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Nystrom v. Nystrom, Appeals Court of Massachusetts, Unpublished Disposition No. 13-P-54, May 22, 2014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


The Court noted that an alimony award must contain supportive findings concerning a spouse’s entitlement, need, earning capacity, and employability, as well as the contributing spouse’s financial ability. The standard of need is measured by what is required to maintain a standard of living comparable to the one enjoyed during the marriage. The Alimony Reform Act defines four distinct forms of alimony. To determine the form of alimony, a judge must consider, in part, length of marriage, age and health of the parties, income, employment/employability (including employability through reasonable diligence), marital lifestyle, and ability of each party to maintain the marital lifestyle. The statute describes rehabilitative alimony as support awarded to a spouse who is “expected to become economically self-sufficient by a predicted time.”

The Court found that at no point in the findings or rationale did the judge state that it discredited the wife’s testimony about her efforts to find employment. Further the wife’s testimony was the only evidence presented concerning her job search. The wife testified that she had tried extensively to find employment in both fields. The only offer had no base salary and required relocation. The wife also testified that she had pursued many teaching opportunities in various school systems. The Court found this evidence to be uncontradicted and indicative of the wife’s ability to meet her needs. Since there were no findings discrediting the wife’s testimony, the Court held that the subsidiary findings and rationale did not support the order. The Court further held that the rationale failed to address the impact of the wife’s age on her ability to find reemployment. The Court reasoned that the wife’s age combined with the increasing number of years she has been removed from the pharmaceutical field would likely continue to decrease her chances of reemployment. The Court further found that the judge’s calculation of the wife’s $49,000 average annual income was an “extremely improbable” indication of her future income. The Court vacated the order for rehabilitative alimony and remanded the case for additional and updated findings.

With regard to health insurance, the Court remanded the matter for a determination of the appropriateness of the order given the updated findings about the wife’s earning capacity.

Finally, the Court found the dismissal of the wife’s complaint for modification to be “plainly incorrect.” The Probate and Family Court retains jurisdiction over modifications of existing judgments until the docketing of the appeal. The mere filing of a notice of appeal does not divest that court of continuing jurisdiction over modifications. A party seeking modification must request permission to do so from the Appeals Court upon the entry of the appeal. The Court found the error to be significant given that the wife wanted to present evidence of her new employment as a teacher in which she earned well below the $49,000 suggested by the judge. The Appeals Court vacated the dismissal.

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