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Hoegen v. Hoegen

Appeals Court of Massachusetts, Worcester

January 22, 2016

Patrick J. Hoegen
v.
Christine M. Hoegen

Argued October 21, 2015.

Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on March 17, 2010.

An amended complaint for modification, filed on May 23, 2013, was heard by Joseph Lian, Jr., J.

Warren M. Yanoff for Christine M. Hoegen.

Penelope A. Kathiwala ( Barbara A. Cunningham with her) for Patrick J. Hoegen.

Present: Green, Hanlon, & Massing, JJ.

OPINION

Hanlon, J.

The defendant, Christine M. Hoegen (mother), appeals from a modification judgment of the Probate and Family Court which held that her former husband, Patrick J. Hoegen (father), was not obligated to include income realized from vested restricted stock units (RSU) in the calculation of child support for

Page 7

the parties' minor children.[1] We reverse.

Background.

The parties were divorced by a judgment of divorce nisi, incorporating by reference a separation agreement, which survived as an independent contract, except as to matters relating to the children.[2] Under the agreement, the father's child support obligation was $1,020 biweekly,[3] which the parties agreed was higher than the presumptive amount of support under the Massachusetts Child Support Guidelines (guidelines) at that time. The agreement also required that the parties " confer on April 1st of each year to evaluate whether the child support should be adjusted." [4] Exhibit D to the agreement (captioned " Pension/Retirement Funds, Etc." ) explicitly stated that the mother " acknowledges that she is aware that the [father] does participate in a stock plan through his employment; the [mother] waives all rights, title and interests in these accounts."

On February 5, 2013, the father filed a complaint for modification, seeking to define more fully the shared parenting schedule, that is, to provide more specificity about weekday, holiday, and vacation schedules along with related transportation, and also to incorporate language regarding relocation of the children outside of Massachusetts; he also sought to extend the review of his child support obligation from every year to every three years. The father amended his complaint on May 23, 2013, requesting not only the original relief, but also that he be granted the tax exemption for both children.

On June 27, 2013, the mother filed an answer to the amended complaint and a counterclaim, seeking, in addition to adjustments to the parenting schedule and responsibilities, to recalculate child support to include " all" of the father's income. On January 13, 2014, the parties resolved by stipulation the issues relating to the parenting schedule, ...


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