Kelley v. Kelley

• Citation: 64 Mass. App. Ct. 733,835 N.E.2d 315
• Decision Date: 11 October 2005
• Docket Number: No. 04-P-1341.,04-P-1341.
• Parties: Susan R. KELLEY v. Leroy J. KELLEY, Third.
• Court: United States State Supreme Judicial Court of Massachusetts

835 N.E.2d 315

64 Mass. App. Ct. 733

Susan R. KELLEY v. Leroy J. KELLEY, Third.

No. 04-P-1341.

Appeals Court of Massachusetts, Norfolk.

Argued May 9, 2005.

Decided October 11, 2005.

Donald G. Tye, Boston (Peter A. Kuperstein with him) for Susan R. Kelley.

Daniel R. Seigenberg, Walpole, for Leroy J. Kelley, Third.

Present: KANTROWITZ, SMITH, & DOERFER, JJ.

SMITH, J.

Susan R. Kelley (wife) appeals from a judgment entered on Leroy J. Kelley's (husband) amended complaint for modification reducing the husband's alimony obligation.

The parties were married on March 18, 1984, and during the course of their marriage had three children: Brian, born February 18, 1987, and twins, Erin and David, born February 1, 1994. After a trial, the parties were divorced on December 22, 2000. Pursuant to the judgment of divorce, the husband was ordered to pay the wife a weekly sum of $1,025, allocated as follows: $425 per week for the support of the unemancipated children, and $600 per week as alimony. The husband did not appeal.

On March 5, 2003, the husband filed a complaint for modification, seeking the elimination of the order of alimony and asking the judge to review the child support order in accordance with the Massachusetts Child Support Guidelines. The grounds for the modification, according to the husband, were that he experienced a decrease in his income and that he now pays health insurance for the wife and the children. After a trial, a Probate Court judge, who had presided at the divorce trial, reduced the amount of alimony paid by the husband by $200 per week; the child support payments remained the same.

On appeal, the wife claims that the judge committed error in reducing the alimony payments where there was no evidence of a material change in circumstances, and that the judge erred in denying her motion for counsel and expert fees and costs. We agree.

1. Background. In the judgment of divorce nisi,¹ the judge, in fashioning the alimony order, noted that the wife was an artist who stayed at home to care for the parties' children. The judge found that "[t]he need for the Wife, in the years to come, to tend to the day-to-day needs of the parties' children (particularly the young twins) will affect and impact her ability to obtain regular, gainful employment. In that regard, the Wife's avocation (painting) will hopefully result in her realizing some reasonable income in the coming years, although it has certainly not done so to date. If she is unable to earn even a modest amount of money from her artistic endeavors within the next few years, if not sooner, she will have to rethink the efficacy of such a career as a means of improving her standard of living. However, given the ages of the parties (late 40s), their employment histories and prospects, and their family responsibilities, it is likely that alimony of some amount will be paid by the Husband through his normal retirement."²

a. The modification hearing. The trial on the husband's complaint for modification was held on September 22, 23, and 24, and October 8 and 14, 2003. At the conclusion of the trial on October 14, the judge allowed the husband to amend his modification complaint to include the issue of the wife's earning capacity. The judge stated, "[W]e are going to have a further hearing in this case solely addressing the issue of [the wife's] earning capacity, earning potential, as of the present time. Now, if it hasn't changed, it hasn't changed." He further explained, "[I]f she has an earning potential that hasn't been realized over the last several years and that her circumstance is such that she could have the earning capacity where's perhaps before she could not, that may be a significant change of circumstances that warrants review of the order." The judge emphasized that the husband could not simply assert, "[W]ell, Judge, we think you should find that she can earn more." He warned, "[T]hat's not going to cut it." The judge continued the matter to November 24, 2003, at which time the only issue was to be the wife's earning capacity.

At the time of the hearing on November 24, 2003, the wife was fifty years old, and her children, who lived at home, were ages sixteen and nine. The husband essentially sought to prove that the wife was an unsuccessful artist who could make substantially more income if she sought alternative employment. The record demonstrated that the wife grossed $6,395 from her artwork in 2001, and $11,204 in 2002. Her tax returns also indicate that she had a net loss of $17,713 in 2001, and $20,731 in 2002.

