NANCY M. FLAHERTY vs. JOHN FLAHERTY.
No. 95-P-240.
APPEALS COURT OF MASSACHUSETTS
40 Mass. App. Ct. 289; 663 N.E.2d
280; 1996 Mass. App.
LEXIS 140
February 8, 1996, Argued
April 12, 1996, Decided
PRIOR HISTORY: [***1]
Middlesex. Complaint for divorce
filed in the Middlesex Division of
the
Probate and Family Court Department
on July 5, 1993. The case was heard
by
Judith Nelson Dilday, J., and a
proceeding for contempt, commenced
on October
13, 1994, was heard by Fernande R.V.
Duffly, J.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff wife
filed a divorce action against
defendant
husband. The Middlesex Division of
the Probate and Family Court
Department
(Massachusetts) granted a judgment
nisi and the husband was ordered to
pay child
support. The husband challenged the
child support order alleging the
support was
based on an attribution of earnings
unsupported by findings and he also
challenged the finding of civil
contempt for failure to pay the full
child
support.
OVERVIEW: The husband was
well-educated professional and had
been earning $
1,200 per week. Two months before
the trial he was laid off and was
receiving $
375 in unemployment compensation and
he was paying temporary support
based on
his actual income. The trial judge
based the husband's support
obligation on his
ability, based on his skills, and
experience, to have acquired future
capital
and income. The trial made no
specific findings in support of the
general
conclusions and then ordered the
support obligation of $ 400 because
the income
greater than the unemployment
compensation was attributable to the
husband. The
court found that earning capacity
rather than actual income of a
parent may have
been considered in determining child
support orders however, the trial
court
first must have made a determination
that either or both parties was
earning
substantially less than he or she
could have through reasonable
efforts.
Therefore, the trial should have
determined by specific and detailed
findings of
whether the husband would have been
able to earn additional income with
reasonable effort before attributing
income.
OUTCOME: The court vacated the child
support and contempt order. The
judgment in
all other aspects was affirmed.
CORE TERMS: child support, nisi,
reasonable effort, attribution,
judgment of
divorce, judgment of contempt,
temporary order, support order,
visitation,
vacated, earning, vacate, time of
trial, modification, guideline,
divorce,
unemployment, attributing
LexisNexis(R) Headnotes
Family Law > Child Support >
Obligations > Computation >
Guidelines
[HN1] The earning capacity rather
than the actual income of a parent
may be
considered in determining child
support orders. Mass. Child Support
Guidelines §
II-H provides, however, that the
court first must make a
determination that
either or both parties is earning
substantially less than he is or she
could
through reasonable effort. In
keeping with the guidelines, a judge
should
determine by specific and detailed
findings of fact whether an
individual will
be able to earn additional income
with reasonable effort before
attributing
income.
Family Law > Child Support >
Obligations > General Overview
[HN2] Attribution of income may be
appropriate when a judge determines
a career
change is voluntary, or where a
party fails to take another job
despite its easy
availability. A party's ownership of
substantial assets also may be
weighed in
determining whether attribution is
proper. Where, however, as here,
there is no
evidence that a change in job status
was voluntary, the party is making a
reasonable effort to secure
additional income, and he or she has
no additional
assets with which to pay the
increased support order, child
support orders must
be based upon present income.
Family Law > Child Support >
Obligations > Computation >
Guidelines
[HN3] Mass. Child Support Guidelines
§ II-H state that they are intended
to be
applied where a finding has been
made that the party is capable of
working and
is unemployed, working part-time or
is working a job, trade, or
profession other
than that for which he/she has been
trained.
HEADNOTES:
Divorce and Separation, Child
support, Modification of judgment.
COUNSEL:
John M. Flaherty, pro se.
Rudolf A. Jaworski, Jr., for Nancy
M. Flaherty.
JUDGES: Present: Warner, C.J., Kass,
& Porada, JJ.
OPINION BY: WARNER
OPINION:
[*289] [**281] WARNER, C.J. In
August, 1994, the parties were
divorced by
a judgment nisi that required the
husband to pay child support of $
400 per
week. The husband appeals, claiming
the support order was based on an
attribution of earnings unsupported
by the judge's findings. He also
challenges
a finding of civil contempt based on
his payment of less than $ 400 per
week in
child support. As the judge's
findings were inadequate to support
the
attribution of income, we vacate the
judgment as to child support and
remand for
further findings. We therefore also
vacate the judgment of contempt, see
Dominick v. Dominick, 18 Mass. App.
