The Court Must Make Specific Findings as to Earning Capacity When Entering a Child Support Order Based Upon Attributed Income

In a recent Rule 23 decision, McCrea v. Clayton, a panel of the Massachusetts Appeals Court vacated and remanded the lower court’s order denying Mother’s motion to alter or amend a modification judgment that required her to pay child support to Father because the court, in calculating Mother’s child support obligation, attributed income to Mother without entering the requisite findings regarding Mother’s earning capacity.  (See.

The parties in McCrea v. Clayton are the parents of one child. During the relevant time frame, the child resided in Massachusetts with Father (Joseph Clayton). Mother (Stephanie McCrea), after a period of incarceration, resided in Oregon. While the parties reached an agreement on a parenting schedule for their minor child, Father’s request for child support was contested. Specifically, Father argued that Mother, “who was unemployed, should be required to pay child support based on an attributed income consistent with full-time, minimum-wage employment.” Conversely, Mother argued that her status as a felon, coupled with the COVID-19 pandemic, left her without employment opportunities.

In November 2020, “a modification judgment issued that required McCrea [Mother] to pay child support of $129 per week. The judge attributed minimum-wage income to McCrea and found ‘no reason to deviate from the Child Support Guidelines’ and ‘that the amount ordered is in the best interest of the minor child.’” Mother filed a motion to alter or amend the court’s modification judgment, arguing that “the judge erred by attributing full-time, minimum wage income to her without making the required finding that she could earn more with reasonable effort.” A panel of the Massachusetts Appeals Court agreed with Mother and remanded the matter back to the lower court for specific findings regarding Mother’s earning capacity.

Mother’s position is supported by the current Massachusetts Child Support Guidelines that provide, in relevant part:

“Income may be attributed where a finding has been made that either parent is capable of working and is unemployed or underemployed.”

“If the Court makes a determination that either parent is earning less than he or she could earn through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its child support order.”

“The Court shall . . .  consider the specific circumstances of the parent, to the extent known and presented to the Court, including, but not limited to, the assets, residence, education, training, job skills, literacy, criminal record and other employment barriers, age, health, past employment and earnings history, as well as the parent’s record of seeking work, and the availability of employment at the attributed income level, the availability of employers willing to hire the parent, and the relevant prevailing earnings level in the local community.”

See Massachusetts Child Support Guidelines §I(E)(1-3) (2021).



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