The New Year began with the January 2d release of an alimony case, Vedensky v. Vedensky, by the Massachusetts Appeals Court. It is noticeable for several reasons:
- It is the latest in a line of cases addressing rehabilitative alimony, that until 2012, was exceedingly rare in Massachusetts, but which has dominated alimony case law development since;
- The court clarified the concept of an “earlier judgment” when determining whether a “material change of circumstances” has occurred that may justify a modification of alimony;
- The case drew a clear line on the question of second or secondary jobs that a payor obtains after divorce, and tied it to income attribution rules;
- The panel approved application of Social Security Administration (SSA) disability rules in defining a partially disabled recipient’s income capacity; and, finally,
- The Appeals Court unfortunately muddied the increasingly murky waters of “needs” in relation to alimony rights.
Determined to start 2015 in a positive note, we will discuss the first four points here, and the last, lamented, one in a separate, subsequent entry.
The rehabilitative alimony phenomenon. An out-sized proportion of the appellate cases decided under the Alimony Reform Act (eff. 3.1.12) to date are appeals from rehabilitative alimony awards. While this short-term support remedy was never foreclosed here, its application was inhibited by case law prohibitions on pre-determined termination dates generally, which was itself a major spur for the reform effort. This must be a popular part of the new statute, causing rapid case law development as judges grant rehabilitative orders and necessarily grapple with it conceptually, and with the relevant factors to apply all alimony questions, namely ability to pay and the needs of the recipient. It also means that rules that will more often apply to general term alimony (we assume) are being made in the less usual context of fixed, short-term support. We wonder how this may impact those rules.
The applicable judgment against which to measure change. The alimony question in Vendensky was advanced by a 2011 complaint for modification brought by the former husband. The parties did not make alimony provisions in their divorce agreement/judgment, but they expressly reserved the parties’ rights to seek alimony in the future. They stipulated to child support orders, paid by husband to wife. In 2007, the husband sought reduction of child support because of job loss, psychiatric disability and SSA disability dependent payments now payable to the wife. He succeeded. When his disability persisted, the husband brought his alimony modification action.
The wife advanced a defense that the action was barred because the Husband’s employment problems (he had actually become partially re-employed) and disability had preceded the child support modification judgment. Predictably, she argued that since no material negative change occurred since that judgment, it was impossible for the husband to meet his burden of proving material change to justify further support relief. The husband argued, and the trial judge and Appeals Court agreed, however, that the material change burden ran from the facts existing at the time of divorce the last time that alimony was addressed (i.e., no disability or employment problems); and not from the later child support modification judgment, when alimony was not in issue.
This was an important decision, if not entirely novel. To find otherwise, the appellate court reasoned, would compel parties to seek alimony when it is not needed, so as to protect against being foreclosed from requesting it a later date when it might become necessary.
Second or secondary jobs. The wife is a doctor who had a primary full time job that she elected to augment with per diem moonlighting at a rehabilitation hospital, post-divorce. In evaluating her ability to pay alimony, the trial judge included the income from her second job when calculating the wife’s income available for support, despite the presumption of M.G.L., chapter 208, section 54(b) that suggests that such earnings not be considered. Overreaching further, the judge imputed income to the wife by finding that she could make even greater income money by moonlighting more!
The Appeals Court correctly vacated these income findings because the Probate and Family Court judge did not find any facts that amounted to a rebuttal of the presumption against including the wife’s second job income, especially, here, where the wife was working a side-job as primary caretaker of the parties’ children, with no financial contribution from the husband (other than SSA payments on his behalf). The double insult of attributing income to the more than fully employed wife was equally out-of-bounds, the appellate panel found, since the judge did not find, and could not have found, the wife to be “underemployed”.
The Appeals Court intersected the two statutory provisions with one concise ruling, that:
… a party who works at a full-time or full-time equivalent job may not be found to be “unemployed” or “underemployed” based on the level of compensation received from a second job obtained “after entry of the initial order” unless a judge concludes…that a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.
A useful and sensible conclusion.
The husband’s income capacity. The trial judge determined the husband’s present income capacity to be the maximum earnings that the husband may earn under SSA regulations without jeopardizing his disability benefits during the rehabilitative alimony term selected (2 years). The wife argued for a less restrictive measure, specifically the SSA standard that applies at the outset of disability payments. The Appeals Court agreed that the trial court was justified in crediting the standard prevailing at the time of his decision, during a period when the court is expecting the Husband to be working towards a return to full time work, as indicated by counseling orders and the 2-year alimony term. This is a relatively narrow ruling on very specific facts, but it is respectful of the trial court’s sound discretion.
The result and the husband’s needs. The Appeals Court reversed the Probate Court’s judgment because the judge’s over-counting of the wife’s income may have skewed the alimony sum result unfairly. They could have, and should have, let it rest there. We promised to stay positive and leave the matter of needs for another day, and that we shall do.