The wife testified at the hearing. When asked how many hours she paints every day, she stated that "I paint around the kids' schedules, so it's different every day.... I try to do something just about every day of the week." She testified that she received income from selling her paintings, as well as teaching painting classes.³ The wife acknowledged that in the previous six years, her income as an artist never exceeded her expenses. She expressed hope, however, that she would earn a profit in 2003.

The wife attended Framingham State College during the 1970's, but did not have a college degree, and she obtained a real estate broker's license in 1978, which was not currently active. She testified that she is not interested in renewing her broker's license, stating that "I don't feel that you can do that with children; it's nights and weekends, and the child care ... you don't get paid to sit in the real estate office, you can't pay a sitter." The wife described her parenting obligations, which included driving her three children to a number of different after-school activities such as golf, karate, horseback riding, and skating lessons.

Both parties presented expert testimony concerning the wife's employability. The experts reviewed her "background [to] determine if there were jobs in the economy today that, based upon her prior education and vocational experience, she could fulfill." The husband's expert explained that "[a]vocation is what one likes to do. Vocation is what one can do where they would have the highest earning capacity." Although he never interviewed the wife, he testified that "looking at labor market projections and wage date, [becoming a] real estate agent would provide, for her, the greatest salary." The expert acknowledged that his report did not reference the "fact that [the wife] is 50 years old and has three children over whom she's primary physical custodian."

The wife's expert considered "her background, her training, her experience, [the] various work that she has done, both volunteer and regular, and also took a look at what, in fact... she want[s] to do as far as the future is concerned." He testified that the wife "wants to be an artist and that's the way to make money in the future for her," but he concluded that at the present time, she could receive more money in "office and administrative support areas."

b. The judge's ruling on the husband's claim for reduced support payments. At the conclusion of the hearing, the judge ruled that there was no credible basis in the evidence to reduce the support payments based on the reason stated in the modification complaint, i.e., the husband's claim of reduced income. In that regard, the judge scolded the husband, stating:

"The [husband] has an earning capacity that is significantly beyond that which he reports on his financial statement as being his salary.... [T]he [husband] has not sustained his burden of proving that he has sustained significant negative financial changes in his circumstances vis-a-vis the circumstances that existed as of the time of the parties' December, 2000 divorce. This Court does not question that the [husband] may be experiencing some financial belt-tightening, but his reported income has actually increased over the nearly three years since the entry of the divorce judgment.[⁴] The [husband] can not claim that his transfer of his various corporate and/or real property interest to his mother has had a negative effect upon the income which now he receives, as he did not declare any income from those interests as of the time of the divorce.[⁵] Further, his recent actions have, in light of his mother's obvious intentions to return all such assets to him at at a future date,served only to defer his receipt of such income-producing (and presumably, by that time, appeciated) assets; he is therefore, asking the Court to reduce his present support obligations in order to allow his future assets to be protected, preserved and enhanced — all at the expense of the [wife] and the parties' three unemancipated children, whom he is obligated to support."

The husband did not appeal the judge's decision.

c. The judge's ruling on the husband's request to eliminate alimony. After hearing the evidence as to the wife's earning capacity, the judge ruled that she had an earning capacity of $500 per week and "should be expected to perform some gainful employment rather than have [the husband], essentially, being required to subsidize her avocation and, thus, her lifestyle." The judge reduced the alimony award to $400 a week, stating that in regard to the wife's career as an artist, "[s]ince [the wife] has not `rethought the efficacy of such a career' she is now, essentially, be[ing] ordered to do so. She had been given an appropriate and reasonable period of time within which to determine if her career as an artist could prove to be financially worthwhile; it has not proven to be so."

The judge stated, "Given her positive characteristics ... she would, more likely than not, be eligible for, and desirous of receiving, increased responsibility, with attending increased compensation, in any occupation, even a clerical one." Furthermore,

"[i]f she is able to develop her avocation to the point where she can net an amount in excess of what she can earn from third-party employment, she could either chose to continue with her avocation...