Vedensky v. Vedensky
| Decision Date | 30 December 2014 |
| Docket Number | No. 13–P–1392.,13–P–1392. |
| Parties | Dmitry VEDENSKY v. Veronica VEDENSKY. |
| Court | Appeals Court of Massachusetts |
Mary Beth L. Sweeney (Catharine V. Blake with her), Boston, for the wife.
Patricia A. DeJuneas, Boston, for the husband.
Present: TRAINOR, RUBIN, & SULLIVAN, JJ.
Veronica Vedensky, the former wife, appeals from an amended judgment of modification of the Probate and Family Court, which, among other things, orders her to pay to Dmitry Vedensky, the former husband, rehabilitative alimony in the amount of $635 per week for 104 weeks.1 See G.L. c. 208, §§ 37
, 53.2 Veronica contends that the complaint for modification of alimony was barred by a previous complaint for modification of child support, and that the award of rehabilitative alimony was improper. We conclude that the complaint for modification of alimony was not barred by the adjudication of the complaint for modification of child support. We also conclude that the judge did not abuse his discretion in awarding rehabilitative alimony, but erred in his consideration of the wife's income from a second job which commenced after the entry of an “initial order.” G.L. c. 208, § 54(b ) (2), inserted by St. 2011, c. 124, § 3. Accordingly, we vacate so much of the amended judgment of modification as applies to alimony and alimony-related conditions, and remand for further proceedings. In all other respects, the amended judgment of modification is affirmed.
1. Background. We summarize the history of the case and the facts found by the judge, reserving certain details for discussion in connection with the specific issues raised. The judgment of divorce nisi entered on March 14, 2007, incorporating a separation agreement signed by the parties on November 2, 2006. The separation agreement, executed when both parties were fully employed, waived past and present alimony, but contained a reservation of rights to future alimony. Veronica was also designated
primary physical custodian and Dmitry was ordered to pay child support in the amount of $230 per week.
The parties enjoyed an upper middle class station in life during the marriage. Dmitry is highly educated, holding a doctorate in applied mathematics, and a “Masters of Science degree in finance.” Before the divorce, Dmitry was employed in the financial, engineering, and technology industries, earning a six-figure salary. He began, however, to experience difficulties at work, took disability leave, and returned to a different job at a lower rate of pay. Two years after the divorce, in April of 2009, Dmitry again took short-term disability leave, and did not return to full-time work. In November of the same year he began to receive Social Security disability income (SSDI) benefits for a psychiatric disability.
On December 7, 2009, Dmitry filed a complaint for modification of the 2007 judgment. He requested a reduction of his child support obligation, citing his job loss, disability, and the availability of SSDI dependent benefits. In 2010, a judgment of modification entered relieving Dmitry of his child support obligation pursuant to an agreement between the parties in which Veronica received SSDI dependent benefits on behalf of the parties' minor child.
Dmitry's unemployment persisted. Dmitry filed the present complaint for modification requesting alimony on June 10, 2011. Veronica moved to dismiss, claiming that Dmitry failed to demonstrate that a material change in circumstances had occurred since the earlier judgment modifying his child support obligation. The judge deferred ruling on the motion to dismiss, and set the complaint for trial. A five-day trial was held in 2013 at which Dmitry's treating psychiatrist testified, as well as Veronica's vocational and psychiatric experts. The judge ordered that Veronica pay $635 per week in rehabilitative alimony to Dmitry for a period of 104 weeks.
By the time of trial Dmitry had begun part-time work as a teacher at a school of mathematics, but the hours he was allotted by the school were inconsistent. He earned approximately $650 per month, and continued to receive SSDI benefits. At the time of the divorce, Veronica, a physician, was employed earning $122,720 annually. At the start of the trial she was employed at a local medical center, where, with overtime and bonus, she earned $188,599.32 in Internal Revenue Service W–2 form wages (W–2
wages), of which approximately $6,800 was bonus income.3 In 2011, however, no bonuses were given, and in March of 2012, she took a second job at a rehabilitation hospital (second job), working weekends on a per diem basis.4 The judge found that she did so in order to meet her expenses and the cost of private school and college for the two children of the marriage.5 During the trial Veronica took a new job at a Boston hospital, where she earned $4,115 per week, or $214,000 annually. She also continued to work at the second job on a per diem basis.
The judge concluded that Dmitry had a future earning capacity of $95,000 per year, but that he was presently unable to work at his former level due to mental illness. The judge found that Dmitry's mental illness “manifests itself in a way that compromises his ability to earn income,” and that he was in need of intensive therapy and support while he engaged in that therapy. For this reason, the judge ordered a period of rehabilitative alimony. The judge recognized that the amount ordered exceeded Veronica's income (net of expenses) from her new job and her average earnings in the second job. He found, however, that Veronica “could work more than two weekend days per month if she chose to,” and therefore had the “ability to increase her income on a temporary basis if that is necessary to comply with the Court's [rehabilitative] alimony award.” See note 4, supra.
