Zeghibe v. Zeghibe

• Decision Date: 11 October 2012
• Docket Number: No. 11–P–860.,11–P–860.
• Citation: 976 N.E.2d 824,82 Mass.App.Ct. 614
• Parties: Kenneth F. ZEGHIBE v. Margaret L. ZEGHIBE.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 614

976 N.E.2d 824

Kenneth F. ZEGHIBE

v.Margaret L. ZEGHIBE.

No. 11–P–860.

Appeals Court of Massachusetts, Barnstable.

Argued May 4, 2012.

Decided Oct. 11, 2012.

Wendy H. Sibbison for Kenneth F. Zeghibe.

George P. Lordan, Jr., Salem, (Dennis P. Derrick, Essex, with him) for Margaret L. Zeghibe.

Present: GRAHAM, KATZMANN, & CARHART, JJ.

CARHART, J.

Kenneth Zeghibe (husband), the former husband of Margaret Zeghibe (wife), appeals from an amended consolidated judgment (on certain complaints for modification) of the Probate and Family Court which, among other things, awards him physical custody of the parties' younger child, orders him to pay alimony in the amount of $405 a week, and orders the wife to pay him child support in the amount of $170 a week. The husband has also appealed from the order denying his motionto amend the amended consolidated judgment.¹ We vacate those portions of the amended consolidated judgment concerning child support and alimony (as well as any calculations dependent upon those orders) and remand the matter for further proceedings consistent with this opinion. In all other respects, the amended consolidated judgment is affirmed.

1. Background. The parties were divorced by a judgment of divorce nisi (later amended) in December, 2007. At the time of the divorce, the parties' older child was eighteen years old and their younger child was twelve years old. The husband, a master mariner, was on paid leave from his employer due to a disability and his yearly income, exclusive of benefits, was a minimum of $155,000. The wife was a nursing student and was unemployed. By the terms of the amended divorce judgment, the parties were awarded shared physical custody and joint legal custody of the younger child, and the husband was ordered to pay child support for the unemancipated children in the sum of $600 a week and alimony in the amount of $400 a week. Each party received assets of substantial value through the property division.

In August, 2008, the husband filed a complaint for modification seeking a reduction in his alimony and child support obligations based upon a change in his income and employment status. In light of the husband's disability and corresponding decrease in income,² a probate judge, by temporary orders, suspended the husband's alimony obligation and reduced his child support payments to $500 a week. In August, 2009, the husband filed an additional complaint for modification seeking primary physical custody of the younger child and a modification of child support. In response, the wife sought increased alimony.

On March 9, 2010, after a trial, the judge issued a consolidated judgment granting physical custody of the younger child to the husband, ordering the wife to pay weekly child support for the younger child in the amount of $200,³ and ordering the husband to pay weekly alimony in the amount of $200. In his rationale accompanying the judgment, the judge stated that there had been a material change in circumstances that warranted a child support and alimony modification “as the [husband's] income has reduced substantially since he no longer receives a full salary plus multiple benefits and a bonus, and the [wife] now has salary income, which she did not have at the time of the divorce.” ⁴

The judge also explained how he arrived at the child support and alimony amounts. With respect to child support, the judge stated that this was a case that called for an application of the Massachusetts Child Support Guidelines (guidelines) and that in applying the guidelines he had utilized income figures of $78,200 per year ($1,504 per week) for the husband and $46,800 per year ($900 per week) for the wife. With respect to alimony, the judge applied “the recommendations of the joint ‘MBA–BBA Alimony Task Force’ ” (task force). More specifically, the judge took the husband's income of $1,504 a week and subtracted from it the wife's income of $900 a week, and then divided the difference ($604) by three. As the wife's child support obligation and the husband's alimony obligation each amounted to approximately $200 a week, the judge stated that there was a “wash” of one payment to the other. In effect, the judge noted, neither party was ordered to pay any support to the other. The support orders were made retroactive to August 29, 2009.⁵

Following the filing of postjudgment motions, an amended consolidated judgment was issued on April 20, 2010 (nunc pro tunc as of March 9, 2010), ordering the wife to pay weekly child support of $170, and the husband to pay weekly alimony in the amount of $405. The orders were again made retroactive to August 29, 2009, and resulted, in effect, in the husband paying alimony to the wife in the amount of $235 a week. The judge explained his rationale as follows:

