Opinion
13-P-1596
04-01-2015
JAMES J. COGLIANO v. JULIE C. COGLIANO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Julie C. Cogliano (wife), appeals from a judgment of divorce nisi entered in the Probate and Family Court in 2012 that awarded alimony through 2018. She claims that the judge erred in (1) not extending the duration of the alimony payments; (2) imputing income to her; and (3) calculating the income of the plaintiff, James J. Cogliano (husband). We affirm.
Duration of alimony. The wife argues that the judge should have extended the alimony term beyond the presumptive durational limit in G. L. c. 208, § 49(b)(3), because her diagnosis of multiple sclerosis leaves her unable to support herself adequately when alimony is discontinued in 2018.
The alimony payments to the wife are combined support payments that include child support for the parties' three children. See note 3, infra.
The statute provides that a judge may deviate from the presumptive durational limits upon written findings that such deviation is "required in the interests of justice." G. L. c. 208, § 49(b), inserted by St. 2011, c. 124, § 4. A judge may order an alimony award at, above, or below the presumptive maximum time period. See Holmes v. Holmes, 467 Mass. 653, 658 (2014). "A judge has broad discretion when awarding alimony under the statute," and an appellate court will not disturb an alimony award unless it is plainly wrong and excessive. Zaleski v. Zaleski, 469 Mass. 230, 235-236 (2014). An abuse of discretion occurs "where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation marks omitted).
Here, the judge devised a plan by which the wife would continue to receive support, initially in the form of alimony and child support and later by way of child support. Of significance and as a safety net, the judge also left open the opportunity for the wife to return to court for a modification in the event that additional support is needed.
For the combined support payments (alimony and child support), the judge ordered the husband to pay $8,827 per month from November 1, 2012, to January 1, 2018, and $7,944 on February 1, 2018, for the period until alimony ends on February 25, 2018. For child support, the judge ordered the husband to pay $1,500 per week (approximately $6,000 per month) thereafter until emancipation of the parties' three children.
Imputed income. The wife challenges the judge's decision to impute income to her, in the amount of $180 to $200 per week, when calculating the award of alimony. She argues that her diagnosis of multiple sclerosis and the judge's finding that her earning ability is uncertain should have precluded the judge from imputing any income to her. We express our concern because it appears doubtful from the judge's recitation of the wife's medical impairments, lack of recent work history, and family obligations, that the wife will be able to work outside the home. However, given the judge's finding that there was insufficient evidence on this point, and considering the judge's other well written findings, we cannot conclude that the judge's imputing income to the wife was "outside the range of reasonable alternatives," and therefore an abuse of discretion. L.L. v. Commonwealth, 470 Mass. at 185 n.27.
The judge found that "it is not clear that the Wife has any significant earning capacity" due to her health problems. The judge also found that "[d]espite the Wife's current health concerns, there was insufficient evidence to prove that she is totally disabled from all work at present."
At the appropriate time, the wife is free to file a motion for modification with evidence that she tried but failed to obtain work, or that she is unable to obtain work due to her admittedly serious and progressive illness. See Ulin v. Polansky, 83 Mass. App. Ct. 303, 306 (2013) ("earning capacity is to be based on whether a party has exercised reasonable efforts in seeking employment"). At oral argument, counsel for the husband noted that the amount of money imputed to the wife is negligible, which is a factor the judge may consider when deciding a motion for modification.
The husband's income. Finally, the wife argues that the judge erred in not properly considering all sources of the husband's income. "A judge has broad discretion when awarding alimony," and an award of alimony "will not be disturbed on appeal unless plainly wrong and excessive." Zaleski v. Zaleski, 469 Mass. 230, 235-236 (2014). Here the judge found that there were no additional deposits to the husband's accounts, and that there was no manipulation of his income by his family's businesses. The judge's findings were not clearly erroneous. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 210-211 (1992).
As for the judge's refusal to allow the wife's treating physician to opine as to her employability, we discern no abuse of discretion. See Letch v. Daniels, 401 Mass. 65, 68 (1987); Mass. G. Evid. § 702 (2014). The wife apparently had at her disposal a vocational expert who could have opined on the issue, but she did not call him as a witness.
"Supplemental Judgment to Amended Bifurcated Judgment of Divorce Nisi dated April 17, 2012 nunc pro tunc as of March 6, 2012," dated October 29, 2012, affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 1, 2015.