Macri v. Macri

• Decision Date: 01 November 2019
• Docket Number: No. 18-P-729,18-P-729
• Citation: 96 Mass.App.Ct. 362,136 N.E.3d 347
• Parties: Theodore W. MACRI, Jr. v. Sheila Mary MACRI.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 362

136 N.E.3d 347

Theodore W. MACRI, Jr.

v.Sheila Mary MACRI.

No. 18-P-729

Appeals Court of Massachusetts, Middlesex..

Argued February 4, 2019

Decided November 1, 2019

Susan E. Stenger, Boston, for the husband.

Rachael M. Soun, Boston, (David E. Cherny, Boston, also present) for the wife.

Present: Green, C.J., Agnes, & Desmond, JJ.

DESMOND, J.

Theodore W. Macri, Jr. (husband), the former spouse of Sheila Mary Macri (wife), appeals from a Probate and Family Court judgment, dated January 12, 2018, entered after remand (remand judgment), challenging (1) the amount of income attributed to him, (2) the amount of unallocated support (combined alimony and child support) awarded to the wife, and (3) the transfer of sole legal custody of the parties' child to the wife. We affirm.

Background. The parties, who married in May of 1998, lived in New York City until the husband's employer, Deutsche Bank, promoted him to a position in Singapore in April of 2000. In 2005, the husband was transferred to Hong Kong, where he remained until his resignation from Deutsche Bank in 2011. Between 2008 and 2011, the husband's annual earnings at Deutsche Bank ranged from $751,680 to $1,034,028. The wife initiated divorce proceedings in Hong Kong in 2008 and was permitted to relocate to Massachusetts with the parties' child in August of 2010. The husband moved to Massachusetts in 2011 and filed complaints regarding child support and custody in the Probate and Family Court. A four-day trial was held before a judge of the Probate and Family Court, concluding in September of 2012.

A judgment, dated December 31, 2013 (as amended on May 28, 2014), issued in which the judge (1) granted the parties joint legal custody of their child, (2) attributed an annual income of $400,000 to the husband, who was unemployed at the time of the trial, and (3) ordered the husband to pay unallocated support of $10,000 per month. The husband appealed from the amended judgment, principally challenging the amount of income attributed to him. This court vacated so much of the amended judgment as set forth the unallocated support order and remanded the matter for a redetermination of the husband's earning capacity, stating that the attributed annual income of $400,000 was "inappropriate" insofar as it was "base[d] [on] the husband's ... earnings he made from another country" without "any expert testimony on the husband's earning potential in the United States" or on any "comparable salaries." Macri v. Macri, 89 Mass. App. Ct. 1115, 47 N.E.3d 54 (2016). The wife thereafter filed a counterclaim seeking to modify legal custody, which was consolidated with the remanded support matter and tried over the course of two days before the same judge in December of 2017. Dr. Peter Cohen, a "vocational consultant" retained by the wife to assess the husband's earning capacity, was permitted to testify as an expert witness and his report was entered into evidence at the trial.

The judge issued the remand judgment, dated January 12, 2018, granting sole legal custody to the wife and ordering the husband to pay unallocated support of $10,000 per month (retroactive to January 1, 2014). The judge found that the husband had not exercised reasonable efforts to obtain appropriate employment and attributed to him an annual income of $440,400 for 2014 to 2016, and $475,000 for 2017. The present appeal by the husband followed.

Discussion. The husband challenges the amount of attributed income, the amount of unallocated support, and the modification of legal custody. We address his arguments in turn.

1. Attribution of income. The husband contends that the amount of income attributed to him, in excess of $400,000 per year, rests on insufficient evidence. We disagree.

"Both the [Alimony Reform Act (act), G. L. c. 208, §§ 48 - 55,] and the [Massachusetts Child Support Guidelines (Guidelines) ] permit a judge to attribute income to a party who ‘is unemployed or underemployed.’ " Emery v. Sturtevant, 91 Mass. App. Ct. 502, 509 n.10, 76 N.E.3d 1039 (2017), quoting G. L. c. 208, § 53 (f ) ; Guidelines § I(E) (2013).¹ Before considering a supporting spouse's potential earning capacity, rather than the spouse's actual income, the judge must determine that the spouse is capable of earning more with "reasonable effort." Emery, supra at 509, 76 N.E.3d 1039. See Guidelines § I(E) (2013); Guidelines § I(E)(2) (2017).² In making such a determination, the judge is required to consider several factors, including the supporting spouse's "assets, residence, education, training, job skills, literacy, criminal record and other employment barriers, age, health, past employment and earnings history, as well as the [spouse's] record of seeking work, and the availability of employment at the attributed income level, the availability of employers willing to hire the [spouse], and the relevant prevailing earnings level in the local community." Guidelines § I(E)(3) (2017).³

