Opinion
No. 15–P–119.
06-24-2016
John J. GALLAGHER, Third v. Elizabeth M. GALLAGHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The former husband, John J. Gallagher, Third (husband), appeals from a modification judgment of the Probate and Family Court in which his weekly alimony payment to his former wife, Elizabeth M. Gallagher (wife), was reduced from $800 to $750. On appeal, the husband asserts that the amount of alimony should have been further reduced or eliminated. He specifically contends that the modification judge failed to (1) attribute income to the wife, and (2) account for the fluctuation in his yearly income when calculating his reduced alimony obligation. We affirm.
Background. The parties were divorced in September, 2006, after a marriage of more than twenty years. At the time of the judgment of divorce nisi, the judge (divorce judge) awarded the wife weekly alimony in the amount of $800, which would “terminate upon the Wife's remarriage or upon the death of either party.” On October 7, 2010, the husband filed a complaint for modification seeking a reduction in, or the elimination of, his alimony obligation. As grounds for the modification, he alleged that his business had “closed” and, as a result, he did not have an income source from which to pay alimony to the wife. After a two-day trial, a modification judgment was entered on April 25, 2014. The judge (modification judge) found that the husband's gross income had decreased from $176,000 to $124,696 per year, and that this constituted a material change in circumstances. Factoring the husband's yearly income of $124,696 and the length of the marriage, the modification judge concluded that “an appropriate alimony payment [under the guidelines] would be between $719 and $839 per week.” She reduced the husband's alimony obligation accordingly, and ordered the entry of a new alimony order of $750 per week. The husband's appeal followed.
In September, 2010, the wife filed a complaint for contempt alleging that the husband failed to pay alimony and refused to transfer an automobile to the wife's possession. The wife's complaint for contempt was heard along with the husband's modification complaint at the April, 2013, trial. On appeal, the husband does not challenge the portion of the judgment that ordered him to pay the wife outstanding alimony arrearages.
Discussion. A probate judge “enjoys considerable discretion in fashioning an appropriate modification judgment, and ... the judgment may not be reversed in the absence of an abuse of discretion.” Pierce v. Pierce, 455 Mass. 286, 293 (2009). An abuse of discretion lies if the “findings of fact were not supported by the record or [the] conclusions failed to reflect consideration of applicable legal principles.” Greenberg v. Greenberg, 68 Mass.App.Ct. 344, 348 (2007).
1. Failure to attribute income. In awarding alimony in 2006, the divorce judge attributed $30,000 in annual income to the wife. The husband asserts, without citation to legal authority, that the modification judge should have attributed “an equivalent level” of income to the wife in modifying the alimony order. We disagree.
In modifying an alimony order, “the judge must weigh all the statutory factors in light of the facts of the particular case,” as “they relate to both parties, not simply the party seeking a reduction in the alimony judgment.” Pierce, supra at 295–296, 298 n. 11. “The issue of attributing income most commonly arises when a judge determines that a support provider is voluntarily earning less than he or she is capable of.” Kelley v. Kelley, 64 Mass.App.Ct. 733, 741 (2005). “Less frequently,” a judge will attribute “income to a support recipient when considering a complaint for modification.” Ibid. Moreover, caution has been expressed “against relying unduly on the income-earning potential of a wife ... who has been out of the regular job market for decades.” Id. at 741–742, quoting from Frederick v. Frederick, 29 Mass.App.Ct. 329, 334 (1990).
Here, the judge found that the wife “was trained and had worked as a teacher” but that she “remained unemployed” at the time of trial. The judge also explicitly found that the husband's alimony payments were the wife's sole source of income. These findings are fully supported by the wife's trial testimony, and we see no error.
Specifically, the wife testified that she suffers from several medical conditions and considers herself disabled, that she last was employed in 1987, and that she has exhausted her distribution from the marital property division.
The husband speculates that the wife could potentially receive Social Security Disability Insurance benefits, however, there was no evidence that she has applied for or attained these benefits. The judge properly limited her analysis to “the current financial situation of the parties.” Griffith v. Griffith, 24 Mass.App.Ct. 943, 945 (1987). As such, we perceive no error in the judge's failure to attribute to the wife an income or an earning potential at this time. See Downey v. Downey, 55 Mass.App.Ct. 812, 818–819 (2002).
2. Income calculation. The husband also asserts that because his income as a self-employed homebuilder fluctuates from year to year, the judge erred in using a fixed yearly income to compute his new alimony obligation. See G.L. c. 208, § 53(b ). He asserts the judge's order is based on an inflated income calculation. We disagree.
Each party was obligated to provide to the judge an accurate financial statement. See, e.g., Maillet v. Maillet, 64 Mass.App.Ct. 683, 689 n. 11 (2005). The judge relied on the husband's financial statement to calculate his yearly income, and to rule on his complaint for modification. Based on the financial statements of the parties, the judge awarded the husband part of what he had requested, i.e., a reduction in his alimony obligation to the wife. We see no abuse in discretion.
Judgment dated April 25, 2014, affirmed.