Schuler v. Schuler

• Decision Date: 27 January 1981
• Citation: 416 N.E.2d 197,382 Mass. 366
• Parties: Chester L. SCHULER v. Beverly T. SCHULER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 197

416 N.E.2d 197

382 Mass. 366

Chester L. SCHULER v. Beverly T. SCHULER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 12, 1980.

Decided Jan. 27, 1981.

Michael H. Riley, Boston, for plaintiff.

Charles A. Goglia, Jr., Wellesley, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

The parties in this case were divorced by a judgment nisi entered on May 5, 1976, which became absolute on November 5, 1976. See G.L. c. 208, § 21. A prior written separation agreement was incorporated and merged in the judgment. The agreement required the husband, Chester Schuler, to pay the wife, Beverly, $700 a month as alimony and $700 a month as child support. ¹ The agreement contained other provisions not relevant here.

On January 24, 1979, Chester, acting pursuant to G.L. c. 208, § 37, ² filed a complaint for modification of the payments required by the judgment. After a hearing at which both parties testified, the Probate Judge on June 26, 1979, filed his findings and entered an order dismissing the complaint. Chester appealed, and we ordered the case transferred to this court on our own motion. See G.L. c. 211A, § 10(A). We hold that the judge did not abuse his discretion or otherwise commit error in denying the modification.

At the hearing on the cross complaints, ³ Chester argued that, because of substantial changes in his circumstances since the date of the agreement and judgment, the agreement should be modified by eliminating all alimony payable to Beverly, and by decreasing child support payments. He now argues that certain of the judge's findings of fact were clearly erroneous.

To be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment. Robbins v. Robbins, 343 Mass. 247, 249, 178 N.E.2d 281 (1961). Hinds v. Hinds, 329 Mass. 190, 191-192, 107 N.E.2d 319 (1952). In this case, the judge held that Chester did not prove the requisite change of circumstances. The judge reported his findings and we have a transcript of all the evidence. Accordingly, "the appeal brings before us all questions of law, fact, and discretion." Krokyn v. Krokyn, --- Mass. ---, ---, ^a 390 N.E.2d 733 (1979), quoting from Cohen v. Murphy, 368 Mass. 144, 147, 330 N.E.2d 473 (1975). However, we will not reverse findings made by the judge on the basis of oral testimony unless we are convinced they are plainly wrong. Consent to Adoption of a Minor, 363 Mass. 537, 539, 296 N.E.2d 176 (1973). Whitney v. Whitney, 325 Mass. 28, 28-29, 88 N.E.2d 647 (1949).

We summarize the relevant facts. Chester and Beverly were married in 1953; they have two children by this marriage. Fifteen days after their divorce decree became final in 1976, Chester remarried. He has a son by his second marriage.

At the time of the divorce, Chester was president of and a ten per cent shareholder in Powercube Corporation, a closely held corporation which he had founded in 1967 on the basis of his own inventions relating to specialized power. In 1976, Chester's income as president of Powercube was approximately $46,500. By 1978, his income including bonuses had increased to approximately $55,000. In late 1978, Unitrode Corporation, which owned eighty per cent of Powercube, bought out Chester's stock for $250,000. ⁴ Unitrode terminated Chester's employment as president of Powercube as of December 31, 1978. As part of his agreement with Unitrode, Chester executed a two-year noncompetition agreement. In return he received, in addition to the purchase price, three months' severance pay ($11,250), a bonus ($10,000), and a distribution from a profit sharing trust ($9,000). Chester's tax liability for the sale of the stock was approximately $70,000. He currently receives income from investments made after the sale of his Powercube stock in the amount of $185 a week ($9,620 a year).

At the time of the modification hearing, Chester had not accepted other employment. Although positions in design engineering, his line of work before he founded Powercube, paid approximately $24,000 a year and were reasonably available, he had decided not to pursue that career alternative.

Chester's apparent career objective is to become the president of another small corporation. In attempting to reestablish himself in such a position, Chester had one job interview during the eight months prior to the modification hearing. He testified that he read want-ads and sought contacts within his industry, but did not consult an executive search organization. Instead Chester organized a consulting business on May 5, 1979. He and his present wife each contributed $5,000 investment capital to that corporation. Each owns fifty per cent of the stock. At the time of the hearing, the corporation had clients with work in progress estimated to be worth approximately $4,000 to $5,000.