Ct. 85, 93-95, 463 N.E.2d 564
(1984), and
reinstate the husband's prior
support obligation [***2] under the
temporary
order ($ 115). n1
- - - - - - - - - - - - - -
Footnotes - - - - - - - - - - - - -
- -
n1 In addition to challenging the
award of child support, the husband
challenges the award of physical
custody to the wife and the division
of marital
assets. We conclude that the judge's
findings in these respects have not
been
shown to be clearly erroneous and
that there was no abuse of
discretion.
Caldwell v. Caldwell, 17 Mass. App.
Ct. 1032, 461 N.E.2d 834 (1984);
Matteson v.
Matteson, 23 Mass. App. Ct. 945,
945-946, 501 N.E.2d 538 (1986).
Mass.R.Dom.Rel.P. 52(a), as amended
(1987). Cf. New England Canteen Serv.,
Inc.
v. Ashley, 372 Mass. 671, 675, 363
N.E.2d 526 (1977); Gallagher v.
Taylor, 26
Mass. App. Ct. 876, 880-881, 534
N.E.2d 14 (1989).
The husband further challenges
the visitation order to which he
agreed in the
stipulation. To change visitation he
must file a complaint for
modification and
demonstrate that a material and
substantial change has occurred and
that a
change in visitation would be in the
best interest of the children. G. L.
c.
208, § 28.
- - - - - - - - - - - - End
Footnotes- - - - - - - - - - - - - -
[*290] The husband, forty-six
years old at [***3] the time of
trial, is a
well-educated professional with a
Ph.D. in physics. Some two months
prior to the
divorce trial, the husband was laid
off from his job where he earned
approximately $ 1,200 per week. At
the time of trial, he was receiving
$ 375 per
week in unemployment benefits. He
had prepared a resume and was
readying himself
to seek new employment.
Before final judgment entered,
the husband was paying child support
of $ 115
per week under a temporary order
that computed his obligation under
the Child
Support Guidelines (1989) based on
his actual unemployment income of $
375 per
week. In her proposed judgment, the
wife requested child support in the
amount
of $ 400 per week. This amount was
based on a computation attributing
to the
husband full-time employment income
of $ 1,211.54 a week.
In the judgment of divorce nisi,
the judge ordered the husband to pay
$ 400
per week in child support. In her
findings of fact, the judge
concluded that
"the husband has the ability, based
on his skills and experience, to
acquire
future capital and income." She made
no specific findings in support of
this
general conclusion. In an amendment
to the judgment of divorce nisi, the
judge
ordered [***4] that "the obligation
[to pay $ 400] begins on the date of
this
judgment because income greater than
unemployment compensation is
attributed to
the husband."
Despite the judge's order, the
husband continued to pay $ 115 per
week in
child support. On November 7, 1994,
the husband was found in contempt by
another
judge for failure [*291] to pay $
400 per week in child support. He
was
ordered to pay $ 7,098 to the wife
for past due and future child
support. n2
- - - - - - - - - - - - - -
Footnotes - - - - - - - - - - - - -
- -
n2 The husband had been holding $
7,000 for payment of the wife's
attorney's
fees in accordance with the divorce
judgment. Although we are vacating
the
contempt judgment, the $ 7,000 will
remain with the wife but should be
applied
by the wife to the payment of her
attorney's fees.
- - - - - - - - - - - - End
Footnotes- - - - - - - - - - - - - -
[HN1]
The earning capacity rather than
the actual income of a parent may be
considered in determining child
support orders. Canning v. Juskalian,
33 Mass.
App. Ct. 202, 206, 597 N.E.2d 1074
(1992). Guideline II-H of the Child
Support
Guidelines provides, however, that
the court first must make "a [***5]
determination that either or both
parties is earning substantially
less than he
or she could through reasonable
effort . . . ."
In keeping with the guidelines, a
judge should determine by specific
and
detailed findings of fact whether an
individual will be able to earn
additional
income with [**282] reasonable
effort before attributing income. n3
[HN2]
Attribution of income may be
appropriate when a judge determines
a career change
is voluntary, see Schuler v.
