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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.