Here, the judge's findings reflect consideration of all factors required by the Guidelines. The husband was fifty-one years old and in good health at the time of the remand trial. The husband had worked in the financial sector for over twenty-five years, holding a variety of titles, including vice president, director, managing director, general manager, and senior consultant. After leaving Deutsche Bank and returning to the United States in 2011, the husband remained unemployed until February of 2013, when he began working as a consultant for SC Lowy. The husband's position at SC Lowy required him to divide his time evenly between Boston and New York, and paid an annual salary of $125,000. The husband voluntarily terminated his employment with SC Lowy on April 13, 2016, and although he claimed to have been searching for a job since that time, the judge did not find the husband's "stated desire to find employment ... sincere." The judge found the husband had not exercised reasonable efforts to secure appropriate employment, noting that he "could not remember the names of executive search firms he had worked with, did not join job clubs or respond to advertisements in professional journals; and more often than not, forwarded his resume by e-mail rather than contacting individuals at companies directly."⁴ Cf. Emery, 91 Mass. App. Ct. at 503, 76 N.E.3d 1039 (reversing income attribution where husband accepted substantially lower-paying position in his field of expertise after extensive job search).

The judge credited Dr. Cohen's assessment that, based on the husband's education, training, and transferable skills, the husband fell within the category of a "long-range planning executive," and was "highly employable" in a wide range of positions in the financial sector. The judge credited Dr. Cohen's determination that, as of November, 2017, there were a total of 5,014 available positions in the Boston area involving fixed income, corporate finance, and alternative investments (positions which the husband specifically claimed to be searching for).⁵ The judge further credited Dr. Cohen's opinion that the husband's annual earning capacity was $440,400 from 2014 through 2016, and $475,000 in 2017, based on average reported earnings for "long-range planning executive[s]" in the Boston area.⁶ The judge therefore concluded that the husband had been "underemployed" while working for SC Lowy, and had remained "unreasonably unemployed" since leaving that position.

The husband challenges the judge's reliance on Dr. Cohen's analysis, contending that there was no evidence of any available positions listing an annual compensation of over $400,000. The judge, however, "was not required to point to a specific position or job opening" when attributing income to the husband. C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 157, 889 N.E.2d 63 (2008). As Dr. Cohen explained at the trial, the current job postings he reviewed generally did not disclose compensation, thus he researched wage data for long-range planning executives in the Boston area for 2014 and 2017 when forming his opinion of the husband's earning capacity. The husband did not present his own expert witness to rebut Dr. Cohen's testimony. On this record, we discern no abuse of discretion in the judge's decision to credit Dr. Cohen's analysis and ultimate opinion of the husband's earning capacity. See Ulin v. Polansky, 83 Mass. App. Ct. 303, 307-308, 983 N.E.2d 714 (2013) ("Trial judges have ‘extensive discretion’ with respect to the admission of expert testimony, ... and are free as fact finders to accept or reject that testimony once admitted, as did the judge in this case"). We are therefore satisfied that the judge's findings demonstrate appropriate consideration of "the availability of employment at the attributed income level, the availability of employers willing to hire the [husband], and the relevant prevailing earnings level" in the Boston area. Guidelines § I(E)(3) (2017).

We also discern no merit in the husband's contention that the judge, in relying on Dr. Cohen's analysis, failed to take into account certain factors impeding the husband's ability to obtain employment. The judge found there were no "barriers to [the husband] finding full-time employment," declining to credit the husband's assertion that his job prospects were limited by his age, background in Asian debt, and lack of an established Boston network. As there is nothing in the record convincing us that this credibility determination was "plainly wrong," we will not disturb it (citation omitted). Zaleski v. Zaleski, 469 Mass. 230, 237, 13 N.E.3d 967 (2014).

To be sure, this case is "distinguishable from the voluntary career change line of cases," Emery, 91 Mass. App. Ct. at 510, 76 N.E.3d 1039, involving a party who has "taken an early retirement, or has chosen to pursue work in a totally unrelated field at a substantially reduced salary, despite the availability of higher-paying jobs commensurate with that party's education,...