Schuler, 382 Mass. 366, 371-372, 416
N.E.2d 197
(1981); Canning v. Juskalian, 33
Mass. App. Ct. at 204; Bassette v.
Bartolucci,
38 Mass. App. Ct. 732, 735-736, 652
N.E.2d 623 (1995), or where a party
fails to
take another job despite its easy
availability. See Schuler v.
Schuler, supra at
371 (husband testified that he could
readily obtain position as engineer,
but
wanted to be president of small
corporation). A party's ownership of
substantial
assets also may be weighed in
determining whether attribution is
proper. Id. at
372. Where, however, as here, there
is no evidence that a change in job
status
was voluntary, the party is making a
reasonable effort to secure
additional
income, and he or she has no
additional assets with which to
[***6] pay the
increased support order, child
support orders must be based upon
Present income.
Cf. Goldman v. Goldman, 28 Mass.
App. Ct. 603, 613, 554 N.E.2d 860
(1990) (
"Where future events cannot be
predicted with any measure of
certainty, an
alimony award should be based on
present conditions").
- - - - - - - - - - - - - -
Footnotes - - - - - - - - - - - - -
- -
n3 [HN3] The guidelines state
that they "are intended to be
applied where a
finding has been made that the party
is capable of working and is
unemployed,
working part-time or is working a
job, trade, or profession other than
that for
which he/she has been trained."
Guideline II-H.
- - - - - - - - - - - - End
Footnotes- - - - - - - - - - - - - -
The order of child support in the
judgment of divorce nisi is vacated;
in all
other respects, the judgment is
affirmed. The judgment of contempt
is vacated.
The judge shall file in this [*292]
court further findings in accordance
with
this opinion within thirty days of
the rescript in this appeal. The
parties
shall have twenty days after such
filing to submit, in letter form not
to exceed
fifteen pages, memoranda addressing
the further findings. We retain
jurisdiction
[***7] of this case, and upon
receipt of the memoranda, we will
make such
further orders as seem desirable.
See In the Matter of R.H., 35 Mass.
App. Ct.
478, 493-494 (1993).
So ordered.
NANCY M. FLAHERTY vs. JOHN FLAHERTY.
No. 95-P-240.
APPEALS COURT OF MASSACHUSETTS
40 Mass. App. Ct. 289; 663 N.E.2d
280; 1996 Mass. App.
LEXIS 140
February 8, 1996, Argued
April 12, 1996, Decided
PRIOR HISTORY: [***1]
Middlesex. Complaint for divorce
filed in the Middlesex Division of
the
Probate and Family Court Department
on July 5, 1993. The case was heard
by
Judith Nelson Dilday, J., and a
proceeding for contempt, commenced
on October
13, 1994, was heard by Fernande R.V.
Duffly, J.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff wife
filed a divorce action against
defendant
husband. The Middlesex Division of
the Probate and Family Court
Department
(Massachusetts) granted a judgment
nisi and the husband was ordered to
pay child
support. The husband challenged the
child support order alleging the
support was
based on an attribution of earnings
unsupported by findings and he also
challenged the finding of civil
contempt for failure to pay the full
child
support.
OVERVIEW: The husband was
well-educated professional and had
been earning $
1,200 per week. Two months before
the trial he was laid off and was
receiving $
375 in unemployment compensation and
he was paying temporary support
based on
his actual income. The trial judge
based the husband's support
obligation on his
ability, based on his skills, and
experience, to have acquired future
capital
and income. The trial made no
specific findings in support of the
general
conclusions and then ordered the
support obligation of $ 400 because
the income
greater than the unemployment
compensation was attributable to the
husband. The
court found that earning capacity
rather than actual income of a
parent may have
been considered in determining child
support orders however, the trial
court
first must have made a determination
that either or both parties was
earning
substantially less than he or she
could have through reasonable
efforts.
Therefore, the trial should have
determined by specific and detailed
findings of
whether the husband would have been
able to earn additional income with
reasonable effort before attributing
income.
OUTCOME: The court vacated the child
support and contempt order. The
judgment in
all other aspects was affirmed.
