PAVLO v. PAVLO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a judge of the Probate and Family Court entered a judgment of divorce nisi; the judgment was subsequently amended. The wife appeals from so much of the amended judgment as required her to seek full-time employment as a bookkeeper and to accept any offer of employment as a bookkeeper that was commensurate with her experience. Concluding that in entering this part of the amended judgment, the judge erred, we vacate so much of the amended judgment of divorce nisi as required the wife to seek full-time employment as a bookkeeper and to accept any offer of employment as a bookkeeper and remand for additional proceedings consistent with this memorandum and order.

Background. The facts of the case are undisputed. The parties had been married for eleven years when, in 2015, the wife filed for divorce from the husband. During their marriage, the husband operated a successful orthodontic practice; between 2006 and February, 2016, the wife, who has an undergraduate accounting degree, worked part time as a bookkeeper for the husband's practice. In March, 2017, a judge entered a temporary order that required the wife to seek part-time employment.

After a trial in April, 2018, the judge entered a judgment of divorce nisi. As part of that judgment, the judge ordered the husband to pay alimony to the wife. The judge declined to order child support. In the judgment, and in comprehensive findings dated December, 2018, the judge found that the wife was “employable ․ but that she has failed to make reasonable efforts to find employment.” Specifically, the judge noted that in response to the March, 2017, order requiring the wife to seek part-time employment, the wife applied for a single job, at her children's school, and “made no efforts to obtain employment commensurate with her skills.” ² Finding that “the [w]ife could earn substantially more with reasonable efforts,” the judge ordered the wife to “seek full time employment as a bookkeeper” and to document her efforts to do so. In the interim, citing to the trial testimony of the wife's business valuation expert, the judge attributed income of $32,000 to the wife.

The wife moved for reconsideration of the judgment requiring her to obtain a bookkeeping position, seeking leave to “obtain full time employment in a field of her choice,” rather than as a bookkeeper. In her motion, the wife represented that she had obtained some training in early education, and that she wished to complete additional education to become a full-time Montessori preschool teacher. Noting that the wife had not presented any evidence at trial of a planned career change, and citing to the wife's “obligation ․ to maximize her current earning potential” in order to determine the appropriate amount of the husband's alimony obligation, the judge denied the motion. At the same time, the judge allowed the husband's motion to amend the divorce judgment, adding a further provision to the judgment that the wife “accept any offer of employment as a bookkeeper that is commensurate with her education and experience.” The wife appeals from the portion of the amended judgment that required her to obtain employment as a bookkeeper, rather than in a field of her choice.³

Analysis. On appeal, the wife's preserved challenge is limited to that portion of the amended judgment that required the wife to obtain work in a specific field.⁴ She argues that the only remedy available to the judge was to attribute income to the wife based on a determination of the wife's earning capacity. As the wife's appeal raises a question of law, our review is de novo. See Balles v. Babcock Power, Inc., 476 Mass. 565, 571 (2017).

Alimony is “a creature of statute” and is governed by the Alimony Reform Act (Act), G. L. c. 208, §§ 48-55. Emery v. Sturtevant, 91 Mass. App. Ct. 502, 507 (2017), quoting Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 776 n.11 (2014). “The purpose of alimony is to provide adequate support for a spouse who needs it.” Voorhis v. Relle, 97 Mass. App. Ct. 46, 49, (2020), quoting Williams v. Massa, 431 Mass. 619, 634 (2000). The Act, at § 53 (a), sets out mandatory factors for a judge's consideration in awarding alimony, see Zaleski v. Zaleski, 469 Mass. 230, 233-234 (2014), including the “income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary.” Additionally, the Act provides, “In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed.” G. L. c. 208, § 53 (f). The Act does not, however, include any provision authorizing a judge to require a spouse, whether the payor or the recipient of alimony, to work at a specific job or in a specific field. “We will not ‘read into the statute a provision which the Legislature did not see fit to put there.’ ” Chin v. Merriot, 470 Mass. 527, 537 (2015), quoting Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126 (2006).

It is apparent from the judge's comprehensive findings that although the wife had a need for alimony, and the husband had the ability to pay alimony, the judge determined that the wife's earnings at the time of trial were not what they could be “through reasonable diligence.” ⁵ G. L. c. 208, § 53 (a). Cf. Ulin v. Polansky, 83 Mass. App. Ct. 303, 307 (2013) (vacating portion of divorce judgment attributing income to wife in absence of finding concerning wife's reasonable efforts to obtain employment). The wife does not contest this finding. The Act provides a clear path in such a case -- attribution of income to the underemployed spouse, with the possibility of a commensurate adjustment to the payor spouse's alimony obligation. See G. L. c. 208, § 53 (f).

Our courts have consistently recognized income attribution as the proper means of ensuring that a spouse be required to pay alimony according to that spouse's capacity, “with reasonable effort,” to earn income. Emery, 91 Mass. App. Ct. at 509. See C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 152-158 (2008) (affirming attribution of income to husband who, after resigning as partner in large law firm, made minimal attempts to obtain employment and only applied for jobs in areas for which he had little or no experience). See also Schuler v. Schuler, 382 Mass. 366, 372 (1981) (affirming attribution of income to husband who, after being terminated from job, chose “to wait indefinitely upon the limited prospect of becoming president of a corporation” instead of taking readily available position as engineer); Macri v. Macri, 96 Mass. App. Ct. 362, 365 (2019) (affirming attribution of income to husband who voluntarily terminated his employment and where judge did not find husband's “stated desire to find employment ․ sincere”); Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 733–736 (1995) (affirming attribution where husband voluntarily retired from his job as letter carrier earning $735 per week to work as missionary with pension income of $235 per week); Canning v. Juskalian, 33 Mass. App. Ct. 202, 209–211 (1992) (affirming attribution of income to wife who resigned from job to stay at home with child from subsequent marriage). Although “[l]ess frequently,” we have also affirmed the attribution of income to an unemployed or underemployed support recipient who failed to make reasonable efforts to earn to his or her capacity. Casey v. Casey, 79 Mass. App. Ct. 623, 631 (2011), quoting Kelley v. Kelley, 64 Mass. App. Ct. 733, 741 (2005). Income attribution, and not an order requiring the wife to obtain work in a specific field, was the remedy for the judge's properly-supported findings that the wife was underemployed based on her own lack of reasonable efforts.

Conclusion. We conclude that the judge erred in ordering the wife to obtain work as a bookkeeper, and we vacate so much of the amended judgment as required the wife to seek full-time employment as a bookkeeper and to accept any offer of employment as a bookkeeper. We discern no error, however, in the judge's determination that the wife was not earning to her capacity. Accordingly, we remand the matter to the Probate and Family Court for further proceedings to determine the wife's present earning capacity.⁶ The amended judgment is otherwise affirmed.

So ordered.

vacated in part and remanded; affirmed in part

FOOTNOTES

2.   At the time of trial, the wife, who had no prior teaching experience, was employed part time as a substitute teacher.

3.   As part of the orders relating to the wife's employment, the judge ordered the wife to discontinue work at the children's school. The wife does not appeal that aspect of the amended judgment.

4.   During oral argument, the wife argued that the judge lacked the authority to attribute income to the wife while at the same time ordering her to seek employment, irrespective of the order for her to seek and accept employment in a specific field. As this issue was not raised in the trial court, it was waived, and we do not consider it. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

5.   The judge was also clear that the wife's employment at the children's school was “inappropriate” in light of limitations on the wife's parenting time with one of the children.

6.   In light of our conclusion, we need not and do not reach the wife's argument that the amended judgment violated the wife's rights under the Thirteenth Amendment to the United States Constitution.