“[W]hat was overlooked by the Court in its original judgment and rationale was that the Husband purposely reduced his available income stream by withdrawing $476,487 in [individual retirement] accounts which could have been withdrawn by him at the rate of between $15,000 and $36,000 annually (without penalty or tax obligation in light of his disabled status). Thus, the Husband should not be rewarded for cashing in an income producing asset by ignoring what would have been the income stream from that asset.” ⁶

The judge added approximately $31,000 to the husband's yearly income, bringing his annual income to $110,000. The amended income figure was then used to calculate the amount of the alimony and child support payments due under the guidelines and the recommendations of the task force.

[82 Mass.App.Ct. 618]2. Discussion. (a) The alimony order. The husband argues that “after finding that the wife now earned enough [$900 a week] to replace the support ordered in the divorce judgment [a combined total of $1,000 a week], the [judge] erroneously awarded her alimony based on a mechanical formula rather than actual need.”

To modify successfully a judgment for alimony, “the petitioner must demonstrate a material change in circumstances since the entry of the earlier judgment.” Pierce v. Pierce, 455 Mass. 286, 293, 916 N.E.2d 330 (2009), quoting from Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981). In determining whether the amount of alimony should be modified based upon a change in circumstances, a judge must consider and weigh all of the factors set out in G.L. c. 208, § 34, in light of the facts of the particular case. Pierce v. Pierce, supra at 295–296, 916 N.E.2d 330. In acting on a complaint for modification, a judge “must keep in mind that ‘the statutory authority of a court to award alimony continues to be grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.’ ” Id. at 296, 916 N.E.2d 330, quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 624, 492 N.E.2d 1133 (1986). See Heins v. Ledis, 422 Mass. 477, 484, 664 N.E.2d 10 (1996) (“An award of alimony is improper absent a finding of financial need on the part of the recipient spouse”).

Here, the husband states that at the time of the divorce, when the wife was unemployed and living in the marital home with two children, and her financial statement showed weekly expenses of $1,326.41, she was awarded $1,000 in weekly support to meet her and the children's financial needs (i.e., $600 in child support and $400 in alimony). Continuing, the husband asserts that some two years later, at the time of the modification, the judge found that the wife was earning $900 a week and that her “expenses and needs” will or have decreased.⁷ Yet, the husband argues, despite these findings, and using a mechanicalformula, the judge ordered him to pay weekly alimony in the amount of $405.

We agree with the husband that the judge's findings fail adequately to address and explain the wife's need for support. See Heins v. Ledis, 422 Mass. at 485, 664 N.E.2d 10 (judge's conclusion that recipient spouse is in need of alimony must be apparent from record). See also Bowring v. Reid, 399 Mass. 265, 268, 503 N.E.2d 966 (1987). Moreover, the judge's use of the “formula” purportedly recommended by the task force is, in the circumstances (and notwithstanding the husband's failure to object to the original alimony modification order, see note 5, supra ), problematic. In arriving at the amount of alimony to be paid by the husband, the judge appears to have relied on that part of section V of the task force guidelines that provides: “An alimony or spousal support order should be entered in consideration of traditional concepts of alimony in a specific dollar amount which dollar amount should not exceed 33% of the difference between the gross ordinary incomes of the parties.” However, both the title of the task force report and the report's preamble indicate that the task force's recommendations “do not apply to circumstances where [as here] the parties have dependent children.” Furthermore, the provision upon which the judge apparently relied makes clear that an order for alimony should be entered based upon “traditional concepts of alimony.” Indeed, section V of the task force guidelines contains the following caveat: “The Alimony Task Force suggests that the foregoing [provision relied upon by the judge] is not to be utilized as a ‘formula’ for alimony but to recognize that a ‘cap’ of alimony orders should be available.”

The order for alimony must be vacated and the matter remanded to the Probate and Family Court for further proceedings.^8,9

(b) The child support order. The husband argues that the judge erred in attributing income to him in the amount of $31,000 a year ($596 a week) as the guidelines only permit income attribution when “either or both of the parties is either purposely unemployed or underemployed,” and the judge found specifically that the husband is not “presently able to engage in any meaningful employment” based on his medical diagnoses and medications. He also claims that the...