CORE TERMS: child support, nisi,
reasonable effort, attribution,
judgment of
divorce, judgment of contempt,
temporary order, support order,
visitation,
vacated, earning, vacate, time of
trial, modification, guideline,
divorce,
unemployment, attributing
LexisNexis(R) Headnotes
Family Law > Child Support >
Obligations > Computation >
Guidelines
[HN1] The earning capacity rather
than the actual income of a parent
may be
considered in determining child
support orders. Mass. Child Support
Guidelines §
II-H provides, however, that the
court first must make a
determination that
either or both parties is earning
substantially less than he is or she
could
through reasonable effort. In
keeping with the guidelines, a judge
should
determine by specific and detailed
findings of fact whether an
individual will
be able to earn additional income
with reasonable effort before
attributing
income.
Family Law > Child Support >
Obligations > General Overview
[HN2] Attribution of income may be
appropriate when a judge determines
a career
change is voluntary, or where a
party fails to take another job
despite its easy
availability. A party's ownership of
substantial assets also may be
weighed in
determining whether attribution is
proper. Where, however, as here,
there is no
evidence that a change in job status
was voluntary, the party is making a
reasonable effort to secure
additional income, and he or she has
no additional
assets with which to pay the
increased support order, child
support orders must
be based upon present income.
Family Law > Child Support >
Obligations > Computation >
Guidelines
[HN3] Mass. Child Support Guidelines
§ II-H state that they are intended
to be
applied where a finding has been
made that the party is capable of
working and
is unemployed, working part-time or
is working a job, trade, or
profession other
than that for which he/she has been
trained.
HEADNOTES:
Divorce and Separation, Child
support, Modification of judgment.
COUNSEL:
John M. Flaherty, pro se.
Rudolf A. Jaworski, Jr., for Nancy
M. Flaherty.
JUDGES: Present: Warner, C.J., Kass,
& Porada, JJ.
OPINION BY: WARNER
OPINION:
[*289] [**281] WARNER, C.J. In
August, 1994, the parties were
divorced by
a judgment nisi that required the
husband to pay child support of $
400 per
week. The husband appeals, claiming
the support order was based on an
attribution of earnings unsupported
by the judge's findings. He also
challenges
a finding of civil contempt based on
his payment of less than $ 400 per
week in
child support. As the judge's
findings were inadequate to support
the
attribution of income, we vacate the
judgment as to child support and
remand for
further findings. We therefore also
vacate the judgment of contempt, see
Dominick v. Dominick, 18 Mass. App.
Ct. 85, 93-95, 463 N.E.2d 564
(1984), and
reinstate the husband's prior
support obligation [***2] under the
temporary
order ($ 115). n1
- - - - - - - - - - - - - -
Footnotes - - - - - - - - - - - - -
- -
n1 In addition to challenging the
award of child support, the husband
challenges the award of physical
custody to the wife and the division
of marital
assets. We conclude that the judge's
findings in these respects have not
been
shown to be clearly erroneous and
that there was no abuse of
discretion.
Caldwell v. Caldwell, 17 Mass. App.
Ct. 1032, 461 N.E.2d 834 (1984);
Matteson v.
Matteson, 23 Mass. App. Ct. 945,
945-946, 501 N.E.2d 538 (1986).
Mass.R.Dom.Rel.P. 52(a), as amended
(1987). Cf. New England Canteen Serv.,
Inc.
v. Ashley, 372 Mass. 671, 675, 363
N.E.2d 526 (1977); Gallagher v.
Taylor, 26
Mass. App. Ct. 876, 880-881, 534
N.E.2d 14 (1989).
The husband further challenges
the visitation order to which he
agreed in the
stipulation. To change visitation he
must file a complaint for
modification and
demonstrate that a material and
substantial change has occurred and
that a
change in visitation would be in the
best interest of the children. G. L.
c.
208, § 28.
- - - - - - - - - - - - End
Footnotes- - - - - - - - - - - - - -
[*290] The husband, forty-six
years old at [***3] the time of
trial, is a
well-educated professional with a
Ph.D. in physics. Some two months
prior to the
divorce trial, the husband was laid
off from his job where he earned
approximately $ 1,200 per week. At
the time of trial, he was receiving
$ 375 per
week in unemployment benefits. He
had prepared a resume and was
readying himself
to seek new employment.
