Flaherty v. Flaherty

• Decision Date: 12 April 1996
• Docket Number: No. 95-P-240,95-P-240
• Citation: 40 Mass.App.Ct. 289,663 N.E.2d 280
• Parties: Nancy M. FLAHERTY v. John M. FLAHERTY.
• Court: Appeals Court of Massachusetts

Page 280

663 N.E.2d 280

40 Mass.App.Ct. 289

Nancy M. FLAHERTY v. John M. FLAHERTY.

No. 95-P-240.

Appeals Court of Massachusetts Middlesex.

Argued Feb. 8, 1996.

Decided April 12, 1996.

Divorce and Separation, Child support, Modification of judgment.

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.

John M. Flaherty, pro se.

Rudolf A. Jaworski, Jr., Danvers, for Nancy M. Flaherty.

Before WARNER, C.J., and KASS and PORADA, JJ.

WARNER, Chief Judge.

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 under the temporary order ($115). ¹

The husband, forty-six years old at 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 "[t]he 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 that "[t]he 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 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. ²

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 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 reasonable effort before attributing income. ³ 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, 597 N.E.2d 1074; 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, 416 N.E.2d 197 (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, 416 N.E.2d 197. 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...