At the time of the divorce, Beverly gave music lessons in her home, earning approximately $125 a week. Subsequently she enrolled in nursing school, financing her tuition through education loans, and received a nursing degree. At the time of the modification hearing she was employed as a part-time music specialist, registered nurse in a children's ward of a hospital, earning approximately $125 a week.

In summary, at the time of the hearing, Chester's only employment was in the consulting business he established. His income between his termination by Powercube on December 31, 1978, and the hearing in June, 1979, from his bonus, severance pay, and consulting business totaled $21,000. ⁵ He was also receiving $185 a week in investment income. Chester's net worth at the time of the hearing was $167,000. Although Beverly had trained as a nurse and worked as a music specialist rather than as a music instructor, her income was approximately the same at the time of the hearing as it had been at the time of the divorce. Beverly's net worth, including the marital home, was $61,000.

On these facts Chester argues that the judge abused his discretion or otherwise erred in three respects: (1) in finding that Chester had not sought new employment and did not intend to do so; (2) in relying on Chester's potential income as a design engineer rather than his actual income as a consultant; and (3) in relying on Chester's substantial assets to conclude that Chester had the current ability to pay under the original agreement. Chester also argues that the court erred in refusing to consider his second family expenses. Chester's arguments are cumulative. He argues that given his decreased income and increased expenses, he should not have to deplete all of his assets in making the support and alimony payments. He further argues that even considering his potential income as a design engineer, the decline in his salary from the amount he earned as president of Powercube warrants a modification.

In determining whether to modify a support or alimony order, a Probate Judge must weigh all relevant circumstances. Resolution of the issue rests in the judge's sound discretion. Buchanan v. Buchanan, 353 Mass. 351, 352, 231 N.E.2d 570 (1967). An order for child support may be modified "as the circumstances of the parents and the benefit of the children may require." G.L. c. 208, § 28, as amended through St.1976, c. 279, § 1. Whitney v. Whitney, 325 Mass. 28, 31, 88 N.E.2d 647 (1949). The needs of the children, the financial status of the support provider, and the station in life of the respective parties must all be considered. Buchanan v. Buchanan, supra. A substantial and permanent decrease in the income of the support provider is one of the material circumstances to be considered in a request for reduction of a support award. See Annot., 89 A.L.R.2d 7, 39 (1963), and cases cited. However, while a substantial decrease in income or financial status may warrant a modification, such a decrease does not alone compel a modification. See Trippe v. Trippe, 237 Ga. 159, 160, 227 S.E.2d 46 (1976).

Bearing in mind the weight to be accorded the exercise of the Probate Judge's sound discretion, we review the record in its entirety.

1. Chester argues that the evidence taken as a whole does not warrant the judge's finding that Chester retained the ability to pay the alimony and support obligations as set forth in the original separation agreement. He specifically challenges the finding that, with the exception of one job interview, he had not sought a new position prior to the modification hearing and did not intend to do so. ⁶ We will not overturn the judge's determination unless we find that it was clearly erroneous. We are not, however, limited to the findings made by him, and we may make such additional findings as are supported by the evidence. Whitney v. Whitney, supra, at 28-29, 88 N.E.2d 647.

At the hearing Chester presented evidence that he was interested in obtaining a position equivalent to that which he had held at Powercube president of a small corporation. Indeed, he stated that he established his consulting business in part as a means of seeking out business contacts which might enable him to locate such a position. His own testimony that he assumed he could readily get a position as a design engineer, but has chosen not to do so, is inconsistent with his claim that no evidence supports the judge's conclusion that Chester is not actively pursuing a new position. The judge's finding, acknowledging Chester's current status in his consulting business, was not clearly erroneous. Chester argues that the judge erred by disregarding his testimony. The record suggests, however, that the judge not only did not disregard Chester's testimony, he based his findings directly upon it.

Based on our review of the record, however, we make the additional finding that Chester has in fact sought professional employment as the president of a small corporation and intends...