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Vedensky v. Vedensky, 86 Mass.App.Ct. 768, 22 N.E.3d 951 (2014) 

In Vedensky v. Vedensky, the Massachusetts Appeals Court concluded that it was error for the trial court to consider income from the wife’s second job which commenced after entry of the initial order in considering alimony.

The parties were divorced pursuant to a separation agreement in which both parties waived past and present alimony but reserved the right to seek future alimony. The wife was awarded physical custody, and the husband was ordered to pay $230 per week in child support. Following the divorce, the husband began to have psychiatric difficulties, took a disability leave and began to receive social security disability income ("SSDI"). The husband then filed a complaint for modification seeking a reduction in child support, which resulted in a 2010 modification judgment in which the husband no longer paid child support and the wife received SSDI dependent benefits for the children. In 2011, the husband filed a modification seeking alimony. The wife moved to dismiss arguing that there had been no material change in circumstances since the last judgment entered. The judge deferred his ruling until the time of trial.

At the time of trial, the husband worked part-time earning $650 a month in addition to SSDI income. The wife, a physician, worked at a hospital earning $214,000 annually, but also worked a second job on a per diem basis in order to pay for private school and college tuition for the children. Following testimony at trial from a vocational expert and the husband’s physiatrist, the judge concluded that the husband was presently unable to work and had a current earning capacity of $750 per month (the maximum threshold amount before SSDI benefits could be terminated). The judge found that the husband was in need of intensive therapy and support while he sought therapy and ordered the wife to pay $635 per week in rehabilitative alimony for 104 weeks. Said award exceeded the husband’s need in order to account for anticipated medical expenses for treatment. Further, the judge acknowledged that the alimony award exceeded the wife’s income (net expenses) from her new job and earnings from her second job, but found that the wife "could work more than two weekend days per month if she chose to" and "had the ability to increase her income on a temporary basis" to meet the alimony award. The wife appeal on several grounds.

The wife argued that there had been no material change in circumstances since the last modification judgment in which the husband sought to modify his child support. However, the Appeals Court looked to the divorce judgment, rather than the modification judgment, which did not address alimony. The Appeals Court quoted Cherrington v. Cherrington, 404 Mass. 267 (1989), in which the Supreme Judicial Court stated: "[w]e do not choose to establish an incentive to a husband or a wife to request alimony during a divorce proceeding simply to protect himself… should experience later persuade him or her …that alimony is appropriate." The Appeals Court held that since the parties had preserved the right to seek alimony in the initial judgment, the parties were not required to pursue an alimony request in every complaint for modification.

With regard to rehabilitative alimony, the Appeals Court noted that "the purpose of rehabilitative alimony is to protect, for a limited time, a spouse whose earning capacity has suffered (or become nonexistent) while that spouse prepares to renter the work force." Zaleski v. Zaleski, 469 Mass 230 (2014). The Appeals Court found that since the trial court judge made comprehensive findings to support his conclusion, under the circumstances rehabilitative alimony was not an abuse of discretion. Although the wife argued that the judge erred by failing to properly consider evidence presented by experts, the Appeals Court noted that a judge is not required to accept the opinions of experts and is entitled to credit all or part of their testimony under The Woodard School for Girls, Inc. v Quincy, 469 Mass. 151 (2014). The Wife further argued that the husband’s earning capacity should have been determined by the Social Security Administration’s ("SSA") regulations governing initial eligibility, (an individual earning over $1,040 per month is considered capable of gainful activity), rather than the regulations governing eligibility once an individual is already receiving benefits (benefits may be terminated if an individual earns in excess of $750 per month and will be terminated if they earn $750 per month for nine months). The Appeals Court held that it was not error for the judge to assess the husband’s earing capacity at a level which did not jeopardize his SSDI benefits while undergoing therapy. The Appeals Court further found that it was not "plainly wrong or excessive" for the judge to award an alimony order that exceeded the husband’s needs by $110 per week since the judge found that the husband would have an increase in uninsured medical expenses in order to undergo treatment.

The Appeals Court, however, found that it was error for the judge, when calculating alimony, to consider the wife’s income from her second job and to attribute additional income to her based on an ability to work additional hours at that second job. Under M.G.L.c. 208, § 53(b), income for the purposes of alimony is defined as set forth in the Massachusetts Child Support Guidelines. Although the guidelines define income to include compensation from overtime and a second job, M.G.L c. 208, § 54 (b) provides that "[i]ncome from a second job or overtime … shall be presumed immaterial to alimony modification if: (1) a party works more than a single full-time equivalent position; and (2) the second job or overtime began after entry of the initial order." Further, the definition of income in the guidelines states that "[i]f, after a child support order is entered, a Payor or Recipient obtains a secondary job or begins to work overtime, neither of which was worked prior to the entry of the order, there shall be a presumption that the secondary job or overtime should not be considered in a future support order." Since the wife worked a full time job and only began the second job after entry of the divorce judgment, the Appeals Court held that the presumption of immateriality applied to income from her second job.

Under M.G.L.c. 208, § 53(f), income may be attributed to a party who is unemployed or underemployed. Accordingly, the Appeal Courts determined that the judge must have concluded that the wife was underemployed. Therefore, the Appeals Court concluded that "a party who works at a full-time or full-time equivalent job may not be found to be ‘unemployed’ or ‘underemployed’ based on the level of compensation received from a second job obtained ‘after entry of the initial order’ unless the judge concludes, based on findings supported by the evidence, that a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job." The Appeals Court vacated the award of alimony.