minuteman lexington MA



The Law offices of Miriam G. Altman, P.C. regularly reviews developments in Massachusetts family law reported cases. Below are summaries of noteworthy recently reported cases.

Schmidt v. McCulloch-Schmidt, 86 Mass.App.Ct. 902, 11 N.E. 3d 1099 (2014)

In Schmidt v. McCulloch-Schmidt, the Massachusetts Appeals Court held that the plaintiff/father was not entitled to a dollar-for-dollar reduction in child support for dependency benefits that the mother received as part of her Social Security Disability (SSDI) benefits. The Appeals Court, however, affirmed that said benefits should be included as part of the mother’s gross income.

The parties were divorced in 2006 and had one child. Following the divorce, the mother began receiving monthly SSDI benefits for herself and an additional monthly SSDI dependency benefit for the child. In 2012, the father sought a modification to reduce his child support due to his decreased business income. Following trial in 2013, the judge applied the 2009 Massachusetts Child Support Guidelines. When calculating child support the judge included the mother’s SSDI benefits and the SSDI dependency benefits she received for the child in the mother’s gross income. Although child support was decreased, the judge declined to give the father a dollar-for-dollar credit/reduction for the SSDI dependency benefits. The father appealed.


Kleya v. Kleya, Appeals Court of Massachusetts, Unpublished Disposition No. 13-P-152, June 24, 2014

In Kleyna v. Kleya, the Massachusetts Appeals Court vacated a judgment of divorce nisi which divided the parties’ income generating property but failed to consider alimony as well as college education expenses for the parties’ child. The Court remanded the matter so that the wife could present a complaint for alimony.

The parties married in 1992. At the time of their divorce, they had a daughter in college and a son in high school. The husband, age 55, earned $1,094 a week from his employment and $432 a week from rental property owned by the parties. The husband was expected to receive an inheritance which would not exceed $125,000. The wife, age 53, was employed full-time earning $435 a week. During the marriage the wife was the primary caregiver for the children, working intermittently part-time. The parties owned rental property, and the total value of the marital estate at trial was $448,919. At some point during the marriage, the wife received an inheritance which was applied towards down payments for some of the property.

Read more: KLEYA v. KLEYA

McSween v. Iannibelli, Appeals Court of Massachusetts, Unpublished Disposition No. 13-P-1253, July 8, 2014

In McSween v. Iannibelli, the Massachusetts Appeals Court vacated and remanded a modification judgment regarding the cost of private secondary education.

The Plaintiff/father and mother were married in 1993 and divorced in 2001. They had one daughter from the marriage. The judgment of divorce required the father to pay $210 a week in child support. A modification judgment, which incorporated an agreement between the parties, entered in 2005 which increased the father’s parenting time and provided that the parties would submit disputes of legal custody, including education, to a parent coordinator. In 2011, the parties could not reach an agreement about the child’s continuing private school education. Mother filed a modification and father filed a counterclaim. At trial, the judge credited the father’s testimony that there was no express agreement between the parties to share in private school beyond the child’s first year at Nazareth Academy, and found that the mother enrolled the daughter at Notre Dame Academy for her sophomore year without the agreement of the father and after he expressed an inability to pay. The judge further found that it was not equitable to require the father to retroactively reimburse the mother for the child’s tuition at Notre Dame. Prior to the daughter’s freshman year, the parties were in agreement that the daughter would attend Nazareth Academy for all four years of high school. The judge further found that by not filing a complaint for contempt, he acquiesced in the mother’s unilateral decision to enroll the daughter after an agreement could not be reached. The Father appealed.

Read more: McSween v. Iannibelli

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.


Nystrom v. Nystrom, Appeals Court of Massachusetts, Unpublished Disposition No. 13-P-54, May 22, 2014

In Nystrom v. Nystrom, the Massachusetts Appeals Court vacated a rehabilitative alimony order and remanded the case for additional findings regarding the wife’s earning capacity and for an appropriate alimony award based on those updated findings. The Court also vacated a portion of the judgment which required the wife to reimburse the husband for health insurance.

The parties married in 1989 and divorced in 2012. The husband earned between $58,000 and $74,000 annually. The wife, who was 58 years old, had a bachelor's degree in business administration and a master's degree in education. During the marriage, the wife worked in pharmaceutical sales earning $80,000 annually but was laid off in 2009 and collected unemployment compensation for some time thereafter. The wife also worked as a teacher earning approximately $23,000. At the time of trial, the wife was unemployed and occasionally worked as a substitute teacher. The wife testified that she applied for hundreds of jobs which resulted in few interviews. She was offered but turned down one commission-based pharmaceutical sales position which had no base salary and required her to relocate to Eastern Massachusetts. Following trial, the judge ordered $300 per week in rehabilitative alimony for six months finding that the wife refused a job offer, earned $49,365.80 on average for a five-year period from 2007 to 2011 and had the ability and education to become employed. The judge further found that the wife had not used best efforts to find employment. The judge further ordered the wife to reimburse the husband for her share of health insurance costs or maintain her own coverage. The wife appealed. Following trial the wife found new employment as a teacher earning less than the court’s averaged $49,356 and filed a complaint for modification in the Probate and Family Court. The judge dismissed the wife’s complaint, finding that the wife could not seek a modification of the judgment after she had filed a notice of appeal. The wife appealed the dismissal.

Read more: Nystrom v. Nystrom