Before final judgment entered,
the husband was paying child support
of $ 115
per week under a temporary order
that computed his obligation under
the Child
Support Guidelines (1989) based on
his actual unemployment income of $
375 per
week. In her proposed judgment, the
wife requested child support in the
amount
of $ 400 per week. This amount was
based on a computation attributing
to the
husband full-time employment income
of $ 1,211.54 a week.
In the judgment of divorce nisi,
the judge ordered the husband to pay
$ 400
per week in child support. In her
findings of fact, the judge
concluded that
"the husband has the ability, based
on his skills and experience, to
acquire
future capital and income." She made
no specific findings in support of
this
general conclusion. In an amendment
to the judgment of divorce nisi, the
judge
ordered [***4] that "the obligation
[to pay $ 400] begins on the date of
this
judgment because income greater than
unemployment compensation is
attributed to
the husband."
Despite the judge's order, the
husband continued to pay $ 115 per
week in
child support. On November 7, 1994,
the husband was found in contempt by
another
judge for failure [*291] to pay $
400 per week in child support. He
was
ordered to pay $ 7,098 to the wife
for past due and future child
support. n2
- - - - - - - - - - - - - -
Footnotes - - - - - - - - - - - - -
- -
n2 The husband had been holding $
7,000 for payment of the wife's
attorney's
fees in accordance with the divorce
judgment. Although we are vacating
the
contempt judgment, the $ 7,000 will
remain with the wife but should be
applied
by the wife to the payment of her
attorney's fees.
- - - - - - - - - - - - End
Footnotes- - - - - - - - - - - - - -
[HN1]
The earning capacity rather than
the actual income of a parent may be
considered in determining child
support orders. Canning v. Juskalian,
33 Mass.
App. Ct. 202, 206, 597 N.E.2d 1074
(1992). Guideline II-H of the Child
Support
Guidelines provides, however, that
the court first must make "a [***5]
determination that either or both
parties is earning substantially
less than he
or she could through reasonable
effort . . . ."
In keeping with the guidelines, a
judge should determine by specific
and
detailed findings of fact whether an
individual will be able to earn
additional
income with [**282] reasonable
effort before attributing income. n3
[HN2]
Attribution of income may be
appropriate when a judge determines
a career change
is voluntary, see Schuler v.
Schuler, 382 Mass. 366, 371-372, 416
N.E.2d 197
(1981); Canning v. Juskalian, 33
Mass. App. Ct. at 204; Bassette v.
Bartolucci,
38 Mass. App. Ct. 732, 735-736, 652
N.E.2d 623 (1995), or where a party
fails to
take another job despite its easy
availability. See Schuler v.
Schuler, supra at
371 (husband testified that he could
readily obtain position as engineer,
but
wanted to be president of small
corporation). A party's ownership of
substantial
assets also may be weighed in
determining whether attribution is
proper. Id. at
372. Where, however, as here, there
is no evidence that a change in job
status
was voluntary, the party is making a
reasonable effort to secure
additional
income, and he or she has no
additional assets with which to
[***6] pay the
increased support order, child
support orders must be based upon
Present income.
Cf. Goldman v. Goldman, 28 Mass.
App. Ct. 603, 613, 554 N.E.2d 860
(1990) (
"Where future events cannot be
predicted with any measure of
certainty, an
alimony award should be based on
present conditions").
- - - - - - - - - - - - - -
Footnotes - - - - - - - - - - - - -
- -
n3 [HN3] The guidelines state
that they "are intended to be
applied where a
finding has been made that the party
is capable of working and is
unemployed,
working part-time or is working a
job, trade, or profession other than
that for
which he/she has been trained."
Guideline II-H.
- - - - - - - - - - - - End
Footnotes- - - - - - - - - - - - - -
The order of child support in the
judgment of divorce nisi is vacated;
in all
other respects, the judgment is
affirmed. The judgment of contempt
is vacated.
The judge shall file in this [*292]
court further findings in accordance
with
this opinion within thirty days of
the rescript in this appeal. The
parties
shall have twenty days after such
filing to submit, in letter form not
to exceed
fifteen pages, memoranda addressing
the further findings. We retain
jurisdiction
[***7] of this case, and upon
receipt of the memoranda, we will
make such
further orders as seem desirable.
See In the Matter of R.H., 35 Mass.
App. Ct.
478, 493-494 (1993).
So ordered.
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