Cavanagh v. Cavanagh

• Docket Number: SJC-13222
• Decision Date: 08 August 2022
• Citation: 490 Mass. 398,191 N.E.3d 975
• Parties: Michael D. CAVANAGH v. Lynn A. CAVANAGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

490 Mass. 398

191 N.E.3d 975

Michael D. CAVANAGH

v.Lynn A. CAVANAGH.

SJC-13222

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 4, 2022

Decided August 8, 2022

Jeff Goldman(Emma Diamond Hall also present) Boston, for the mother.

Ann E. Dargie, for the father.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Wendlandt, & Georges, JJ.

CYPHER, J.

Amended September 9, 2022.

SJC-13222

Divorce and Separation, Child support, Modification of judgment, Alimony, Separation agreement, Findings.Statute, Construction.Evidence, Conversation between husband and wife.

Statement that in cases involving a separation agreement that has been merged into a judgment of divorce, the parties should include the judgment in the record transmitted to this court.[403-404]

In a divorce case in which the parties sought a modification of a child support order and one party sought alimony for the first time, the judge abused her discretion in choosing to calculate child support and then, without conducting the fact-specific analysis of the family's circumstances required by G. L. c. 208, § 53 (a), denying alimony on the basis that G. L. c. 208, § 53 (c) 2, prevented the use of the payor's income to calculate alimony.[404-411]

In the circumstances of an action seeking a modification of a child support order in a judgment of divorce, the judge abused her discretion in interpreting the father's obligation regarding his youngest son's schooling in such as manner as to render it illusory [411-417]; however, the judge did not abuse her discretion in ruling that the parties' middle son was emancipated upon his agreement to enter the United States Military Academy, where that son was not principally dependent on either parent at that point [417-420].

In an action seeking a modification of a child support order in a judgment of divorce, the judge properly excluded from the calculation of the father's gross income in-kind income that did not constitute a regular source of income, but the judge abused her discretion in excluding interest, dividends, and capital gains on the father's savings and 401(k) plan; on the other hand, the judge did not abuse her discretion in including income that the father received from a second job; moreover, the judge did not abuse her discretion in including in the calculation of the father's income employer contributions to the father's retirement account and health savings account.[420-425]

In an action seeking a modification of a child support order in a judgment of divorce, the judge abused her discretion in giving retroactive effect to her modification order to a date for which there was no support in the record.[425-426]

This court vacated a finding made in an action seeking a modification of a child support order in a judgment of divorce, where the finding departed from the Probate and Family Court judge's pretrial order without good and sufficient reason, did not appear to be relevant to any issue decided in the case, and was clearly erroneous.[426-428]

This court concluded that, where an action seeking a modification of a child support order in a judgment of divorce involved a contract made by the parties, the action fell within the contract exception to the spousal disqualification rule; further, this court ordered that, on remand, both parties should be permitted to testify about private marital communications concerning the relevant provision of a separation agreement that was incorporated and merged into the judgment of divorce.[428-430]This case arises out of a postdivorce dispute concerning child support and alimony, in which both parties sought a modification of the child support order issued as part of the divorce judgment, and the mother sought alimony for the first time.We are asked to determine whether a provision of the Alimony Reform Act(act), G. L. c. 208, § 53 (c )(2)( § 53 [c ][2]), prohibits an award of alimony where child support has been ordered.The parties also seek review of several conclusions of the Probate and Family Court judge as to the meaning of certain provisions in the judgment of divorce, which incorporated and merged the parties’ separation agreement.We are also asked to determine whether the judge impermissibly exceeded the scope of the pretrial order, which, pursuant to Mass. R.Dom. Rel.P. 16, enumerated the issues to be decided at trial.Finally, the parties dispute which of the father's sources of income and benefits properly constitute "gross income" for the purposes of calculating child support.We hold that § 53 (c )(2) allows for the concurrent award of child support and alimony.We also conclude that several of the judge's rulings related to the divorce judgment and calculation of child support constituted error requiring us to vacate certain portions of the judgment and remand the case for further proceedings.