This appeal followed, challenging both the authority of the judge to hear this complaint for modification and the award itself. We consider first the judge's authority to hear the complaint for modification. We then consider the judge's determination of Dmitry's need and Veronica's ability to pay. See Pierce v. Pierce, 455 Mass. 286, 295–296, 916 N.E.2d 330 (2009)
.
2. Complaint for modification of alimony. Veronica claims that the judge was precluded from hearing the merits of Dmitry's complaint for modification of alimony because Dmitry did not demonstrate the existence of a material change of circumstances warranting a modification. See Buckley v. Buckley, 42 Mass.App.Ct. 716, 719–722, 679 N.E.2d 596 (1997)
. “To be successful in an action to modify a judgment for alimony ... the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.” Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981), overruled in part on other grounds by Keller v. O'Brien, 425 Mass. 774, 777 n. 7, 683 N.E.2d 1026 (1997). See Hassey v. Hassey, 85 Mass.App.Ct. 518, 527–528, 11 N.E.3d 661 (2014).
Veronica argues that the “earlier judgment” by which the occurrence of a change in circumstances should be assessed is the judgment on Dmitry's complaint to modify child support, as it was based on the same circumstances, that is, Dmitry's disability and unemployment. However, the “earlier judgment” to which we look is the judgment of divorce nisi which addressed the issue of alimony. See Pierce v. Pierce, supra at 295 n. 9, 916 N.E.2d 330
; Buckley v. Buckley, supra at 720–722, 679 N.E.2d 596.
The fact that there was a previous modification proceeding concerning child support does not alter this result. In discussing the initial award of alimony under G.L. c. 208, § 34
, the Supreme Judicial Court has noted, “[w]e do not choose to establish an incentive to a husband or a wife to request alimony during divorce proceedings simply to protect himself or herself should experience later persuade him or her ... that alimony is appropriate.” Cherrington v. Cherrington, 404 Mass. 267, 270 n. 6, 534 N.E.2d 1159 (1989). Similarly, where the question of alimony has been reserved in the earlier divorce judgment, the parties are not required to pair every complaint for modification of child support with an alimony request.6 The judge did not err in hearing Dmitry's complaint for modification seeking alimony.
a spouse whose earning capacity has suffered (or become nonexistent) while that spouse prepares to reenter the work force.’ ” Zaleski v. Zaleski, 469 Mass. 230, 240, 13 N.E.3d 967 (2014)
, quoting from Moriarty v. Stone, 41 Mass.App.Ct. 151, 158, 668 N.E.2d 1338 (1996). A judge has “considerable discretion” when awarding alimony.
Hassey v. Hassey, supra at 524, 11 N.E.3d 661.
We turn to the challenges to the particulars of the alimony award, looking first to Dmitry's need, and second, to Veronica's ability to pay. See Pierce v. Pierce, supra. We review both the form and amount of an award of alimony, examining “a judge's findings to determine whether the judge considered all of the relevant factors ... and whether the judge relied on any irrelevant factors.” Zaleski v. Zaleski, supra at 235–236, 13 N.E.3d 967
. Here, “the judge considered all of the relevant factors under G.L. c. 208, § 53(a ).” Id. at 236, 13 N.E.3d 967. The judge made comprehensive findings of fact that support his conclusion that “under the circumstances, rehabilitative alimony is the appropriate type to award in this case.”7 The decision to award rehabilitative alimony was not an abuse of discretion. See Holmes v. Holmes, 467 Mass. 653, 661, 6 N.E.3d 1062 (2014) ; Zaleski v. Zaleski, supra at 241, 243, 13 N.E.3d 967.
Veronica claims that the judge improperly...
To continue reading
Request your trial
-
Dilanian v. Dilanian
...the owner, there was no testimony to account for the shifting number of participants from year to year. Cf. Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 774, 22 N.E.3d 951 (2014) ("The judge was not required to accept the opinion of the experts, and was entitled to credit all, part, or none......
-
Dolan v. Dolan
...of the earlier judgment.’ " Emery v. Sturtevant, 91 Mass. App. Ct. 502, 507, 76 N.E.3d 1039 (2017), quoting Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 772, 22 N.E.3d 951 (2014). See Balistreri v. Balistreri, 93 Mass. App. Ct. 515, 519 n.14, 106 N.E.3d 693 (2018) ("Even within the field of......
-
Commonwealth v. Wood
...to the jury as a chalk or demonstrative aid, as such it did not qualify as evidence. See note 9, supra; Vedensky v. Vedensky, 86 Mass.App.Ct. 768, 776 n. 10, 22 N.E.3d 951 (2014) (chalk is not evidence). Nor does it appear that Exhibit 42 would have properly been admitted in evidence under ......
-
McManus v. McManus
...N.E.2d 596 (1997) (parties' separation agreement expressly reserved whether alimony would be paid in future); Vedensky v. Vedensky, 86 Mass.App.Ct. 768, 22 N.E.3d 951 (2014) (separation agreement contained reservation of rights as to future alimony). The agreement 35 N.E.3d 750 here is sile......