (emphasis added). New Guidelines (I)(A). They further provide, as to business income:

"Income from . . . joint buying of a partnership or closely-held corporation, is divers as gross receipts minus ordinary and necessary expenses required to produce income. In general, income and expenses from self-employment or performance of a business should be advisedly reviewed to make up one's mind the appropriate level of gross income available to the parent to satisfy a kid support obligation. In many cases this corporeality will differ from a determination of business income for tax purposes."

New Guidelines (I)(C). Run across ALI Principles of the Police of Family Dissolution: Analysis and Recommendations § three.14(1)(b) & comment b (2002) (defining business income as "gross receipts less expenditures required for the performance of the concern," and noting that income bachelor for child support may exceed income subject to tax). The New Guidelines thus suggest that, when setting child support, the judge should decide the income of an S corporation shareholder not past including automatically the laissez passer-through income reported on the shareholder's tax return, but rather by making a specific determination about what portion (if whatsoever) of that laissez passer-through income realistically and fairly is or should exist deemed available to the shareholder for purposes of paying child support. The New Guidelines are consistent with a number of Massachusetts cases recognizing that actual business organization income available to come across child support obligations may non exist the aforementioned equally the income reported on a parent'southward revenue enhancement return. See, e.yard., Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404 , 406 (1998) (estimate's decision to pass up husband's reported business income and calculate gross income independently reasonable).

[Annotation 14] See, e.g., Zold 5. Zold, 911 Then. 2d 1222, 1232-1233 (Fla. 2005) (Zold) (failing to set up bright-line dominion to determine whether undistributed pass-through income retained by Due south corporation should exist considered available income for child support; factors to consider include extent shareholder has access to or control over undistributed, retained corporate income; purposes for which pass-through income retained by corporation; and extent of shareholder's interest in corporation); Thing of the Wedlock of Brand, 273 Kan. 346, 359- 360 (2002) (Brand) (final relevant factors for determining whether to include distributions from S corporations as bachelor income for purposes of computing child support obligation include, inter alia, by earnings history of corporation and shareholder's power to control distribution or retentiveness of profits); Hubbard County Health & Homo Servs. v. Zacher, 742 N.Due west.2d 223, 228 (Minn. Ct. App. 2007) (Hubbard) (whether S corporation undistributed earnings is income to be determined on instance-by-case basis; caste of shareholder's ownership and control relevant, not dispositive factor; necessary to consider whether undistributed earnings retained for legitimate business reason or to shield shareholder's income).

[Note 15] Not all legitimate business organisation interests will justify excluding retained earnings from a shareholder's income. A corporation may reasonably choose to retain income for at least two distinct purposes: maintaining the electric current business organisation, or investing in and expanding the business organization. Earnings retained in order to maintain the business as currently operated should non be included in gross income. See New Guidelines (I)(C) (defining business income every bit "gross receipts minus ordinary and necessary expenses required to produce income"). Earnings retained in order to expand the business organisation, on the other hand, accept the potential of increasing the business'southward value and thus the shareholder'southward personal net worth, and might properly be viewed as income bachelor for kid support -- just equally a distribution invested in another corporation would exist. Cf. Merrill v. Merrill, 587 Due north.E.2d 188, 191 (Ind. Ct. App. 1992) (Indiana guidelines include retained earnings); Make, 273 Kan. at 355 (scrutiny warranted where payments on corporate debt increase personal net worth). Simply see Fennell v. Fennell, 753 A.2d 866, 867, 869 (Pa. Super. Ct. 2000) (income retained for investment non available for kid back up, where minority shareholder lacked command over distributions).

[Note 16] On appeal, the mother has argued in favor of the arroyo used by the guess, while the father contends that none of the corporation's undistributed earnings should be considered every bit function of his available income for kid support purposes because he actually received none of information technology. We reject both all-or-nothing positions.

[Notation 17] For reasons discussed in the text supra, on remand, the begetter volition behave the burden of proving that his pct share of the corporation'southward undistributed earnings is not available to him in whole or in role in social club to run into a child support obligation.

[Annotation 18] An additional issue that may come into play on remand is whether a distribution from an Due south corporation made solely to cover a shareholder'due south tax liability for retained income should exist included in computing the shareholder's available income for child support purposes. Courts in several jurisdictions take held that the portion of a distribution designated to pay taxes on earnings legitimately retained by the corporation is not bachelor to a shareholder parent to satisfy a child support obligation. See McHugh 5. McHugh, 702 And so. 2d 639, 642 (Fla. Dist. Ct. App. 1997); Tebbe five. Tebbe, 815 N.East.2nd 180, 184 (Ind. Ct. App. 2004); Walker v. Grow, 170 Md. App. 255, 280- 281 (2006). We agree in full general with the reasoning of these decisions, simply limited no stance concerning this detail case.

[Note xix] The approximate did not specify under what authorization she awarded legal fees. Full general Laws c. 209C, governing custody of children born out of matrimony, does not contain a specific provision for fee shifting. Even so, the statutory authority to shift fees in marital custody disputes, M. L. c. 208, § 38, has been read to extend to nonmarital children. Run across G.Eastward.B. v. S.R.W., 422 Mass. 158 , 174 n.15 (1996); Doe v. Roe, 32 Mass. App. Ct. 63 , 68-69 (1992).