Background.We present the relevant facts and procedure as found by the Probate and Family Court judge, supplemented by undisputed facts in the record, and reserving certain facts for later discussion.SeeConnor v. Benedict, 481 Mass. 567, 568, 118 N.E.3d 96(2019).

Michael Cavanagh(father) and Lynn Cavanagh(mother) were divorced on November 7, 2016, after an approximately twenty-one year marriage.During the marriage, the parties had three sons.The two older sons currently are over the age of majority.The oldest son graduated from college in May 2021.The middle son is a cadet at the United States Military Academy at West Point (West Point).The youngest son, who is still a minor, attends a private preparatory school previously attended by the two older sons.

Prior to and during the first year of the marriage, the father attended school to become a physician's assistant (PA).Before and during the marriage, the father incurred approximately $80,000 in educational debt.During the first year of the marriage, the parties lived with the mother's parents before moving into a house purchased by the mother with her father.The father was not able to be on the mortgage due to his debt.The entirety of the father's debt was paid off during the marriage.

The father has worked at an orthopedic surgical practice since in 1997.He took a second job at a medical center in approximately 2012 for the purpose of financing the children's private school education.Prior to and in the first years of the marriage, the mother worked as a teacher at a Catholic school.After the birth of the parties’ oldest son in 1999, the mother left her job to remain home and care for him.The mother continuously was out of the work force to raise the parties’ three sons.¹

During the marriage, the parties enjoyed a comfortable, middle-class lifestyle.They routinely bought used cars that were no older than two to three years at time of purchase, replacing them when they were no longer serviceable.The parties took camping vacations using a recreational vehicle owned by the mother's parents three to four times per year, including an annual vacation to Disney World.The parties had a pool built at the marital home, which home was kept in good repair.All three sons attended a private Catholic school beginning in kindergarten.The oldest son attended a private preparatory school from ninth through twelfth grades.The middle son attended the private preparatory school from seventh through twelfth grades.The youngest son was enrolled in third grade at the Catholic school at the time of the divorce.

The mother returned to work as a teacher at the Catholic school in September 2016, approximately two months before the entry of the divorce judgment, and she continues to work there.The Catholic school provides services to local public school students.The mother works at the Catholic school in two capacities: as a teacher on behalf of the Catholic school and as a Title I program instructor on behalf of the local public school system.The mother would like to work as a regular teacher for the public school system, where she believes she could earn more money, but she currently lacks the requisite credentials and lacks the financial resources necessary to obtain such credentials.The judge found the mother's gross weekly income to be $719.24.The father continues to work as the head PA at the orthopedic surgical practice and as a per diem PA at the medical center.The judge found the father's gross weekly income to be $4,388.

Pursuant to the divorce judgment, the mother received physical custody of the then-minor children, and the parties were to share legal custody.The divorce judgment also provided that the father"shall be responsible for payment up to $20,000 annually toward [the middle son's] tuition cost at [the private preparatory school] for his three years at the school ... [and] shall contribute up to $20,000 per year toward an agreed upon prepatory [sic ] school for [the youngest son]."The mother was to "be responsible for the payment of [the youngest son's] tuition at [the Catholic school]."The father was obligated to pay $800 per week in child support for the parties’ three children.²The parties agreed, and the divorce judgment provided, that the father's job with the medical center would not be used to calculate either child or spousal support obligations in the future, in consideration of the father's obligation to contribute toward the cost of the children's education.

Presently before this court are cross appeals from a judgment of modification on the father's complaint and the mother's counterclaim for modification of the child support order, and on the mother's counterclaim for alimony, legal fees, and a determination that the youngest son be permitted to continue attending the preparatory school at which he is enrolled.In the year before trial, each party filed complaints for contempt against the other, related to the enrollment of the parties’ youngest son at the private preparatory school previously attended by the parties’ two older sons.In July 2020, the judge...